In some of the states, it is the practice for the court to
express its opinion upon facts in a charge to the jury. In these
states, it is not improper for the circuit court of the United
States to follow the same practice.
During the war between the United States and Mexico, where a
trader went into the adjoining Mexican provinces which were in
possession of the military authorities of the United States for the
purpose of carrying on a trade with the inhabitants which was
sanctioned by the executive branch of the government and also by
the commanding military officer, it was improper for an officer of
the United States to seize the property upon the ground of trading
with the enemy.
Private property may be taken by a military commander to prevent
it from falling into the hands of the enemy or for the purpose of
converting it to the use of the public, but the danger must be
immediate and impending, or the necessity urgent for the public
service, such as will not admit of delay and where the action of
the civil authority would be too late in providing the means which
the occasion calls for.
The facts as they appeared to the officer must furnish the rule
for the application of these principles.
But the officer cannot take possession of private property for
the purpose of insuring the success of a distant expedition upon
which he is about to march.
Whether or not the owner of the goods resumed the possession of
them at any time after their seizure was a fact for the jury. In
this case, they found that he did not resume the possession, and in
this they were sustained by legal evidence.
The officer who made the seizure cannot justify his trespass by
showing the orders of his superior officer. An order to commit a
trespass can afford no justification to the person by whom it was
executed.
The trespass was committed out of the limits of the United
States. But an action for it may be maintained in the circuit court
for any district in which the defendant may be found upon process
against him where the citizenship of the respective parties gives
jurisdiction to a court of the United States.
Page 54 U. S. 116
Under the 18th rule of this Court, the mode of calculating
interest when a judgment of the circuit court is affirmed is to
compute it at the rate of six percent per annum from the day when
judgment was signed in the circuit court until paid. (
See
report of the clerk and order of court at the end of this
case.)
Mitchell was an officer of the army, and was sued in an action
of trespass by Harmony for seizing his property in the Mexican
State of Chihuahua.
By an Act passed on 3 March, 1845, 5 Stat. 750, Congress allowed
a drawback on foreign merchandise exported in the original packages
to Chihuahua and Santa Fe, in Mexico. Harmony was a trader engaged
in this business, and on 27 May, 1846, had transported to
Independence, in Missouri, a large amount of goods imported under
this law, and in conformity with the regulations of the Treasury
Department. On 27 May, he left Independence with several other
traders before the passage of the Act of Congress of 13 May
recognizing the existence of war with Mexico was known there.
The whole history of Colonel Doniphan's expedition was given in
the record, being collected from official documents and the
depositions of persons who were present. A brief narrative is given
in the opinion of the Court of all the facts which bore upon the
present case.
The declaration was in the usual form, and contained three
counts, all of them charging the same trespass -- namely, that the
defendant, on 10 February, 1847, at Chihuahua, in the Republic of
Mexico, seized, took, drove, and carried away and converted to his
own use the horses, mules, wagons, goods, chattels, and
merchandise, &c. of the plaintiff and compelled the workmen and
servants of the plaintiff having charge to abandon his service and
devote themselves to the defendant's service. The property so
alleged to have been taken is averred to be of the value of
$90,000, and the damages $100,000.
Besides the general plea of not guilty to the whole action, the
defendant, Mitchell, pleaded several special pleas.
1st. That war existed at the time between the United States and
Mexico; that he was a lieutenant-colonel, &c., forming a part
of the military force of the United States, employed in that war
and under the command of Colonel A. W. Doniphan, and he justifies
the taking, &c., under and in virtue of the order to that
effect of his superior and commanding officer, Colonel Doniphan;
that the order was a lawful one which he was bound to obey, and
that he was no otherwise instrumental in the alleged trespass.
Page 54 U. S. 117
2d. Alleging the same preliminary matter, avers that the
plaintiff, Harmony, was a citizen of the United States, and, with a
full knowledge of the war, had gone with his wagons, merchandise,
&c., into Mexico with design to trade with the people of Mexico
and to afford aid to the same in said war; that said Doniphan, as
he had a right to do, commanded the defendant to seize, take,
&c., the said wagons, &c., and that he did, in obedience to
said order take, &c., doing nothing more than was necessary to
the execution of that order.
3d. With the same preliminary matter as in the second plea,
justifies the taking by his own (Colonel Mitchell's) authority as
an officer.
The three special pleas above stated are to the first count of
the declaration.
To the second count the defendant pleaded of like effect with
the above, and three like pleas were plead to the third count.
To the three first and three last pleas -- that is, the pleas to
the first and third counts -- issues were joined to the
country.
To the special pleas to the second count the plaintiff replied
as follows, to-wit, to the first that the said Doniphan did not
command the said horses, wagons, &c., to be stopped, taken,
&c., nor were the same taken in contemplation of any proceeding
in due course of law for any alleged forfeiture thereof, but to
apply the same to the use of the United States without compensation
to the plaintiff, of which the defendant had notice.
To the second, that the plaintiff did not carry his goods,
&c., out of the United States for any purpose of trading with
the enemy or elsewhere than in places subdued by the arms of the
United States and by license and permission, and that said Doniphan
did not command the defendant to take the same for or on account of
any supposed unlawful design of the plaintiff to trade with the
enemy, &c., but to apply the same to the use of the United
States without compensation to the plaintiff.
To the third, that he did not, after notice of the war, carry
his goods into Mexico, "except to and into such place and places as
had been and was or were captured, subdued, and held in subjection
by the forces of the United States," &c., and by the permission
of the commanding officer of said forces, nor with design to carry
on any friendly intercourse or trade with the citizens of Mexico
hostile to the United States, and that the defendant did not, in
the performance of his duty as lieutenant-colonel, seize, take,
&c., said property, by reason of any supposed unlawful design
of the plaintiff to trade with the enemy, &c., but the same was
taken by the defendant of his own wrong, &c.
Page 54 U. S. 118
On all these pleas and replications, issues were joined to the
country.
When the testimony was closed, the judge charged the jury. The
whole of the charge is set forth in the dissenting opinion of MR.
JUSTICE DANIEL, and therefore need not be recited here. The bill of
exceptions brought the whole charge up to this Court. The jury
found a verdict for the plaintiff for $90,806.44, for which and the
costs, amounting to $5,048.94, the court gave judgment for
Harmony.
Page 54 U. S. 128
MR. CHIEF JUSTICE TANEY delivered the opinion of the court.
This is an action of trespass brought by the defendant in error
against the plaintiff in error to recover the value of certain
property taken by him in the province of Chihuahua during the late
war with Mexico.
It appears that the plaintiff, who is a merchant of New York and
who was born in Spain but is a naturalized citizen of the United
States, had planned a trading expedition to Santa Fe, New Mexico,
and Chihuahua, in the Republic of Mexico, before hostilities
commenced, and had set out from Fort Independence, in Missouri,
before he had any knowledge of the declaration of war. As soon as
the war commenced, an expedition was
Page 54 U. S. 129
prepared under the command of General Kearney to invade New
Mexico, and a detachment of troops was set forward to stop the
plaintiff and other traders until General Kearney came up, and to
prevent them from proceeding in advance of the army.
The trading expedition in which the plaintiff and the other
traders were engaged was, at the time they set out, authorized by
the laws of the United States. And when General Kearney arrived,
they were permitted to follow in the rear and to trade freely in
all such places as might be subdued and occupied by the American
arms. The plaintiff and other traders availed themselves of this
permission and followed the army to Santa Fe.
Subsequently General Kearney proceeded to California, and the
command in New Mexico devolved on Colonel Doniphan, who was joined
by Colonel Mitchell, who served under him and against whom this
action was brought.
It is unnecessary to follow the movements of the troops or the
traders particularly, because up to the period at which the
trespass is alleged to have been committed at San Elisa Rio, in the
Province of Chihuahua, it is conceded that no control was exercised
over the property of the plaintiff that was not perfectly
justifiable in a state of war, and no act done by him that had
subjected it to seizure or confiscation by the military
authorities.
When Colonel Doniphan commenced his march for Chihuahua, the
plaintiff and the other traders continued to follow in the rear and
trade with the inhabitants as opportunity offered. But after they
had entered that province and were about to proceed in an
expedition against the city of that name, distant about 300 miles,
the plaintiff determined to proceed no further and to leave the
army. And when this determination was made known to the commander
at San Elisario, he gave orders to Colonel Mitchell, the defendant,
to compel him to remain with and accompany the troops. Colonel
Mitchell executed the order, and the plaintiff was forced, against
his will, to accompany the American forces with his wagons, mules
and goods in that hazardous expedition.
Shortly before the battle of Sacramento, which was fought on the
march to the Town of Chihuahua, Colonel Doniphan, at the request of
the plaintiff, gave him permission to leave the army and go to the
hacienda of a Mexican by the name of Parns, about eight miles
distant, with his property. But the plaintiff did not avail himself
of this permission, and apprehended upon more reflection that his
property would be in more danger there than with the army, and that
a voluntary acceptance on his part and
Page 54 U. S. 130
resuming the possession at his own risk would deprive him of any
remedy for its loss if it should be taken by the Mexican
authorities. He remained, therefore, with the troops until they
entered the town. His wagons and mules were used in the public
service in the battle of Sacramento and on the march afterwards.
And while the town remained in possession of the American forces,
he endeavored, but without success, to dispose of his goods. When
the place was evacuated, they were therefore unavoidably left
behind, as nearly all of his mules had been lost in the march and
the battle. He himself accompanied the army, fearing that his
person would not be safe if he remained behind, as he was
particularly obnoxious, it seems, to the Mexicans because he was a
native of Spain and came with a hostile invading army.
When the Mexican authorities regained possession of the place,
the goods of the plaintiff were seized and confiscated, and were
totally lost to him. And this action was brought against Colonel
Mitchell, the defendant, in the court below to recover the damages
which the plaintiff alleged he had sustained by the arrest and
seizure of his property at San Elisario and taking it from his
control and legal possession.
This brief outline is sufficient to show how this case has
arisen. The expedition of Colonel Doniphan, and all its incidents,
are already historically known, and need not be repeated here.
At the trial in the circuit court, the verdict and judgment were
in favor of the plaintiff, and this writ of error has been brought
upon the ground that the instructions to the jury by the circuit
court under which the verdict was found were erroneous.
Some of the objections taken in the argument here on behalf of
the defendant have arisen from a misconception of the instructions
given to the jury. It is supposed that these directions embraced
questions of fact as well as of law, and that the court took upon
itself the decision of questions arising on the testimony, which it
was the exclusive province of the jury to determine. But this is an
erroneous construction of the exception taken at the trial. The
passages in relation to questions of fact are nothing more than the
inferences which in the opinion of the court were fairly deducible
from the testimony, and were stated to the jury not to control
their decision, but submitted for their consideration in order to
assist them in forming their judgment. This mode of charging the
jury has always prevailed in the State of New York, and has been
followed in the circuit court ever since the adoption of the
constitution.
The practice in this respect differs in different states. In
some of them the court neither sums up the evidence in a charge to
the jury nor expresses an opinion upon a question of fact. Its
Page 54 U. S. 131
charge is strictly confined to questions of law, leaving the
evidence to be discussed by counsel and the facts to be decided by
the jury without commentary or opinion by the court.
But in most of the states, the practice is otherwise, and they
have adopted the usages of the English courts of justice, where the
judge always sums up the evidence and points out the conclusions
which in his opinion ought to be drawn from it, submitting them,
however, to the consideration and judgment of the jury.
It is not necessary to inquire which of these modes of
proceeding most conduces to the purposes of justice. It is
sufficient to say that either of them may be adopted under the laws
of Congress. And as it is desirable that the practice in the courts
of the United States should conform as nearly as practicable to
that of the state in which they are sitting, that mode of
proceeding is perhaps to be preferred which, from long established
usage and practice, has become the law of the courts of the state.
The right of a court of the United States to express its opinion
upon the facts in a charge to the jury was affirmed by this Court
in the case of
M'Lanahan v. Universal
Insurance Co., 1 Pet. 182, and
Games v.
Stiles, 14 Pet. 322. Nor can it be objected to upon
the ground that the reasoning and opinion of the court upon the
evidence may have an undue and improper influence on the minds and
judgment of the jury. For an objection of that kind questions their
intelligence and independence, qualities which cannot be brought
into doubt without taking from that tribunal the confidence and
respect which so justly belong to it in questions of fact.
It was in pursuance of this practice that the proceedings set
forth in the exceptions took place. When the testimony was closed
and the questions of law had been raised and argued by counsel, the
court stated to them the view it proposed to take of the evidence
in the charge about to be given. And it is evident from the
statement in the exception that this was done for the purpose of
giving the counsel for the respective parties an opportunity of
going before the jury to combat the inferences drawn from the
testimony by the court if they supposed them to be erroneous or
open to doubt.
It appears from the record that the counsel on both sides
declined going before the jury, evidently acquiescing in the
opinions expressed by the court and believing that they could not
be successfully disputed. And the judge thereupon charged the jury
that if they agreed with him in his view of the facts, that they
would find for the plaintiff -- otherwise for the defendant -- and
upon this charge the jury found for the plaintiff and assessed the
damages stated in the proceedings. It is manifest, therefore,
that
Page 54 U. S. 132
the circuit court did not in its instructions trench upon the
province of the jury and that the jury could not have been misled
as to the nature and extent of their own duties and powers. The
decision of the facts was fully and plainly submitted to them. And
their verdict for the plaintiff upon the charge given to them
affirms the correctness of the views taken by the court, and the
opinions upon the evidence as therein stated must now be regarded
as facts found by the jury, and as such are not open to controversy
in this Court.
This statement of the manner in which the case was disposed of
in the circuit court was necessary to disengage it from objections
which do not belong to it and to show what questions were decided
by the court below, and are brought up by this writ of error. We
proceed to examine them.
It is admitted that the plaintiff, against his will, was
compelled by the defendant to accompany the troops with the
property in question when they marched from San Elisario to
Chihuahua, and that he was informed that force would be used if he
refused. This was unquestionably a taking of the property by force
from the possession and control of the plaintiff, and a trespass on
the part of the defendant unless he can show legal grounds of
justification.
He justified the seizure on several grounds.
1. That the plaintiff was engaged in trading with the enemy.
2. That he was compelled to remain with the American forces, and
to move with them to prevent the property from falling into the
hands of the enemy.
3. That the property was taken for public use.
4. That if the defendant was liable for the original taking, he
was released from damages for its subsequent loss by the act of the
plaintiff, who had resumed the possession and control of it before
the loss happened.
5. That the defendant acted in obedience to the order of his
commanding officer, and therefore is not liable.
The first objection was overruled by the court, and we think
correctly.
There is no dispute about the facts which relate to this part of
the case, nor any contradiction in the testimony. The plaintiff
entered the hostile country openly for the purpose of trading, in
company with other traders, and under the protection of the
American flag. The inhabitants with whom he traded had submitted to
the American arms, and the country was in possession of the
military authorities of the United States. The trade in which he
was engaged was not only sanctioned by the commander of the
American troops, but, as appears by the record, was permitted by
the Executive Department of the government,
Page 54 U. S. 133
whose policy it was to conciliate, by kindness and commercial
intercourse, the Mexican provinces bordering on the United States,
and by that means weaken the power of the hostile government of
Mexico, with which we were at war. It was one of the means resorted
to to bring the war to a successful conclusion.
It is certainly true as a general rule that no citizen can
lawfully trade with a public enemy, and if found to be engaged in
such illicit traffic, his goods are liable to seizure and
confiscation. But the rule has no application to a case of this
kind, nor can an officer of the United States seize the property of
an American citizen for an act which the constituted authorities,
acting within the scope of their lawful powers, have authorized to
be done.
Indeed, this ground of justification has not been pressed in the
argument. The defense has been placed rather on rumors which
reached the commanding officer and suspicions which he appears to
have entertained of a secret design in the plaintiff to leave the
American forces and carry on an illicit trade with the enemy
injurious to the interests of the United States. And if such a
design had been shown, and that he was preparing to leave the
American troops for that purpose, the seizure and detention of his
property, to prevent its execution would have been fully justified.
But there is no evidence in the record tending to show that these
rumors and suspicions had any foundation. And certainly mere
suspicions of an illegal intention will not authorize a military
officer to seize and detain the property of an American citizen.
The fact that such an intention existed must be shown, and of that
there is no evidence.
The 2d and 3d objections will be considered together, as they
depend on the same principles. Upon these two grounds of defense
the circuit court instructed the jury that the defendant might
lawfully take possession of the goods of the plaintiff to prevent
them from falling into the hands of the public enemy, but in order
to justify the seizure, the danger must be immediate and impending,
and not remote or contingent. And that he might also take them for
public use and impress them into the public service in case of an
immediate and pressing danger or urgent necessity existing at the
time, but not otherwise.
In the argument of these two points, the circumstances under
which the goods of the plaintiff were taken have been much
discussed, and the evidence examined for the purpose of showing the
nature and character of the danger which actually existed at the
time or was apprehended by the commander of the American forces.
But this question is not before us. It is a question of fact upon
which the jury have passed, and their verdict has decided that a
danger or necessity such as the court described
Page 54 U. S. 134
did not exist when the property of the plaintiff was taken by
the defendant. And the only subject for inquiry in this Court is
whether the law was correctly stated in the instruction of the
court and whether any thing short of an immediate and impending
danger from the public enemy or an urgent necessity for the public
service can justify the taking of private property by a military
commander to prevent it from falling into the hands of the enemy or
for the purpose of converting it to the use of the public.
The instruction is objected on the ground that it restricts the
power of the officer within narrower limits than the law will
justify. And that when the troops are employed in an expedition
into the enemy's country, where the dangers that meet them cannot
always be foreseen and where they are cut off from aid from their
own government, the commanding officer must necessarily be
entrusted with some discretionary power as to the measures he
should adopt, and if he acts honestly and to the best of his
judgment the law will protect him. But it must be remembered that
the question here is not as to the discretion he may exercise in
his military operations or in relation to those who are under his
command. His distance from home and the duties in which he is
engaged cannot enlarge his power over the property of a citizen,
nor give to him in that respect any authority which he would not
under similar circumstances possess at home. And where the owner
has done nothing to forfeit his rights, every public officer is
bound to respect them, whether he finds the property in a foreign
or hostile country or in his own.
There are, without doubt, occasions in which private property
may lawfully be taken possession of or destroyed to prevent it from
falling into the hands of the public enemy, and also where a
military officer charged with a particular duty may impress private
property into the public service or take it for public use.
Unquestionably in such cases the government is bound to make full
compensation to the owner, but the officer is not a trespasser.
But we are clearly of opinion that in all of these cases the
danger must be immediate and impending, or the necessity urgent for
the public service such as will not admit of delay and where the
action of the civil authority would be too late in providing the
means which the occasion calls for. It is impossible to define the
particular circumstances of danger or necessity in which this power
may be lawfully exercised. Every case must depend on its own
circumstances. It is the emergency that gives the right, and the
emergency must be shown to exist before the taking can be
justified.
Page 54 U. S. 135
In deciding upon this necessity, however, the state of the facts
as they appeared to the officer at the time he acted must govern
the decision, for he must necessarily act upon the information of
others as well as his own observation. And if, with such
information as he had a right to rely upon, there is reasonable
ground for believing that the peril is immediate and menacing or
the necessity urgent, he is justified in acting upon it, and the
discovery afterwards that it was false or erroneous will not make
him a trespasser. But it is not sufficient to show that he
exercised an honest judgment and took the property to promote the
public service; he must show by proof the nature and character of
the emergency, such as he had reasonable grounds to believe it to
be, and it is then for a jury to say whether it was so pressing as
not to admit of delay and the occasion such, according to the
information upon which he acted, that private rights must for the
time give way to the common and public good.
But it is not alleged that Colonel Doniphan was deceived by
false intelligence as to the movements or strength of the enemy at
the time the property was taken. His camp at San Elisario was not
threatened. He was well informed upon the state of affairs in his
rear as well as of the dangers before him. And the property was
seized not to defend his position, nor to place his troops in a
safer one, nor to anticipate the attack of an approaching enemy,
but to ensure the success of a distant and hazardous expedition
upon which he was about to march.
The movement upon Chihuahua was undoubtedly undertaken from high
and patriotic motives. It was boldly planned and gallantly
executed, and contributed to the successful issue of the war. But
it is not for the court to say what protection or indemnity is due
from the public to an officer who, in his zeal for the honor and
interest of his country and in the excitement of military
operations, has trespassed on private rights. That question belongs
to the political department of the government. Our duty is to
determine under what circumstances private property may be taken
from the owner by a military officer in a time of war. And the
question here is whether the law permits it to be taken to ensure
the success of any enterprise against a public enemy which the
commanding officer may deem it advisable to undertake. And we think
it very clear that the law does not permit it.
The case mentioned by Lord Mansfield in delivering his opinion
in
Mostyn v. Fabrigas, 1 Cowp. 180, illustrates the
principle of which we are speaking. Captain Gambier, of the British
navy, by the order of Admiral Boscawen, pulled down the houses of
some sutlers on the coast of Nova Scotia who
Page 54 U. S. 136
were supplying the sailors with spirituous liquors, the health
of the sailors being injured by frequenting them. The motive was
evidently a laudable one, and the act done for the public service.
Yet it was an invasion of the rights of private property and
without the authority of law, and the officer who executed the
order was held liable to an action, and the sutlers recovered
damages against him to the value of the property destroyed.
This case shows how carefully the rights of private property are
guarded by the laws in England, and they are certainly not less
valued nor less securely guarded under the Constitution and laws of
the United States.
We think, therefore, that the instructions of the circuit court
on the 2d and 3d points were right.
The 4th ground of objection is equally untenable. The liability
of the defendant attached the moment the goods were seized, and the
jury have found that the plaintiff did not afterwards resume the
ownership and possession.
Indeed, we do not see any evidence in the record from which the
jury could have found otherwise. From the moment they were taken
possession of at San Elisario, they were under the control of
Colonel Doniphan, and held subject to his order. They were no
longer in the possession or control of the plaintiff, and the loss
which happened was the immediate and necessary consequence of the
coercion which compelled him to accompany the troops.
It is true the plaintiff remained with his goods and took care
of them, as far as he could, during the march. But whatever he did
in that respect was by the orders or permission of the military
authorities. He had no independent control over them.
Neither can his efforts to save them from loss after they
arrived at the town of Chihuahua, by sale or otherwise, be
construed into a resumption of possession so as to discharge the
defendant from liability. He had been brought there with the
property against his will, and his goods were subjected to the
danger in which they were placed by the act of the defendant. And
the defendant cannot discharge himself from the immediate and
necessary consequences of his wrongful act by abandoning all care
and control of the property after it reached Chihuahua and leaving
the plaintiff to his own efforts to save it. He could not discharge
himself without restoring the possession in a place of safety or in
a place where the plaintiff was willing to accept it. And the
plaintiff constantly refused to take the risk upon himself, after
they arrived at Chihuahua as well as on the march, and warned
Colonel Doniphan that he would not.
Neither can the permission given to the plaintiff to leave the
troops and go to the hacienda of Parns affect his rights. He
Page 54 U. S. 137
was then in the midst of the enemy's country, and to leave the
American forces at that point might have subjected his person and
property to greater dangers than he incurred by remaining with
them. The plaintiff was not bound to take upon himself any of the
perils which were the immediate consequences of the original wrong
committed by the defendant in seizing his property and compelling
him to proceed with it and accompany the troops.
The 5th point may be disposed of in a few words. If the power
exercised by Colonel Doniphan had been within the limits of a
discretion confided to him by law, his order would have justified
the defendant even if the commander had abused his power or acted
from improper motives. But we have already said that the law did
not confide to him a discretionary power over private property.
Urgent necessity would alone give him the right, and the verdict
finds that this necessity did not exist. Consequently the order
given was an order to do an illegal act -- to commit a trespass
upon the property of another -- and can afford no justification to
the person by whom it was executed. The case of Captain Gambier, to
which we have just referred, is directly in point upon this
question. And upon principle, independent of the weight of judicial
decision, it can never be maintained that a military officer can
justify himself for doing an unlawful act by producing the order of
his superior. The order may palliate, but it cannot justify.
But in this case the defendant does not stand in the situation
of an officer who merely obeys the command of his superior. For it
appears that he advised the order, and volunteered to execute it,
when, according to military usage, that duty more properly belonged
to an officer of inferior grade.
We do not understand that any objection is taken to the
jurisdiction of the circuit court over the matters in controversy.
The trespass, it is true, was committed out of the limits of the
United States. But an action might have been maintained for it in
the circuit court for any district in which the defendant might be
found, upon process against him, where the citizenship of the
respective parties gave jurisdiction to a court of the United
States. The subject was before this Court in the case of
McKenna v.
Fisk, 1 How. 241, where the decisions upon the
question are referred to and the jurisdiction in cases of this
description maintained.
Upon the whole, therefore, it is the opinion of this Court that
there is no error in the instructions given by the circuit court,
and that the judgment must be
Affirmed with costs.
Page 54 U. S. 138
MR. JUSTICE DANIEL dissented.
In this case, I find myself constrained to disagree with the
opinion of the Court just pronounced. This disagreement is not so
much the result of any view taken by me of the testimony in this
case in conflict with that adopted by my brethren, for with respect
to the character of the testimony, were that the subject regularly
before us, there perhaps would exist little or no difference of
opinion. With some modifications, perhaps unimportant, I might have
agreed also to the legal propositions laid down by the Court so far
as I have been able to extract them from the charge of the judge.
My disagreement with the majority relates do a great principle
lying at the foundation of all legal inquiries into matters of fact
-- lying indeed at the foundation of civil society itself -- the
preservation, in its fullest scope and integrity, unaffected and
even unapproached by improper influences, direct or indirect, of
the venerable, the sacred, the unappreciable trial by jury. In the
remark just made or in any criticism which may be attempted as to
the charge of the judge at circuit in this case, I would have it
understood that there is no officer to whose learning or to whose
integrity of purpose I would with greater confidence entrust either
the rights of the citizen or the exposition of the law than I would
to the judge whose opinion is before us; but in this instance it
seems to me that in accordance with a practice which, although it
has obtained in some of the courts, is regarded as irregular and
mischievous, he has stepped beyond the true limits of the judicial
province. Duty demands of me, therefore, however ineffectual the
effort, that I should oppose my feeble resistance to the
aggression.
I object to the charge of the judge in this case, as I would to
every similar charge of a court presiding over a jury trial at
common law, because it is not confined to a statement of the points
of law raised by the pleadings and to the competency or relevancy
of the testimony offered by either party in reference to those
points, but extends to the weight and efficiency of the evidence,
all admissible and in fact admitted, and declares to the jury
minutely and emphatically what that testimony does or does not
prove. And now let us examine the language of the charge. It is as
follows:
"One ground on which the defense is placed is that the plaintiff
was engaged in an unlawful trade with the public enemy and that,
being engaged in an unlawful trade, his goods were liable to
confiscation, and any person, particularly an officer of the army,
could seize the same."
This ground, as I understand the evidence, has altogether
failed. He was not only not so engaged, but was engaged in
trading
Page 54 U. S. 139
with that portion of the territory reduced to subjection by our
arms and where his trading with the inhabitants was permitted and
encouraged. The army was directed to hold out encouragement to the
traders. There is no foundation, therefore, for this branch of the
defense. Another ground taken by the defendant and relied upon
depends upon another principle of public law,
viz., the
taking possession of the goods at a time and place when it was
necessary for the purpose of preventing them from falling into the
hands of the enemy. This has been urged as particularly applicable
to the plaintiff's goods, some of which consisted of articles which
might be used as munitions of war, wagons for transportation,
&c.
Taking the whole of the evidence together and giving full effect
to every part of it, we think this branch of the defense has also
failed.
No case of peril or danger has been proved which would lay a
foundation for taking possession of the goods of the plaintiff at
San Elisario on that ground, either as it respects the state of the
country or the force of the public enemy. On the contrary, it was
in the possession of the arms of this government. There was no
enemy, no public force at the time in the neighborhood, which put
the goods in the danger of being captured. The plaintiff's goods
therefore stood in the same condition as the goods of any other
trader in the country. The testimony does not make out a case of
seizure of property justified by the peril of its falling into the
enemy's hands. The peril must be immediate and urgent, not
contingent or remote; otherwise every citizen's property,
particularly on the frontiers, would be liable to be seized or
destroyed, as it must always be more or less exposed to capture by
the public enemy. The principle itself, if properly applied, of the
right to take property to prevent it from falling into the hands of
the enemy is undisputed. But in this case, there was no immediate
or impending danger -- no enemy advancing to put the goods in
peril. They were more exposed to marauding parties than to any
public force, the danger from which he plaintiff considered himself
able to take care of. The next ground of defense, and which
constitutes the principal question in the case and upon which it
must probably ultimately turn, is the taking of the goods by the
public authorities for public use. I admit the principle of public
law, but this rests likewise upon the law of necessity. I have no
doubt of the right of a military officer, in a case of extreme
necessity, for the safety of the government or of the army, to take
private property for the public service.
An army upon its march, in danger from the public enemy, would
have a right to seize the property of the citizen and use
Page 54 U. S. 140
it to fortify itself against assault while the danger existed
and was impending, and the officer ordering the seizure would not
be liable as a trespasser; the owner must look to the Government
for indemnity. The safety of the country is paramount, and the
rights of the individual must yield in case of extreme necessity.
No doubt, upon the testimony, if the enemy had been in force in the
neighborhood of the United States troops, with the disparity which
existed at Sacramento, and the same danger for the safety of the
troops existed at San Elisario that threatened them there, the
commanding officer might, for the safety of this army, seize and
use, while the danger continued, the wagons and teams of the
plaintiff that could be immediately brought into the service, to
meet and overcome the impending danger. An immediate, existing, and
overwhelming necessity would justify the seizure of the safety of
the army.
Looking, however, at the testimony, it seems to me quite clear
that these goods were seized not on account of any impending danger
at the time or for the purpose of being used against an immediate
assault of the enemy by which the command might be endangered, but
that they were seized and taken into the public service for the
purpose of cooperating with the army in their expedition into the
enemy's country, to Chihuahua. The mules, wagons, and goods were
taken into the public service for the purpose of strengthening the
army and aiding in the accomplishment of the ulterior object of the
expedition, which was the taking of Chihuahua; it was not to repel
a threatened assault or to protect the army from an impending
peril; in my judgment, all the evidence taken together does not
make out an immediate peril or urgent necessity existing at the
time of seizure which would justify the officer in taking private
property and impressing it into the public service; the evidence
does not bring the case within the principle of extreme necessity;
it does not make out such a case, or one coming within the
principle; there is not only no evidence of an impending peril to
be resisted by the public force, but the goods were taken for a
different purpose,
viz., for the purpose of cooperating
with the army against Chihuahua; the army had to march over two
hundred miles before it reached or found the enemy; the danger, if
any, lay in the pursuit, not in remaining at San Elisario or
returning to Santa Fe; there had been a sudden insurrection against
the authority of the government in that neighborhood, but it was
immediately suppressed.
As to the remaining grounds of defense, the liability of the
defendant for taking the goods and appropriating them to the public
service accrued at the time of the seizure; if it was an unlawful
taking, the liability immediately attached, and the
Page 54 U. S. 141
question was whether that liability had been discharged or
released by any subsequent act of the plaintiff; Colonel Mitchell,
who executed the order, was not alone responsible, Colonel
Doniphan, who gave the order, was also liable; they were jointly
and severally responsible; then was any act done by the plaintiff
which waived the liability or by which he resumed the ownership and
possession of the goods? Certainly the abandonment of the goods to
Colonel Doniphan cannot be regarded as an act of resumption of
ownership; on the contrary, it was consistent with the assertion of
his liability; there had been a negotiation between them; Colonel
Doniphan advised him to sell the goods at Chihuahua and look to the
government for indemnity, and, in pursuance of this, measures were
taken for their protection and safekeeping. I doubt if there be any
evidence showing an intent on the part of the plaintiff to resume
ownership over the goods as his private property after they had
been seized by the army, or any act done by him that would, when
properly viewed, lead to that result.
The bill of exceptions concludes as follows:
"After the judge expressed his views of the case as above
stated, the counsel on both sides declined going to the jury."
"The presiding judge accordingly charged the jury that the law
was as had been stated by him, and that if they agreed with him in
his view of the facts, that they would find for the plaintiff,
otherwise for the defendant."
"The counsel for the defendant did then and there except to each
of the four propositions mentioned in the charge above stated."
"The jury, without leaving their seats, returned a verdict for
the plaintiff for $90,806.44."
"And because none of the said exceptions, so offered and made to
the opinions and decisions of the said associate justice, do appear
upon the record of the said trial; therefore, on the prayer of the
said defendant, by his said counsel, the said associate justice
hath to the bill of exceptions set his seal, April term, one
thousand eight hundred and fifty."
"S. NELSON [SEAL]"
The record above cited informs us that after the judge had
expressed his views of the case as above stated, the counsel on
both sides declined going to the jury. And surely, after such an
expression, no other result could well have been anticipated. In
the first place, the counsel for the plaintiff could not have made
to the jury so authoritative an argument in behalf of his client;
and in the next place the counsel for the defendant must have been
a rash man could he have attempted to throw his individual weight
(whatever might have been his ability) in opposition to this
authoritative declaration and influence of the court. Nay,
Page 54 U. S. 142
it may be insisted that if the court, in passing upon the weight
of the evidence, was acting within its legitimate sphere, the
counsel would have been justly obnoxious to the imputation of
indecorum, if not of contempt, in assailing before the jury the
judge's decision, for the respective provinces of the court, the
counsel, and the jury are separate, distinct, and well defined, and
neither should be subject to invasion by the other.
But after the counsel had been thus silenced and the weight of
the evidence fully and minutely pronounced upon by the court, it is
insisted that the alleged irregularity was entirely cured by a
declaration from the court to the jury "that if they agreed with
him in his view of the facts, they should find for the plaintiff;
otherwise they might find for the defendant." But the natural and
obvious inquiry here is what the judge's view of the facts had to
do with this matter. It was the jury who were to find the facts for
the judge, and not the judge who was to find the facts for the
jury, and if the verdict is either formally or in effect the
verdict of the judge, it is neither according to truth nor common
sense the verdict of the jury, and these triers of fact had better
be dispensed with as an useless and indeed an expensive and
cumbersome formula in courts of law than be preserved as false
indicia of what they in reality do not show. Moreover, this
determination of facts by the court does not place the parties upon
fair and equal grounds of contest before the minds of the jury; it
is placing the weight of the court, which must always be powerfully
felt, on the side of one of the parties, and causing the scale
necessarily to preponderate by throwing the sword -- which under
such circumstances can hardly be called the sword of justice --
into one of the scales in which the rights of the parties are
hanging.
The practice of passing upon the weight of the evidence and of
pronouncing from the bench what that evidence does or does not
prove accords neither with the nature and objects of jury trial, as
indicated by its very name, nor as affirmed by the fathers of the
law who have defined this institution and proclaimed it to be the
ark of safety for life, liberty, and property. Thus it is called
the trial
per pais, or by the country, to distinguish it
as a determination of the rights of the subject or citizen by his
fellow subjects or citizens from a determination thereon by the
action of mere officials or creatures of the government. And with
respect to the peculiar intent and effects of this tribunal of the
people, we read thus: Justice Blackstone, speaking of this
institution, says:
"The trial by jury has ever been and I trust ever will be looked
upon as the glory of the English law. And if it has so great an
advantage over others in regulating civil property, how much must
that advantage be heightened when
Page 54 U. S. 143
it is applied to criminal cases! It is the most transcendent
privilege which any subject can enjoy or wish for that he cannot be
affected, either in his property, his liberty, or his person, but
by the unanimous consent of twelve of his neighbors and
equals."
Again he says:
"Great as this eulogium may seem, it is no more than this
admirable constitution, when traced to its principles, will be
found in sober reason to deserve. The impartial administration of
justice, which secures both our persons and our property, is the
great end of civil society. But if that be entirely entrusted to
the magistracy, a select body of men, and those generally selected
by the prince, or such as enjoy the highest offices in the state,
their decisions, in spite of their own natural integrity, will have
frequently an involuntary bias towards those of their own rank and
dignity. It is wisely ordered, therefore, that the principles and
axioms of law, which are general propositions flowing from
abstracted reason, and not accommodated to times or men, should be
deposited in the breasts of the judges, to be occasionally applied
to such facts as come properly ascertained before them. For here
partiality can have little scope; the law is well known, and is the
same for all ranks and degrees; it follows as a regular conclusion
from the premises of facts pre established. But in settling and
adjusting a question of fact, when entrusted to any single
magistrate, partiality and injustice have an ample field to range
in, either by boldly asserting that to be proved which is not so or
by more artfully suppressing some circumstances, stretching and
warping others, and distinguishing away the remainder."
And again:
"Every new tribunal erected for the decision of facts without
the intervention of a jury (whether composed of justices of the
peace, commissioners of the revenue, or judges of a court of
conscience, or any other standing magistracy) is a step towards
establishing aristocracy, the most oppressive of absolute
governments. It is therefore upon the whole a duty which every man
owes to his country, his friends, his posterity, and himself to
maintain to the utmost of his power this valuable constitution in
all its rights; to restore it to its ancient dignity if at all
impaired by the different value of property, or otherwise deviated
from its first institution; and above all to guard it against the
introduction of new and arbitrary methods of trial which, under a
variety of plausible pretenses, may in time imperceptibly undermine
this best preservative of English liberty."
With regard to the legitimate and proper mode of operation and
effect of the trial by jury, the language of Lord Coke should ever
be kept in mind as furnishing the true and only true standard by
which to measure this valuable institution. After giving his
derivation of the terms "verdict" and "judgment,"
Page 54 U. S. 144
this great common lawyer proceeds, "
Et sicut ad quaestionem
juris non respondent juratores sed judices; sic ad quaestionem
facti, non respondent judices sed juratores." For jurors are
to try the fact, and the judges ought to judge according to the law
that ariseth upon the fact, for
ex facto jus oritur. The
manner of stating the above propositions by this great lawyer and
commentator is worthy of particular attention as defining and
illustrating with clearness and precision the powers and duties of
the court and the jury. He has not simply said
ad quaestionem
juris respondent judices, nor in like manner
ad
quaestionem facti respondent juratores, but he has placed them
in a striking opposition and contrast, and drawn a well defined
limit around the functions of both the court and the jury and
informed them, in terms too unequivocal for misapprehension, that
the limit thus prescribed neither has the power to transcend; has
declared to each what it shall not do. Thus, literally translated,
his annunciation is
"And as with respect to the questions of law, the jury must not
respond, but only the judges, so or in like manner or under like
restriction the judges must not respond to questions of fact, but
only the jury."
There can be no escape from the force of the positions thus laid
down by Lord Coke by the argument that the jury are not absolutely
bound by the opinion pronounced by the court upon the weight of the
evidence. The proper inquiry here is not as to the absolute and
binding authority of the court's opinion upon the weight of
evidence, but that inquiry is what are the legitimate and
appropriate functions of the court and the jury; whether the
former, in pronouncing upon the weight of the evidence, can within
any rational sense be responding only to questions of law, or
whether it is not controlling the free action of the jury by the
indirect exertion of a power which all are obliged to concede that
it does not legitimately possess -- the power of responding to the
facts of the case. This is one of the mischievous consequences
against which we are assured by Justice Blackstone that the trial
by jury was designed to guard when he remarks that
"in settling and adjusting a question of fact when entrusted to
any single magistrate, partiality and injustice have an ample field
to range in, either by boldly asserting that to be proved which is
not so or by more artfully suppressing some circumstances,
stretching and warping others, and distinguishing away the
remainder."
And if this power of interpretation or of weighing the evidence
cannot safely be deposited within the regular commission of the
judge, much less should an attempt to wield that power be tolerated
when confessedly beyond his commission. The objection here urged to
the interposition of the court as to the weight of evidence is
by
Page 54 U. S. 145
no means weakened by the excuse or explanation that such
declaration by the court is not binding, but is given in the way of
advice to the jury; the essence of the objection is perceived in
the control and influence which an interposition by court is almost
certain to produce upon the otherwise free and unembarrassed action
of the jury, and the restraint it imposes upon the views and
efforts of the advocate, who, in a great majority of instances,
will hardly venture to throw himself openly into a conflict with
the court. And again, the maxim which declares that
ad
quaestionem facti non respondent judices would seem to forbid
this advice altogether, or to render it officious or irregular at
least. The court can exercise a legitimate and effectual control
over the verdict of juries by the award of new trials, and should
be restricted to this regular exertion of its acknowledged power.
Let us test this interposition by the court by comparing it with a
similar irregularity on the part of the jury.
"Ad quaestionem
juris non respondent juratores sed judices" says the maxim.
Now suppose the jury sworn in a cause should declare to the court
what evidence was competent or relevant to the issues they were to
try, and what in their view should be the law governing the contest
between the parties. Would not such a proceeding be regarded as
extremely irregular and wholly unjustifiable? And why would it be
so regarded? Simply because in so acting the jury would transcend
the province assigned them by their duty, because they would not be
conforming to the maxim
ad quaestionem legis non respondent
juratores sed judices. And yet perhaps there would be greater
color for this proceeding than can be found to excuse the
interference by the court in questions of fact, for it is
undeniable that from the earliest periods of the practice of jury
trials, the jury of right could find a general verdict, thereby
constituting themselves judges both of law and fact.
In accordance with the maxim quoted from Lord Coke may be cited
other authorities of great weight. Thus, in the case of
Rex v.
Poole, to be found in Cases in the King's Bench in the time of
Lord Hardwicke, it is said by Hardwicke, C.J., that
"it is of the greatest consequence to the law of England and to
the subject that the powers of the judge and the jury be kept
distinct; that the judge determine the law and the jury the fact;
and if ever they come to be confounded, it will prove the confusion
and destruction of the law of England."
So likewise in Foster, p. 256, it is said that "the construction
of the law upon the facts found by the jury is in all cases
undoubtedly the proper province of the court." It has been said
that the course pursued by the judge in this case is in conformity
with the practice of the courts of England and in the
Page 54 U. S. 146
majority of the states of this Union. For the establishment of
the position assumed, either with regard to the English courts or
with respect to the tribunals of the several states, no authorities
have been cited, but even if this position should be conceded, it
is not the less clear that the rule it is invoked to sustain is a
flagrant departure from the great principle so emphatically
asserted by the fathers of the law, and should not the less be
viewed and shunned as an abuse, rather than an example worthy of
imitation. In what number of states of this confederacy such a
practice (such an abuse, as I would term it) may prevail has not
been shown; certain it is that in many of the Southern states it
does not obtain and would not be tolerated. It has also been said
that the right of the judge to instruct the jury upon the weight of
testimony has been ruled as the established doctrine of this Court.
If this be so, it is a revelation which the friends of jury trial,
in its full integrity and independence, will grieve to learn and
will be disposed to regard as a demolition by this Court of that
sacred ark of civil liberty for which, by the greatest services it
may render, it can hardly ever be able to atone. It is true that in
the case of
Carver v.
Jackson, 4 Pet. 80, there is an expression of Mr.
Justice Story, in delivering the opinion of the Court, broad enough
to cover this irregular exercise of power by the court in its
widest extent. But upon examination it will be seen that this
expression had no real connection with the points regularly before
the Court, and, as a mere dictum, was entirely without authority.
In the introductory part of his opinion, Mr. Justice Story, meaning
merely to express his disapprobation of a practice of bringing up
for review the entire charge of the court below, without stating
specific points or grounds of exception, as extremely inconvenient,
takes occasion to use the following remark -- namely that "with the
charge of the court to the jury upon mere matters of fact and with
its commentaries upon the weight of evidence this Court has nothing
to do." But it is remarkable that this judge goes on to say with
respect to these commentaries that they are of no binding legal
effect, thus in reality pronouncing their condemnation in the same
breath which sanctions their admission to affect, if it can be done
without legal or binding obligation, the minds of the jurors.
Surely it may be assumed as a postulate that a court of justice, in
adjudicating upon the rights of the citizen or of the state, should
do and can have power to do nothing which is irregular or vain or
useless. Its duty and its office is to do the law, and nothing but
the law. The anomalous and contradictory doctrine above noticed
has, I think, been condemned by a more recent and a far more
correct decision of this Court -- a decision
Page 54 U. S. 147
directly in point upon this subject -- I allude to the case of
Hanson v.
Eustace, 2 How. 706. In that case, the late Justice
Baldwin, under the rule which admits of secondary evidence when the
primary evidence is not within the power of a party or is withheld
improperly by his adversary, went so far beyond the just
application of the rule as to say to the jury what the secondary or
presumptive evidence did actually prove, but still accompanied his
declaration with the salvo "that if they agreed with him in
opinion." This is his language:
"Should your opinion agree with ours on this point, you will
presume that there was a deed from Robert Phillips or his heirs
competent to vest the title to the sixth street lot in the firm of
Robert & Isaac Phillips; that it so remained at the time of the
assignment, and that it was by such conveyance as would enable them
to enjoy the property against Robert Phillips and his heirs."
And this Court reversed the decision of the circuit court upon
the ground that the judge's charge declared to the jury what their
conclusions, from the secondary evidence, ought specifically to be.
This decision I regard as in strict conformity with the doctrines
promulgated by the fathers of the law -- the doctrine which alone
can prevent the inestimable trial by jury from becoming a mere
mockery and a deception to those who have been taught to revere and
rely upon it as the best safeguard of these rights. Transforming
this institution from what it was intended to be and once was in
reality -- a trial by the country -- into a mere formula, to be
moulded at the discretion of the court. I think that the judgment
of the circuit court should be reversed.
"David D. Mitchell, Plaintiff in Error"
"v."
"Manuel X. Harmony"
"In obedience to the order of the Court in this case yesterday,
the clerk of this Court having filed the following report,
namely:"
"
Supreme Court of the United States. No. 178.
December Term, 1851."
"David D. Mitchell, Plaintiff in Error"
"v."
"Manuel X. Harmony"
"
I
N ERROR TO THE CIRCUIT COURT OF THE UNITED"
"
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK"
"In calculating the interest on the judgment of affirmance in
the above-entitled cause, the clerk respectfully presents, at the
instance of the respective counsel, the following different modes
for the consideration of the court:"
"1. Interest, at the rate of six percent on the judgment of the
circuit court from 9 November, 1850, the day the judgment was
signed, to this date. "
Page 54 U. S. 148
"2. Interest, from 1 April, 1850, the first day of the term at
which the judgment was rendered, to this date."
"3. Interest, at the rate of 7 percent from 9 November, 1850, to
26 February, 1851, the date of the writ of error, and then at 6
percent on the aggregate to this date."
"4. Interest, at the rate of 7 percent, from 1st April, 1850, to
26th February, 1851, and then at 6 percent on the aggregate, to
this date."
"The clerk feels bound to confine his calculations to the 18th
rule of the Court, irrespective of the Act of Congress of 23
August, 1842."
"WM. THOMAS CARROLL, C.S.C.U.S."
"14 May, 1852."
Calculation No. 1
$ 95,855.38 Judgment of circuit court, U.S., for New York,
signed 9 November, 1850.
8,706.85 Interest, at 6 percent per annum, from 9
----------- November, 1850, to 14 May, 1852 -- one year,
$104,562.23 six months, and five days.
Calculation No. 2
$ 95,855.38 Judgment of Circuit Court, U.S., for New York,
rendered 1 April, 1850.
12,204.57 Interest, at 6 percent per annum, from 1 April,
----------- 1850, to 14 May, 1852 -- two years, one
$108,059.95 1/2 month, and fourteen days.
Calculation No. 3
$95,855.38 Judgment of circuit court, U.S., for New York,
signed 9 November, 1850.
1,994.35 Interest, at 7 percent per annum, from 9
----------- November, 1850, to 26 February, 1851 -- three
97,849.73 months and seventeen days.
7,139.51 Interest on this amount at 6 percent per annum,
----------- from 26 February, 1851, to 14 May, 1852 --
$104,989.24 one year, two months, and eighteen days.
Calculation No. 4
$ 95,855.38 Judgment of circuit court, U.S., for New York,
rendered 1 April, 1850.
6,076.15 Interest at 7 percent per annum from 1 April,
----------- 1850, to 26 February, 1851 -- ten months
$101,931.53 and twenty-six days.
7,440.99 Interest on this amount, at 6 percent per annum,
----------- from 26 February, 1851, to 14 May, 1852 --
$109,372.52 one year, two months, and eighteen days.
Page 54 U. S. 149
And Mr. Vinton having filed the following exceptions,
namely:
"The defendant in error, M. X. Harmony, excepts to the report of
the clerk, touching the computation of interest on the above-named
judgment of the Circuit Court, U.S., for the Southern District of
New York, in this, namely:"
"1st. That by the Act of Congress of 23 August, 1842, the said
defendant in error is entitled to the same rate of entitled to if
said judgment had been rendered in a state entitled to if said
judgment had been rendered in a state court of the State of New
York, whereas the said computation allows 6 percent only on said
judgment.
See 5 Statutes 518."
"2d. That the said interest ought to be computed on said
judgment from the 1st Monday in April, 1850, instead of from the
9th of November of that year.
See printed record, pages 19
and 20."
"S. F. VINTON,
For Defendant in Error"
"May 14, 1852."
"And the said defendant in error also at the same time moves the
Court to open up the judgment of affirmance (rendered in this Court
at its present term) of said judgment of said circuit court
touching the damages allowed in said judgment of affirmance, and in
lieu of 6 percent per annum therein given on said judgment below,
to allow 7 percent per annum therein, to be computed from the ___
day of _____ 1850, in conformity to said Act of Congress of 23
August, 1842."
"S. F. VINTON,
For Defendant in Error"
It is thereupon now here ordered by the Court that the said
report and exceptions be set down for argument next Monday, the
17th instant.
The Court declined to hear any argument on the motion of Mr.
Vinton and the exceptions filed by him to the clerk's report, and
took the same under advisement.
On consideration of the motion made by Mr. Attorney General
Crittenden on the 13th instant; of the report by the clerk, filed
the 14th instant; of the exceptions to said report, by Mr. Vinton,
filed the same instant; and of the motion filed by Mr. Vinton, the
15th instant, it is the opinion of the Court that the first
calculation by the clerk in his report is the proper mode of
calculating the damages given under the rule of Court. Wherefore it
is now here ordered by the Court that the judgment entered in this
case on the 12th instant, do stand as the judgment of this
Court.
Page 54 U. S. 150
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby affirmed with costs and damages at the rate of six per
centum per annum.