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execution, at the suit of the United States, the , from that in which they would be when under same privileges and liberty of jail limits as the execution by process from the courts of the laws of the States at the time of such im. United States. This would produce discord prisonment allow to persons confined on proc- and dissatisfaction; complaints would be justly esses issuing from the State courts; and by urged against the laws of the United States as the laws of Maine, in force at the date of the oppressive. The purpose of the law was to probond in suit, it was not required of persons en- duce harmony. T'he fair and liberal constructitled to the jail limits, to remain within the tion of the legislation of Congress on this subwalls of the jail in the night time.

ject is, that persons confined at the suit of the “2. Because, by the Act of Congress of United States, shall have the same regulations 1828, ch. 68, the same proceedings on writs of applied to them as are in force in relation to execution issuing from courts of the United persons imprisoned under process from the States are required as were then used in the courts of the States of the Union. State courts; and by the laws of Maine, then The acts of Congress relating to process in in force, proceedings on processes issuing from the courts of the United States, declare that the State courts, did not require debtors, who the forms of process shall be the same as the were entitled to the jail limits, to remain with forms "now" used in the States. Such has in the walls of the prison at night.

been the construction of the process acts. But "The bond was given stipulating that the in the Act of 1789, relative to imprisonment, debtors to the United States, Jacob Knight and and in the subsequent acts of Congress, there Benjamin Knight, should continue within the is no such term as “now.” The cases which limits of the jail yard until they should be law. have been cited by the Attorney-General, as to fully discharged; and the agreed facts state the process acts, have, therefore, no applicathat "they continued to remain within the tion to the imprisonment acts. limits of the town of Portland, exclusive of the It has been questioned whether Congress islands, and did not depart therefrom, up to have the power, constitutionally, to adopt, the time of the commencement of the suit. prospectively, the legislation of States. This

It is said that they had not continued within is no longer a question-so far as the action of “the limits" which established when Congress can give a construction to the Consti. Congress passed the Act of 23d September, tution-Congress have prospectively adopted 1789, those limits having been established un the State practice in actions in the circuit der the laws of Massachusetts, prevailing in courts. Maine, authorizing the use of her jails by the *In regulating the militia, Congress [*307 United States, on the 27th of May, 1787. It is have adopted, prospectively, the State regulaadmitted, the defendants continued, from the tions, and have consented to the discipline of 306*] time of the execution of the bond," with the militia being under and in conformity with in the jail limits established under the laws of State laws. Exemption from militia duty is Maine, before the bond was given, and in force determined by the State rules. up to the period at which this suit was insti. There is no case in which it has been decided tuted.

that the powers of the legislation of the United What laws relative to jail limits are in force States are not prospective. In the case of The in the State of Maine? The United States do United States v. Noah, sheriff, etc., it was de. not deny that if the laws now in force apply cided that a “sheriff of a court under the Act to the case of the defendants, they are not lia- of Congress of January 6th, 1800, is bound to ble on the bond.

take a bond for the limits as provided by the When the State of Maine came into the State laws, from a prisoner confined in process Union, all the laws of Massachusetts, which from the courts of the United States; and false had before been in force, were repealed. The imprisonment would lie on his refusal.” Paine's Act of the Legislature of Massachusetts, au. C. C. R. 368. It was also decided in the same thorizing the use of her jails by the United case, that “process” in the act includes execuStates, of 26th February, 1790 did not exist. tions as well as mesne process; and that a No laws but those of Maine, since she became bond for the limits, taken by the sheriff from a State, give to the United States the right to a prisoner under process from the courts of the confine her debtors in the jails of that State. United States, has in all respects the same in: Such persons can only be confined in the jails cidents, and the like legal effect with a bond of Maine, according to the laws of Maine. taken under the State laws.

It is submitted to the court that the acts of The act of the Legislature of New York, Congress of 23d September, 1789, 1 Story's making it the duty of the sheriffs of counties Laws of the United States, 70; of 5th May, to receive prisoners committed under process 1792, 2 Story's Laws, 246, and the acts of from the courts of the United States, was 1794, 1796, and 1800, adopted, prospectively, passed in 1801, and this act gave the sheriffs the legislation of the States as they might of the State authority to take bonds for the from time to time regulate the jail yards. This limits. The Act of Congress authorizing the is the plain stipulation of the laws. The legis. confinement of the prisoners under process of latures of the States stood on a kind of con- the United States, was passed on the 6th Janutract. If you grant to the United States the ary, 1800. This case fully decides the adoption use of your jails, persons who may be confined of the prospective or future legislation of the at the instance of the United States shall be States, in such matters. This decision has nev. subject to the regulations of the States. er been questioned.

The construction of the acts of Congress The bond sued upon in the case before the which is claimed by the United States, would court was not taken under the Massachusetts place citizens of the United States, when sued law of 1789. The condition of the bond is that in the State courts, in a different sitvation' the persons shall continue true prisoners within

the limits of the jail yard. What is the pro- been sufficiently followed, in setting forth, in vision in the law of Massachusetts ? Not that the bond, the particular condition referred to, prisoners should have liberty of the jail yard yet this objection is met by the last clause within the prison. The law of 1789 was, that which provides in general terms that the par. the person should continue within the limits of ties shall “commit no manner of escape.” The the prison. This is not the jail yard. This acts of the parties do clearly constitute "an will be found fully explained in 3 Mass. Rep. escape” under the statute in question, and 98.

amount to a breach of that condition, so as to The construction which the court will give render them liable to the penalty, even if to this bond will be strict. The action is they were not so in regard to the other condiagainst the sureties, and they are entitled to tions. all the benefits of such a construction. Cited, It is also contended that even if the privi. 9 Wheat. 680.

leges of an imprisoned debtor depend on the The Act of Congress of 19th May, 1828, ch. Act of 6th January, 1800, yet that the con88, provides that writs of execution and pro-struction which limits them to such as were ceedings shall be such as the laws of the State allowed by the State laws, in force at that shall determine. Proceedings are to be ac- time, is incorrect. To this it is replied that the cording to the provisions of the State laws. It words of the act distinctly adopt the regula. has been decided in Beers v. Houghton, 9 Peters, tions of the States existing at the time of its 329, that proceedings comprehend all the acts passage, and no others; that it could never be after execution. In that case a discharge by the intention of Congress, if it were within the State law of Ohio discharged the bail." their constitutional power, to sanction pro

If the interpretation of "proceedings" is not spective legislation over which they exercised such as is contended for, no power exists to ex. no control; and that, by repeated decisions of tend the privileges of the jail limits as regu- this court, it has been held that in adopting lated by the State laws. If the acts of Con. State laws of this character, those only are gress on this subject are not prospective in the included which are actually in existence at new States, no authority of this kind exists. the time. Wayman *v. Southard, 10 [*309

It is submitted that the Act of Congress of Wheat. 41; The United States Bank v. Hal. 808*] 1828 extends to all *suits by the United stead, 10 Wheat. 59; Beers v. Houghton, 9 States. The provision is as to all process issu. Peters, 361; Wilcox v. Hunt, 13 Peters, 378; ing from the courts of the United States; no Anonymous, Peters’s C. C. Rep. 1. distinction exists as to suits by the United But the principal ground taken on behalf of States.

the defendants in error is, that the privileges There was a case decided in Massachusetts, of imprisoned debtors, at the time this suit where a party confined at the suit of the was brought, did not depend on the Act of United States, had the benefit of the Poor Congress of 6th January, 1800, but on the Act Debtor's Act, an act passed after the Act of of 19th May, 1828,4 Story's Laws, 2221, which 1789.

declared that “writs of execution and other Mr. Gilpin, Attorney-General, in reply: final process in the courts of the United States,

The positions attempted to be established on and the proceedings thereon, should be the the part of the plaintiffs in error were these: same as were then used in the State courts," that if Jacob and Benjamin Knight had not To this it is answered that the act referred "remained true prisoners," or had committed to does not apply to suits in which the United what amounted to "an escape,” in contempla- States are plaintiffs; and that if it did, the tion of the laws of the United States, the con proceedings" therein mentioned do not em. dition of the bond was broken, and the judg. brace the privileges of the jail limits, as then ment of the Circuit Court was erroneous; that used in the States. the law of the United States ascertaining these It is a settled rule that in general statutes points was the Act of 6th January, 1800, 1 which regulate the recovery of debts, the gove Story's Laws, 715, which gave the privileges ernment is not bound unless they are made and adopted the restrictions in regard to im. applicable to it in express terms, or by necesprisoned debtors which then existed under the sary implication. This is no invidious prerogState laws, and that these State laws made it ative right, but a rule founded on well as. "an escape,” if the debtor lodged at night else certained public policy, necessary to protect where than in an apartment belonging to the the public interests against the negligence of jail, or had remained outside of the jail at public officers; and specially to guard the pub; night; which it was admitted Jacob and Ben-lic revenue. It is a rule adopted in many if jamin Knight had done.

not all the States of this Union, and probably It is contended, on the part of the defend in most other countries, as well as in the ants in error, that even if the acts of Jacob United States; and has been sanctioned by re. and Benjamin Knight did amount to an escape peated judicial decisions. The United States under the State laws thus relied on, yet that v. Wilson, 8 Wheat. 256; The United Staten the bond now sued upon was not taken in con v. Hoare, 2 Mason, 314; The United States v. formity with those laws; that its condition, Greene, 4 Mason, 433; The United States v. instead of being in the words of the Statute of Hewes (lately decided by Judge Hopkinson in Massachusetts, is simply that the parties shall the District Court of Pennsylvania); Staughpot depart without the exterior bounds of the ton v. Baker, 4 Mass. Rep. 528; The People v. jail yard, which they have not done; and that, Rossiter, 4 Cowen, 143; Corn v. Baldwin, 1 therefore, the condition has not been broken, Watts, 54; King v. Allen, 15 East, 340. though they were not within the prison walls The Act of 19th May, 1828, is certainly not at night. To this it is replied that, even sup- applicable, by its terms, to suits to which the posing the words of the statute not to have l United States are parties; and the whole

course of legislation by Congress, in regard to it;" it is the “duty of the officer to executo public debtors, refutes any implication that the process according to its commands.” The they could intend so to apply it. They have United States Bank v. Halstead, 10 Wheat, from the earliest period specially legislated in 57, 64. These proceedings include, in the lanregard to the debtors of the United States, and guage of Judge Story, “the conduct of the the remedies against them; although general officer in the service of the process, and the laws, independent of these, were at the same exemption of the defendant from arrest.” time in existence and full force, to regulate the Beers v. Houghton, 9 Peters, 362, 368. Such proceedings in all suits between individuals. clearly, is the meaning of “proceedings on an They adopted their own system in regard to execution;" obedience to the commands of the their own debtors; they have from time to writ; progressive acts done by the officer of time altered and amended that system, with the court in pursuance of its requireinent; his out reference to private suits. On the same return that he has done so: these are the pro day (the 6th June, 1798) we find two acts of ceedings on the writ, and they are complete Congress passed "for the relief of persons im. when the marshal has so returned it; the writ prisoned for debt;" the one applicable to pri- itself has then become a part of the records of vate suits, the other to those brought by the the court, and no further proceeding on it can United States. I Story's Laws, 508. By the take place. The defendants have been comAct of 23 March, 1799, 1 Story's Laws, 630, mitted as the writ directed; the privileges to special and exclusive privileges are given for which they may be entitled are independent of recovering the amount of unpaid revenue bonds, that process; they form no part of the conduct in suits brought by the United States. On the of the marshal; he has nothing to do with 8th January, 1800, the general provisions of an them; how, then, can they be regarded as a act for relieving imprisoned debtors are made portion of his proceedings ? applicable to those "imprisoned at the suit of *Such, too, appears to be the evident *[*311 the United States,” by express terms. 1 Story's meaning of the acts of Congress, or there has 810*] Laws, 716. On the *3d March, 1817, been a system of parallel legislation equally we have an act of a similar character, limited inadvertent and unnecessary. The object of by its terms to persons indebted to the United the Act of the 19th May, 1828, is, by its title, States. 3 Story's Laws, 1652. On the 15th "to regulate processes;" and it relates to the May, 1820, on the 3d March, 1825, and on the “proceedings on final process.” Now, if these 2d March, 1831 (3 Story's Laws, 1791, 1997; 4 words include within them the privileges of Story's Laws, 2236), we find acts of Congress jail limits given by the State laws to an im. legislating specially in regard to public debtors; prisoned debtor, then were the act of Congress which show conclusively that they were not of 30th May, 1794, 1 Story's Laws, 340, of 28th embraced within the general provisions for the May, 1796, 1 Story's Laws, 441, and of 6th recovery of debts due from one individual to January, 1800, 1 Story's Laws, 715, totally another. It has been clearly the intention of useless; since at the time each of these laws Congress to keep under their own control the was passed the former Act "to regulate proccourse of proceeding against public debtors; esses,” passed on the 8th May, 1792, 1 Story's they never intended to blend this with the Laws, 257, was in full force, and embraced the general regulations they might establish in re- “proceedings on final process," in language even gard to private suits; much less can it be con more full than that of the Act of 19th May, ceived that they intended that persons indebt- | 1828. Is it conceivable that if Congress coned, or in default to the Treasury of the United sidered the words of the Act of 8th May, 1792, States, in relation to whom they had passed so which direct that “the modes of proceeding in many special laws, should be entitled to every suits shall be the same as were then used in privilege which the laws of each different State the State courts," as embracing the privileges might deem it just to extend to a private and of the jail limits, to which a debtor was enti. individual debtor.

tled by the State laws; they would have passed Supposing, however, that the Act of 19th the acts of 1794, 1796, and 1800, for the ex. May, 1828, is to be construed as embracing, press purpose of conferring those privileges ? by implication, suits in which the United Again; the titles of the acts show conclusively States are plaintiffs, yet it is submitted that that their objects were different. The acts of the privileges of the jail limits, which are giv 8th May, 1792, and 19th May, 1828, are stated en to an imprisoned debtor, are not "proceed to be acts for the regulation of processes; those ings on a writ of execution or other final proc. of 1794, 1796, and 1800, are stated to be for the

within the meaning of that act. relief of imprisoned debtors, and they clearly The language of the act itself is clear. It is arise out of the resolution of Congress of 232 confined to "proceedings on an execution.” September, 1789, 1 Story's Laws, 70, which The privileges of the jail limits are in no sense placed the prisoners of the United States in Buch. Proceedings on an execution are some State jails, and were intended to put them on thing done by virtue thereof; something which the same footing, with respect to the mode of the writ has directed to be done; something imprisonment, as other debtors then were. that “proceeds” between the time that the writ The same distinction may, it is thought, be issues and is returned. “The term,” says Chief traced in the decisions of this court upon the Justice Marshall, “denotes progressive action;" language of these acts. When its opinions are it relates “to the conduct of the officer while in attentively examined, it will not be found that possession of the execution;" it "prescribes his it has ever considered the privileges of the jail conduct in executing the process." Wayman limits, given by the Act of 6th January, 1800, v. Southard, 10 Wheat. 28, 31, 32. “The form as embraced in the process acts. In the case of of the writ,” says Judge Thompson, "con- Randolph v. Donaldson, 9 Cranch, 85, the custains, substantially, what is to be done under I tody of a prisoner, after his commitment, was


held to be a matter with which the marshal It was an action brought upon a bond given had nothing to do; although the Act of 24th to the United States, in the year 1838, for the September, 1739, directs that officer to execute liberties of the jail yard in Portland. The gen. al process, and consequently devolves upon eral issue was pleaded, with leave to give spehim every act which can be regarded as a pro-cial matter in evidence. The condition of the ceeding thereon. In the case of Wayman v. bond, after reciting that Jacob Knight and Southard, 10 Wheat. 20, the whole scope of the Benjamin Knight have been, and now are, imopinion refers to the conduct of the marshal prisoned in the prison at Portland, in Maine while the writ is in his hands, as constituting district, by virtue of an execution issued against his “proceedings on the execution.” It speaks, them, on a judgment obtained against them by in express terms, of the Act of 1800, as that the United States, at the District Court of the which authorizes the marshal to allow the bene- United States for the Maine District, etc., profit of prison rules to those who are in cus ceeds as follows: "Now, if the said Jacob tody under process issued from the courts of Knight and Benjamin Knight, from the time of the United States, in the same manner as to executing this bond, shall continue true prison. persons imprisoned under State process; it re- ers, in the custody of the jailer, within the limfers to the previous temporary laws having the its of the jail yard, until they shall be lawfully samo object in view, and it alludes, with evi- discharged, and shall not depart without the dent doubt, to an argument deriving this au exterior bounds of said jail yard until thority from the Process Act. 10 Wheaton, "lawfully discharged from said impris. (*818 35. The facts of that case also show the nat- onment, according to the laws of the United 312"} ure of the proceedings; they were the State in such cases made and provided, and correctness of the marshal's mode of sale un commit no manner of escape, then the said der a fieri facias; the correctness of the return obligation to be void; otherwise, to remain in made by him; the question whether or not full force." he had obeyed the commands of the writ. In The parties agreed to a statement of facts, as the case of The Bank of the United States v. follows: "On the 30th of January last past, Halstead, 10 Wheaton, 54, a similar question the said Jacob and Benjamin were committed was involved; it related to the propriety of the to the jail in the city of Portland, on an execumarshal's conduct, and whether or not he had l tion issued on & judgment in favor of the proceeded correctly in his mode of executing | United States against said Jacob and Benjathe process. The case of Beers v. Houghton, 8 min; whereupon the said Jacob and Benjamin, Peters, 356, arose expressly on the mode of as principals, and the said Isaac and Edward, proceeding by the marshal under an execution. as sureties, gave the bond declared on in this He was directed by the writ to arrest a person; suit; that Jacob and Benjamin continued to he found him to be exempted by the State laws remain within the limits of the town of Portfrom arrest; his return to that effect was held land, exclusive of the islands, and did not de. to be proper; his proceedings were strictly pro- part therefrom, up to the time of the comceedings on the execution; the person he was mencement of this suit, nor have they since deordered to arrest was, in point of fact, legally parted therefrom; but neither the said Jacob discharged from custody, as completely as if he nor Benjamin, from the time of the execution had paid the debt, and the marshal so made his of said bond, nor afterwards at any time, return. As far as the proceeding on the exe- lodged in the night time within the walls of cution was involved, it was in no respect simi. said jail, but remained at large within the lar to the privilege of the jail limits; the latter limits of said town of Portland, exclusive of is a mere incident to the custody of the debtor, the islands belonging to the same, both day whether granted or not, the proceedings under and night." the writ go on; it does appear upon the record; Upon this agreed state of facts the court it does not affect in any way the discharge or gave judgment for the defendants; to reverse satisfaction of the debt.

which, this writ of error is brought. It thus appears that whether we take the

It appears from the record that at a court of words and plain intent of the Act of 19th May, general sessions of the peace, for the County 1828, or the general scope of legislation by of Cumberland, within which Portland is sitCongress, in regard to processes, and to the uated, held in the year 1798, the limits of the imprisonment of debtors, or the course of ju: town of Portland, exclusive of the islands, dicial decision, as applied to the proceedings of were fixed and determined, as the boundaries of & marshal in the execution of final process, the said jail yard; and that the Court of Sessions provisions of that act cannot be properly con. at Portland, in the year 1822, extended the sidered as embracing the privilege of jail limits, bounds of the jail yard over the whole counor as applicable to the present case. That case ty, and to the exterior limits thereof. It apmust depend on the provisions of the Act of pears, also, from the facts agreed, that Jacob 6th January, 1800; which, by subjecting the and Benjamin Knight continued to remain defendants to the laws of Massachusetts then within the town of Portland, exclusive of the in existence, deprives them of the privilege to islands, without ever having departed therewhich they would have been entitled, had tney from; but that neither of them lodged in the not failed to comply with the terms prescribed night time within the walls of the jail, but by that law, which are also the conditions men went at large, both day and night, within the tioned in the bond.

limits of the town of Portland, exclusivo of Mr. Justice Barbour delivered the opinion the islands. of the court:

Upon this state of facts, it has been contend. This case came before us upon a writ of errored by the Attorney-General that the impristo the Circuit Court of the United States for oned, debtors were guilty of an escape, because the District of Maine.

they were not within the walls of the jail in

the night time; although they always contin. and that is, whether the Act of 1828, May 19th, ued, both day and night, within the limits of entitled "An Act further to regulate processes the jail yard. It is said that the only act of in the courts of the United States," has not Congress in force at the date of the bond in since its passage regulated the right of imprioquestion which entitled the parties to the oned debtors to the privilege of the jail libero privileges of jail yards when imprisoned on ties. process issued from any court of the United The third section of that act is in the follow. States, at the suit of the United States, was ing words: “And be it further enacted, that the Act of the 4th January, 1800, which enacts writs of execution and other final process, is"that persons imprisoned on process issued from sued on judgments and decrees rendered in any court of the United States, as well at the any of the courts of the United States, and the suit of the United States as at the suit of any proceedings thereupon, shall be the same, ex. person or persons, in civil actions, shall be en- cept their style, in each State, as are now used titled to like privileges of the jails, or limits of in the courts of such State,” etc., with a prothe respective jails, as persons confined in like vision, "that it shall be in the power of the cases on process, from the courts of the recourts, if they see fit, in their discretion, by spective States are entitled to, and under the rules of court, so far *to alter final proc- (*316 like regulations and restrictions." That ess in said courts as to conform the same to 314*] *this Act of Congress only adopted the any change which may be adopted by the leg. State laws then in force; that by the law of islatures of the respective States, for the Stato Massachusetts (of which Maine was then a courts." part) then in force, as construed by her courts, It is first objected that whatsoever may be it was an escape for a debtor, having the the construction of this section, as now gov. liberty of the yard, to be without the walls of erning executions in case of other parties, yet the prison in the night time, although he was it does not embrace those issued on judgments within the limits of the yard. It is certainly rendered in favor of the United States; and true that this court has construed the acts of this upon the ground that the United States Congress adopting State laws in relation to are never to be considered as embraced in any writs and processes, and the proceedings there. statute, unless expressly named. on, as applying to the State laws then in force. The words of this section being, “that writs 10 Wheat. 1, 51; 9 Peters, 331. It is also of execution and other final process, issued on equally clear that the construction of the laws judgments and decrees rendered in any of the of Massachusetts then in force, as to the debtor courts of the United States," it is obvious that being without the walls of the prison during the language is sufficiently comprehensive to the night time being an escape, is such as has embrace them, unless they are to be excluded been stated; the decisions cited at the bar by a construction founded upon the principle fully show it.

just stated. In Bacon's Abridgement, title Whilst, however, we admit these premises, Prerogative, 3-5, it is said that the general we cannot yield our absent to the conclusions rule is that where an act of Parliament is made drawn from them.

for the public good, the advancement of reliIf it were even conceded that the Act of gion and justice, and to prevent injury and Massachusetts of 1784 was in force at the date wrong, the king shall be bound by such act, of the execution of the bond in question; al. though not particularly named therein.

But though it would subject the officer to liability, where a statute is general, and thereby any yet it would not have affected these parties. prerogative, right, title, or interest, is devested, From the language of that act, a person im- or taken from the king, in such case he shall prisoned for debt was allowed to have a cham- not be bound; unless the statute is made by ber and lodging in any of the houses, or apart. express words, to extend to him. It is a setments belonging to the prison, and liberty of tled principle that the king is not, ordinarily, the yard within the day time. It was the con barred, unless named by an act of limitations. struction put on these words which made it The principle expressed in the maxim, nullum necessary for the debtor to be within the walls tempus occurrit regi, rests upon the ground that of the prison in the night time. In the bond no laches shall be imputed to him. The docin question, there is no such language. Whilst, trine that the government should not, unless therefore, the officer might have been liable, named, be bound by an act of limitations, is in for taking from the debtor a bond, not in con- accordance with that just cited from Bacon, formity with the statute, but extending to him because if bound, it would be barred of a right; a greater privilege than was allowed by law; and, in all such cases, is not to be construed to yet in this case, the suit being on the bond, be embraced unless named, or what would be the parties are bound for nothing whatsoever, equivalent, unless the language is such as to but what is contained in the condition of the show clearly that such was the intent of the bond, whether it be or be not conformable with act. The same principle has been decided in the law. The condition of this bond is satis. New York, Massachusetts, Pennsylvania, and, fied by the parties pot departing without the no doubt, in other States; and all upon the exterior bounds of the jail yard, whether they same ground. Not upon any notion of pre are within the prison walls in the night time, rogative; for even in England, where the docor not; and it appears from the agreed case trine is stated under the head of prerogative, that they did not depart without those bounds; this, in effect, means nothing more than that there was, then, no breach of the condition of this exception is made from the statute, for the the bond.

public good; and the king represents the naBut we now proceed to the consideration of tion. The real ground is a great principle of another question of very great practical im- public policy, which belongs alike to all gov: portance in the courts of the United States, lernments, that the public interests should not

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