Caldwell v. Texas, 137 U.S. 692 (1891)
Case details
Citation
137 U.S. 692
Full caption
CALDWELL v. TEXAS.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Jan. 12, 1891
CALDWELL v. TEXAS.
ERROR TO THE COURT OF APPEALS OF THE STATE OF TEXAS.
No. 1541. Submitted December 15, 1890. — Decided January 12,1891.
No State can deprive particular persons or classes of persons of equal and impartial justice under the law, without violating the provisions of the Fourteenth Amendment to the Constitution.
Due process of law, within the meaning of the Constitution, is secured when the l^s operate on all alike, and no one is subjected to partial or arbitrary exercise of the powers of government.
No question of repugnancy to the Federal Constitution can be fairly said to arise when the inquiry of a State court is directed to the sufficiency of an indictment in the ordinary administration of criminal law, and the statutes authorizing the form of indictment do not obviously violate these fundamental principles.
An indictment, framed in accordance with the laws of Texas, which charges that the prisoner at a time and place named did, “ unlawfully and with express malice aforethought, kill one J. M. Shamblin by shooting him, with a gun, contrary to the form of the statute” et cet., does no violation to the provisions of the Fourteenth Amendment to the Constitution.
Moti on to dism is s . The case was stated by the court as follows:
William Caldwell was arraigned upon the following indictment found by the grand jury of Fort Bend County, Texas:
“ In the name and by the authority of the State of Texas.
“The grand jurors, good and lawful men of the State of Texas, county of Fort Bend, duly tried on oath by the judge of the District Court of said county touching their legal qualifications as grand jurors, elected, empanelled, sworn and , charged to inquire into and true presentments make of all offences against the penal laws of said State committed within the body bf the county aforesaid, upon their oaths present in the District Court of said county that William Caldwell, late of the county of Fort Bend, laborer, on or about the first day of August, in the year of our Lord one thousand eight hundred and eighty-eight, with force of arms, in the said county of Fort Bend and State of Texas, did then and there, unlawfully and with express malice aforethought, kill one J. M. Shamblin by shooting him with a gun, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the State.”
The venue was subsequently changed to Harris County, Texas, and on trial of the case, upon Caldwell’s plea of not guilty, before a jury duly empanelled, a verdict was found against him of guilty of murder in the first degree, and awarding the punishment of death.
A motion for a new trial was made and overruled, and judgment entered on the verdict, from which an appeal was taken to the Court of Appeals of the State of Texas, which affirmed the judgment, the opinion being delivered by Willson, J. {Caldwell v. The State, 28 Texas App. 566). Application for a rehearing was subsequently made upon the ground that “ the indictment is fatally and fundamentally defective and void under the constitution of the State, and does not, either in form or substance, set out a valid charge of murder or any other offence known to the criminal law of the State, and is not due process of law under the 14th Amendment to the Constitution of the United States?’ This motion was heard on oral and printed arguments on both sides, and overruled. The opinion was delivered by Hurt, J. (28 Texas App. 576), and stated that but one ground was urged for rehearing, namely, the sufficiency of the indictment, the objections to which were, p. 694that it failed to charge that the accused murdered the deceased; that it omitted to charge the time and place of the alleged shooting; and the infliction of a mortal wound; and the date of the wounding and that of the death ; and that the shooting was done unlawfully and with malice aforethought; and was fatally defective for want of certainty. The court held that as the indictment charged that Caldwell on the first day of August, a .d . 1888, in the county of Fort Bend, unlawfully and with express malice aforethought, killed Shamblin by shooting him with a gun, it charged all of the acts constituting murder, and with the requisite particularity, and that consequently the indictment w^s sufficient; and said: “ Now, we have held that the legislature of this State has no authority to prescribe a form of indictment, and make the same sufficient, which fails to contain all of the elements of the crime. But we have never held that the legislature could not prescribe a form for indictment which would not be good if the facts constituting the crime sought to be charged are contained in the form. If the offence is sufficiently particularized so as to come within the rule of pleading, we would hold that such form would not be obnoxious to constitutional objections, either Federal or State.”
A writ of error was sued out from this court and allowed by the presiding judge of the Court of Appeals of Texas, and the case comes on upon a motion to dismiss.
Section 10, article I, of the constitution of Texas reads: “ In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof. He shall not be compelled to give evidence against himself. He shall have the right of being heard by himself or counsel, or both; shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor. And no person shall be held to answer for a criminal offence, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in p. 695the army or navy, or in the militia, when in actual service in time of war or public danger.”
By art. 605 of the Texas Penal Code, “ murder ” is thus defined :
“ Every person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being within this State, with malice aforethought, either express or implied, shall be deemed guilty of murder. Murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offence to negligent homicide or manslaughter, or which excuse or justify the homicide.” Willson’s Criminal Texas Stats, pt. I, p. 203.
The Code of Criminal Procedure of Texas provides:
“ Art. 416. All felonies shall be presented by indictment only, except in cases specially provided for.”
“ Art. 419. An indictment is the written statement of a grand jury, accusing a person therein named of some act or omission, which, by law, is declared to be an offence.
“ Art. 420. An indictment shall be deemed sufficient if it has the following requisites: 1. It shall commence ‘ In the name and by the authority of the State of Texas.’ 2. It must appear therefrom that the same was presented in the District Court of the county where the grand jury is in session. 3. It must appear to be the act of a grand jury of the proper county. 4. It must contain the name of the accused, or state that his name is unknown, and in case his name is unknown give a reasonably accurate description of him. 5. It must show that the place where the offence was committed is within the jurisdiction of the court in which the indictment is presented. 6. The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offence is barred by limitation. 7. The offence must be set forth in plain and intelligible words. 8. The indictment must conclude ‘ Against the peace and dignity of the State.’ 9. It shall be signed officially by the foreman of the grand jury.
“ Art. 421. Everything should be stated in an indictment which it is necessary to prove, but that which it is not necessary to prove need not be stated.
“ Art. 422. The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offence.”
“ Art. 428. In an indictment for a felony it is not necessary to use the words ‘felonious’ or ‘ feloniously.’ ” Willson’s Cr. Texas Stats, pt. II, p. 109 et seq.
Sections 1, 4, 11, 12 and 17 of an act of the legislature of Texas of March 26, 1881, entitled “An act to prescribe the requisites of indictments in certain cases,” are as follows :
“ Section 1. That an indictment for any offence against the penal laws of this State shall be deemed sufficient which charges the commission of the offence in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offence with which he is charged, and enable the court on conviction to pronounce the proper judgment; and in no case are the words ‘ force and arms,’ or ‘ contrary to the form of the statute,’ necessary.”
“ Sec. 4. An indictment for an act done with intent to commit some other offence, may charge in general terms the commission of such act with intent to commit such other offence, without stating the facts constituting such other offence.”
“ Sec. 11. The following forms of indictments in cases in which they are applicable are sufficient, and analogous forms may be used in other cases : ” . . .
“ Form No. 2: Murder. A B did with malice aforethought kill C D by shooting him with a gun, or by striking him with an iron weight, or by poisoning him, etc.” . . .
“ Sec. 12. Nothing contained in the 11th section of this act shall be construed to dispense with the necessity for proof of all the facts constituting the offence charged in an indictment, as the same is defined by law.”
“ Sec. 17. An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected by reason of any defect or imperfection of form in such indictment, which does not prejudice the substantial
• rights of the defendant.” Laws Texas 1881, p. 60 et seq., and Willson’s Criminal Texas Stats, pt. II, p. 115.
It is stated in Willson’s Criminal Texas Stats, pt. II, p. 115, § 1969, that this statute is in force, so far as it has not been held unconstitutional, as some of the forms prescribed have been and as others seem to the annotator to be. The differences between the indictment in this case and that authorized by the statute of 1881 will be detected upon comparison.
The following errors were assigned in this court: “ That the form of indictment in this case, as authorized by the a^t of the legislature of Texas of March 26, 1881, before cited, is not ‘ due process of law ’ under either the constitution of the State or that of the United States, and that the act referred to, establishing said form of indictment is violative of the provision of the Fourteenth Amendment of the Constitution of the United States which ordains thati no State shall deprive any person of life, liberty or property without due process of law,’ and, therefore, is null and void.”
Mr. James S. Hogg, Attorney General of Texas, and Mr. Richard H. Harrison, for the motion.
Mr. J. Randolph Hurns opposing.
Mr . Chief Justi ce Fuller , after stating the case, delivered the opinion of the court.
By the Fourteenth Amendment the powers of the States in dealing with crime within their borders are not limited, but no State can deprive particular persons or classes of persons of equal and impartial justice under the law. Law, in its regular course of administration through courts of justice, is due process, and when secured by the law of the State, the constitutional requisition is satisfied. 2 Kent Comm. 13. And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice. Bank of Colum,- p. 698Ha v. Okdy, 4 Wheat. 235, 244. The power of the State must be exerted within the limits of those principles, and its exertion cannot be sustained when special, partial and arbitrary. Hurtado v. California, 110 U. S. 516, 535. Ko question of repugnancy to the Federal Constitution can be fairly said to arise when the inquiry of the State courts is directed to the sufficiency of an indictment in the ordinary administration of criminal law, and the statutes authorizing the form of indictment pursued are not obviously violative of the fundamental principles above adverted to.
The case before us is destitute of the elements of a Federal question, since there was nothing special, partial or arbitrary, or in violation of fundamental principles, in the law of the State in accordance with which the indictment was found, and as applied in passing upon its sufficiency. The plaintiff in error was not denied the equal protection of the laws, nor deprived of the process due by the law of the land. The constitution of Texas secured to him the right to demand the nature and cause of the accusation against him, and the State court determined, as was its province, that this demand was satisfied by the indictment in question. His objections were in effect to the technical sufficiency of the indictment, but not that his rights had been determined by any other rules than those applied to the rest of the community, nor that the court had done more than commit errors in the disposition of a subject within its jurisdiction.
No title, right, privilege or immunity under the Constitution of the United States was specially set up or claimed in the trial court, or in the Court of Appeals, except as the petition for rehearing may be held to have constituted such claim. The validity of the existence of the court and its jurisdiction over the crime named in the indictment and over the person of the defendant were not drawn in question, nof was the validity of the laws of the State, except after judgment and upon the petition for a rehearing. The usual rule is that a contention thus delayed comes too late, but if this should be treated as an exception, on the ground that the Court of Appeals permitted argument on the question and delivered a p. 699decision and opinion upon it, yet, where the misconception of the application of the Fourteenth Amendment is so obvious, we are unwilling to. retain the cause for further argument, and may avail ourselves of the rule ordinarily applicable to the afterthoughts of counsel.
The writ of error is
Dismissed.
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APPENDIX.
i.
Ju J^marianx.
SAMUEL FREEMAN MILLER, LL.D.
The court, on meeting pursuant to law, on the 13th of October, 1890, found Mr. Justice Miller lying critically ill at his house in Washington. The Chief Justice on the opening of the court said: “The court reassembles under the shadow of impending affliction. The visit customarily paid to the President of the United States on the first day of the term will be postponed. Cases assigned for the second Monday of the term (October 20) will be set down for the third Monday of the term, the 27th of October. Applications for admissions to the bar will be entertained, and after they are disposed of the court will adjourn until to-morrow.”
That evening, at fifty-two minutes past ten o’clock, Mr. Justice Miller died. On the convening of the court on the 14th, the Chief Justice said: “It is with feelings of profound sadness that I announce the death of the senior Associate Justice of this court, Mr. Justice Miller, which occurred at his residence in this city, at fifty-two minutes past ten o’clock, last evening. No business will be transacted, and the court, as a mark of respect to the memory of its eminent associate, will adjourn until Monday next ”: which was accordingly done.
On the 16th of October the funeral services in Washington took place in the court room of the Supreme Court, and the body was taken to Keokuk, Iowa, for interment. Mr. Chief Justice Fuller and Mr. Justice Brewer accompanied it.
On the 18th of October, at 11 o’clock a .m ., a meeting of the bar p. 702and officers of the Supreme Court of the United States was held in the court room to take action upon his death. Mr. Samuel F. Phillips was chosen chairman, and Mr. James H. McKenney, secretary. Messrs. William M. Evarts, Wayne MacVeagh, C. K. Davis, A. H. Garland, John T. Morgan, Wc C. Goudy, George F. Edmunds, Thomas J. Semmes, George G.'Vest, W. D. Davidge, J. M. Wilson, J. M. Woolworth, John B. Henderson and Enoch Totten, were appointed a committee to prepare suitable resolutions, and the meeting adjourned to the 6th day of December, at the same hour and place.
On Monday, October 20, the court met pursuant to adjournment: Present: Mr. Justice Field, Mr. Justice Bradley, Mr. Justice Gray, Mr. Justice Blatchford and Mr. Justice Lamar.
Mr. Justice Field said: 11 The Justices of this court who accompanied the body of Mr. Justice Miller to its place of burial, in Iowa, have not returned to Washington. There is therefore not a quorum of Justices present to-day, and the court will consequently stand adjourned until to-morrow at 12 o’clock.”
On the 6th of December, 1890, the members of the bar and the officers of the court met pursuant to adjournment.
Mr. William M. Evarts, on behalf of the committee, reported for consideration the following resolutions:
11 Resolved, That the members of the bar, practising in the Supreme Court of the United States, are affected with profound sensibility at the loss suffered by the court, and by the profession of the law, and the community at large, which has fallen upon them in the sudden death of this eminent lawyer, jurist and magistrate, when at the height and full exercise of his great powers in the service to the nation, in the exalted place which he had so long occupied.
“ Resolved, That the length of years, falling not much short of a whole generation, which the judicial service of Mr. Justice Miller has given to the administration of justice in the high functions and the wide scope which belong to the great tribunal in which he sat, and the. period of the service, concurring with the march of events in the life of the nation through the civil war, and the difficult tasks of the restoration of order and unity in the working of our government and the reestablishment of the calm and prevalent maintenance of law throughout the land, place him in the front rank and in close association with the * greatest judges that have shed lustre upon the court, in its historic fame and permanent benefits upon the welfare of the people..
“ Resolved, That the members of this bar, besides fully sharing in the universal and grateful public estimate of the character and life of 'this great judge, and grief at his loss, may properly, from their close and constant observation of his personal traits and his relations with the court and the bar in his discharge of his daily duties, bear witness to his admirable conduct in these duties and relations, so just, so firm, so amiable, and feel a personal sorrow at his death.
“ Resolved, That a copy of these resolutions be presented by the president and secretary of the meeting to the family of Mr. Justice Miller, with the sincere sympathy of the profession in their bereavement, and that the Attorney General be requested to present to the Supreme Court in session the proceedings of this meeting.”
After appropriate remarks by Mr. Wayne MacVeagh, Mr. A. H. Garland, Mr. C. K. Davis, Mr. John B. Henderson, Mr. Henry E. Davis, Mr. J. H. Embry, Mr. R. D. Mussey and Mr. Wm. M. Evarts, these resolutions were unanimously adopted, and the meeting was adjourned sine die.
On Monday, December 15, 1890, the Chief Justice and the associate Justices being all present, Mr. Attorney General presented and read these resolutions to the Court, and said:
May it ple ase the cour t :
It was a saying of Solon, the lawgiver, that no one ought to be called happy until after death, since storms and calamities in the evening may change the character of the brightest day. Tried by this supreme test, Samuel Freeman Miller was a happy man.
Born of pioneer stock, amid humble surroundings in the simple life of Kentucky, during the second decade of this century, a life from which advancement could be had only along the rugged paths of frugality, integrity and hard workj he was fortunate in the time and place of his nativity.
It is not uncommon to refer to a successful man as having started without extraneous help, as if this rendered the career more remarkable. Quite the reverse is true. To the unambitious youth, content upon the plains of comfortable mediocrity, wealth and influence may be desirable. But one who aspires to the high places of earth, to climb mountains, and from their summits take in wider landscapes, to be a leader among his fellows, must generally strive under the spur of necessity, along paths impassable to luxury.
In this, also, Mr. Miller’s life was happy. Necessity compelled, and an indomitable resolution impelled him to make his own way.
Eull of ambition, though having only slight educational advantages, he chose medicine as a profession, and practised as a physician successfully in Kentucky for a number of years.
Dissatisfied, however, with his surroundings, especially hating the contaminating touch of African slavery, he determined to seek a new life, changing at once his residence and his profession.
In 1862, President Lincoln found Mr. Miller in Iowa, as a few years before the country had found Mr. Lincoln in Illinois, devoting his life to a somewhat obscure and unremunerative, though, for the place and time, successful practice of the law.
And the finding of such a judge by the President was only less fortunate than the finding of such a President by the country.
Indeed, Mr. Justice Miller rightly thought it one of the happiest incidents of his life, that he not only received his commission as Justice of this court at the hands of Abraham Lincoln, but that he received with it his friendship and confidence; and well he might, for who does not feel a pride that he was even a contemporary of that great and good man, and who does not view with rdgret the severance of any tie connecting that inestimable life with his own ?
While we may take by the hand those who have lived and wrought by the side of Lincoln, we seem to be near him, and as by personal contact to take on something of the high inspiration and holy impulses of his character.
Alas, that but a single strand now connects him with the personality of this court. One member only remains, full of years and honors, discharging the high duties to which he was consecrated by the martyred President.
Series in caelum redeas.
Mr. Justice Miller was happy in his work and in its results.
To be appointed to a seat in this great tribunal was a signal mark of distinction; but to occupy that seat, in the estimation of the profession and of the whole people, for nearly thirty years, with the highest credit to himself and the greatest usefulness to his country, was honor indeed.
When Justice Miller ascended this bench, a political earthquake was shaking the foundations of Government, obliterating old landmarks, and filling the accustomed channels of public law with hitherto unsuspected difficulties and dangers. To safely guide this, the weakest and most sensitive branch of the Government, amid these shocks and through all the troublous times that fol-:
lowed, so that, on the one hand, no just power of the General Government should be lost, and on the other, no just right of a State or of a citizen should be sacrificed, was a task worthy of the best efforts of the greatest jurists; and worthily has the work been done. It is not disparagement to others to say, that in this work, which will ever stand as a monument of honor to the court, and a bulwark of security to free institutions, Justice Miller was second to none.
The most striking feature of his mind was the logical faculty. Others, perhaps, had more culture, more legal learning; none had more legal wisdom. Intellectually, as morally, he was robust, rugged, simple and always honest. With him, logical conclusions were moral convictions, and to abide by them was an intellectual and moral necessity. Like Martin Luther at the Diet of Worms, he could “ do no otherwise.”
Undiscriminating eulogy has said that Judge Miller was wont to sweep away the law in order that justice might prevail. Such a statement would not have been accepted by him as praise. He loved justice, but he knew, as all men fit for judges know, that justice, humanly speaking, can have its perfect work only through the law; that obedience to law by the magistrate, as well as by the private citizen, is essential to justice, as it is a condition of liberty.
In his social and home life also, our friend was happy. A vigorous, healthy constitution in a stalwart body, a genial temperament, a great fondness for and unfaltering trust in his friends, made the grasp of his hand always hearty, and his presence a delight in every social gathering.
His religious views were broad and very practical. The essence of his creed was “ to do justice, to love mercy, and to walk humbly ” before God and man.
In the Odyssey, the much suffering Ulysses thus depicts the highest earthly bliss:
“ There is no better, no more blessed state, Than when the wife and husband in accord Order the household lovingly. Then those Repine who hate them, those who wish them well Rejoice, and they themselves the most of all.”
After a long life of such domestic felicity and of such public usefulness, loved by a multitude of friends, revered of all men, our friend, still instant in duty, with length of days in his right hand, and in his left hand wisdom and honor, awaited the call of vol . cxxxvn—45 p. 706the Master. The call came, sudden, peremptory, and it found him ready.
I move that the resolutions of the bar be spread upon the records of the court.
The Chief Just ice responded as follows :
The court deeply sympathizes with the resolutions and the remarks of the Attorney General. The loss so universally felt in the death of Mr. Justice Miller comes home in an especial degree to his brethren, participants in his toil and sharers of his intimate friendship.
When he became a member of the court its deliberations were presided over by Chief Justice Taney, and Catron and Nelson and Grier and Clifford were among his Associates, together with the venerable Wayne, the last survivor of the bench as constituted under John Marshall. Of the forty-five Associate Justices up to the time of his death only Catron equalled, and Washington, William Johnson, Story, McLean and Wayne exceeded him in length of service. We need not say how cordially we reciprocate the wish that our colleague, his ancient comrade, may be spared to pass far beyond that limit, while we extend the aspiration to that other veteran who has sat in judgment with him for more than twenty years.
The trans-Mississippi country had just entered upon its course of unexampled development, when the sagacity of Mr. Lincoln gave to it, in this appointment, a judicial representative. Wisconsin was one of the states of the circuit to which Mr. Justice Miller was first allotted, but was afterward detached, while Iowa, Kansas, Minnesota and Missouri remained with him from the beginning to the end, Arkansas, Colorado and Nebraska being subsequently added; and there is no part of that vast and powerful region that is not full of his labors. He lived to see a population in his circuit of three million expand into ten (two of the States admitted to the Union years after the commencement of his incumbency rising from the 63,000 of 1860 to the million and a half of 1890), while an equally marvellous increase in the products of the farm and of the mine, in commerce, in science, in invention and in wealth, corresponded with the progress of the great nation of which he was a judicial officer.
He came here in the prime of life, in the full vigor of his faculties, and with a mind trained by the experience of active practice in two professions, nearly ten years in that of medicine p. 707and fifteen at the bar; a practice in either requiring for success learning, knowledge of men and things, acuteness, and, above all,, the habit of decision.
When he took his seat the country was in the throes of internecine conflict; when his eyes closed it was upon a happy, prosperous and united people, living under the form of government devised by the fathers, the wisdom of whose fabric the event had vindicated. Great problems crowded for solution:. the suspension of the habeas corpus; the jurisdiction of military tribunals; the closing of the ports of the insurrectionary States; the legislation to uphold the two main nerves, iron and gold, by which war moves in all her equipage; the restoration of the predominance of the civil over the military authority; the reconstruction measures; the amendments to the Constitution, involving the consolidation of the Union, with the preservation of the just and equal rights of the States — all these passed in various phases under the jurisdiction of the court, and he dealt with them with the hand of a master.
While he took his full share in the consideration of every subject of judicial investigation, notably in reference to some, as, for instance, those pertaining to the public lands, yet he chiefly distinguished himself in the treatment of grave constitutional questions, which brought into play the patience, the intuition, the deliberation, the foresight, the intellectual grasp and the breadth of view which characterize all who have deserved the name of statesmen. And, as with private controversies, so with those concerning the public and the Government, he sought to go by the ancient ways, and never to incur the curse denounced on him who removeth the landmarks. His style was like his tread, massive but vigorous. His opinions, from his first in the second of Black’s Reports, to his last in the one hundred and thirty-sixth United States, some seven hundred in number (including dissents) running through seventy volumes, were marked by strength of diction, keen sense of justice, and undoubting firmness of conclusion.
He had that true legal instinct which qualified him to arrive at the very right of a cause and to apply settled principles to its proper disposition; while to courage was joined an integrity and simplicity that always commanded respect and generally carried conviction. Benignant in temperament, and with a heart full of sensibility, his intercourse with his fellows was so cordial and kindly as to endear him to all who came within the sphere of his influence.
And the power of routine so benefited him that through the long years of experience, which seem so brief now, he attained, as was remarked of Mansfield, “ that dignity of disposition which grows with the growth of an illustrious reputation, and becomes a sort of pledge to the public for security.”
The classical allusion of the Attorney General might well receive a wider application; for, to the last, having seen and known much of men, of councils and of governments, himself “not least, but honored of them all,” he bent to the oar, seeking to explore new lines of coast along the well-nigh illimitable ocean of the law.
His last years were suffused with the glow of the evening-time of a life spent in the achievement of worthy ends and expectations ; and he has left a memory dear to his associates, precious to his country, and more enduring than the books in which his judgments are recorded.
The court has heretofore adjourned as a mark of respect to the memory of the deceased, and a delegation from its number has attended the committal of his body to its connatural dust in the distant city from whence he came, among the people to whom he was so deeply attached, who with their fellow-countrymen had followed his career with pride and affection, and by whom his final resting-place will ever be held sacred.
The resolutions of the bar and the remarks of the Attorney General will be entered upon the record; and it is ordered that the memorials of the bars of New York, of St. Louis, of Portland, Oregon, and of the eastern and western districts of Arkansas be placed on file, together with such other commemorative tributes as may be hereafter received.
II.
AMENDMENTS TO RULES.
SUPREME COURT OF THE UNITED STATES.
Octob er Term , 1890.
Ordered, that the following additional rule of this court is adopted and promulgated:
35.
WRITS OF ERROR UNDER SECTION 6 OF THE ACT OF FEBRUARY 6, 1889, CHAPTER 113, (25 STAT. 656.)
1
The plaintiff in error shall file with the clerk of the court below, with his petition for the writ of error, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors sh^ll quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to, totidem, verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record and be printed with it. When this is not done, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned.
2
The plaintiff in error shall cause the record to be printed, according to the provisions of sections 2, 3,4, 5, 6 and 9 of Rule 10. Promulgated November 3, 1890.
no APPENDIX.
8.
It is ordered by the court that subdivision 5 of Rule 8 of this court be amended so as to read as follows;
5. All appeals, writs of error, and citations must be made returnable not exceeding thirty days from the day of signing the citation, whether the return day fall in vacation or in term time, and be served before the return day.
Promulgated January 26, 1891.
9.
It is ordered by the court that subdivision 1 of Rule *9 of this court be amended so as to read as follows :
1. It shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court by or before the return day, whether in vacation or in term time. But, for good cause shown, the justice or judge who signed the citation, or any justice of this court, may enlarge the time, by or before its expiration, the order of enlargement to be filed with the clerk of this court. If the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed upon producing a certificate, whether in term time or vacation, from the clerk of the court wherein the judgment or decree was rendered, stating the ease and certifying that such writ of error or appeal has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the case and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court.
Promulgated January 26, 1891.
It is ordered by the court that subdivision 2 of Rule 9 of this court be amended so as to read as follows:
2. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of the court; and, if the case is docketed and a copy of the record filed with the clerk of this court by the plaintiff in error or appellant within the period of time above limited and prescribed by this rule, or by the defendant in error or appellee at any time thereafter, the case shall stand for argument.
Promulgated January 26, 1891.
It is ordered by the court that subdivision 4, of Rule 9, be amended so as to read as follows:
4. In all cases where the period of thirty days is mentioned in Rule 8, it shall be extended to sixty days in writs of error and appeals from California, Oregon, Nevada, Washington, New Mexico, Utah, Arizona, Montana, Wyoming, North Dakota, South Dakota, Alaska and Idaho.
Promulgated January 26, 1891.
ADMIRALTY PRACTICE, 54.
It is ordered by the court that Rule 54 of the Rules of Practice in Admiralty be amended so as to read as follows :
54.
When any ship or vessel shall be libelled, or the owner or owners thereof shall be sued, for any embezzlement, loss or destruction by the master, officers, mariners, passengers or any other person or persons, of any property, goods or merchandise shipped or put on board of such ship or vessel, or for any loss, damage or injury by collision, or for any act, matter or thing, loss, damage or forfeiture done, occasioned or incurred, without the privity or knowledge of such owner or owners, and he or they shall desire to claim the benefit of limitation of liability provided for in the third and fourth sections of the act of March 3, 1851, entitled “an act to limit the liability of ship owners and for other purposes,” now embodied in sections 4283 to 4285 of the Revised Statutes, the said owner or owners shall and may file a libel or petition in the proper district court of the United States, as hereinafter specified, setting forth the facts and circumstances on which such limitation of liability is claimed, and praying proper relief in that behalf; and thereupon said court, having caused due appraisement to be had of the amount or value of the interest of said owner or owners, respectively, in such ship or vessel, and her freight, for the voyage, shall make an order for the payment of the same into court, or for the giving of a stipulation, with sureties, for payment thereof into court whenever the same shall be ordered; or, if the said owner or owners shall so elect, the said court shall, without such appraisement, make an order for the transfer by him or them of his or their interest in such vessel and freight, to a trustee to be appointed by the court under the fourth section of said act;
and upon compliance with such order, the said court shall issue a monition against all persons claiming damages for any such embezzlement, loss, destruction, damage or injury, citing them to appear before the said court and make due proof of their respective claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same: and public notice of such monition shall be given as in other cases, and such further notice served, through the post-office, or otherwise, as the court, in its discretion, may direct; and the said court shall also, on the application of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims.
It is* further ordered that the present heading to this rule be erased.
Promulgated January 26, 1891.
III.
ASSIGNMENTS TO CIRCUITS.
SUPREME COURT OF THE UNITED STATES.
Octob er Term , 1890.
ORDER.
It is ordered, That the following allotment be made of the Chief Justice and Associate Justices of this court among the circuits, agreeably to the act of Congress in such case made and provided, and. that such allotment be entered of record, viz.:
For the first circuit, Hora ce Gra y , Associate Justice.
For the second circuit, Samu el Blatc hf ord , Associate Justice. For the third circuit, Jos eph P. Bradle y , Associate Justice. For the fourth circuit, Melvill e W. Full er , Chief Justice. For the fifth circuit, Lucius Q. C. Lamar , Associate Justice. For the sixth circuit, Dav id J. Brew er , Associate Justice. For the seventh circuit, Joh n M. Har la n , Associate Justice. For the eighth circuit, David J. Brew er , Associate Justice. For the ninth circuit, Step hen J. Field , Associate Justice.
November 3, 1890.
SUPREME COURT OE THE UNITED STATES.
Octobe r Term , 1890.
ORDER.
There having been an Associate Justice of this court appointed, since the commencement of this term, it is ordered that the following allotment be made of the Chief Justice and Associate Justices of said court among the circuits, agreeably to the act of Congress in such case made and provided, and that such allotment be entered of record, viz.:
For the first circuit, Horace Gra y , Associate Justice.
For the second circuit, Samuel Blat chf ord , Associate Justice. For the third circuit, Jose ph P. Bradley , Associate Justice. For the fourth circuit, Melvil le W. Fuller , Chief Justice. For the fifth circuit, Lucius Q. C. Lama r , Associate Justice. For the sixth circuit, Henr y B. Bro wn , Associate Justice. For the seventh circuit, John M. Harl an , Associate Justice. For the eighth circuit, Dav id J. Bre wer , Associate Justice. For the ninth circuit, Step hen J. Fiel d , Associate Justice.
January 19, 1891.