Jones v. Morehead, 68 U.S. (1 Wall.) 155

in Sherwood, under his patent, granted in 1842, and extended th $•’ f°-* “ a UeW aU<^ use^ut improvement in door-locks”—so far as fa** d a***1 f°r <making the cases of door-locks and latches doubleth t th* 80 hn^she<i that either side may he used for the outside, in order a e same lock or cased fastening may answer for a right or left p. 156hand door, substantially as described; ” that .is to say, the first claim in his schedule, is for a thing which is not original with him and void. And the question is raised by the court, but not decided, whether “the making of the case which incloses the internal works of the lock, with two faces just alike, and so well finished-off in point of style, that cither side may be presented outwards, is a matter wlftch could be patented, if no locks with such cases had ever been made before ? ” 2. This part of the invention known as the Janus-faced lock, not being original, no action lies by Sherwood or his assignees, for using it in combination with other inventions not patented by that person; nor can persons so using it be made infringers by an argument which, assuming the validity of Sherwood’s invention, mingles it with these other parts, and then treats the whole as a unit, and gives to him or his assignees damages equivalent to the net profits on the manufacture of the entire lock.

This was a bill filed in the Circuit Court for the Western District of Pennsylvania, to restrain the infringement of a patent for protecting the manufacture of a certain sort of door-locks, called Janus-faced locks, and for an account; the parties to the suit being two large manufacturing firms in the city of Pittsburg. The history of the invention or claim of invention in question, was essentially thus: Till within a few years past most of the door-locks used in this countiy, were imported from England. It was thought desirable, therefore, to have, invent, or use some plan by which this aiticle could be obtained more cheaply and better than the ini ported, notwithstanding the higher price of labor here, te article of door-locks being one of immense consumption in this country. This object was in part effected by making the locks of cast iron; but some difficulty in the way o these cheaper productions was thought to exist in the ac that door-locks had to be made “ right and left” and that a lock made for a right-hand door had to be turned upsice p. 157down in order to be used on a left-hand door, and vice versa. It was conceived, therefore, that if this difficulty of right and left hand locks was obviated, and every lock made equally capable of use on right or left hand doors, an advantage might be gained. An American, named Sherwood—under whom the complainants claimed—conceiving that he had invented a mode of effecting the object, and that finishing a lock on both faces was an invention and proper subject for letters, procured a patent in 1842 (extended in 1856), and established a manufactory of this sort of lock. His patent was for “a new and useful improvement in door-locks.” The language of his schedule was as follows :

s not proved nor argued that the defendants had used p. 158any part of Sherwood’s patent, except the double-faced casing. In fact, no locks with the particular internal mechanism specified in Sherwood’s patent were ever made, except one or two made by Sherwood himself.

On the trial below—under the defence of want of originality—great numbers of locks were brought into court, many of which were older than Sherwood’s, and were undoubtedly cased on both sides. Certain ones were particularly relied on: two from the gates of the New York City Hall; one from the Custom House in that city; one or more from the City Hospital, and one from the gate of St. Mark’s Church. Several manufacturers of reputation, who were offered as experts, testified that in their opinion these were not essentially different in principle from Mr. Sherwood’s lock. The counsel below for Sherwood’s patent argued, however, that no one of these locks had been made with an intention to o viate the difficulty of having right and left hand locks, or that practically any of them had been so used, or that any person, before Sherwood, in seeing one of them, had. thus ap plied them, or perceived that they could be so applied, contended, with a greater or less degree of force, that t e Custom House lock was, in fact, from an open outdoor gate; that its inside was covered tight, in order to preserve works of the lock from the weather and from rust, a evi p. 159necessary in all outdoor gate locks; that it was not well suited for a Janus-faced lock, and was finished on one side only; that it was a left-hand lock, and not a door-lock properly speaking, at all. The lock taken from the City Hospital gate, he argued, was a dead lock, a right-hand lock; though he admitted, that by putting it wrong side out, and making some alterations, it might be converted into a left-hand dead lock. The same he thought was to be said of the gate-lock of St. Mark’s Church, and of all the others. The Circuit Court reporter, in reporting the case, says, however {see Legal Intelligencer, vol. xviii, p. 293): “ And yet undoubtedly to the eye of high inventive genius, the finished production of Sherwood was visible in nearly every one of these ruder productions. It required but the vital spark of genius to kindle the train, and to convert, in an instant, the manufacture designed for one purpose, into an object applicable to quite another.” The question, of course, was one, in a large degree, of inspection. The locks which were exhibited below, having been made exhibits in the case, were now all exhibited here.

vol F aiUau^8' -Tbe profits they made by this trespass justly p. 162belong to the true owner. They have partaken equally with the complainants in the profits of the monopoly granted to them alone, without license, and in defiance of their rights. The only measure of the redress to which the complainants are entitled is an account of the actual profits made by respondents. The machine being a unit,—a specific article well known in the market, having peculiar value because of the patentee’s discovery or invention,—the attempt to arbitrarily divide the profits of the monopoly of the whole machine among its parts is without precedent, and receives no countenance from the case of Seymour v. McCormick* which has been relied on for an opposite idea.”

District of Columbia, against Sweeny, Rittenhouse, p. 167& Co., bankers of Washington City, to recover the value of certain negotiable notes belonging to them, the first named persons, and which they had indorsed in blank and placed in the hands of Harris & Sons, bankers of Baltimore, for collection and for no other purpose. Harris & Sons forwarded the notes to Sweeny, Rittenhouse, Fant & Co., who were their correspondents in Washington, having first indorsed them thus:

woss-examination he testified, that this practice of Harris p. 168& Sons, of distinguishing in transmitting paper to the defendants, was not uniform, but depended on the wish of the customer depositing the paper not discounted, and that it extended only to paper having time to run, and did not apply to checks, or sight drafts, or other cash paper, as to which the business was managed as if Harris & Sons were the absolute owners of the paper; and that said practice was only the private practice of Harris Sons, and that witness never informed defendants of the same, nor did he know they were ever informed thereof; nor, so far as he knows, did they ever have any information as to the practice of Harris $ Sons of keeping distinct the business relating to discounted time paper and to time payer belonging to customers, by the use of separate letter-books, or otherwise, as testified by him.

The defendants then proved that for about two years prior to the date of these transactions, there had been mutual and extensive dealings between them and Harris & Sons; that Harris & Sons transmitted, from time to time, to the defendants, negotiable paper for collection; and that, by the uniform course of dealing between the parties, Harris & Sons were treated and dealt with as the owners of the paper so transmitted; that accounts current were kept by the defendants, in which the proceeds of such paper were, when received, credited to said Harris & Sons, and they were charged with all expenses; and that accounts were transmitted monthly to said Harris & Sons, and acquiesced in by them, that upon the credit of such negotiable paper so transmitted or expected in the ordinary course of business, and of such course of dealings, large drafts were drawn from time to time by Harris & Sons, and paid by the latter, and that, upon such credit, large ascertained balances were allowed to remain in the hands of said Harris & Sons, to be met by the proceeds of such negotiable paper; and that, in all respects, the paper so transmitted was regarded, treated, and ea with by the defendants, and said Harris & Sons, as the pro perty of the latter; and that a similar course of dealing obtained in regard to negotiable paper transmitted by de en dants to said Harris & Sons; that the notes in controversy p. 169were regarded, and dealt with as the property of Harris & Sons, and that the defendants had no notice or knowledge, until after the insolvency, that this paper was not their property, or that the plaintiffs had any interest in it; and that the balance due the defendants on general account, at the time of the insolvency, had been suffered to remain undrawn, pn the faith and credit of the paper in controversy, and the course of dealing aforesaid. The defendants further proved that Harris & Sons, at a date specified, and about three months before the failure, when there was a balance against them, on general account, of $3326.94, had drawn on the defendants for $244.08, the defendants being then the holders of a large amount of negotiable paper, indorsed and transmitted in th same manner as the notes in controversy, and among it certain notes^ indorsed by the plaintiffs in blank, and transmitted in a similar manner to the notes in controversy. And the defendants offered evidence, by witnesses largely engaged in the business of banking, that by the general custom and usage of bankers, negotiable paper transmitted and indorsed as the notes in controversy, would be held and treated as the property of the bankers transmitting them.

°n, and had no notice to the contrary, and upon the ere- p. 170dit of such remittances made, or anticipated, in the usual course of dealing between them, balances were from time to time suffered to remain in the hands of Harris & Sons, to be met by the proceeds of such negotiable paper, then the defendants are entitled to retain against the plaintiffs for the balance of account due from Sam. Harris & Sons.”

a And the private practice of Harris & Sons, in transmitting negotiable paper having time to run, whereby they in tended to distinguish between negotiable paper discounted by them and that received for collection, as given in evi ence by the witness Harris, is not competent to charge the dants with notice as to whether the paper in controversy p. 175discounted by and belonged to the said Harris & Sons, or was transmitted for collection, unless the jury shall find, from all the evidence in the -case, that the defendants had knowledge of such private practice; and in the absence of such knowledge, the defendants were authorized to treat such paper according to what it purported on its face, and the general custom of bankers in the District of Columbia and elsewhere, offered in evidence.”

e right, and those decisions, meeting with the approbation p. 176of this court, and being in harmony with the adjudications of sixteen States of the Union, will be regarded as a true interpretation of the constitution and laws of the State so far as relate to bonds issued and put upon the market during the time that those decisions were in force. The fact that the said Supreme Court of Iowa now holds that those decisions were erroneous, and ought not to have been made, and that the legislature of the State had no such power as former courts decided that they had, can have no effect upon transactions in the past, however it may affect those in the future.

’ I w character and value of which decisions make the VOL. i. V p. 178principal subject of discussion in this case,—the city of Dubuque issued a large amount of coupon bonds, which were now in the hands of the plaintiffs. The bonds bore date on the 1st of July, 1857, and were payable to Edward Langworthy, or bearer, on the 1st of January, 1877, at the Metropolitan Bank, in the city of New York. The coupons were for the successive half year’s interest accruing on the bonds respectively, and were payable at the same place. The bonds recited that they were given “ for and in consideration” of stock of the Dubuque Western Railroad Company, —(one of the roads to which, by the act last mentioned, the city was authorized to subscribe),—and that for the due payment of their principal and interest, “ the said city is hereby pledged, in accordance with the code of Iowa, and an act of the General Assembly of the State of Iowa, of January 28, 1857,”—the act just referred to. The coupons on the bonds not being paid, the plaintiffs sued the city of Dubuque in the District Court of the United States for the District of Iowa, claiming to recover the amount specified in the coupons, with the New York rate of interest from the time of their maturity, and exchange on the city of New York.

at if a constitutional question did not preclude it, p. 190the court would feel bound by the construction of the star tute by former courts, ‘and would follow such decisions.

Now in the face of this history of decisions in Iowa and everywhere, of what value is this case, The State of Iowa, ex rel., v. The County of Wapello, so much relied on ? By whom, after all, is law to be settled among us ? By the Supreme Court of the United States, or of the State of Iowa? By the supreme tribunal of fifteen States or of one ? By the Supreme Court of Iowa for seven years or for two ? By six judges of that State or by three ? Are you to hold, in the face of the fact that millions of dollars have been invested, under the law which enters into and forms a part of every contract as it was interpreted by the courts of the whole country, that you yourselves were mistaken? That for twenty-five years all the tribunals of the whole country were mistaken ? That for seven years the Supreme Court of Iowa was mistaken? Because it appears now that that tribuna has reversed its long-established rulings? Had the question been presented to you one year ago to-day, you would not have hesitated an hour on the proposition, for then there was no diversity of rulings anywhere. Because the Supreme Court of Iowa has chosen thus to disregard its own precedents, are millions of property, treasured on the banks o the Delaware, the Hudson, the Thames, the Seine, and the Rhine; are the decisions of this State of Iowa itself, as o a the States; the reputation of that people, as of Americans generally, to be swept away ? swept away by a surg judicial opinion ?” Is the sway of law among us t us “shake like a thing unfirm?” This cannot be. ® there is no settled law in Iowa upon the subject. 1 e co of this year has reversed the decisions of former years; an has but taught instructions which will return, herea er,, plague it. Assuredly, this high tribunal of the ni States, whose opinion has been expressed wit c e ’ p. 191will not vary its opinion and cut loose from its own, and from accepted decisions of the whole country, at a time when, above all times, change would be unwarranted in principle and freighted with disaster.

If thA \ C^no^ by command, it cannot do by taxation. °ne cit $ ^Ure sb°uld tax the property of individuals in would b 'a tlW expen8.es of an°ther, such legislation kind re II V<>1 k • eVen *n re^ar(^ to improvements of a the pvJ pu Jic> more than any citizen’s just share of Power ig118^ ° ^eni *8 taken, the legislation is null. If* eerns the t0 ta^e ProPerty in one place which con-taken fronTth0 lar?e’ ProPerty n°t being proportionably honi one Pubhc at large, or if property is taken ace only for objects which concern another, the p. 192power is not one conformed to the principles of constitutional republican government. Now a man’s property is as much taken by a tax as by any other form. Indeed of all modes of taking property it is the most effective, as also the most difficult to analyze and oppose. It has always been the instrument of unconstitutional legislation, and, therefore, should be watched and guarded. It is of the essence of taxation, therefore, that it be just. And wherein does this justness consist ? Plainly in a just apportionment of taxes; that is to say, an apportionment which brings to the party, in some form, just compensation for this property taken away. In regard to a man’s property taken by tax and applied to purposes purely local and about him, he gets the just recompense, by the application itself. Where the application is to purposes of a wider and more public kind,—for the purposes of his State, or the United States,—he gets a just recompense, provided all others are taxed proportionably with him. But just in so far as he is taxed above them, he gets no just recompense at all. The principles are readily applied to a case like the present.

It is urged that the courts of the different States of the Union have decided this question so uniformly in favor of the power of the legislature to confer the authority claimed, that it is no longer an open question. We may observe m passing that it is matter of difficulty for professional men or judges—if not belonging!© a State—perfectly to understan the value of decisions made under local constitutions an local statutes in that State. They may run into great error if they read them by lights in which they are accustomed to see elsewhere. But assuming all that is claimed for them, such decisions are not binding upon this court; and i t e decisions of other courts are not in accordance with the law as understood by this court, they will not be followed. If a dissenting opinion of said courts is based upon correct lega p. 195principles, this court will follow such principles, rather than an erroneous decision of a court. Let us see if the decisions of the courts of the different States do establish the principle, that a legislature, with power like that of the State of Iowa, can confer upon municipal corporations the right to purchase stock in railroad corporations.

’ un y, or State, but in their individual capacity. It p. 198holds virtually that the legislature has no such power, but that it is inherent in the people. There is nothing said about the power of the legislature to confer this authority on a city or county.

be kj11 th* 8 ashec^ the case,” the court continues, it will e J ^CeiVe(^ that the question now under consideration is an const'°ne *n this State, and that this court as now 1 must pass upon it as an original question, wholly at all K • J.c\octrine siare decisis; or, if influenced later rafh^K <^ec^s^ons’ we should be inclined to follow the er t an the earlier opinions.” The court then p. 200examines the history of legislation in Iowa, and shows that important features in it have escaped the notice of judges who first gave a construction to the code. It then inquires whether the legislature can pass laws like those in question, and considers the question on the principles of State and of muni-, cipal governments, and on the character and responsibilities, the risks and liabilities, of railroad corporations; declaring that the legislature cannot. The court was conscious of the importance of the decision they were making. They say, in denying the validity of these bonds: “ We are. not insensible that in doing so, at this late day, we are liable to expose ourselves and our people to the charge of insincerity and bad faith, and perhaps that which is still worse, inflict a great wrong upon innocent creditors and bondholders: consequences which we would most gladly have avoided, if we could have done so and been true to the obligations of conscience and principle.” But they declare that the legislative power assumed u practically overturns one of the reserve and fundamental rights of the citizen, that of making his own contracts, choosing his own business pursuits, and managing his property and means in his own way, and which, under the Constitution of this State, however it may be else where, entitles him to the intervention and protection of t e courts, we are willing to risk the consequences resulting from the exercise of such a power as furnishing a sufficient answer in itself to all the reasons which have been or may be assigne in favor of its exercise.” In answer to the cry about im provement and trade, they declare that if any person v believes the law to possess the dignity of a science, an o an exalted rank in the empire of reason,” will ana yze question with reference to the principles and theory o own political organization, he will discover that it imp ica a right which in importance is above all or any interes co nected with the business relation or the physica impio ments of the county.” And rendering everything to its p per sphere, and leaving to the law its duties, and to consci hers, they end with this declaration: “ We know, howe> , that there is such a thing as a moral sense and a pu p. 201which may be successfully appealed to, when the law is impotent to afford relief. These sentiments, we cannot but believe, still reside in the hearts and consciences of our people, and may be invoked to save themselves and their State from seeming bad faith.” The case may be avoided or evaded. Answered, on principle, it cannot be.

f Judiciary Act, 1789, § 25. p. 202stitution and statutes of a State mean one thing, when the courts of the State itself have solemnly adjudged that they mean another ? whether this court will say, that the State courts have decided a question, when the judges who sit on the bench of that court are declaring unanimously that “ the question is an entirely open one,” and to be passed upon as an “ original question ?” whether, because dealers upon change, whose daily bread, like that of underwriters, is “risk;” people upon the “Rhine”—the respectable citizens of the Juden-Gasse of Frankfiirt-am-Maine,—have bought these bonds at large discounts, on account of those doubts of their legality which everywhere have attended the issue of them, shall have them enforced in the face of constitutions and solemn decisions of the State courts, simply because they have bought and yet hold them ? These are the questions; some of them grave ones,—if resolved in the affirmative.

“ That the city of Dubuque is hereby authorized and empow p. 203ered to aid in the construction of the Dubuque Western and the Dubuque, St. Peter’s & St. Paul Railroad Companies, by issuing $250,000 of city bonds to each, in pursuance of a vote of the citizens of said city, taken in the month of December, A. D. 1856. Said bonds shall be legal and valid, and the City Council is authorized and required to levy a special tax to meet the principal and interest of said bonds, in case it shall become necessary from the failure of funds from other sources.”

’ ; Alleghany City v. McClurkan, 14 Pennsylvania State, 83. p. 204under the consideration of the Supreme Court of Iowa, in McMillen v. Boyles* and again in McMillen et al. v. The County Judge and Treasurer of Lee County, f The validity of the act was sustained. Without these rulings we should entertain no doubt upon the/subject, j

We are not unmindful of the importance of uniformity in the decisions of this court, and those of the highest loca courts, giving constructions to the laws and constitutions o their own States. It is the settled rule of this court in sue cases, to follow the decisions of the State courts. But there have been heretofore, in the judicial history of this court, as doubtless there will be hereafter, many exceptional cases. We shall never immolate truth, justice, and the law, because p. 207a State tribunal has erected the altar and decreed the sacrifice.

on this question. Although you are sitting in the State o p. 209Iowa, and administering her laws, and construing her constitution, you shall not follow the latest, though it be the soundest, exposition of its constitution by the Supreme Court of that State, but you shall decide directly to the contrary; and where that court has said that a statute is unconstitutional, you shall say that it is constitutional. When it says bonds are void, issued in that State, because they violate its constitution, you shall say they are valid, because they do not violate the constitution.”

The only special charge which this court has over contracts, beyond any other court, is to declare judicially whether the statute of a State impairs their obligation. No such question arises here, for the plaintiff claims under and by virtue o the statute which is here the subject of discussion, hieit er is there any question of the obligation of contracts, or t « right to enforce them. The question goes behind that. e are called upon, not to construe a contract, nor to determine how one shall be enforced, but to decide whether there ever p. 211was a contract made in the case. To assume that there was a contract, which contract is about to be violated by the decisions of the State court of Iowa, is to beg the very question in dispute. In deciding this question the court is called upon, as the court in Iowa was, to construe the constitution of the State. It is a grave error to suppose that this court must, or should, determine this upon any principle • which would not be equally binding on the courts of Iowa, or that the decision should depend upon the fact that certain parties had purchased bonds which were supposed to be valid contracts, when they really were not.

This suit differed from 80—the principal one—only in the fact that the bonds of the city, which in this case bore date 1st September, 1855, were issued prior to the passage of the act of 28th January, 1857, specially authorizing the city to subscribe to the railroads for which the bonds in No. 80 had been subsequently given. The bonds rested in this case (No. 81), therefore, on the charter of the city (approved February 24, 1847), authorizing it 11 to borrow money for public purposes” and on an act passed 25th January, 1855, before the bonds were issued, one section o p. 221which enacted that whenever “ any company shall have received, or may hereafter receive, the bonds of any city or county upon subscription of stock by such city or county, such bonds may bear an interest at a rate not exceeding ten percent., and may be sold by the company at such discount as may be deemed expedient,” and which enacted also (§ 3), that “ the provisions of this act shall apply to any railroad bonds which have been heretofore issued, as well as to those which may hereafter be issued.”

his suit differed both from the principal and from the precodnig case in that it was not upon bonds issued upon the city, but was upon an instrument of writing by which the mayor and recorder p. 222of the city had entered (Feb. 7, 1859) into a contract with the same Gelpcke and others, that if they, Gelpcke and others, would pay or advance the interest due on various bonds already issued by the city (part of the interest then due, and part to become due), and would advance a certain sum of money to enable the city to pay various pressing pecuniary demands upon it, the city “ covenants that its city council shall by ordinance require” a certain tax, to be appropriated for the payment of this debt, and that it will convey unto F. S. IF., as trustee, all its real estate, of whatsoever nature the same may be (excepting that appropriated to public uses), in trust for payment of the debt. To the suit on this contract the city put in three demurrers. Two of them related to these or other provisions of the contract j “ a contract,” each demurrer alleged, “ the city had no authority to make.” The third one was founded on the provision of the 27th- section of the charter (see ante, p. 176), and was because the petition did not show that the proposition to borrow money had first passed the city council, nor that it had been submitted to vote, nor that it had been adopted by two-thirds of the qualified voters of the city. The court below sustained the demurrers, and gave judgment for the cityj which on error here was the point brought up. No argument was made on the first two demurrers. The third one was argued in No. 80.

, W*^ ’ ’ secon<i opinion. Baker v. Wheaton, 5 Massachusetts, 509. 4th ed a 348 ** McConnell, 13 Peters, 136; S. C. 1 American Leading Cases, p. 228of the Supreme Court of Massachusetts, in the case referred to, attempted to maintain that distinction, but he insists that it is without any foundation in principle, and that the decisions of this court in analogous cases are directly the other way.

Recurring to the statement of the case, it appears that e contract was made in Charleston, in the State of South ar0* lina, and it is true that both parties resided there at the time p. 229the contract was made, but the defendant subsequently removed to New Orleans, in the State of Louisiana, and it was in the latter State where he obtained the certificate of discharge from his debts. He was also one of a firm doing business in Liverpool, and a commission of bankruptcy had been issued there, both against him and his partner, and they respectively obtained certificates of discharge. Suit was brought in the District Court for the District of Louisiana, and the defendant pleaded those certificates of discharge in bar of the action, and the plaintiff demurred to the plea. Under that state of the case and of the pleadings, the court held that the certificate of discharge obtained in the State of Louisiana, was no defence to the suit, and very properly remarked that the circumstance that the State law was passed before the debt was contracted made no difference in the application of the principle. Bearing in mind that the plaintiff was a citizen of South Carolina, and that the contract was made there, it is obvious that the remark of the court is entirely consistent with the decision in the former case.

08e Congress. Secondly, that a bankrupt or insolvent p. 230law of any State which discharges both the person of the debtor and his future acquisitions of property, was not a law impairing the obligation of contracts so far as respects debts contracted subsequent to the passage of such law. Thirdly, but that a certificate of discharge under such a law cannot he pleaded in bar of an action brought by a citizen of another State in the courts of the United States, or of any other State than that where the discharge was obtained. Much diversity of opinion, it must be admitted, existed among the members of the court on that occasion, but it is clear that the conclusions to which the majority came were in precise accordance with what had been substantially determined in the two earlier cases to which reference has been made. Misapprehension existed, it seems, for a time, whether the second opinion delivered by Mr. Justice Johnson in that case was, in point of fact, the opinion of a majority of the court, but it is difficult to see any ground for any such doubt. Referring to the opinion, it will be seen that he states explicitly that he is instructed to dispose of the cause, and he goes on to explain that the majority on the occasion is not the same as that which determined the general question previously considered. Ample authority exists for regarding that opinion as the opinion of the court, independently of what appears in the published report of the case. When the subsequent case of Boyle v. Zacharie et al., 6 Pet., 348, was first called for argument, inquiry was made of the court whether the opinion in question was adopted by the other judges who concurred in the judgment of the court. To which Marshal, C. J., replied, that the judges who were in the minority o the court upon the general question concurred in that opinion, and that whatever principles were established in that opinion were to be considered no longer open for controversy, but the settled law of the court. Judge Story delivered the unanimous opinion of the court in that case during the same session, and in the course of the opinion he repeated the ex planations previously given by the chief justice. Boy e Zacharie et al., 6 Pet., 643. Explanations to the same e ec were also made by the present chief justice in the case o p. 231Cook v. Moffat et al., 5 How., 310, which had been ruled by him at the circuit. He had ruled the case in the court below, in obedience to what he understood to be the settled doctrine of the court, and a majority of the court affirmed the judgment. Acquiescing in that judgment as a correct exposition of the law of the court, he nevertheless thought it proper to restate the individual opinion which he entertained upon the subject, but before doing so, he gave a clear and satisfactory exposition of what had previously been decided by the court. Those remarks confirm what had at a much earlier period been fully explained by the former Chief Justice and his learned associate. Taken together, these several explanations ought to be regarded as final and conclusive. Assuming that to be so, then, it was settled by this court, in that case,—1. That the power given to the United States to pass bankrupt laws is not exclusive. 2. That the fair and ordinary exercise of that power by the States does not necessarily involve a violation of the obligation of contracts, multo fortiori of posterior contracts. 3. But when in the exercise of that power the States pass beyond their own limits and the rights of their own citizens, and act upon the rights of citizens of other States, there arises a conflict of sovereign power and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other States, and with the Constitution of the United States. Saunders, a citizen of Kentucky, brought suit in that case against Ogden, who was a citizen of Louisiana at the time the suit was brought. Plaintiff declared upon certain bills of exchange drawn by one Jordan, at Lexington, in the State of Kentucky, upon Ogden, the defendant, in the city of New York, where he then resided.

Defendant pleaded his discharge under the insolvent law o ew York, passed prior to the date of the contract. Evient y, therefore, the question presented was, whether a p. 232discharge of a debtor under a State insolvent law was valid as against a creditor or citizen of another State, who had not subjected himself to the State laws otherwise than by the origin of the contract, and the decision in express terms was, that such a proceeding was “ incompetent to discharge a debt due a citizen of another State.” Whenever the question has been presented to this court since that opinion was pronounced, the answer has uniformly been that the question depended upon citizenship. Such were the views of the court in Suydam et al. v. Broadnax et al., 14 Pet., 75*, where it was expressly held that a certificate of discharge cannot be pleaded in bar of an action brought by a citizen of another State in the courts of the United States, or of any other State than that where the discharge was obtained. Undoubtedly a State may pass a bankrupt or insolvent law under the conditions before mentioned, and such a law is operative and binding upon the citizens of the State, but we repeat what the court said in Cook v. Moffat et al., 5 How., 308, that such laws “ can have no effect on contracts made before their enactment, or beyond their territory.” Judge Story says, in the case of Springer v. Foster et al., 2 Story, C. C., 387, that the settled doctrine of the Supreme Court is, that no State insolvent laws can discharge the obligation of any contract made in the State, except such contracts as are made between citizens of that State. He refers to the case of Ogden v. Saunders to support the proposition, and remarks, without qualification, that the doctrine of that case was subsequently affirmed in Boyle v. Zacharie, where there was no division o opinion. In the last-mentioned case he gave the opinion of the court, and he there expressed substantially the same views. Confirmation of the fact that such was his opinion may be found both in his Commentaries on the Constitution and in his treatise entitled Conflict of Laws. His view as to the result of the various decisions of this court is, t a they establish the following propositions: 1. That State in solvent laws may apply to all contracts within the State oe tween citizens of the State. 2. That they do not app } 0 contracts made within the State between a citizen of t p. 233State and a citizen of another State. 3. That they do not apply to contracts not made within the State: 2 Story on Const., sec. 1390 (3d edition), p. 281; Story on Confl. L., sec. 341, p. 573.

egarded merely in the light of principle, therefore, the rn e is one which could hardly be defended, as it is quite ovi ent that the courts of one State would have no power o require the citizens of other States to become parties to anj such proceeding. Suydam et al. v. Broadnax et al., 14 p. 234Pet., 75. But it is unnecessary to pursue the inquiry, as the decisions of this court are directly the other way; and so are most of the decisions of the State courts. Donnelly v. Corbett, 3 Seld., 500; Poe v. Duck, 5 Md., 1; Anderson v. Wheeler, 25 Conn., 607 ; Fetch v. Bugbee et al., 48 Me., 9; DcmerritN. Exchange Bank, 10 Law Rep. (N. S.), 606; Woodhull v. Wagner, Bald., C. C., 300.

c court below ruled that the discharge pleaded was no r’ and also that the plaintiff had made out a cause of p. 236action, and gave judgment accordingly. On error here the same two questions arose.

The case in the national court* to which Prentiss, J., refers, strongly supports, by implication, our view. There a note as executed to Joseph Forrest, President of the Commercial for merchandise belonging to and sold as the p. 238property of the company. On the question, whether an action could be maintained upon the note in the name of Forrest, Marshall, C. J., said:

2. Agreed statement also shows that 0. C. Hale was in fact the cashier of the Bank of Newbury at the time the defendant executed the note, but the defendant insists, as he insisted in the court below, that parol evidence was not admissible to prove that the person therein named as payee in taking the note acted as cashier and agent of the corporation. He admits that the plaintiff can prove those facts, if admissible, but denies that parol evidence is admissible for that purpose, which is the principal question on this branch of the case. Counsel very properly admit that such evidence would e admissible in suits upon ordinary simple contracts, but t e argument is that a different rule prevails where the suit 18 QP°n a promissory note or bill of exchange. Suit in such cases, it is said, can only be maintained in the name of the person therein named as payee, and consequently that the P aintiff bank cannot be treated as such without explanatory cvi ence, and that parol evidence is not admissible to furnish any such explanation. Suppose the rule were so, still it could p. 240not benefit the defendant in this case, because it is unconditionally admitted that O. C. Hale was in fact cashier of the plaintiff bank at the time of the making of the said note. Undeniably the note must be considered in connection with that admitted fact, and when so considered it brings the case directly within the rule laid down in the case of Commercial Bank v. French, 21 Pickering, 486, and the several eases there cited upon the same subject. In that case the court say the principle is that the promise should be understood according to the intention of the parties. If in truth it be an undertaking to the corporation whether a right or a wrong name is inserted, or whether the name of the corporation or some of its officers be used, it should be declared on and treated as a promise to the corporation, and as a general rule it may be said that where enough appears to show that the parties intended to execute the instrument in the name of the principal, the form of the words is immaterial, because as between the original parties their intention should govern. But it is not necessary to place the decision upon that ground alone, as we are all of the opinion that even if the facts set forth in the agreed statement are all to be regarded merely as an offer of proof, subject to the objections of the defendant, still the case must be decided in the same way. Regarded in that point of view, the question then is whether the evidence offered was. admissible. Promise, as appears by the terms of the note, was to O. C. Hale, cashier, and the question is, whether parol evidence is admissible to show that he was cashier of the plaintiff bank, and that in taking the note he acted as the cashier and agent of the corporation. Contract of the parties shows that he was cashier, and t at the promise was to him in that character. Banking corporations necessarily act by some agent, and it is a matter o common knowledge that such institutions usually have an officer known as their cashier. In general he is the o cer who superintends the books and transactions of the ban under the orders of the directors.

e P1^ncipal, and he may sue or be sued thereon, though named therein. Parol proof may be admitted to show V0L-X- 16 p. 242the real nature of the transaction, and it is there held that the admission of such proof does not contradict the instrument, but only explains the transaction.

Such evidence, says Baron Park, in Higgins v. Senior, 8 Mee. & Wels.,.844, does not deny that the contract binds those whom on its face it purports to bind, but shows that it also binds another by reason that the act of the agent is the act of the principal. Argument for the defendant is, that the doctrine of those cases can have no application to the present case, because the suit is founded upon a promissory note, but the distinctions taken we think cannot be sustained under the state of facts disclosed in the agreed statement. Mr. Parsons says, if a bill or note is made payable to A. B., cashier, without any other designation, there is authority for saying that an action may be maintained upon it, either by the person therein named as payee or by the bank of which he is cashier, if the paper was actually made and received on account of the bank; and the authorities cited by the author fully sustain the position. Fairfield v. Adams, 16 Pick., 381; Shaw v. Stone, 1 Cush., 254; Barnaby v. Newcombe, 9 Cush., 46 ; Wright v. Boyd, 3 Barb., S. C., 523. Among the cases cited by that author to show that the suit may be maintained by the bank, is that of the Watervliet Bank v. White, 1 Den., 608, which deserves to be specially considered. Note in that case was indorsed to B.. Olcott, Esq., cashier, or order, and the suit was brought in the name of the plaintiff bank, of which the indorsee was the cashier. Objection was made that the suit could not be maintained in the name of the bank, but it appearing that the indorsement was really made for the benefit of the corporation, the court overruled the objection, and gave judgment for the plaintiff. Bayley v. Onondaga Ins. Co., 6 Hill, 476. Suggestion was made at the argument that the rule was different in Massachusetts, but we think not. On the contrary, the same rule is esta lished there by repeated decisions, which have been followe in other States. Eastern R. R. Co. v. Benedict et al., 5 Gray, 561; Folger v. Chase, 18 Pick., 63 ; Hartford Bank v. Barry, 17 Mass., 94; Long v. Colburn, 11 Mass., 97; Swan v. Bar, p. 2431 Fairf., 441; Rutland ft R. R. Co. v. Cole, 24 Vt., 33. Doubt cannot arise in this case that the person named in the note was in fact the cashier of the plaintiff bank, because the fact is admitted, and it is also admitted that the plaintiff can prove that in taking the note he acted as the cashier and agent of the corporation, provided the evidence is legally admissible. Our conclusion is, that the evidence is admissible, and that the suit was properly brought in the name of the bank. The judgment of the Circuit Court is therefore affirmed with costs.

63, issued a general order, No. 38, declaring, for the information of all persons concerned, that thereafter all persons p. 244found within his lines who should commit acts for the benefit of the enemies of our country, should be tried as spies or traitors, and if convicted should suffer death; and among dther acts prohibited, was the habit of declaring sympathies for the enemy. The order issued by General Burnside declared that persons committing such offences would be at once arrested, with a view to being tried as above stated, or to be sent beyond his lines into the lines of their friends; that it must be distinctly understood that treason, expressed or implied, would not be tolerated in his department.

The prisoner, on being arraigned, denied the jurisdiction of the military commission, and refused to plead either to the charge or specification. Thereon, the members of the commission, after private consultation, directed the judge advocate to enter a plea of Not Guilty, and to proceed with the trial, with an allowance to the petitioner to call witnesses to rebut the evidence which might be introduced against im to establish the charge. The next day the commission proceeded with the trial. Seven members of it were present, and tried the charge in due form of military law. The prisoner exercised his right to call witnesses, and to cross-examine those who were sworn for the prosecution. At his request he had the aid of counsel, and the court adjourned to enable him to procure it. Three gentlemen of his own c oice attended; but for some cause, only known to themse veg and their client, they remained in an adjoining room unng the trial, without having been introduced before the commission, though it expressly authorized it to be done, aying t at it had adjourned to permit the prisoner to obtain cir presence. The prisoner was informed by the judge vocate, when he closed his evidence, that no other witsses would be introduced. He then offered the Hon. S. S. p. 246Cox as a witness in his behalf. This gentleman was interrogated in chief, without being cross-examined, and it was admitted by the judge advocate, that if three other persons who had been summoned to appear as witnesses for the prisoner had appeared, but who were not in court, that their evidence would have been substantially the same as Mr. Cox had given. Here the accused closed his testimony, and then read to the commission a statement, which, with the other proceedings of the trial, was forwarded to the judge advocate general, and was inserted in the record.

It began with the declaration, that he had been arrested without due process of law, without a warrant from any judicial officer; that he was then in a military prison, and had been served with a charge and specifications, as in a court-martial or military commission; that he was not either in the land or naval forces of the United States, nor in the militia in the actual service of the United States, and, therefore, not triable for any cause by any such court; that he was subject, by the express terms of the Constitution, to arrest only by due process of law or judicial warrant, regularly issued upon affidavit by some officer or court of competent jurisdiction for the trial of citizens; that he was entitled to be tried on an indictment or presentment of a grand jury of such court, to a speedy and public trial, and also by an impartial jury of the State of Ohio, to be confronted with witnesses against him, to have compulsory process for witnesses in his behalf, the assistance of counsel for his defence, by evidence and argument according to the common law an the usages of judicial courts;—all those he demanded as his right as a citizen of the United States, under the Constitu tion of the United States. He also alleged that the offence of which he is charged is not known to the Constitution o the United States, nor to any law thereof; that they were words spoken to the people of Ohio, in an open and pu c political meeting, lawfully and peaceably assembled un er the Constitution, and upon full notice; that they wer words of criticism upon the policy of the public servants o$ the people, by which policy it was alleged that the w e r p. 247of the country was not promoted. That they were used as an appeal to the people" to change that policy, not by force, but by free elections and the ballot-box; that it is not pretended that he counselled disobedience to the Constitution or resistance to the law or lawful authority; that he had never done so, and that beyond this protest he had nothing further to submit.

he finding and sentence were approved and confirmed p. 248by General Burnside, in an order bearing date the 16th of May, 1863, and Fort Warren was designated as the place of imprisonment. On the 19th of May, 1863, the President, in commutation of the sentence, directed Major-General Burnside to send the prisoner, without delay, to the headquarters of General Rosecrans, then in Tennessee, to be by him put beyond our military lines; which order was executed.

Our first remark upon the motion for a certiorari is, that there is no analogy between the power given by the Constitution and law of the United States to the Supreme Court, and the other inferior courts of the United States, and to the judges of them, to issue such processes, and the prerogative power by which it is done in England. The purposes for which the writ is issued are alike, but there is no similitude in the origin of the power to do it. In England, the Court of King’s Bench has a superintendence over all courts of an inferior criminal jurisdiction, and may, by the plenitude of i s power, award a certiorari to have any indictment removed and brought before it; and where such certiorari is allowae, it is awarded at the instance of the king, because every in ictment is at the suit of the king, and he has a prerogaive of suing in whatever court he pleases. The courts of 6 States derive authority to issue such a writ from e onstitution and the legislation of Congress. To place wo sources of the right to issue the writ in obvious conms, and in application to the motion we are considering p. 250for its exercise by this court, we will cite so much of the third article of the Constitution as we think will best illustrate the subject.

Ho ^\rousseau v. The United States, 6 Cranch, 314; Barry v. Mercein, 5 9 ' United States v. Curry, 6 Id., 113 ; Forsyth v. United States, p. 252out disregarding its frequent decisions and interpretation of the Constitution in respect to its judicial power, originate a writ of certiorari to review or pronounce any opinion upon the proceedings of a military commission. It was natural, before the sections of the 3d article of the Constitution had been fully considered in connection with the legislation of Congress, giving to the courts of the United States power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their respective jurisdiction, that by some members of the profession it should have been thought, and some of the early judges of the Supreme Court also, that the 14th section of the act of 24th September, 1789, gave to this court a right to originate processes of habeas corpus ad subjiciendum, writs of certiorari to review the proceedings of the inferior courts as a matter of original jurisdiction, without being in any way restricted by the constitutional limitar tion, that in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. This limitation has Always been considered restrictive of any other original jurisdiction. The rule of construction of the Constitution being, that affirmative words in the Constitution, declaring in what cases the Supreme Court shall have original jurisdiction, must be construed negatively as to all other cases** The nature and extent of the court’s appellate jurisdiction and its want of it to issue writs of habeas corpus ad subjiciendum have been fully discussed by this court at different times. We do not think it necessary, however, to examine or cite many of them at this time. We will annex a list to this opinion, distinguishing what this court’s action has been m cases brought to it by appeal from such applications as have been rejected, when it has been asked that it would act upon the matter as one of original jurisdiction.