Graham’s Lessee v. M‘Intosh, 21 U.S. (8 Wheat.) 543 (1823)

Vol. Vin. 69 [p. 546] 1823. for establishing the colonies of Carolina, Maryland, and Pennsylvania. Johnson

the French government, laying a claim to the country west of the Alleghany or Appalachian mountains, on the Ohio and Mississippi rivers, and their branches, took possession of certain parts of it, with the consent of the several tribes or nations of Indians possessing and owning them; and, with the like consent, established several military posts and settlements therein, particularly at Kaskaskias, on the river Kaskaskias, and at Vincennes, on the river Wabash, within the limits of the colony of Virginia, as described and established in and by the letters patent of May 23d, 1609: and that the government of Great Britain, after complaining of these establishments as encroachments, and remonstrating against them, at length, in the year 1756, took up arms to resist and repel them ; which produced a war between those two nations, wherein the Indian tribes inhabiting and holding the countries northwest of the Ohio, and on the Mississippi above the mouth of the Ohio, were the allies of France, and the Indians known by the name of the Six Nations, or the Iroquois, and their tributaries and allies, were the allies of Great Britain; and that on the 10th of February, 1763, this war was terminated by a definitive treaty of peace between Great Britain and France, and their allies, by which it was stipulated and agreed, that the river Mississippi, from its source to the Iberville, should for ever after form the boundary between the dominions of [p. 547] Great Britain and those of France, in that part of 1823. North America, and between their respective

Sth. That among the tribes of Indians, thus holding and inhabiting the territory north and northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, as described in the letters patent of May 23d, 1609, were certain independent tribes or nations, called the Illinois or Kaskaskias, and the Piankeshaw or Wabash Indians ; the first of which consisted of three several tribes united into one, and called the Kaskaskias, the Pewarias, and the Cahoquias ; that the Illinois owned, held, and inhabited, as their absolute and separate property, a large tract of country within the last mentioned limits, and situated on the Mississippi, Illinois, and Kaskaskias rivers, and on the Ohio below the mouth of the Wabash; and the Piankeshaws, another large tract of country within the same [p. 549] limits, and as their absolute and separate property, 1823. on the Wabash and Ohio rivers; and that these '

11th. That from time immemorial, and always up to the present time, all the Indian tribes, or nations of North America, and especially the Illinois and Piankeshaws, and other tribes holding, possessing, and inhabiting the said countries north and northeast of the Ohio, east of the Mississippi, and west of the Great Miami, held their respective lands and territories each in common, the [p. 550] individuals of each tribe or nation holding the lands

Gratz, Alexander Ross, David Sproat, and James 1823. Milligan, all of Philadelphia, in the province of Pennsylvania; Moses Franks, Andrew Hamilton, v. William Hamilton, and Edmund Milne, of the M Intosh’ same place; Joseph Simons, otherwise called Joseph Simon, and Levi Andrew Levi of the town of Lancaster in Pennsylvania ; Thomas Minshall of York county, in the same province; Robert Callender and William Thompson, of Cumberland county, in the same province ; John Campbell of Pittsburgh, in the same province ; and George Castles and James Ramsay of the Illinois country; and for a good and valuable consideration in the said deed stated, grant, bargain, sell, alien, lease, enfeoff, and confirm, to the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William Hamilton, Edmund Milne, Joseph Simons, otherwise called Joseph Simon, Levi Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John Campbell, George Castles, and James Ramsay, their heirs and assigns for ever, in severalty, or. to George the Third, then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of the grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally holdy all those two several tracts or parcels of land, situated, lying, and being within the limits of Virginia, on the east of the Mississippi, northwest of the Ohio, and west of the Great Miami, and thus butted [p. 552] 1823. and bounded: Beginning for one of the said tracts on the east side of the Mississippi, at the mouth Johnson

river of Mary, being about a league below the mouth of the Kaskaskias river, and running thence a northward of east course, in a direct line, back to the Hilly Plains, about eight leagues more or less; thence the same course, in a direct line to the Crab Tree Plains, about seventeen leagues more or less; thence the same course, in a direct line, to a remarkable place known by the name of the Big Buffalo Hoofs, about seventeen leagues more or less; thence the same course, in a direct line to the Salt Lick creek, about seven leagues more or less; then crossing the Salt Lick creek, about one league below the ancient Shawanese town, in an easterly, or a little to the north of east, course, in a direct line to the river Ohio, about four leagues more or less; then down the Ohio, by its several courses, until it empties into the Mississippi, about thirty-five leagues more or less; and then up the Mississippi, by its several courses, to the place of beginning, about thirty-three leagues more or less: And beginning for the other tract on the Mississippi, at a point directly opposite to the mouth of the Missouri, and running up the Mississippi, by its several courses, to the mouth of the Illinois, about six leagues more or less; and thence up the Illinois, by its several courses, to Chicagou or Garlic creek, about ninety leagues, more or less; thence nearly a northerly course, in a direct line, to a certain remarkable place, being the ground on whic a [p. 553] battle was fought, about forty or fifty years before 1823.

14th. That all the persons named as grantees in this deed, were, at the time of its execution, and long before, subiects of the crown of Great Britain, and residents of the several places named in the deed as their places of residence ; and that [p. 555] they entered into the land, under and by virtue of 1823. the deed, and became seised as the law requires.

bac, and certain other Indians, all being chiefs of the Piankeshaws, and jointly representing, acting for, and duly authorized by that nation, in the manner stated above, did, by their deed poll, duly executed, and bearing date on the day last mentioned, at the post of Vincennes, otherwise called post St. Vincent, then being a British military post,-and at a public council there held by them, for and on behalf of the Piankeshaw Indians, with Louis Viviat, of the Illinois country, acting for himself, and for the Right Honourable John, Earl of Dunmore, then governor of Virginia, the Honourable John Murray, son of the said Earl, Moses Franks and Jacob Franks, of London, in Great Britain, Thomas Johnson, jr. and John Davidson, both of Annapolis, in Maryland, William Russel, Matthew Ridley, Robert Christie, sen. and Robert Christie, jr., of Baltimore town, in the same province, Peter Campbell, of Piscataway, in the same province, William Geddes, of Newtown Chester, in the same province, collector of his majesty’s customs, David Franks and Moses Franks, both of Philadelphia, in Pennsylvania, William Murray and Daniel Murray, of the Illinois country, Nicholas St. Martin and Joseph Page, of the same place, Francis Perthuis, late of Quebec, in Canada, but then of post St. Vinc®nt, and for good and valuable consideration^, ln the deed poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify, and [p. 556] 1823. confirm to the said Louis Viviat, and the other persons last mentioned, their heirs and assigns, Johnson

of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of all the above mentioned grantees, their heirs and assigns, in severalty, by which ever of those tenures they might most legally hold, all those two several tracts of land, in the deed particularly described, situate, lying, and being northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, and on both sides of the Ouabache, otherwise called the Wabash; which two tracts of land are contained respectively within the following metes and bounds, Courses and distances, that is to say: beginning for one of the said tracts at the mouth of a rivulet called Riviere du Chat, or Cat river, where it empties itself into the Ouabache or Wabash, by its several courses, to a place called Point Coupee, about twelve leagues above post St. Vincent, being forty leagues, or thereabouts, in length, on the said river Ouabache, from the place of beginning, with forty leagues in width or breadth on the east side, and thirty leagues in breadth or width on the west side of that river, to be continued along from the place of beginning to Point Coupee. And beginning for the other tract at the mouth of White river, where it empties into the Ouabache, about twelve leagues below post St. Vincent, and running thence down the Ouabache, by its several courses, until it empties into the Ohio; being from White river to the Ohio, about fifty-three leagues in length, more or less, with foity [p. 557] leagues in width or breadth on the east side, and 1823. thirty in width or breadth on the west side of the

24th. And that neither William Murray, nor any other of the grantees under the deed of July the th, 1773, nor Louis Viviat, nor any other of the Vol. Vlj[. 71 [p. 562] 1823. grantees under the deed of October the 8th,

1. That upon the facts stated in the case, the Piankeshaw Indians were the owners of the lands in dispute, at the time of executing the deed of October 10th, 1775, and had power to sell. But as the United States had purchased the same lands of the same Indians, both parties claim from the same source. It would seem, therefore, to be unnecessary, and merely speculative, to 1S [p. 563] cuss the question respecting the sort of title or 1823. ownership, which may be thought to belong to

a Campbell y. Hall, 1 Cowp. Rep- 204. [p. 565] clamation, that no person should purchase land in 1823. England or Canada, would be clearly void.

by the act, although the territory, in which the lands in question lie, was ceded to the United States before the repeal. The act of 1779 was passed after the sales were made, and it cannot affect titles previously obtained. At the time of the purchases there was no law of Virginia rendering such purchases void. If, therefore, the purchases were not affected by the proclamation of 1763, nor by the act of 1779, the question of their validity comes to the general inquiry, whether individuals, in Virginia, at the time of this purchase, could legally obtain Indian titles. In New-England, titles have certainly been obtained in this mode. ' But whatever may be said on the more general question, and in reference to other colonies or States, the fact being, that in Virginia there was no statute existing at the time against such purchases, mere general considerations would not apply. It may be true, that in almost all the colonies, individual purchases from the Indians were illegal; but they were rendered so by express provisions of the local law. In Virginia, also, it may be true, that such purchases have generally been prohibited ; but at the time the purchases now in question were made, there was no prohibitory law in existence. The old colonial laws on the subject had all been repealed. The act of 1779 was a private act, so far as respects this case. It is the same as if it had enacted, that these particular deeds were void. Such acts [p. 567] bind only those who are parties to them, who sub- 1823. mit their case to the Legislature.

a 1 Bl. Comm. 107. 2 P. Wms. 75. 1 Salk. 411. 61& 6 Sulliv. Land Tit. 45. c C9U,P- 204. 7 Ca. Rep. 17 b. 2 Meriv. Rep. 14& [p. 572] 1823. tain Indian tribes, constituting the Illinois and the

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an [p. 573] ample field to the ambition and enterprise of all; 1823. and the character and religion of its inhabitants „ , . . P .. . . Johnson afforded an apology tor considering them as a v. people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample comygnsation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated hy possession.

France, also, founded her title to the vast territories she claimed in America on discovery. [p. 575] However conciliatory her conduct to the natives may 1823. have been, she still asserted her right of dominion '

The States of Holland also made acquisitions in America, and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith, in his History of New-York, that Henry Hudson, who sailed, as they say, under the orderts of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed to the 43d degree of north latitude; and this country they claimed under the title acquired by this voyage. [p. 576] 1828. Their first object was commercial, as appears by a grant made to a company of merchants in 1614; Johnson

In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries “ then unknown to all Christian people, and of these countries Cabot was empowered to take possession in the name of the king of Eng land. Thus asserting a right to take possewdn, [p. 577] notwithstanding the occupancy of the natives, who 1823. were heathens, and, at the same time, admitting

All the grants made by the Plymouth Company, so far as we can learri, have been respected. In pursuance of the same principle, the king, in 1664, granted to the Duke of York the country of New-England as far south as the Delaware [p. 579] bay. His royal highness transferred New-Jer-1823.

Thus has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial government, the king claimed and exercised the right of granting lands, and of dismembering the government at his will. The grants made out of the two original colonies, after the resumption of their charters by the crown, are examples of this. The governments of New-England, New-York, New-Jersey, Pennsylvania, Maryland, and a part oT Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the crown unaccompanied by the powers of government, as in the case of the northern neck of Virginia. It has never [p. 580] 1823. been objected to this, or to any other similar grant, that the title as well as possession was in the In-Johnson

Charles II. was extremely anxious to acquire the property of Maine, but the grantees sold it to Massachusetts, and he did not venture to contest the right of that colony to the soil. The Carolinas were originally proprietary governments. In 1721 a revolution was effected by the people, who shook off their obedience to the proprietors, and declared their dependence immediately on the crown. The king, however, purchased the title of those who were disposed to sell. One of them, Lord Carteret, surrendered' his interest in the go* vernment, but retained his title to the soil. That [p. 581] title was respected till the revolution, when it was 1823. forfeited by the laws of war.

The treaty of Aix la Chapelle, which was made [p. 582] 1823. on the principle of the status ante bellum, did not remove this subject of controversy. Commission-Johnson

This river was comprehended in the chartered limits of Virginia; but, though the right of England to a reasonable extent of country, in virtue of her discovery of the seacoast, and of the settlements she made on it, was not to be questioned; her claim of all the lands to the Pacific ocean, because she had discovered the country washed by the Atlantic, might, without derogating from the principle recognised by all, be deemed extravagant. It interfered, too, with the claims of France, founded on the same principle. She therefore sought to strengthen her original title to [p. 583] the lands in controversy, by insisting that it had 1823. been acknowledged by France in the 15th article

By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the “propriety and territorial rights of the United States,” whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these States. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed» or to which Great Britain was before entitled. « [p. 585] has never been doubted, that either the United 1828. States, or the several States, had a clear title to

Vol. VIII. 74 [p. 586] 1823. office, for the sale of that country which now constitutes Kentucky, a country, every acre of which Johnson

°f agriculturists, merchants, and manufacturers,have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword.. The title [p. 589] to a vast portion of the lands we now hold, ori- 18231 ginates in them. It is not for the Courts of this

Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighbourhood of agri' eulturists became unfit for them. The game fled [p. 591] into thicker and more unbroken forests, and the 1823. Indians followed. The soil, to which the crown originally claimed title, being no longer occupied v. by its ancient inhabitants, was parcelled out ac- MTntosh. cording to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies.

Another view has been taken of this question, [p. 593] which deserves to be considered. The title of the 1823. crown, whatever it might be, could be acquired only by a conveyance from the crown. If an m-

According to the theory of the British constitution, all vacant lands are vested in the crown, as representing the nation ; and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown, that this principle was as fully recognised in America as in the island of Great Britain. All the lands we hold were originally granted by the crown ; and the establishment of a regal government has never been considered as [p. 596] 1823. impairing its right to grant lands within the chartered limits of such colony. In addition to the Johnson

According to the theory of the British constitution, the royal prerogative is very extensive, so far as respects the political relations between Great Britain and foreign nations. The peculiar situation of the Indians, necessarily considered, in some respects, as a dependent, and in some respects as a distinct people, occupying a country claimed by Great Britain, and yet too powerful and brave not to be dreaded as formidable enemies, required, that means should be adopted foi [p. 597] the preservation of peace ; and that their friend- 1823. ship should be secured by quieting their alarms for their property. This was to be effected by v. restraining the encroachments of the whites ; and ■ the power to do this was never, we believe, denied by the colonies to the crown.

Memorial of It has been stated, that in the memorial transmitted from the Cabinet of London to that o Versailles, during the controversy between the two nations, respecting boundary, which too place in 1755, the Indian right to the soil is recog [p. 599] nised. But this recognition was made with refer- 1823. ence to their character as Indians, and for the

After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the Court is decidedly of opinion, that the plaintiffs do not exhibit a title which can [p. 605] be sustained in the Courts of the United States; 1823. and that there is no error in the judgment which

v. rectly proceed on her voyage, and put into the port Palmer. of Bombay? ¡n the East Indies; and that she shall, at the option of the said Hugh Chambers, his agent or agents, be allowed also to put into Calcutta, and deliver her cargo, and take in returns there. And at the said ports of Bombay and Calcutta, respectively, unlade all such goods and merchandise as shall remain on board, and relade such lawful goods, wares, and merchandise, as the said charterer, his agents, factors, or assigns, shall think fit to charge and lade on board, over and above, and not exceeding as aforesaid, and the lading, for account of the said owners, in respect of the returns for the said funds, in dollars, to be shipped by them; and that the said ship shall and will, with her said return loading, (wind and weather permitting,) sail and proceed back to the said port of Philadelphia; and there deliver unto the said charterer, his executors, administrators, or assigns, the full and entire cargo laden and taken on board the said ship at Bombay, and Calcutta, aforesaid, for his account; upon the entire delivery whereof, the said intended voyage shall end^and be determined, (the dangers of the seas, restraints of princes and rulers, and all other unavoidable casualties, always being excepted by these presents.) And it is hereby agreed, that the said owners shall load and ship, on board the said vessel, for the said voyage, 15,000 Spanish milled dollars, to be invested in goods and merchandise in India, in like manner [p. 609] as the residue of the cargo in general, and that 1823. they shall be chargeable with freight on the re-

which she is to be chargeable. And it is hereby further agreed, that there be allowed, and are granted, one hundred and twenty working days in all, for the loading and unloading of the said ship at the ports and places of loading and delivery, and that the time not used and occupied at one port or place, may be taken or made up at the others, so that the whole do not exceed the number allowed as above mentioned; and that for every detention, over and above the said one hundred and twenty days, the said charterers shall pay to the said owners the sum of 75 dollars per day, to be paid in like manner as the freight. And the said charterer, for himself, his heirs, executors, and administrators, doth hereby promise and agree, with the said owners, their executors, administrators, and assigns, that he will cause the said ship or vessel to be loaded at the said port of Philadelphia, on her being in readiness to receive her funds and cargo there, and reloaded at the island of Madeira, and at Bombay and Calcutta, in the manner above expressed ; and that he will pay to them, on the return of the said ship to Philadelphia, and before the discharge of her cargo there, in approved notes, not exceeding an average time of ninety days from the time at which she shall be ready to discharge her cargo, the clear sum of 30,000 dollars ; and if she shall have proceeded to Calcutta, the further sum of 2000 dollars, for the hire and freight of the said ship, for [p. 611] the said voyage. In witness whereof, the said 1B23. owners and charterer have to these presents, in

“ Shipped, in good order, and well conditioned, by Hugh Chambers, in and upon the good ship, called the America, whereof is master for this present voyage, Edward Rosseter, and now lying in the port of Calcutta, and bound for Philadelphia, to say, seven hundred and forty-six bags, and sixty-five boxes of sugar, five hundred and eighty-nine bags of saltpetre^ ten hundred and sixty [p. 613] bags of ginger, thirty-five bags of aniseed, thirty- 1823. two boxes of borax, thirty-two of castor oil, three

That the said Chambers, at the same time, drew, and delivered to the plaintiffs, the said bills of exchange upon Messrs. Grants & Stone, for the sum of 8042 pounds 8 shillings and 4 pence sterling, being the amount of the said advance; which said hills were afterwards duly presented to Grants & Stone for acceptance, who refused to accept the same, and they were afterwards duly protested for [p. 614] 1823. non-payment, and now remain unpaid. That the said agreement to deliver the said goods with-Gracie

endorsements, were made by the said Chambers, by Edward Rosseter, and by the plaintiffs, in good faith; and without them the said plaintiffs would not have made the said advance, nor shipped the said goods ; and the receipt of the said goods on board the America, by the said master, under the said agreement, and signing the bill of lading in the terms aforesaid, were, under the circumstances of the case at the time, the best he could do for the interest of the owners of the ship. That the said plaintiffs were informed by Hugh Chambers, that the America was chartered by the said Chambers for a specific sum, and that the stock or merchandise originally placed on board of her at the commencement of the voyage, and its proceeds, were solely and sufficiently a pledge for the payment of the same. That the America arrived in the port of Philadelphia, on or about the 29th of February, 1820, when the defendants gave notice to the said Chambers, that they had entered the ship, and were ready to deliver the goods, after payment of the freight stipulated by the charter-party. On the 1st of March, 1820, the said Chambers replied to the defendants, that he was unable to comply with the requisitions of the charter-party. On the 2d of March, 1820, the defendants gave notice to all the consignees of goods on board the America, as by letter of that date to T. M. & R. Willing. On the 3d of March, 1820, Thomas M. & R. Willing, the consignees of the merchandise shipped by the plaintiffs, demanded [p. 615] of the defendants, and of Edward Rosseter, the 1823. master, the delivery thereof, without paying freight,

Chesapeake Ins. Co. 8 Crunch's Rep. 39. 49. Christie v. Lewis, [p. 617] case, the question is, was any freight due ? By the charter-party, the vessel was bound to receive

a 4 Barnw. Aid. 630. [The case of Faith v. The East India Company, was as follows: The plaintiff, Faith, was the owner of the ship Eliza, of which Sivrac was master, and entered into a charter-party with Gooch, by which freight was agreed to be paid, for the use or hire of the ship, at a certain rate per ton, for a voyage to India, out and home, in the following manner, viz. a certain sum in advance, on the ship’s clearing outwards, and the residue, half in cash, and half in approved bills, upon the delivery of the homeward cargo. The owner appointed Sivrac master, at the request of Gooch, the charterer, who executed a bond, conditioned for the faithful performance of the master’s duty; and the owner instructed the master to be careful to sign all bills of lading with the clause 11 freight payable as by charter-party.” The ship was consigned to Colvins & Co., in Calcutta, by whom she was put up, for her homeward voyage, as a general ship, and different merchants shipped goods by her, C. & Co. taking, for homewar freight, bills payable 60 days after delivery of the cargo; and a new master having been appointed by C. & Co., in conjunction with Sivrac, signed bills of lading with the clausepaying freig t agreeable to freight bill.” The freight bills were made payab e i London, to Bazett & Co., to whom the charterer was indebted or [p. 619] case of Hutton v. Bragg,* which determined 1823. against the lien, in a case of a general letting of

Vol. VIII. 79 [p. 626] 1823. ship-owners retained possession of the ship, so as to have a lien for the freight; and that this lien Gracie

instrument. It is equally clear, that this lien extends to all sub-shippers or strangers. There is no difference as to the validity and strength of this lien, whether it is on the goods of a charterer, or on those of other shippers, although there may be as to its extent; the goods of other shippers being liable for the freight stipulated by them, and the charterer’s goods being liable for the whole amount of the charter freight. Have the ship-owners, then, waived the lien which is thus secured to them by the general law, and by this particular contract ? If they have done so, it is by some act subsequent to the charter-party. All that is relied on, is what the master did at Calcutta. But supposing the goods to be Palmer’s, i could the master bind the owners by this agreement ? We contend he could not, because he | was limited by the express terms of the charter-party, which provided, that freight should be paid at Philadelphia before the delivery of the cargo. •The contract was, that whatever goods were brought should not be. delivered till freight was paid. The shippers, and the master, were cognizant of this contract. This provision was a direct limitation of the master’s power. He was as much bound by it as by any other part of the charter-party. It is said, that if the master may take goods for diminished freight, the same reason authorizes him to take goods for no freight. But it is very obvious, that a freight diminished by [p. 627] circumstances, may still be just and reasonable; 1823. whilst a contract to carry goods without any freight

But the true view is, that these goods were the goods of Chambers, the charterer, as between him and the ship-owners. They were purchased and shipped by him, and for his account. They were at his risk in transitu. There is no document showing any interest whatever in Palmer & Co. But there was a parol agreement, that the goods should go consigned to the Messrs. Willings, and that the latter should hold them against the bills drawn by Chambers. The legal property was either in Chambers, or the Willings. The general residuary property was in Chambers; a pledge or lien only existed in favour of Palmer. If there was a loss, Chambers was to bear it; if a gain, it was to be his. If the goods have been sold for more than Palmer’s debt, Chambers is entitled to the balance. Before the plaintiffs recover back this money, ought they not to show, that the goods, paying freight, do not leave them enough to pay their debt ? The lien claimed by them may exist, and yet, in commercial law, the goods may be the property of Chambers. It,s so in the contract of insurance; else no aiaa [p. 629] would ever insure goods liable to freight, or com- 1823. missions, or duties, or any other species of lien.

the ship.” The bill of lading was enclosed to the [p. 632] Willings, with information of the arrangement be-

The carrier may hire his vehicle, or his team, or his servant, for the purposes of transportation; or he may undertake to employ them himself in the act of transporting the goods of another. It1S [p. 633] in the latter case only, that he assumes the liabili- 1823. ties, and acquires the rights of a common carrier.

Vol. VÏÏÏ. 80' [p. 634] 1823* shall obtain the sanction of this Court. But it is obvious that most, if not all of these suggestions, vi have been the offspring of a zealous, rather than mer’ a calm survey of possible consequences.

But this case does not imperiously call for a decision upon the general question. The goods are expressly laden on board as the property of Chambers, “ on his account and risk.” And the question is not, how far his contract may exempt the goods of another from freight, but how far he may encumber his own goods with a lien, which [p. 635] shall ride over or supersede their general liability 1823. for the freight.

That the ship-owner would not confide in the charterer to land his goods without buying off* his right to detain, is expressly proved by the contract. [p. 636] 1823. That contract was accessible to the foreign shipper, and ought to have been looked into to deter-Gracie

That, in ordinary cases of the hypothecation of goods, the lien for freight would take precedence, cannot be questioned ; and in a late adjudication, on a case strikingly similar to the present, and m the Courts of a nation which thoroughly understands the laws and interests of commerce, (Faith v. The East India Company, 4 Barnw. Aid. 630.) it has been held, that goods so circumstanced, were bound to the whole extent of the liability of the charterer to the ship-owner for freight. In the present instance, a pro rata freight only is demanded. In the same case, it was further decided, that the ship-owner retained his lien for freight, on goods shipped by third [p. 637] persons, even after the drawing of freight-bills, 1823. in favour of another, by previous agreement.

These goods were not shipped freight free, nor was the freight actually paid upon them. The words upon the bill of lading are, “ freight settled here.” And their ambiguity being explained by other parts of the case stated, there is made out a case, in which the freight was no farther settled than by the arrangement made with Palmer, for the purpose of postponing the freight to the defendant’s lien for advances of money, or the payment of bills. The compensation for carriage, [p. 638] although disguised under the form of possible pro-

And this leads to the consideration of the last point made in argument for the defendants; to wjt, that the acts of the captain bound the ship-owner to a compliance with the stipulations made to t [p. 639] defendants, Palmer & Co., to the prejudice of 1823. the lien insisted on by the present plaintiffs. That

But it is perfectly clear, that it is not in the power of the master to release the charterer from his contract to the owner. It is only when the contract is at an end by misfortune, or by the acts of the charterer, that he is called to the exercise of that latitude of power over the ship, which may lead to a resumption of the right to lade her for the benefit of all concerned. In the mean time, he has no power to modify the contract entered into with his owner; since all the power delegated to him, while the charter-party continues to operate, is to perform the undertakings of his employer in the fulfilment of the contract. When abandoned by his charterer, he is of necessity cast upon himself to do the best he can for all concerned; and whether that be to return empty, or to take in such freight as may offer, he is still acting under his original relations with his owner; for, if not actually carrying into effect the [p. 640] stipulations of the charter-party, his general duty

But there is very great reason to think, that the acts of the master, in this case, have had views and effects attributed to them, directly the reverse of his intention and understanding in performing those acts. It is observed by one of the Judges, in the decision before alluded to, “ that had the captain done his duty, he never would have taken goods on board on which the owner would have no lien.” It is right that a construction should be given to the conduct of the master, which may comport both with a knowledge, and a due obser vance of his duty. And in this view of the case, [p. 641] notwithstanding his privity to the arrangement 1823. between the charterer and shipper, as he was him-

Vol. VIII 81 [p. 642] 182$.

ERROR to the Circuit Court of Tennessee. The defendants in error, citizens of the State of Maryland, and executors of John G. Comegys, the surving partner of the late firm of “ William Cochran & Comegys,” brought an action of debt in the detinet, on a promissory note, executed y [p. 643] the said Anderson Childress, as the agent of said 1823. Joel Childress; both of whom were citizens of

1. That the action was misconceived, debt not [p. 645] being an appropriate remedy against an executor

1. On examining the history and progress o [p. 649] this singular species of trial, it will be found to 1823. have been uniformly applied to the evidence of the demand, and was in no case an incident to the v. nature of the action or remedy. Whenever the debt or demand was sufficiently evidenced, whenever it was notorious in its nature, or defined in its extent; or, finally, whenever it did not rest merely in verbis, there wager of law did not obtain. We may, then, inquire, first, in what cases wager of law was not allowed by the common law; and, secondly, in what description of cases it was permitted; and, from an examination of the reasons which sustained, or repudiated wager of law in these cases, we shall find that, in principle, it never could have been applied to the case of a promissory note, and that, in fact, it never has been so applied.

12 MoW: 684. ' [p. 651] penalty given by statute, for this is a matter in 1823. cwsimili casu with debts by, specialty or record.

a 12 Mod. 681. b Br. Ley. Gager.pl. 27- 57- 103- [p. 655] sence or absence of a seal, or something equiva- 1823. lent thereto; and that al! contracts, not of record,

As to the origin of this “ tempter to corrupt perjury,” Lord Coke confidently refers it to the law of God, which permitted the bailee of an ox, or other cattle, to discharge himself, by his own oath, from all responsibility for the death or loss of the animal. Others have regarded it as a mistaken application, by the early ecclesiastics of England, of the derisory oath of the civilians; and some have supposed that it was introduced by them with the oath ex officio, so often used in cases of ecclesiastical cognizance. But whether it be the offspring of Saxon rudeness, or finds its exemplar in the more refined code of imperial Rome, is not very material: certain it is, that the simple contracts alluded to in the books, mean nothing more than such an unsustained or unevidenced contract, as ought, in conscience, to be outweighed by the oath of the party sought to be charged. In the first Edward’s reign, we find, that if a creditor sued on a verbal*demand, he was required to make rationabilem monstrationem that a debt existed. For this purpose he produced his secta; the defendant might then vadiare kgem, that is, wage his law against the plaintiff’s secta. We find, also, that no secta was ever required where the plaintiff could produce any wri- [p. 656] 1823. ting; and, as the wager of law was for the purpose of disproving the testimony of the secta, Childress

b7T.R. 350. Vol. VIII. 83 [p. 658] 1823. for, though the common law has not adopted the well known distinction of the civilians, between Childress

Again; It will be borne in mind, that when wager of law was first practised, the principle which would not allow an action of debt on simple contract, against an executor, also deprived the creditor of every other remedy. The maxim then applied, was actio personalis moritur cum persona. But, after the introduction of the action of assumpsit, it was held by the Courts, not only that the debt survived against the personal representatives of the deceased, but the debtor himself [p. 659] was not permitted to wage his law in this form of 1823. action. It is manifest, however, that both of

Another cause of demurrer is, that the [p. 671] declaration omits to state any damages; but this, if in 1823. any respect material in an action of debt, is cured

Emory- [p. 672] 1823. wise, the objection could only have been taken advantage of on special demurrer, for it is but mat-Childress

But the most important objection remains to be considered ; and that is, that an action of debt does not lie upon a promissory note against executors. It is argued, that debt does not lie upon a simple contract generally against executors; and the case of Barry v. Robinson, in 4 Bos. § Pull. 293. has been cited as directly in point. Certainly, if this be the settled rule of the common law, we are not at liberty to disregard it, even though the reason of the rule may appear to be frivolous, or may have ceased to be felt as just in its practical operation. But we do not admit, that the rule of the common law is as it has been stated at the bar. We understand, on the contrary, that the general rule is, that debt does lie against executors upon a simple contract; and that an exception is, that it does not lie in the particular case, where the testator may wage his law. When, therefore, it is established in any given case, that there can be no wager of law by the testator^ debt is a proper remedy. Lord Chief Baron Cornyns lays down the doctrine, that debt lies against executors upon any debt or contract without specialty, where the testator could not have waged his law; and he puts the case of debt for rent upon a parol lease to exemplify it. (Com. Dig. Administration, B. 14. See, also, Com. Dig. Pleader, 2 W. 45. tit. 2 D. 2.) The same [p. 673] doctrine is laid down in elementary writers. 1823. (1 Chitty's Plead. 106. Chitty on Bills, ch.