Cantrell v. Wallick, 117 U.S. 689
Case details
Citation
117 U.S. 689
Full caption
CANTRELL & Another v. WALLICK.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
CANTRELL & Another v. WALLICK.
appeal from the circuit court of th e uni ted state s fo r
THE EASTERN DISTRICT OF PENNSYLVANIA.
Argued March 30,1886.—Decided April IS, 1886.
Two patents may be valid when the second invention is an improvement on the first, and if the second includes the first, neither patentee can lawfully use the invention of the other without his consent; but a stranger, sued for infringing the second patent, cannot defend by setting up the existence of the first patent.
vol . cxv ii—44 p. 690Two machines or devices are substantially identical when they perform sub-
stantially the same thing in substantially the same way, to obtain the same result; and they differ from each other in the sense of the patent law, when they perform different functions, or in a different way, or produce substantially different results. Machine Co.v. Murphy, 97 U. S. 120, affirmed and applied. The defendant in a suit for the infringement of a patent for an invention, who
sets up prior use and want of novelty as a defence, has the burden of proof upon him to establish the facts set up beyond all reasonable doubt; and in this case the defendants have failed to show the alleged prior use even by preponderance of proof.
This was a bill in equity to restrain the infringement of letters patent. The case is stated in the opinion of the court.
Mr. John Walker Shortlidge for appellants.
Mr. Charles Howson for appellee.
Mr . Jus tice Woo ds delivered the opinion of the court.
This was a bill in equity filed by Wallick, the appellee, to restrain the infringement by Cantrell and Petty, the appellants, of letters patent granted to Wallick, dated May 25, 1875, for an “ improvement in apparatus for enamelling mouldings,” on an application filed October 16, 1874.
The specification stated the object of the invention to be “ a rapid and economical production of enamelled mouldings.” It appears from the record that the mouldings referred to are those which, after being enamelled, are gilded and used for picture and mirror frames and other like purposes. In order to prepare the moulding to receive and retain the gilding it is necessary to enamel the surface to be gilded with a composition made of glue and whiting. Long before the date of the plaintiff’s application the method of doing this was by passing the moulding through a vessel containing the enamelling material, the vessel having at its opposite sides and in the same line apertures of the shape of a section of the moulding, and large enough to permit the moulding to pass through and leave a proper quantity of the enamel to pass out with and adhere to it. As early as October, 1851, a patent had been granted to Robert Marcher for an improvement in machinery p. 691for enamelling mouldings. In Marcher’s contrivance the bottom of the box or hopper which contained the enamelling composition was left open. The opposite sides of the box were made with apertures of suitable size and shape for receiving the end of the moulding, and when the end of the moulding was thrust through both the apertures the moulding formed the bottom of the box. The result was that on passing a moulding through the box its face was enamelled, but its back, which did not come in contact with the composition in the box, was not.
The means used to drive the mouldings through the box were not covered by this patent; but this was done sometimes by hand and sometimes by passing them between revolving feed-rollers. The latter became the more common method. In order to give a good enamel it was necessary to pass the moulding through the box several times.
According to the contention of the plaintiff, this was the state of the art when he invented the device covered by his patent.
The specification of the plaintiff’s patent stated that in enamelling certain forms of moulding, for instance the mouldings shown in figures 2 and 3 of the drawings [page 692], feed-rollers could not be used for passing the mouldings through the Marcher box without disturbing the coats of enamel on which the upper feed-roller must bear. It then proceeded thus:
“ The main aim of my invention has been to so construct an enamelling box and so form the strips of wood that feed-rollers may be employed to pass the strips through the reservoir containing the enamelling composition.
“ For enamelled mouldings like Figs. 1 and 2, for instance, I prepare a strip of wood, Fig. 5, with a groove, x, above for receiving the upper feed-roller, and a groove, y, below for receiving the lower feed-roller, and then pass the strip through an enamelling box of peculiar construction, so that the rounded edges only are coated, and when these edges have received the proper number of coats I sever the strip, so as to produce either of the mouldings, Figs. 1 and 2;
“ For making mouldings like Fig. 3 I prepare a strip of the- p. 692form shown by Fig. 6, so that upper and lower feed-rollers may be used to force the strip through the enamelling box.
“After the edges of the strip have been properly enamelled I
sever it in the middle, thereby producing two mouldings, like Fig- 3-. “ The box by which the enamel is applied to these strips is p. 693illustrated, in the vertical section, Fig. 8, and transverse vertical section, Fig. 9, of the accompanying drawing, the box being, in the present instance, arranged for enamelling the strip, Fig. 5.
“A and A' are two plates, which are confined by suitable bolts a a', two bent plates, b b', forming, under the circumstances explained hereafter, two reservoirs, J? B', for containing the fluid or semi fluid enamelling composition. The distance between the turned up portion, z, of one plate, b, and that of the other plate is equal to the width of the groove y of the strip, Fig. 5. A permanent longitudinal bar, d, extends from the plate A to the plate A', and to each side of this bar is secured a plate, e, of metal, the distance across the bar and its two plates being equal to the width of the groove x of the strip,. Fig. 5, against the edges of which groove the said plates bear.
“ In each of the plates A A' there is an opening, conforming in shape and dimensions to that of the strip, Fig. 5, and these openings bear such relations to the turned up edges of the plates b b' and to the bar d that the strip, when introduced into the box, will be in the position shown in Fig. 9, so that no parts of the strip, excepting the rounded edges, are exposed to the enamelling composition. After thus passing the end of the strip of moulding through the openings in the plates A A! the composition may be introduced into the reservoirs B B', for all avenues for the escape of the fluids are cut off by the strip itself.
“ Feed-rollers X X' (shown in dotted lines) may be used for forcing strip after strip through the enamelling box, the said rollers in no way interfering with the different coatings of enamel, because they are never in contact with the enamelled surfaces.
“ In other words, the enamelling box is separated into two reservoirs, partly by a permanent partition and partly by the strip, which is passed through the box so that the edges only of the strip are exposed to the enamelling composition, one edge to the composition in one compartment and the other edge to that in the other compartment.”
The claim was as follows:
u An enamelling box divided into two compartments by a slotted partition, and having openings at the ends in a line with the slot in the partition, all substantially as and for the purpose set forth.”
The defences relied on were that the specification was too broad and embraced and appropriated the Marcher box; non-infringement ; and prior use by Frederick W. Werner and T. C. Ladd & Co., of Brooklyn.
The first defence is based on the theory that a patent cannot be valid unless it is new in all its elements as well as in the combination, if it is for a combination. But this theory cannot be maintained. If it were sound no patent for an improvement on a known contrivance or process could be valid. And yet the great majority of patents are for improvements in old and well known devices, or on patented inventions. Changes in the construction of an old machine which increase its usefulness are patentable. Seymour v. Osborne, 11 Wall. 516. So a new combination of known devices, whereby the effectiveness of a machine is increased, may be the subject of a patent. Loom Co. n . Higgins, 105 U. S. 580 ; Hailes n . Van Wormer, 20 Wall. 353. Two patents may both be valid when the second is an improvement on the first, in which event, if the second includes the first, neither of the two patentees can lawfully use the invention of the other without the other’s consent. Star Salt Caster Co. v. Crossman, 4 Cliff. 568.
Therefore, letters patent for an improvement on a patented invention cannot be declared void because they include such patented invention. Much less does it lie in the mouth of a party who is infringing both the improvement and the original invention to set up the existence of the first patent as an excuse for infringing the improvement. It is only the patentee of the original invention who has the right to complain of the use made of his invention. We are, therefore, of opinion that the first defence to the suit must fail.
On the question of infringement, a comparison of the model of the plaintiff’s patent with the model of the device shown to be in use by the defendants, makes it clear that the defendants have adopted substantially the invention of the plaintiff. It p. 695would baffle the ingenuity of the most skilled expert to show a substantial difference between the invention claimed by the plaintiff and that which it is conceded that the defendants use. It may be true, as contended by the defendants, that the device used by them is in some respects better than that of the plaintiff, but this cannot relieve them from the charge of infringement, if the devices are substantially alike. The rule was well stated by Mr. Justice Clifford, in delivering judgment in the case of Machine Company v. Murphy, 97 U. S. 120, 125, where he said that, “ in determining the question of infringement, the court or jury, as the case may be, are not to judge about similarities or differences by the names of things, but are to look at the machines or their several devices or elements in the light of what they do or what office or function they perform, and to find that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way, to obtain the same result; always bearing in mind that devices in a patented machine are different in the sense of the patent law when they perform different functions or in a different way, or produce a substantially different result.”
Tested by this rule the charge of infringement made against the defendants is clearly made out.
It remains to inquire whether prior use and want of novelty have been shown. The prior use and consequent want of novelty alleged by the defendant was the making in 1866, and the use from that date until 1871, by Frederick W. Werner, of a box for enamelling mouldings in which the invention described in the patent of the plaintiff was embodied. Werner testified to this making and use, and to the further fact that, in 1874, he sold the box to Ladd, who some time afterwards began using it.
The burden of proof is upon the defendants to establish this defence. For the grant of letters patent is prima facie evidence that the patentee is the first inventor of the device described in the letters patent and of its novelty. Smith v. Goodyear Dental Vulcanite Co., 93 IT. S. 486; Lehnbeuter x. Holthaus, 105 U. S. 94. Not only is the burden of proof to p. 696make good this defence upon the party setting it up, but it has been held that “ every reasonable doubt should be resolved against him.” Coffin v. Ogden, 18 Wall. 120, 124; Washburn v. Gould, 3 Story, 122, 142.
The proof of prior use in this case depends on the testimony of Werner and T. C. Ladd. The contrivance to which the testimony of these witnesses refers is not produced nor any model of it. It is merely represented in a drawing made by Werner six years after he had sold the box to Ladd.
These two witnesses are contradicted by four others who were engaged in the factory where the box was used, and who had frequently seen the box referred to when in use and the mouldings enamelled by its use. Their testimony shows that the distinctive element in Wallick’s contrivance was not used in the box, but that it was substantially the old Marcher box. The defendants have, therefore, failed to show by preponderance of proof, much less beyond reasonable doubt, the prior use on which they rely. On the contrary the weight of the evidence is against this defence.
Decree affirmed.
APPENDIX.
i.
GORDON v. UNITED STATES.
APPEAL EROM THE COURT OF CLAIMS.
Decided December Term, 1864.
This cause was submitted on the 18th December, 1863. On the 4th of April, 1864, the court ordered it to be argued on the second day of the following December Term. Mr. Chief Justice Taney had prepared an opinion expressing his views upon the question of jurisdiction. This he placed in the hands of the clerk in vacation, to be delivered to the judges on their reassembling in December. Before the judges met he died. The clerk complied with his request. It is the recollection of the surviving members of the court, that this paper was carefully considered by the members of the court in reaching the conclusion reported in 2 Wall. 561; and that it was proposed to make it the basis of the opinion, which, it appears by the report of the case, was to be subsequently prepared. The paper was not restored to the custody of the clerk, nor was the proposed opinion ever prepared. At the suggestion of the surviving members of the court, the reporter made efforts to find the missing paper, and, having succeeded in doing so,* now prints it with their assent. Irrespective of its intrinsic value, it has an interest for the court and the bar, as being the last judicial paper from the pen of
*
The following account of the paper is furnished by the gentleman from whom the copy was received. “ This copy was made by the late David M. Perine, the life-long friend of Chief Justice Taney, and one of his executors. It was kept by Mr. Perine until his death, a couple of years ago, and since then by his only son and executor, from whom I get it. The original we cannot find ; but the copy bears the mark of Mr. Perine as having been ‘ Ex’d/ and can be relied upon absolutely.”
Mr . Chie f Just ice Tane y . This case comes before the court upon appeal from the judgment of the Court of Claims. The appeal is taken under the act of March 3, 1863, entitled “An Act to amend an Act to establish a court for the investigation of claims against the United States.”
The 5th section of this act provides that either party may appeal to the Supreme Court of the United States from any final judgment or decree which may thereafter be rendered in any case by the Court of Claims wherein the amount in controversy exceeds $3000, under such regulations as the Supreme Court may direct; Provided, that such appeal be taken within ninety days after the rendition of such judgment or decree, and Provided, further, that when the judgment or decree will affect a class of cases, or furnish a precedent for the future action of any Executive Department of the government in the adjustment of such class of cases, or a constitutional question, and such facts shall be certified to by the presiding Justice of the Court of Claims, the Supreme Court shall entertain an appeal on behalf of the United States, without regard to the amount in controversy.
The 7th section provides that in all cases of final judgment by the Court of Claims, or, on appeal by the said Supreme Court, where the same shall be affirmed in favor of the claimant, the-sum due thereby shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of the said Court of Claims, and signed by the Chief Justice, or in his absence by the presiding Judge of the court.
The 14th section provides that no money shall be paid out of the Treasury for any claim passed upon by the Court of Claims, till after an appropriation therefor shall be estimated for by the Secretary of the Treasury.
It will be seen by the sections above quoted that the claimant whose claim has been allowed by the Court of Claims, or upon appeal by the Supreme Court, is to be paid out of any general appropriation made by law for the payment and satisfaction of private claims : but no payment of any such claim is to be made until the claim allowed has been estimated for by the Secretary of the Treasury, and Congress, upon such estimate, shall make an appropriation for its payment. Neither the Court of Claims nor the Supreme Court can do anything more than certify their opinion p. 699to the Secretary of the Treasury, and it depends upon him, in the first place, to decide whether he will include it in his estimates of private claims, and if he should decide in favor of the claimant, it will then rest with Congress to determine whether they will or will not make an appropriation for its payment. Neither court can by any process enforce, its judgment; and whether it is paid or not, does not depend on the decision of either court, but upon the future action of the Secretary of the Treasury, and of Congress.
So far as the Court of Claims is concerned we see no objection to the provisions of this law. Congress may undoubtedly establish tribunals with special powers to examine testimony and decide, in the first instance, upon the validity and justice of any claim for money against the United States, subject to the supervision and control of Congress, or a head of any of the Executive Departments. In this respect the authority of the Court of Claims is like to that of an Auditor or Comptroller—with this difference only ; that in the latter case the appropriation is made in advance, upon estimates, furnished by the different Executive Departments, of their probable expenses during the ensuing year ; and the validity of the claim is decided by the officer appointed by law for that purpose, and the money paid out of the approprition afterwards made. In the case before us the validity of the claim is to be first decided, and the appropriation made afterwards. But in principle-there is no difference between these two special jurisdictions created by acts of Congress for special purposes, and neither of them possesses judicial power in the sense in which those words are used in the Constitution. The circumstance that one is called a court and its decisions -called judgments cannot alter its character nor enlarge its power.
But whether this court can be required or authorized to hear an appeal from such a tribunal, and give an opinion upon it without the power of pronouncing a judgment, and issuing the appropriate judicial process to carry it into effect, is a very different question, and rests on principles altogether different. The Supreme Court does not owe its existence or its powers to the Legislative Department of the government. It is created by the Constitution, and represents one of the three great divisions of power in the Government of the United States, to each of which the Constitution has assigned its appropriate duties and powers, and made each independent of the other in performing its p. 700appropriate functions. The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other.
The 3d Article of the Constitution, Section 1, provides that “ the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” And the last clause of the same article, after giving this court original jurisdiction in the cases therein specified, provides that in all other cases “ the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.”
The existence of this Court is, therefore, as essential to the organization of the government established by the Constitution as the election of a president or members of Congress. It is the tribunal which is ultimately to decide all judicial questions confided to the Government of the United States. No appeal is given from its decisions, nor any power given to the legislative or executive departments to interfere with its judgments or process of execution. Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. Chancellor Kent says: “The judicial power of the United States is in point of origin and title equal with the other powers of the government, and is as exclusively vested in the court created by or pursuant to the Constitution, as the legislative power is vested in Congress, or the executive power in the President.” 1 Kent Com. 290-291, 6th ed. See also Story Const., pp. 449-450.
The position and rank, therefore, assigned to this Court in the Government of the United States, differ from that of the highest judicial power in England, which is subordinate to the legislative power, and bound to obey any law that Parliament may pass, although it may, in the opinion of the court, be in conflict with the principles of Magna Charta or the Petition of Rights.
The reason for giving such unusual power to a judicial tribunal is obvious. It was necessary to give it from the complex character of the Government of the United States, which is in part National and in part Federal: where two separate governments exercise certain powers of sovereignty over the same territory, each independent of the other within its appropriate sphere of action, p. 701and where there was, therefore, an absolute necessity, in order to preserve internal tranquillity, that there should be some tribunal to decide between the Government of the United States and the government of a State whenever any controversy should arise as to their relative and respective powers in the common territory. The Supreme Court was created for that purpose, and to insure its impartiality it was absolutely necessary to make it independent of the legislative power, and the influence direct or indirect of Congress and the Executive. Hence the care with which its jurisdiction, powers, and duties are defined in the Constitution, and its independence of the legislative branch of the government secured.
In No. 38 of the Federalist, written by Mr. Madison, the necessity and object of this provision is clearly stated. In that number, after explaining with great perspicuity the complex character of the government, being partly National and partly Federal, he proceeds to say (page 265 Towson’s Ed.): “In this relation, then, the proposed government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution, and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of. the compact.”
It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government: its powers defined, and limited, and made strictly judicial, and placed therefore beyond the reach of the powers delegated to the Legislative and Executive Departments. And it is upon the principle of the perfect independence of this Court, that in cases where the Constitution gives it original jurisdiction, the action of Congress has not been deemed necessary to regulate its exercise, or to prescribe the process to be used to bring the parties before the court, or to carry its judgment into execution. The jurisdiction and judicial power being vested in the court, p. 702it proceeded to prescribe its process and regulate its proceedings according to its own judgment, and Congress has never attempted to control or interfere with the action of the court in this respect.
The appellate power and jurisdiction are subject to such exceptions and regulations as the Congress shall make. But the appeal is given only from such inferior courts as Congress may ordain and establish to carry into effect the judicial power specifically granted to the United States. The inferior court, therefore, from which the appeal is taken, must be a judicial tribunal authorized to render a judgment which will bind the rights of the parties litigating before it, unless appealed from, and upon which the appropriate process of execution may be issued by the court to carry it into effect. And Congress cannot extend the appellate power of this Court beyond the limits prescribed by the Constitution, and can neither confer nor impose on it the authority or duty of hearing and determining an appeal from a Commissioner or Auditor, or any other tribunal exercising only special powers under an act of Congress; nor can Congress authorize or require this Court to express an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect.
The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party ■without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this Court, in the exercise of its appellate jurisdiction: yet it is the whole power that the Court is allowed to exercise under this act of Congress.
It is true the act speaks of the judgment or decree of this Court. But all that the Court is authorized to do is to certify its opinion to the Secretary of the Treasury, and if he inserts it in his estimates, and Congress sanctions it by an appropriation, it is then to be paid, but not otherwise. And when the Secretary asks for this appropriation, the propriety of the estimate for this claim, like all other estimates of the Secretary, will be opened to debate, p. 703and whether the appropriation will be made or not will depend upon the majority of each House. The real and ultimate judicial power will, therefore, be exercised by the Legislative Department, and not by that department to which the Constitution has confided it.
This precise point was decided by this Court as long ago as 1792, in Hayburn’s Case, 2 Dall. 409, and this decision has ever since been regarded as a constitutional law, and followed by every department of the government: by the legislative and executive branches as well as the Judiciary. It is referred to and recognized as authority in United States v. Ferreira, 13 How. 40. The case of Hayburn arose under an Act of Congress of March, 1792, which required the Circuit Courts of the United States to examine into the claims of the officers, soldiers and seamen of the Revolution, to the pensions granted to invalids by that act, and to determine the amount of pay that would be equivalent to the disability incurred, and to certify their opinion to the Secretary of War. And it authorized the Secretary, when he had cause to suspect imposition or mistake, to withhold the pension allowed by the Court, and to report the case to Congress at its next session. But-every judge of the Supreme Court (except Thomas Johnson of Maryland, who does not appear to have had the question before him) was of opinion that the law was unconstitutional and void, and that when the decision of the court was subject to the revision of a Secretary and Congress, it was not the exercise of a judicial power, and could not therefore be executed by the court. These opinions were all communicated to General Washington, who was then President of the United States, and the law was repealed at the next session.
The case of the United States v. Ferreira, 13 How. 40, hereinbefore referred to, was decided on the same principle, and the distinction taken between judicial power in the sense in which these words are used in the Constitution, and a power given by law to examine a particular class of cases, and to certify an opinion as to their respective merits to an officer of the Executive Department, who might or might not act on it. Speaking of the laws under which the judge acted, the Court say, p. 48, “ The powers conferred by these acts of Congress upon the judge, as well as the Secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a p. 704commissioner appointed to adjust claims to land or money under a treaty ; or special powers to inquire into or decide any other particular class of controversies, in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a Secretary as well as on a Commissioner. But it is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the Courts of the United States.’1
And it is very clear that this Court has no appellate power over these special tribunals, and cannot, under the Constitution, take jurisdiction of any decision, upon appeal, unless it was made by an inferior court, exercising independently the judicial power granted to the United States. It is only from such judicial decisions that appellate power is given to the Supreme Court.
Indeed no principle of constitutional law has been more firmly established or constantly adhered to, than the one above stated —• that is, that this Court has no jurisdiction in any case where it cannot render judgment in the legal sense of the term ; and when it depends upon the legislature to carry its opinion into effect or not, at the pleasure of Congress.
It was upon this principle that the case of Hunt n . Pallas, 4 How. 589, was decided. That case was originally decided in the territorial court of Florida. When the Territory became a State, Congress omitted to make provision for the transfer of the records to a tribunal of the United States, or to provide any tribunal to which a mandate might be directed, if any of the judgments of the territorial court should be affirmed or reversed. A motion was made here for a writ of error to be directed to the judges of the State court. But the motion was overruled, and the court said : “ It would be useless and vain for this Court to issue a writ of error, and bring up the record and proceed to judgment upon it, when, as the law now stands, no means or process is authorized, by which our judgment could be executed.”
The decision in Hunt n . Pallas was recognized and the principle again affirmed in the case of MeNatty v. Patty, 10 How. 72, 79, and in a multitude of cases which have occurred since the present troubles began. The court has uniformly refused to take jurisdiction where there was not a court of the United States m existence, in possession of the original record, to which we were authorized by law to send a mandate to carry into effect the judgment of this court. The mandate is the form in which the judgment of this court is given, upon an appeal from an inferior court, p. 705West v. lirashear, 14 Pet. 51; and the court can give no judgment, and award no execution, unless there is an inferior court of the United States, in possession of the original record, over which this court has appellate power, and which it may compel to execute its judgments. If no such court exists, it could merely express an opinion, which, as we have said before, binds no one, is no judgment in the legal sense of the term, and may or may not be carried into effect at the pleasure of Congress. In relation to appeals from a State court, there is a special provision in the act of 1789, authorizing, in certain contingencies, a judgment and execution by this court.
The Constitution of the United States delegates no judicial power to Congress. Its powers are confined to legislative duties, and restricted within certain prescribed limits. By the second section of Article VI., the laws of Congress are made the supreme law of the land only when they are made in pursuance of the legislative power specified in the Constitution ; and by the Xth amendment the powers not delegated to the United States nor prohibited by it to the States, are reserved to the States respectively or to the people. The reservation to the States respectively can only mean the reservation of the rights of sovereignty which they respectively possessed before the adoption of the Constitution of the United States, and which they had not parted from by that instrument. And any legislation by Congress beyond the limits of the power delegated, would be trespassing upon the rights of the States or the people, and would not be the supreme law of the land, but null and void ; and it would be the duty of the courts to declare it so. For whether an act of Congress is within the limits of its delegated power or not is a judicial question, to be decided by the courts, the Constitution having, in express terms, declared that the judicial power shall extend to all cases arising under the Constitution.
This power over legislative acts is not possessed by the English courts. They cannot declare an act of Parliament void, because in the opinion of the court it is inconsistent with the principles of Magna Charta or the Petition of Rights. They are bound to obey it and carry it into execution. Yet, in that country, the independence of the Judiciary is invariably respected and upheld by the King and the Parliament as well as by the courts ; and the courts are never required to pass judgment in a suit where they cannot carry it into execution, and where it is inoperative and of no value,
vol . cxvn—45 p. 706unless sanctioned by a future act of Parliament. The judicial power is carefully and effectually separated from the executive and legislative departments. The language of Blackstone upon this subject is plain and unequivocal. 1 Bl. Com. 268, 269.
“ In this distinct and separate existence (says Blackstone) of the judicial power in a peculiar’ body of men, nominated indeed but not removable at pleasure by the crown, consists one main preservative of public liberty, which cannot subsist long in any State unless the administration of common justice be in some degree separated from the legislative and executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions and not by any fundamental principles of law, which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, the union might soon be an overbalance for the legislative. For which reason, by Stat. Car. I. c. 10, which abolished the Court of Star Chamber, effectual care is taken to remove all judicial power out of the hands of the King’s Privy Council, which it was then evident, from recent instances, might soon be inclined to pronounce that for law which was most agreeable to the Prince or his officers.”
These cardinal principles of free government had not only been long established in England, but also in the United States from the time of their earliest colonization, and guided the American people in framing and adopting the present Constitution. And it is the duty of this Court to maintain it unimpaired as far as it may have the power. And while it executes firmly all the judicial powers entrusted to it, the Court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution.
For the reasons above stated we are of opinion that this appeal cannot be sustained, and it is therefore
Dismissed for want of jurisdiction*
*
The judgment of the Court dismissing Gordon v. United States for want of jurisdiction was announced March 9, 1865. On the 17th March, 1866, Congress passed an act repealing § 14 of the act of March 3, 1863, 14 Stat. 9, and giving an appeal to the Supreme Court from all judgments of the Court of Claims theretofore rendered of the character mentioned in the 5th section of that act, except in cases where the judgment hadbeen paid at the Treasury : the appeal to be taken within ninety days from the passage of the act. The court thereupon promulgated the rules found in 3 Wall, vn.-vin., and the first case decided under them was De Groot v. United States, 5 Wall. 419.
IL
THOMAS A. HENDRICKS.
SUPREME COURT OF THE UNITED STATES,
Octobe r Term , 1885.
Mon da y , November 30, 1885.
Mr . Att orne y -Gene ral Garl and addressed the court as follows :
May it please the Court: Since the adjournment of this court on last Wednesday, the heart of the nation has been sorely touched by the death of the Vice-President, Thomas A. Hen - drick s .
This is not a proper occasion to pronounce a eulogy upon the useful life and splendid character of Mr. Hendricks, but he has been so long conspicuous in the public service—has filled thoroughly and admirably so many places of high trust, including the second in rank in the gift of the people, and he has been a prominent member of this bar for so many years, I deem it becoming to request the court to lay aside its docket and pause before this sad event that now overshadows the whole country, and out of respect for the memory of this “ good and faithful servant,” to cease its labors until after the last funeral rites are performed on to-morrow; and I therefore suggest the court do now adjourn until Thursday next.
The Chief Just ice replied as follows :
The court heartily concurs in your remarks, Mr. Attorney-General, and in the suggestion which you make. Justices Mat th ews and Blat chf ord are now on their way to represent the court at the funeral in Indianapolis to-morrow, and as a further mark of respect to the memory of the deceased, we will now adjourn until Thursday next,
III.
AMENDMENT TO RULES.
IN THE SUPREME COURT OF THE UNITED STATES.
Octobe r Term , 1885.
Ordered, That the following regulations be established under section 765 of the Revised Statutes :
Rul e 34.
CUSTODY OF PRISONERS ON HABEAS CORPUS.
1
Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed.
2
Pending an appeal from the final decision of any court or judge discharging the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance, as hereinafter provided.
3
Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. (Promulgated March 29, 1886: and, as amended, May 10, 1886.)