Henry Brockholst Livingston

“ The advantage which a verdict may be supposed to possess over a report, from its being the decision of twelve, instead of the opinion of a single man, is perhaps more than counterbalanced by the time which is allowed to a master for deliberation, and a more thorough investigation of the matters in controversy. But a better and more satisfactory answer is, that it is the usual, known, and approved practice of the Court to whose jurisdiction the parties had submitted themselves. ”

“ If the rule of Courts of equity in England is to be applied, there can be no doubt. If a plea, in the apprehension of the complainant, be good in matter, but not true in fact, he may reply to it, as has been done here, and proceed to examine witnesses in the same way as in case of a replication to an answer: but such a proceeding is always an admission of the sufficiency of the plea itself, as much so, as if it had been set down for argument and allowed; and if the facts relied on by the plea are proved, a dismission of the bill on the hearing is a matter of course. ”

“ Then it follows irresistably that it was the bounden duty of a collector so situated, to have transmitted to the president a statement of facts in the case on which the opinion of the president was asked. If the collector was bound to represent the facts in the case to the president, he must have been bound to have used reasonable care in ascertaining those facts, not only as the foundation of his own opinions or suspicions, but also as the foundation upon which the ultimate decision of the president must rest. ”

“ Admitting that the greatest frauds that can be imagined had been proven to have been in contemplation, yet as the libel does not charge a lading with intent to import into the United States, it is immaterial to this decision to inquire what was intended, if it be made to appear that the distress, was real, and not pretended or fictitious. Now, as far as I can judge, the facts in this case are such as leave nothing for the mind to halt upon. The distress was obvious to the senses, and the nature of it such as could not have been produced by the ingenuity of man. ”

“ It is not denied, as a general rule, that a fact which has been directly tried, and decided by a Court of competent jurisdiction, cannot be contested again between the same parties, in the same or any other Court. Hence a verdict and judgment of a Court of record, or a decree in Chancery, although not binding on strangers, puts an end to all further controversy concerning the points thus decided between the parties to such suit. ”

“ When it is considered too that the testimony on these occasions comes from men, who, whatever their characters may be in other respects, must be viewed as accomplices in the offence, if any has been intentionally committed, and are, to say the least, very much under the influence of those who have projected the voyage and are to be gainers by a violation of the law, it cannot be supposed that such testimony can be examined without very considerable reserve and distrust. ”

“ By the same clause of the constitution, Congress have power to punish offences against the law of nations, and yet it would hardly be deemed a fair and legitimate execution of this authority, to declare, that all offences against the law of nations, without defining any one of them, should be punished with death. ”

“ That the examination of the witnesses exhibits a melancholy view of depravity of morals, I freely admit, but the observation is fully as applicable to the testimony for the prosecution, as that against it.
The two principal circumstances relied on as indicia of fraud, to wit, her clearing out for Havanna, and her having a cargo adapted to a northern market, admit of an explanation perfectly consistent with innocence: For it is well known that a neutral never clears out from a British port to a port of their enemy ”

“ Whatever objection there may be to adhering strictly to this course of proceeding in every description of cases, it is considered as the long and established practice of a Court of equity, which ought not lightly to be departed from. It is not perceived, that any serious mischief can arise from it. Counsel will generally be able to decide on the merits of any defence which may be spread on a plea, and if insufficient, it is not probable they will do otherwise than set it down for argument. ”

“ The necessity must be urgent, and proceed from such a state of things as may be supposed to produce on the mind of a skilful mariner, a well grounded apprehension of the loss of vessel and cargo, or of the lives of the crew. It is not every injury that may be received in a storm, as the splitting of a sail, the springing of a yard, or a trifling leak, which will excuse the violation of the laws of trade. ”

“ If a marshal might retain money to answer his own claims, there would be no necessity of an appropriation by law; and it would subject the whole revenues of the government to the caprice of juries. The jury had no right to find a debt due from the United States. It was a matter coram non judice, unless it had been first submitted to the accounting officers of the treasury.
A Defendant cannot set off a debt, if he could not maintain a suit for it. ”

“ It is incredible that any man should be entrusted with so large a property, without other than verbal instructions; or, at any rate, it is so entirely out of the common course of business, that the court cannot be blamed for disbelieving it. But there are other circumstances which detract much from the credit of these two witnesses. ”

“ By an appeal from the sentence of a District Court to a Circuit Court, the latter becomes possessed of the cause, and executes its own judgment without any intervention of the former. It is fit, therefore, that the proceeds of the property, if it have been converted into money, should follow the appeal into the Circuit Court, and be deposited in such bank, or other place, as it may direct, there to remain, subject to the disposition and direction of the Circuit Court. ”

“ Now, if such partnership really existed, which cannot well be disbelieved, it is most extraordinary indeed, that all the invoices of the goods in that package should not have been sent to the partner residing permanently in the city of New-York, but that an invoice of part of them should be transmitted to him, and of another, and of the most valuable part, to a partner who might or might not have reached this country when the Isabella arrived. ”

“ Prout has been, who has not only refused to pay a note endorsed by him when due, but has put the holders to the trouble, delay and expence, of proceeding to judgment against him, has but little right to be dissatisfied, if a court of equity shall not think itself bound by any extraordinary exertions of its powers, to extricate him from a difficulty and loss which he might so easily have avoided.
The decree of the circuit court is reversed, and the complainant's bill must be dismissed, with the costs of that court, to be paid by the complainant to the defendant. ”

“ In all cases of contract with the United States, they must have a right to enforce the performance of such contract, or to recover damages for their violation, by actions in their own name, unless a different mode of suit be prescribed by law, which is not pretended to be the case here. ”

“ No reason has been assigned why a decision by a proper and sworn officer of a Court of Chancery, in the presence and hearing of both parties, according to the acknowledged practice and usage of the Court, on the very matters in controversy, not excepted to by either party, and confirmed by the Court, should not be as satisfactory evidence of any fact found by it, as the verdict of a jury, on which a judgment is afterwards rendered. ”

“ As little dependence is to be placed on the fact, that for a foreign voyage, higher wages would have been demanded than for one to Charleston. Although the original agreement with the marigners may have been, and probably was for Charleston, there can be no doubt that the owner would have an interest, in a case of this kind, to raise them full as high as seamen would have a right to expect, if the vessel were carried, and especially without a palpable necessity, to an interdicted foreign port. ”

“ It is not believed that the president himself had, under that act, any authority to remove the vessel and cargo as it was removed, much less had the collector any such authority. But the president gave no order for such removal, nor did he approve or confirm such removal for he was kept ignorant of it. The question then rests on the power of the collector, and is two plain to justify the detention of the Court, in attemping to elucidate it. An authority to detain is not an authority to remove or unload, especially if there be no necessity so to do for security and preservation. ”

“ Here the cause of action is equally within the jurisdiction of a Court of law, which has pronounced upon it, and whose judgment must, therefore, be conclusive in all other Courts: and the argument against its conclusiveness, in this case, goes on the supposition, that the defendant cannot set up the judgment without undertaking to prove, that it was a correct judgment on the merits, or, in other words, without going through the whole process of trial again. The plaintiff had to choose between three different courses. He might sue in equity ”

“ The act of congress contemplates a course of duty and intended that the bond should cover all his responsibility, and no doubt the parties intended to give such a bond as the act required. Congress could not have intended that upon the removal of a marshal, perhaps for wasting the public money, or for insolvency, he should still go on to collect other monies, after his sureties upon his official bond should be discharged by his removal from office. ”

“ Upon the whole, my opinion is, that there is not to be found in the act that definition of piracy which the constitution requires, and that, therefore, judgment on the special verdict ought to be rendered for the prisoner. ”

“ A still more common document, and of which, notwithstanding, we hear not a word, is a protest. Perhaps a case never occurs that a vessel is forced to abandon a voyage without stating the reasons of such deviation in the form of a protest at the first port at which she arrives. Although, of itself, it would be no evidence, the master might have stated in his testimony that he had made one at Martinico. ”

“ Not only some of the seamen on board might have been examined; but why not call on persons residing at the place where the vessel discharged, to examine her, and to give their testimony. Such persons were at hand, for the master speaks of three ship masters who surveyed her, and gave their opinion. As no survey is produced and neither of these ship masters is a witness, the court can take no notice of any opinion they may have entertained or have given to the master of the AEolus. ”

“ He who seeks equity must do equity. But the Defendant, Giles, was not a common debtor of the United States. He was an agent of the government, or a receiver of money, and bound to account for what he received. To account, is to retain what he had a right to demand, and to pay over the balance only. If this principle does not apply to the poundage in the case of Hicks, yet it does to his expenses and compensation in taking the census. ”

“ Nor does it make any difference, that the case is proper, in itself, for equity jurisdiction. If so, a judgment at law could never be pleaded in bar of a suit in equity. Questions of fraud and trust are not the peculiar and exclusive subjects of equity jurisdiction. Whenever Courts of common law can reach these subjects, they dispose of them effectually and conclusively. ”