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Charters.

16. An act of the legislature of New Hamp- | ration, which excludes incidental or implied shire, altering the charter in a material respect, powers. Ibid. without the consent of the corporation, is an act impairing the obligation of a contract, and is unconstitutional and void. Ibid.

17. Under its charter, Dartmouth College was a private and not a public corporation. That a corporation is established for purposes of general charity, or for education generally, does not, per se, make it a public corporation, liable to the control of the legislature. Ibid.

18. A corporation, being the mere creature of the law, possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. Ibid. 636.

19. A charter of incorporation is a franchise, and an incorporeal hereditament issuing out of something real or personal, or concerning or annexed to, and exercisable within a thing corporate. Ibid. 657.

20. To this grant or franchise, the parties or their trustees are the authority by which, and the persons for whose benefit it is erected. Ibid. 21. The grant of a corporation creates obligations, binding both on the grantor and the grantees. On the part of the former, it amounts to an extinguishment of the right to bestow the same identical franchise on another corporate body, or to impair the right granted. Ibid.

22. Congress has power to incorporate a bank; and the act of the 10th of April, 1816, ch. 44, to "incorporate the subscribers to the Bank of the United States," is a law made in pursuance of the constitution. M'Culloch v. The State of Maryland, 4 Wheat. 316; 4 Cond. Rep. 466.

23. The government of the Union is a government of the people; it emanates from them; its powers are granted by them, and are to be exercised directly on them, and for their benefit. The government of the Union, though limited in its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the constitution, form the supreme law of the land. Ibid.

24. The power of establishing a corporation is not a distinct sovereign power, or end of government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the constitution to the government of the Union, it may be exercised by that government. Ibid.

25. If certain means to carry into effect any of the powers expressly given by the constitution to the government of the Union, be an appropriate measure, not prohibited by the constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognisance. Ibid.

26. If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, plainly adapted to that end, and not prohibited, may be constitutionally employed to carry it into effect. Ibid.

27. There is nothing in the constitution of the United States, similar to the articles of confede

28. A corporation is strictly limited to the exercise of those powers which are specially conferred on it. The exercise of the corporate franchise being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation. Beatty v. The Lessee of Knowler, 4 Peters, 162.

29. The powers of the king of Great Britain, before the American revolution, to make grants or cessions of land in the colonies, are to be taken as recognised by universal consent throughout the colonies, and they were the basis of all the rights and powers asserted in opposition to the pretensions of parliament during the great struggle of the revolution. Our whole system of government has its foundation in the royal prerogative: it was by the king's grant alone, that the legislative power could be exercised in the colonies; and any construction now put upon it, which derogates from his power, as inconsistent with the constitution of England, is in direct contradiction to every principle consecrated by the people of this country, from its first settlement, as political and legal maxims. Every attempt to now hold the power of the king, as not competent to grant what he did grant by his commission, his letters-patent, and charters, is to assert that he usurped the powers of the parliament; for no one can deny that there was, in some department of the British government, the supreme power of granting territory and erecting government in the colonies: of consequence, any excess of power exercised by the king, was, pro tanto, taken from parliament; and if his grants were void for want of power, the thing granted could be enjoyed only by the authority of a statute. An American court ought then to be well satisfied that the king has exceeded his legitimate authority, before they adjudge any of his acts to be void, especially those which purport to grant the powers of legislation in the colonies; and the same rule must be applied to grants to individuals as to the people of a colony, the power of the king being as competent in the one case as the other. Such construction ought also to be given to his grants, as will make them effectual to the objects intended, and conform. able to the general opinion and usage of the country, from their date and the proceedings under them. Grants made and powers exercised, must be taken to have been legitimately done; and whatever the king had knowingly ratified and confirmed, must be deemed to have been done by his previous authority; especially when he has expressly recognised the existence of a right or power, and confirmed the enjoy ment and exercise thereof. (Cited, The United States v. Arredondo et al., 6 Peters, 728. United States v. Percheman, 7 Peters, 87. United States v. Clarke, 8 Peters, 452. Delassus v. The United States, 9 Peters, 134. Mitchell et al. v. The United States, 9 Peters, 735. Ibid. 747.) Waddel v. Martin, C. C. of New Jersey. Pamphlet opinion of Mr. Justice Baldwin, 14.

30. There is no principle of the English law

Charter of a Ship or Vessel.

CHARTER OF A SHIP OR VESSEL.

more sacred, than that rights granted by the | such a charter, the general owner is also owner king, whether of property, franchise, or govern- for the voyage. If he is master of the vessel, ment, by proclamation, letters patent, or char- he cannot commit barratry. Marcardier v. The ters, are binding on him; he can neither revoke, Chesapeake Ins. Co., 8 Cranch, 39; 3 Cond. Rep. 20. annul, nor impair them. The inviolability of 3. By a charterparty, the sum of thirty thouroyal charters was solemnly asserted in the de- sand dollars was agreed to be paid for the use claration of independence: the taking them away or hire of the ship, on a voyage from Philadelwas declared a grievance; and acts of parliament phia to Madeira, and thence to Bombay, and, at which were repugnant to the charter rights of the the option of the charterer, to Calcutta, and back colonies and colonists, were denounced as "acts to Philadelphia, with an addition of two thouof pretended legislation." As contracts, their sand dollars if she should proceed to Calcutta ; obligation is protected by the constitution of the the whole payable on the return of the ship to United States; and the supreme court has uni- Philadelphia, and before the discharge of her formly held them to be as sacred as the deeds cargo there, in approved notes, not exceeding an of individuals, or the grants of a government, average time of ninety days from the time at whether the thing granted is franchise or pro- which she should be ready to discharge her perty. Ibid. cargo. The charterer proceeded in the ship to Calcutta, and with the consent of the master, who was appointed by the ship owners, entered into an agreement with P. & Co., merchants there, that if they would make him an advance 1. A. chartered the whole tonnage of his vessel of money, he would deliver to them a bill of to B., for a certain voyage, and he covenanted, lading, stipulating for the delivery of the goods by the charterparty, to deliver the cargo at the purchased therewith, free of freight, to their port of destination, the dangers of the seas ex-agents in Philadelphia, who should be authorized cepted; and that the return cargo should be delivered to B., at Alexandria. By provisional articles, it was afterwards covenanted between the parties, that the captain should be instructed by his owner to touch at Falmouth, there to lay off and on twenty-four hours, or longer, if desired, in daylight, during which time there will come off orders from the consignees; on receiving these orders, the captain must proceed to such one of certain designated ports as the orders should specify. If the vessel be detained at Falmouth over twenty-four hours, demurrage is to be paid for the time, at the rate stipulated in the charterparty. The vessel proceeded to Falmouth road, and no orders being ready, the captain, by the instruction of one of the consignees, brought the vessel into port, where she was seized and detained by the revenue officer. In an action of covenant for demurrage during the period of this detention, it was held: That A. remained owner for the voyage, that he was answerable for the misconduct of the captain, and that the covenant to lay off and on at Falmouth was his covenant. 2d, The instructions of the consignee, not being in conformity with the articles, did not authorize the captain to bring the vessel into Falmouth, and the freighters are not bound to pay demurrage. 3d, The orders of the consignee might excuse A. from any action brought by B., for loss sustained by him in consequence of the vessel going into Falmouth, which was a breach of the covenant of A.; but these orders being beyond the scope of the authority of the consignee, cannot entitle A. to an action against B. Hooe v. Groverman, 1 Cranch, 214; 1 Cond. Rep. 294.

2. Where the general owner of a ship retains the possession, command, and navigation of her, and contracts to carry a cargo or freight for the voyage, the charterparty is to be considered as a mere affreightment, sounding in covenant; and the freighter is not clothed with the character or legal responsibility of owner. In the case of

to sell the same, and apply the proceeds to the repayment of the said advance; unless the charterer's bills, drawn on G. & S., of Philadelphia, should be accepted; in which event, the agents of P. & Co. should deliver the goods to the charterer. The goods were shipped accordingly, and a bill of lading signed by the master, with a clause, "freight for the said goods having been settled here." The bills drawn by the charterer were refused acceptance, and the agents of P. & Co. demanded the goods, which the owners of the ship refused to deliver without the payment of freight: Held, That the owners of the ship had a lien on them for the freight. Gracie et al. v. Palmer et al., 8 Wheat. 605; 5 Cond. Rep. 546.

4. If, by the terms of the charterparty, the ship is to be navigated at the charge and expense of the owner, and the whole ship is not chartered, it does not amount to a general hiring, but only a special one, and the charterer is not owner for the voyage. Klein v. Catara, 2 Gallis. C. C. R. 61.

5. If, in the charterparty, there is a covenant to proceed to a foreign port and take in a cargo, and return from thence to the United States, for a stipulated hire, and the vessel go to the foreign port, and the charterer there decline to put any cargo on board, the owner of the vessel is not bound to come home empty, but may engage in another voyage, and may take another cargo on freight for the United States; and the freight so earned will not belong to the charterer. Ibid.

6. If the charterer fail to load the ship, he is liable to pay the same freight, in case the vessel returns empty, as she would have earned if he had complied with his contract. Ibid.

7. Where the whole consideration for any stipulation fails, or it becomes incapable of being performed substantially, as the parties intended, by the voluntary act of one of the parties, the owner of the vessel chartered is not bound to proceed in the voyage mentioned in the charterparty. Ibid.

Charter of a Ship or Vessel.

8. If a neutral vessel be captured on her out- | ward voyage from England to Amelia Island, carrying a hostile cargo which is condemned, and if, by the charterparty, the outward cargo is to be carried free of freight, but the homeward cargo to pay at a certain rate, to be ascertained by the nature of the cargo; yet the court will decree freight, pro rata itineris, of the outward cargo, to be assessed upon the principles of a quantum meruit. The Société, 9 Cranch, 209; 3 Cond. Rep. 373.

9. A neutral ship, chartered on a voyage from L. to M., thence to any port in the Baltic, and back to L., at the freight of 1000 guineas, was captured on her voyage to M., and brought into a port of the United States for adjudication. A part of the cargo was condemned and part restored; the freight was held to be chargeable upon the whole cargo, as well that restored as that condemned. The Antonia Johanna, 1 Wheat. 159; 3 Cond. Rep. 525.

10. One chartered the hold of a vessel for a voyage, covenanting to pay freight, the owner appointing and paying the master and crew, and fitting the vessel; a third person shipped goods, consigning them to the defendant, who, on receiving them from the master, promised to pay the freight-Held, That the charterparty did not deprive the owner of his lien for the freight; and that the defendant became liable to the owner for the freight by his acceptance of the goods. Ruggles v. Bucknor, 1 Paine's C. C. R. 358. 11. Where the owner of the ship employs, pays, and supports the master and crew, retains the control of the navigation of the ship by means of the master, and is answerable for his conduct, a special ownership does not pass to the charterer; although the ship is let and hired to him, and although the freight reserved be a The owner, therefore, has a lien upon the goods carried in the ship for such freight as he is entitled to claim, independent of any contract between the shipper and charterer. Palmer et al. v. Gracie et al., 4 Wash. C. C. R. 110.

gross sum.

12. Freight is always bottomed on a contract expressed or implied. The freight stated in the charterparty cannot be departed from in the bills of lading, as between the charterer and the master. But if the charterer abandons his contract, by refusing, or being unable to load the ship in whole or in part, the master may take in goods from others, on such terms as they can agree upon; and such goods will be answerable to the owner for the agreed freight, and the charterer will be responsible on his contract. Ibid.

13. The same consequence would follow if the charterer should put her up as a general ship, and take in a cargo from different shippers, on such freight as may be stipulated; the goods are liable to the owner only, for this stipulated freight. Ibid.

14. If the master, with the consent of the charterer, and both acting fairly, with an honest view to the benefit of all concerned, agree to take a cargo free of freight, and sign bills of

lading to that effect, no freight is due by the cargo to the owner of the vessel. Ibid.

15. Where the owners of a vessel have no agent in a foreign port, the master of the vessel has power to make a charterparty. Hurry v. The Assignees of Hurry, 2 Wash. C. C. R. 145.

16. A charterparty was entered into during the war between England and the United States, and during the blockade of the Chesapeake by the British fleet, by which the plaintiff let his ship to the defendants to carry flour from Norfolk to Cadiz, and covenanted to deliver the flour, "excepting always restraints of princes and rulers," and the freighters covenanted to pay the freight. The ship was provided with a "Sidmouth license," but the charterparty did not express it; yet the fact was well known to the defendants, who, as well as the plaintiffs, relied upon the license for protection. The charterparty was dated the 31st January, 1813. After the ship was loaded, it was ascertained that the license would afford no protection from the blockading squadron. The defendants, by letter of March 31st, 1813, directed that the ship should not proceed on her voyage under such circumstances. On the 19th of June they directed that the ship should continue to be ready to proceed on her voyage, as soon as the blockade was raised; and finally, the blockade continuing, they, in January, 1814, directed that the flour should be delivered to their order, which was done: Held, 1. That the procurement of the license vitiated the contract as much as if it had been inserted in the charterparty. 2. That although freight could not be recovered, yet the various directions given by the defendants amounted to a new contract, which might be enforced; and the ship owner was entitled to an equitable compensation for his labour, and the expenses incurred by him prior to the 3d of March, and from that time to the 19th of June; and after the last day, to January, 1814, when the flour was delivered by the plaintiff to the order of the defendants. Wilson v. Le Roy et al., 1 Brockenb. C. C. R. 477.

17. Parties are not bound to any fixed and precise stipulations to be embraced in a charterparty. They can insert any covenant they please to answer their ends, and effect the object in view. There can be no doubt a ship owner may, by express stipulations as to freight, incompatible with a claim on the cargo for the same, be deemed to have waived his lien, as if he should, by charterparty or otherwise, agree to receive his freight at a time and place having no reference to the delivery of the cargo, or at variance with such time and place. Ruggles v. Bucknor, 1 Paine's C. C. R. 358.

18. The owner of a ship is not liable for barratry of captain and crew, beyond the sum mentioned in the charterparty; nor to repairs of the ship, if warranted by the owner to be kept staunch during the voyage. But in case of loss or expense by necessary deviation, both vessel and cargo must contribute in general average. Campbell v. The Alknomac, Bee's D. C. R. 124. 19. The admiralty has jurisdiction in cases of

Charter of a Ship or Vessel.-Cherokee Indians.

charterparties for foreign voyages, and may en- the charterer can only be construed to charge him force, by a proceeding in rem, the maritime lien with the hazards to be encountered by the cargo, for freight under a charterparty. The Schooner and not to vary the contract respecting the Volunteer, 1 Sumner's C. C. R. 550. freight. Consequently, the owner will be en20. The general owner is owner for the voy-titled to his proportion of the salvage decreed to age, notwithstanding a charterparty, if the vessel is navigated at his expense, and by his master and crew, and he retains the possession and management of her during the voyage; and especially where he retains a part of the vessel for his own use. Ibid.

21. By the general maritime law, there is a lien on the goods for freight, whether shipped under a bill of lading or a charterparty. But that lien may be waived or displaced by any special agreement inconsistent with such lien; but it is presumed to exist until such inconsistency appears. Ibid.

22. A stipulation for the payment of the freight, ten days after the return of the vessel, is not necessarily inconsistent with such lien. lbid.

23. By the maritime law, the ship is pledged to the merchandise, and the merchandise to the ship, for the performance of the contract of shipping. Ibid.

24. A clause in the charterparty, that the parties bind the ship and goods respectively, for the performance of the covenants, payments, and agreements thereof, is a valid clause, creating a pledge or lien on the goods for such performance; and may be enforced against the goods, by a detention by the ship owner for freight, and by a suit in the admiralty. Ibid.

saving the ship and cargo, in the proportion of the value of the ship and freight to that of the cargo. Mason v. The Blaireau, 2 Cranch, 240; 1 Cond. Rep. 397.

28. The general owner of a ship will be deemed owner for the voyage, notwithstanding a charterparty, if he retains the possession and control of the navigation of the ship during the voyage, and if the master is his agent, acting under his instructions. So, also, if the intention of the parties with regard to this point, seems doubtful on the face of the charterparty. Certain Logs of Mahogany, 2 Sumner's C. C. R. 589.

29. The lien on the cargo for freight is recognised by the common law and maritime law, but it may be displaced by particular circumstances, which denote a clear and determinate abandonment. lbid.

30. A clause in a charterparty, providing that the freight shall be paid "in five days after (brig's) return to and discharge in Boston," is not a waiver or displacement of the lien for freight, the word "discharge" merely referring to the unlading, and not to the delivery of the cargo. Ibid.

31. Semble: A shipper has a right, by the maritime law, to examine the goods after they are unliveried, in order to ascertain whether they are damaged or not, before he makes himself liable, at all events, for the freight. lbid.

to the shipper or his assigns, they paying freight as per charterparty: Held, that a lien attached to the homeward cargo for the freight due from the whole voyage; also that the consignee, by his receipt of the goods, became personally liable, upon his implied assumpsit, for the whole freight. Ibid.

25. A neutral vessel was chartered to take on board a cargo in the river Thames, and deliver it at Amelia Island freight free, and there to 32. Where, by the charterparty, the freight take on board a return cargo, for which a sum was a gross sum payable on the successful close specified in the charterparty was to be paid as of the whole voyage, and the bill of lading de freight, which exceeded the freight that wouldclared that the return cargo shall be delivered have been paid on the return cargo alone, had it been totally unconnected with the outward voyage. The vessel was captured on the outward voyage, and the cargo condemned as enemy's property. Freight was allowed by the court below to the neutral ship owner, pro rata itineris, on the voyage to Amelia Island, as on a quantum meruit. The captors not having appealed, it was held that no question could arise on the propriety of having allowed the ship any freight whatever. The supreme court expressed itself satisfied with the allowance which had been made, as an equitable one. The Société, 9 Cranch, 209; 3 Cond. Rep. 373.

26. On principle, a cargo to be delivered freight free, cannot be burdened with the freight to be paid on a cargo to be afterwards taken on board, especially where no sum in gross is to be paid for freight, but a sum depending on the quantity and quality of the return cargo. lbid.

27. If a vessel chartered for a voyage meet a vessel in distress, and one of the charterers being on board, consents that a part of the crew may go on board of the distressed vessel, to assist in navigating her into port, this consent does not change the situation of the parties under the charterparty, but the general owner continues to risk his freight, and the consent of

33. The admiralty has jurisdiction over charterparties for foreign voyages, and will enforce the lien thereof. Ibid.

CHEROKEE INDIANS.

1. The Cherokee nation is not a foreign state, in the sense in which the term "foreign state" is used in the constitution of the United States. The Cherokee Nation v. The State of Georgia, 5 Peters, 1.

2. The Cherokees are a state. They have been uniformly treated as a state since the settlement of our country. The numerous treaties made with them by the United States, recognise them as a people capable of maintaining the relations of peace and war: of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States, by any indi

Cherokee Indians.

vidual of their community. Laws have been enacted in the spirit of these treaties. The acts of the government plainly recognise the Cherokee nation as a state, and the courts are bound by those acts. Ibid.

3. The condition of the Indians in relation to the United States, is, perhaps, unlike that of any other two people in existence. In general, nations not owing a common allegiance are foreign to each other. The term foreign nation, is, with strict propriety, applicable by either to the other. But the relations of the Indians to the United States is marked by peculiar and cardinal distinctions, which exist nowhere else. Ibid.

4. The Indians are acknowledged to have an unquestionable, and, heretofore, an unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government. It may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect, in point of possession, when their right of possession ceases-meanwhile, they are in a state of pupilage. Their relations to the United States resemble that of a ward to his guardian. They look to our government for protection, rely upon its kindness and its power, appeal to it for relief to their wants, and address the president as their great father. Ibid.

prays the aid of the court to protect their possessions, may be more doubtful. The mere question of right might perhaps be decided by this court in a proper case, with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may well be questioned. It savours too much of the exercise of political power to be within the proper province of the judicial department. Ibid.

8. The plaintiff in error was seized and forci bly carried away, while under guardianship of treaties guarantying the country of the Cherokee Indians, in which he resided, and taking it under the protection of the United States. He was seized, while performing, under the sanction of the chief magistrate of the Union, those duties which the humane policy adopted by congress had recommended. He was apprehended, tried, and condemned, under colour of a law which has been shown to be repugnant to the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of the supreme court. It cannot be less clear, when the judgment affects personal liberty, and inflicts disgraceful punishment; if punishment could disgrace, when inflicted on innocence. The plaintiff in error is not less interested in the operation of this unconstitutional law, than if it affected his property. He is not less entitled to the protection of the constitution, laws, and treaties of his country. Worcester v. The State of Georgia, 6 Peters, 515.

5. The supreme court of the United States have not jurisdiction in the matter of a bill filed by the Cherokee nation of Indians against the 9. The act of the 22d December, 1830, and state of Georgia, praying for an injunction to the act passed by the legislature of Georgia, prevent the execution of certain laws passed on the 19th of December, 1829, entitled "an act by the legislature of Georgia, relative to lands to add the territory lying within the chartered within the boundaries of the lands of the Chero-limits of Georgia, and now in the occupancy of kee nation, the Cherokee nation not being "a foreign state" in the sense in which the term "foreign state" is used in the constitution of the United States. Ibid.

6. The third article of the constitution of the United States describes the extent of the judicial power. The second section closes an enumeration of the cases to which it extends, with "controversies between a state and the citizens thereof, and foreign states, citizens or subjects." A subsequent clause of the same section gives the supreme court original jurisdiction in all cases in which a state shall be a party- the state of Georgia may then certainly be sued in this court. Ibid.

the Cherokee Indians, to the counties of Carroll, De Kalb, Gwinnet, Hall and Habersham, and to extend the laws of this state over the same, and to annul all laws and ordinances made by the Cherokee nation of Indians, and to provide for the compensation of officers serving legal process in the said territory, and to regulate the testimony of Indians, and to repeal the ninth section of the act of 1828 upon this subject," interfere forcibly with the relations established between the United States and the Cherokee nation; the regulation of which, according to the settled principles of our constitution, is committed exclusively to the government of the Union. They are in direct hostility with treaties, repeated in 7. The bill filed on behalf of the Cherokees, a succession of years, which mark out the seeks to restrain a state from the forcible exer- boundary that separates the Cherokee country cise of legislative power over a neighbouring from Georgia: guaranty to them all the land people asserting their independence, their right within their boundary; solemnly pledge the to which the state denies. On several of the faith of the United States to restrain their citimatters alleged in the bill, for example, on the zens from trespassing on it; and recognise the laws making it criminal to exercise the usual pre-existing powers of the nation to govern itself. power of self-government in their own country They are in equal hostility with the acts of conby the Cherokee nation, this court cannot inter-gress for regulating this intercourse, and giving pose, at least in the form in which those matters effect to the treaties. Ibid. are presented. That part of the bill which respects the land occupied by the Indians, and

10. The forcible seizure and abduction of a person, who was residing in the Cherokee nation,

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