Midland

"On the authority of the cases of Degg v. R. Co., 1 H. & N. 773; Flower v. Pennsylvania R. R. Co., 69 Penn. St. 210; S. C., 8 Am. Rep. 251, and New Orleans, etc., R. Co. v. Harrison, 48 Miss. 112; S. C., 12 Am. Rep. 356, cases which seem to us to be entirely in point in principle, we feel constrained to hold that on the facts stated the defendant is not liable, and therefore that the ruling below was right.

"If the plaintiff were to be regarded as having been the servant of the defendant, it would seem that he could not recover for the injury caused by the negligence of his fellow-servants. But it seems to us that on the facts stated in either paragraph of the complaint he cannot be regarded as having been the servant of the defendant. See Kelly v. Johnson, 128 Mass. 530; S. C., 35 Am. Rep. 398. He was not requested or directed to man the brake by any one that is shown to have had authority from the defendant to make such employment."

"The plaintiff was a mere volunteer, consenting, at the request or direction of an employee of the defendant, to perform service which should have been performed by the employees themselves; and while he cannot be regarded as an employee, he is in no better condition than if he had been.

"Nor is he in any better condition legally than if he had been a mere intermeddler, undertaking to perform the service without request or direction from any one, because, as we have seen, he was not requested or directed to get upon the car and apply the brake by any one having power from the defendant to authorize him to do so. The defendant owed him no duty either as an employee, passenger or traveller upon a highway crossed by the railroad. Under the circumstances, the authorities above cited make it clear that the defendant is not liable. If there had been an urgent necessity for some one other than an employee of the defendant to get upon the car or cars and apply the brakes, in order to prevent a destruction of human life or valuable property, possibly the case might be different; but no such necessity was shown."

In the Flower case, above cited, at a station where defendant's train of cars had stopped, the engine, tender, and one car ran down to the water-tank in charge of the fireman, who asked a boy, ten years old, standing there, to put in the hose and turn on the water. While the boy was climbing upon the tender to comply with the request, some detached cars belonging to the train came down with ordinary force, and struck the car next to the tender, whereby the boy was thrown down and killed. In an action by the parents, held, there could be no recovery. So in New Orleans, etc., R. Co. v. Harrison, cited above, the conductor of a train ordered a boy standing by, and who was not in the employ of the railroad company, to uncouple the cars. The boy refused, but on being threatened by the conductor, uncoupled them, and in doing so was injured. Held, that the company was not liable. See also, note, 40 Am. Rep. 226; 26 Alb. Law Jour. 64, on Master and Servant course of employment.

In Lary v. Cleveland, etc., R. Co., 78 Ind. 323, the plaintiff, twenty years old, without invitation or business, but for the purpose of throwing mud balls and pitching pennies, intruded upon a ruinous but uninclosed freight-house of the defendants, used only for storage, and while there a sudden storm blew a fragment of the building upon him and injured him. Held, that he was remediless. The court said: "There is no testimony tending to show that the appellant was at the freight-house by the invitation of the appellee, nor that he was there for the purpose of transacting any business with the appellee. The appellant intruded upon the premises of the appellee, and is not therefore entitled to that protection which one, expressly or by implication, invited into the house or place of business of another, is entitled to. The appellant was a trespasser, and as such he entered upon the appellee's premises, taking the risks of all the mere omissions of the appellee as to the condition of the grounds and buildings thus invaded without leave. We do not wish to be understood as holding or implying that if on the part of the appellee there had been any act done implying a willingness to inflict the injury upon the appellant, it would not be liable. But we think there is nothing in the evidence from which such an inference can be reasonably drawn. The building could be seen by all; its condition was open to the inspection of every one; it had been abandoned as a place for the transaction of public business; it was in a state of palpable and visible decay, and no one was authorized, impliedly or otherwise, to go into or under it. Under such circumstances, the law says to him who intrudes into such a place that he must proceed at his own risk.

"In the case of Pittsburg, etc., R. Co. v. Bingham, 29 Ohio St. 364; S. C., 23 Am. Rep. 751, the question was: 'Is a railroad company bound to exercise ordinary care and skill in the erection, structure, or maintenance of its station-house or houses, as to persons who enter or are at the same, not on any business with the company or its agents, nor on any business connected with the operation of its road; but are there without objection by the company, and therefore by its mere sufferance or permission?' The court answered this question in the negative.

"In the case of Hounsell v. Smyth, 7 C. B. (N. S.) 731, the plaintiff fell into a quarry, left open and unguarded on the uninclosed lands of the defendant, over which the public were permitted to travel; it was held that the owner was under no legal obligation to fence or guard the excavation unless it was so near the public road as to render travel thereon dangerous. That the person so travelling over such waste lands must take the permission with its concomitant conditions, and, it may be perils. Hardcastle v. South Yorkshire Ry. Co., 4 H. & N. 67; Sweeny v. Old Colony, etc., R. Co., 10 Allen, 368; Knight v. Abert, 6 Barr, 472."

See Cauley v. Pittsburgh, etc., Ry. Co., 95 Penn. St. 398; S. C., 40 Am. Rep. 664, and note, 667; Meeks v. Southern, etc., R. Co., 56 Cal. 513; S. C., 38 Am. Rep. 67, and note, 72; McAlpin v. Powell,

70 N. Y. 126; S. C., 26 Am. Rep. 555, and note, 562; 25 Alb. Law Jour. 304; 26 id. 204.

THE COURT OF APPEALS BILL.

THE bill

BY SAMUEL T. SPEAR, D.D.

HE bill to establish a Court of Appeals, which has been passed by the United States Senate, and is now pending in the House of Representatives, aims mainly at the attainment of two objects. One is to increase the working force in the Circuit Courts of the United States, and with the exception of their supervisory jurisdiction in bankruptcy cases, to limit them to their original jurisdiction as already established by law. The other object is to lessen the number of cases that may be carried to the Supreme Court for final determination.

The attainment of these ends is secured by the creation of a new court of purely appellate jurisdiction, and to some extent, by a new distribution of judicial power, without any reduction in the classes of cases to be determined, and with no change in the original jurisdiction of the District and Circuit Courts, and no alteration in the judicial districts and circuits of the United States.

The bill consists of fifteen sections, the contents of which, being to some extent transposed and arranged according to the several courts to which they respectively refer, may be classified as follows:

1. DISTRICT COURTS.-Every circuit and district judge is empowered to hold a District Court in any district within the circuit whenever assigned to that duty by the circuit judge, who is senior in office, and two or more judges may hold separate sessions thereof. (Sec. 1) Two of the district judges in each judicial circuit, designated from time to time in the way provided, are to serve as members of the Court of Appeals in that circuit. (Sec. 3.)

These are all the provisions of the bill that relate to District Courts or the judges thereof, with the exception of those that give to the Court of Appeals appellate jurisdiction over the final judgments or decrees of such courts, and which will be referred to in another connection.

2. CIRCUIT COURTS.-The bill provides for the appointment of two additional circuit judges for each judicial circuit, and also for the holding of a Circuit Court in each judicial district of the United States at the same time and place as now fixed by law for the holding of the District Court thereof, with the further provision that when more than one judge competent to hold the Circuit Court is present, each judge may hold a separate session thereof, in which case the presiding justice or judge is authorized to designate the causes to be tried or heard before the other judge or judges. (Secs. 13 and 1.)

The panel of jurors selected and summoned for the District Conrt is declared to be the panel of the Circuit Court, unless a special order to the contrary is made by one of the judges of the latter court at least thirty days before the term. (Sec. 1.)

The circuit judges in each circuit are directed, as a body, to determine, from time to time, which of them shall hold the Circuit Court in the respective districts of the circuit. The Circuit Court is also directed to appoint the clerk thereof in each district. (Sec. 14.)

The bill provides that the several Circuit Courts of the United States shall not, after the time when the act goes into effect, have or exercise any jurisdiction in cases of appeal or writs of error from the District Courts allowed, taken or sued out, except that reviews in bankruptcy cases, in the exercise of their supervis

ory jurisdiction, may be had as heretofore provided. (Sec. 2.) This, of course, with the exception stated, repeals all the sections of the Revised Statutes which give appellate jurisdiction to the Circuit Courts over the judgments and decrees of District Courts, and also all legislation subsequent to the enactment of these Statutes that confers such jurisdiction, leaving to the Circuit Courts, with the exception named, simply their original jurisdiction as previously authorized by law. Their jurisdiction over cases removed before trial from State Courts is in no way affected, since this jurisdiction is not appellate, but simply original jurisdiction indirectly acquired. Dennistoun v. Draper, 5 Blatchf. 336; Bushnell v. Kennedy, 9 Wall. 387; and Railroad Company v. Whitton, 13 id. 270.

Such are the provisions of the bill that relate specially to Circuit Courts, with the exception of those involved in the organization or jurisdiction of the Court of Appeals. These provisions abolish the appellate jurisdiction of these courts, and increase the number of judges in each circuit. They establish a Circuit Court in each judicial district, and declare that it shall be held there at the time and place of holding the District Court, and as it would seem, are intended to supersede and repeal all the provisions of the Revised Statutes relating to the times and places of holding Circuit Courts.

3. THE COURT OF APPEALS.- A new court, to be called the Court of Appeals, is established by the bill in each of the judicial circuits of the United States, having appellate jurisdiction, subject to the provisions of the bill, of all cases arising in the several Circuit and District Courts within these circuits respectively. (Sec. 3.) This provides for nine such courts.

The judges of this court consist of the justice of the Supreme Court assigned to the circuit, of the circuit judges thereof, and two of the district judges, the latter being designated by an order of the court at each term thereof to serve for the succeeding term, which designation is to be in rotation as far as practicable. Any four of these judges, including at least one judge competent to preside, constitutes a quorum; and in the absence of such a quorum, the judge or judges present may adjourn the court from day to day, or without day. In the absence of a district judge previously designated, another district judge may be designated by the judges present to serve so long as the absence continues. The justice of the Supreme Court assigned to the circuit, or in his absence, the circuit judge present, who is senior in office, is the presiding judge. A circuit or district judge, before whom any cause or question has been tried or heard in the Circuit or District Court, is forbidden to sit on the trial or hearing of the same in the Court of Appeals. (Sec. 3.)

The cities of Boston, New York, Philadelphia, Richmond, New Orleans, Cincinnati, Chicago, St. Louis and San Francisco, are designated as the places where the Court of Appeals shall hold two regular terms in each year at the times specified, with the power of holding adjourned terms from time to time, as fixed by the rules or by special order of the court. (Sec. 9.)

Special compensation not exceeding ten dollars per day is allowed to any judge who attends upon the sessions of the court at any place other than that of his residence, which is to be paid by the marshal of the district in which the court is held, upon the written certificate of the judge, and allowed in the settlement of his accounts with the United States. (Sec. 11.)

The Court of Appeals is a court of record, having authority to prescribe the form and device of its seal, and to appoint a clerk, removable at its pleasure, which clerk may with the approval of the court appoint a deputy, and must take the oath and give the

bond, with sureties, prescribed by law for clerks of District Courts. (Sec. 4.)

The marshal of the district in which the Court of Appeals is held is required to attend its sittings, and to execute its process to him directed, and under the direction of the Attorney General, to make the necessary arrangements for the accommodation of the court and pay the incidental expenses thereof. (Sec. 5.)

The sixth section of the bill, except as in the bill otherwise provided, extends the jurisdiction of the Court of Appeals by writ of error in cases proper for such writ, and in all other cases by appeal, to the review of any final judgment or decree of any Circuit or District Court within the circuit, when the amount claimed or the value of the property in controversy exceeds five hundred dollars, and of other cases where an appeal or writ of error now lies from such judgment or decree, or where the circuit or district judge shall certify that the adjudication involves a question of general importance.

The bill itself contains three exceptions to the jurisdiction as bestowed in this section. One is found in the proviso that no review of the decision of the Circuit Court in the exercise of its supervisory jurisdiction in any case of bankruptcy shall be allowed. (Sec. 6.) Another exception is made in the provision that all cases wherein, on or before the day at which the bill goes into effect, an appeal has been allowed by a District Court, or a writ of error sued out from any Circuit Court, shall be heard and determined in the same manner as if the bill had not become a law. (Sec. 7.) The third exception is that of a criminal case, for which provision is made in another part of the bill. (Sec. 8.)

The effect of granting the jurisdiction to the Court of Appeals specified in the sixth section of the bill, as one familiar with the Revised Statutes of the United States will readily see, is to transfer to that court the appellate jurisdiction now exercised by the Supreme Court over the final judgments and decrees of Circuit Courts, whether in the exercise of their original or appellate jurisdiction, and over the final decrees of District Courts in prize causes, with a change in the jurisdictional sum in the cases where such a sum is specified. The Circuit Courts, with the exception made as to the bankruptcy cases, become simply courts of original jurisdiction, their appellate powers being transferred to the Court of Appeals; and the Supreme Court ceases to be a court of appellate jurisdiction over the final judgments or decrees of the Circuit or District Courts, The review, in the cases and upon the conditions specified, is by the Court of Ap peals, and not by the Supreme Court or by a Circuit Court.

All the provisions of law now in force, prescribing the cases in which appeals may be taken or writs of error sued out for the review by the Supreme Court of the final judgment or decree of a Circuit or District Court, are, except as modified by the bill, inade applicable to an appeal or a writ of error sued out under the sixth section. (Sec. 6.)

The revisory powers of the Court of Appeals upon a writ of error or appeal are those of affirmation, modification or reversal, or ordering or rendering such judgment or decree as the Circuit or District Court should have rendered, or ordering a new trial or other proceedings to be had in the proper court. (Sec 6.)

If upon a hearing in equity in any Circuit or District Court, an injunction shall be granted or continued by an interlocutory order or decree, in a cause in which an appeal from a final decree could under the provisions of the bill be taken to the Court of Appeals, an appeal may be taken from such ordsr or decree granting or continuing such injunction to the Court of Appeals, provided it is taken within thirty days from

the entry of such order or decree, and provided further that the proceedings in other respects shall not be stayed during the pendency of such appeal. The Court of Appeals may upon such appeal affirm, modify or reverse such order or decree, and is commanded to direct such proceedings to be had in the court below as the justice of the case shall require. (Sec. 6.)

The decision of the Court of Appeals upon questions of fact is in all cases made final and conclusive, except in patent and copyright cases in equity, the facts to be specially found if required by either party. (Sec. 10.) A writ of error, if allowed by a judge of the proper Court of Appeals, may be sued out of that court from the final judgment of a Circuit or District Court in any criminal case to the Court of Appeals within ninety days after the entry of such judgment; but such writ does not operate as a stay of proceedings except in capital cases, unless it is so ordered by the judge who allows the writ. And after a refusal to allow the writ by one such judge, it is not allowable by another judge. The judgment upon such writ is final unless certified to the Supreme Court as provided in the tenth section of the bill, and is to be remitted to the Circuit or District Court, to be enforced according to law. (Sec. 8.)

Appeals taken and writs of error sued out from a decree or a judgment of the Supreme Court of any Territory, entered after the day specified in the bill, are to be taken and sued out as provided therein, and lie to the Court of Appeals sitting in such circuit as shall be previously designated by an order of the Supreme Court of the United States. (Sec. 12.) This supersedes and repeals all existing provisions of law that confer direct appellate jurisdiction upon the Supreme Court in such cases.

The writ powers of the Court of Appeals extend to writs of error, mandamus, scire facias, habeas corpus, and all other writs which may be necessary or proper to the exercise of its jurisdiction and agreeable to the principles and usages of law, and which the Circuit Courts of the United States now have. (Sec. 6.)

The bill also contains the following provisions relating to procedure in the Court of Appeals:

The manner of taking an appeal or suing out a writ of error as provided for in the sixth section, or of staying proceedings in the inferior courts, is to be governed by the laws now in force touching appeals from the Circuit Court to the Supreme Court and writs of error from the Supreme Court to the Circuit Court, with the qualification that no appeal can be taken or writ of error sued out except within six months after the entry of the order, judgment or decree sought to be reviewed. (Sec. 6.)

All citations, writs of error, appeal bonds, or other process or papers which under the existing laws of the United States must be signed or approved by a justice of the Supreme Court or a judge of a Circuit Court, in order to make effectual an appeal from the Circuit Court to the Supreme Court of the United States, may under the provisions of this bill be signed or approved by the judge of the district in which the cause is tried, or by the judge of the circuit, or the justice of the Supreme Court assigned thereto. (Sec. 6.)

The process of the Court of Appeals runs in the same name and is to be tested in the same manner as process in the Circuit Courts, and to be under the seal of the court and signed by the clerk thereof. (Sec. 4.)

Any defendant in a suit at law or equity in any court of the United States may plead or except to the jurisdiction of the court at the same time that he pleads or answers to the merits; and if the plea or exception be overruled or decided against him, he is nevertheless entitled to defend on the merits as if the plea had not been filed nor the exception taken. (Sec. 15.)

The Court of Appeals may establish such rules, not

inconsistent with law or the rules established by the Supreme Court, as it may deem necessary for the regulation of the practice of the court. (Sec. 6.)

The time when the act goes into effect fixed by the bill as passed by the Senate, is the first day of September, 1882. All appeals and writs of error, taken, allowed or sued out upon or from any judgments or decrees of the Circuit and District Courts, entered after this day are to be allowed or sued out under and according to the provisions of the bill, and not otherwise; and all cases wherein, on or before this day, an appeal has been allowed by a District Court, or a writ of error sued out from any Circuit Court, are to be heard and determined by such Circuit Court in the same manner as if the bill had not been passed. (Sec. 7.) This date would of course be changed if the bill should become a law.

Such are the provisions of the bill in relation to the establishment, organization, powers, jurisdiction and procedure of the Court of Appeals.

4. THE SUPREME COURT.-A review upon the law may in three classes of cases be had upon writ of error or appeal in the manner now provided by law to the Supreme Court of the United States from every final judgment or decree of the Court of Appeals. The first class embraces the cases in which the matter in controversy exceeds the sum of ten thousand dollars exclusive of costs, instead of five thousand as previously provided in the review of the final judgments and decrees of Circuit Courts. The second class embraces the cases in which the adjudication involves a question upon the construction of the Constitution or the construction or the validity of a treaty or a law of the United States, without regard to the amount in controversy. The third class embraces the cases in which the Court of Appeals shall certify to the Supreme Court that the adjudication involves a legal question of sufficient importance to require that the final decision thereof should be made by the Supreme Court. (Sec. 10.)

The Court of Appeals in the second and third of these classes is required to state the question arising upon the construction of the Constitution, or the construction or validity of a treaty or law of the United States, or the legal question involved in the adjudication and of sufficient importance to demand that the final decision thereof should be made by the Supreme Court. Such questions in these cases, and such only, are to be certified to and finally decided by the Supreme Court; and its decision thereon is to be enforced in like manner as is now provided by law in cases where a question is certified to the Supreme Court upon which the judges of a Circuit Court are divided in opinion. (Sec. 10.)

The review by the Supreme Court may in patent and copyright cases in equity be had without regard to the sum or value in dispute, upon the questions both of law and fact affecting the validity or the infringement of the patent or the copyright: Provided, That the Court of Appeals shall certify that a question is involved of sufficient importance to render it proper that the final decision thereof should be made by the Supreme Court. (Sec. 10.)

The writ of error or appeal from the final judgment or decree of the Court of Appeals must be sued out or taken within one year after the entry of the judgment or decree sought to be reviewed. (Sec. 10.)

The Supreme Court may affirm, modify or reverse the judgment or decree brought before it for review, or may direct a judgment or decree to be rendered, or such further proceedings to be had as the justice of the case may require. (Sec. 10.)

The judgment or decree rendered by the Supreme Court is to be remitted to the proper Circuit or District Court, to be enforced according to law. (Sec. 10.)

If within the year after the entry of the judgment or decree of the Court of Appeals sought to be reversed, any party shall die, the personal representative or heir as the case may require, may within one year next after the proof of the will or appointment of the administrator, or within one year next after the death of the ancestor in the case of an heir, sue out or be made a party to a writ of error, or take an appeal or be made a party thereto, without reviving the judgment or decree in the court in which the same was entered. (Sec. 10.)

Appeals taken and writs of error sued out to the Supreme Court under existing laws, before the bill becomes a law and takes effect as such, are not in any way affected thereby. (Sec. 10.) This leaves all the cases on the calendar of the Supreme Court, and all the cases placed there before the time mentioned, to be disposed of by the court under existing laws.

These are the provisions of the bill which regulate the appellate jurisdiction of the Supreme Court over the final judgments or decrees of the Court of Appeals.

How then would the judicial system of the United States stand if this bill should become a law? The following particulars supply an answer to this question:

1. There would be the same number of judicial circuits and districts as at present.

2. In each of these judicial circuits there would be three classes of courts- -the District Courts, the Circuit Court and the Court of Appeals.

3. The District Court and the Circuit Court in each circuit would, with the exception of bankruptcy cases in respect to the latter, be simply courts of original jurisdiction; and the Court of Appeals would be a court of appellate jurisdiction, having the power to review the final judgments or decrees of the Circuit Court and the District Courts of the circuit within which it is established, and also the power, under a general order of the Supreme Court, to review, by writs of error or appeals, the final judgments or decrees of the Supreme Court of any Territory.

4. The Supreme Court, while losing its direct appellate jurisdiction over the final judgments and decrees of the Circuit Courts, over the final decrees of the District Courts in prize causes, and over the final judgments and decrees of the Supreme Courts of the several Territories, would in the cases and under the conditions specified, have such jurisdiction over the final judgments and decrees of the Court of Appeals in each circuit, and would also retain its present appellate jurisdiction over the final judgments and decrees of the Supreme Court of the District of Columbia, over the judgments of the Court of Claims, and over the final judgments and decrees of State courts in the cases specified in section 709 of the Revised Statutes of the United States.

5. The jurisdictional sum, which is now fifty dollars when a writ of error is sued out or an appeal is taken from a District to a Circuit Court, would in the cases where such a sum is specified, be five hundred dollars when the writ of error is sued out or the appeal is taken from a District or Circuit Court to the Court of Appeals.

6. The jurisdictional sum for a review of the final judgments and decrees of the Court of Appeals by the Supreme Court would, in the cases specified, be ten thousand dollars, instead of five thousand as now provided when the review applies to the judgment and decrees of Circuit Courts. This change, as to the jurisdictional sum, would exclude from the review of the Supreme Court a large number of cases that now go there, and in these cases would make the decision of the Court of Appeals final. The theory of the bill in respect to the Supreme Court is to relieve it of its

excess of judicial business, and at the same time provide a tribunal of high character finally to determine the cases thus excluded. It must accomplish the former of these objects, or fail of one of its main purposes.

The fact that the bill has been passed by the Senate, and been approved by the National Bar Association of the United States, and as is understood, is regarded with favor by the Supreme Court of the United States, is certainly a strong presumption that it is wisely and well drawn. Some remedy certainly is needed, and that too without delay. If this bill fails to obtain the approval of the House of Representatives, the chances are that no bill on the subject will be passed for several years to come. There is not the slightest hope that any other bill will be adopted by the present Congress.

The fact that the President, if the bill should become a law, will have the appointment of eighteen new circuit judges, and might be disposed to select them from the party to which he belongs, does not touch the merits of the bill at all. It is simply a political objection. And if the President shall be intrusted with so large a number of appointments, he ought to make the selection solely on the basis of legal qualification and personal character; and this would undoubtedly give to the Democratic party a due proportion of these judges. It would be ungenerous and highly inappropriate to confine the selection to either party, when both contain an abundance of eminent lawyers who would honor the position.

The objection that the bill creates nine Courts of Appeals, with similar jurisdiction, and that no little confusion might arise from their diversity in expounding the law, applies equally to the Circuit Courts as now established. The correction of this evil, so far as it existed at all, would in due season be supplied by the appellate jurisdiction of the Supreme Court over the final judgments and decrees of the Court of Appeals.

So also the objection that the bill would exclude all cases, determined by the Court of Appeals, from the Supreme Court, when the matter in dispute is less than ten thousand dollars, exclusive of costs, has no application in patent and copyright cases in equity, or in cases where the construction of the Constitution or the construction or validity of a treaty or law of the United States is involved, or in cases where the Court of Appeals should certify a legal question of general importance to the Supreme Court. The object of fixing a jurisdictional sum is to exclude all ordinary cases in law or equity or of admiralty and maritime jurisdiction where the matter in dispute is less than this sum. The present law has such a sum, and the bill differs in this respect from the present law only in making the sum larger, as it must do in order to lessen the number of cases that may be carried to the Supreme Court, while at the same time it furnishes an appellate court of six judges finally to pass upon the cases where the amount in dispute exceeds five hundred dollars and is less than ten thousand dollars. It is difficult to see any serious peril to the interests of justice as likely to arise from such an arrangement.

It is well also to remember that this bill, should it become a law, would be at all times subject to the leg. islative control of Congress, and that if any of its provisions should upon trial be found inexpedient, Congress would be competent to supply the proper remedy. It is not at all improbable that trial would disclose defects, or at least show how the law could be made better. This was the fact in respect to the Constitution of the United States, and hence its amendments, and was also the fact with the Judiciary Act of 1789, and hence the supplementary legislation added thereto. Congress is at all times competent to improve its own work as circumstances may require, and hence need

66

WAITE, C. J. The single question in this case is whether the purchaser of real property condemned under the act of August 6, 1861 (ch. 60, 12 Stat. 319), to confiscate property used for insurrectionary purposes," takes a fee, or only an estate for life. The act provides that if during an insurrection against the government of the United States, after the president has declared by proclamation that the laws of the United States are opposed, and the execution thereof obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals by law, any person shall purchase or acquire, sell or give, any property with intent to use or employ the same, or suffer the same to be used or employed, in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person engaged therein; or if any person, being the owner of any such property, shall knowingly use or employ, or consent to the use or employment of the same, as aforesaid, all such property shall be lawful subject of capture and prize wherever found, and the president may cause the same to be seized, confiscated and condemned. Provision is then made for judicial proceedings of condemnation in the courts of the United States. The seizure and condemnation in the present case were because the property had been used and employed, with the knowledge and consent of the owner, in aid of the insurrection.

Express authority is vested in Congress by the Constitution to "make rules concerning captures on land and water." Art. 1, sec. 8. The statute now in question is manifestly an exercise of that power. As was said by Strong, J., in Miller v. United States, 11 Wall. 308, "It imposed no penalty. It declared nothing unlawful. It was aimed exclusively at the seizure and confiscation of property used to aid, abet, and promote the rebellion, then a war, or to maintain the war against the government. It treated the property as the guilty subject." All private property used, or intended to be used, in aid of an insurrection, with the knowledge or consent of the owner, is made the lawful subject of capture and judicial condemnation; and this, not to punish the owner for any crime, but to weaken the insurrection. The offense for which the condemnation may be decreed is one that inheres in the property itself, and grows out of the fact that the property has become, or is intended to become, with the approval of its owner, an instrument for the promotion of the ends of the insurrection. To justify a judicial sentence of condemnation the consent of the owner to the hostile use of his property must be proven, but if it be proven condemnation is decreed, not because the owner has subjected himself to punishment, but because the property has been devoted to the insurrection and must suffer the consequences. The property is the offending thing, and condemnation is decreed because its owner