
    O’KEEFE’S CASE. James O’Keefe v. The United States.
    
      On the Proofs.
    
    
      The claimant brings Ms action under the abandoned or captured property act. The defendants plead that he is an alien; the claimant rejoins that the government of Great Britain accords to its subjects, and also to aliens, the right to prosecute claims against it, by tlie petition of right, given bj) ihecommon law of England, and regulated by the statute 3d of July, I860, (23d and 24th Viet.) It also appears that the claimant stores cotton in the same loarehouse with one D.; the 
      
      warehouse is hunt, a part of the cotton saved, hut. not identified; D. concedes that probably it was Ms cotton which burnt, and the claimant seelcs the proceeds of all which, was stored.
    
    I. By tlie law of England, the “petition of right”.accords to American citizens tlie same right to prosecute claims against tlie government of Great Britain in its courts which British subjects possess of prosecuting claims against the government of the United States -in the Court of Claims, within the moaning of Act of 27th July, 1868, (15 Stat. L., p. 243.)
    II. A foreign law may ho received iu evidence, when it is found in a statute hook, with proof that tlie hook has been officially published by the government which made the law. A book purporting on its title-page to bo the statutes of England, printed by the printers to tlie Queen, and identified by a witness, formerly Queen’s counsel, as an authorized copy of the statutes, and evidence in all the English courts, is sufficiently proven.
    III. Where captured property belonging to two several, owners is partially burnt, the ono cannot disclaim in favor' of the other, and the claimant can only recover his proportion of the part saved under the “Abandoned or captured property act,” (12 Stat. L., p. 820.)
    
      Messrs. Cooley <fc Clarice for tlie claimant.
    This is a claim to recover tlie net proceeds of eighteen bales of upland cotton, taken from the claimant by tlie Union authorities at Savannah, after the capture of that city, in December, 1864. The claimant is a citizen of Great Britain, domiciled in Savannah. The suit is brought under the act known as the captured and abandoned property act, of March 12, 1863. To entitle the claimant to recover, he is required by that act to establish to the satisfaction of the court the following propositions, viz: 1. That he was the owner of the cotton; 2. Its seizure and sale by the Government, and the payment of the proceeds into the Treasury; and, 3. That he never voluntarily gave any aid or comfort to the late rebellion. The subsequent act of 25th J une,1868 — enacted Ion g after this suit was comm enced — requires the claimants in this class of cases to prove affirmatively that they consistently adhered to the United States, and also provides that voluntary residence in- any place where the rebel power held sway shall be prima facie evidence that such persons did give aid and comfort to said rebellion and to persons engaged therein. A still later statute, that of July 27,1868, iii its second section, prohibits aliens from maintaining suits against the United States, with a proviso that the section shall not be construed to preclude aliens from bringing suits in this court, where the government of which they are citizens accords to our citizens the same right in the courts of such government.
    A question arises under the replication to the defendant’s plea, and is, whether American citizens in Bngland are entitled, to bring stdts against the Crowri in the courts of that country f
    
    This interrogatory is answered by the deposition of Edwin James, esq., late a prominent lawyer of England, now practicing in New York. To this deposition is attached a copy of the 23d and 24th Victoria, chap. 34, in relation to which Mr. James says: “ I produce a copy of the statute printed by the Queen’s printers, in England, which is made evidence in all the English courts, and it so happens that of my own knowledge I know such a statute was passed, for I was in the House of Commons at the time, as a member, and took a part in the debate at the time. The statute was passed and received, the royal assent on the 3d of July, 1860, and is entitled ‘An act to amend the law relating to petitions of right, to simplify the proceedings, and to make provisions for the cost thereof; ’ and is to be found on pages 207 and 214, inclusive, of the statutes passed in the 23d and 24th years of the reign of Queen Victoria, printed by the Queen’s printers, and I can identify the volume exhibited as an authorized copy of the statutes so far as the law of England is concerned.”
    Again, he says : “ It is a public general statute, and there being no terms of exclusion in the statute, its provisions apply to the whole of Great Britain, which includes Scotland and Ireland. * * An alien could and can enforce a claim for right, or a remedy for a' wrong, against the British government. The mode since the statute called ‘ The Petitions of Bight’ act of 1860, is pointed out by that statute. Before the existence of that statute, the mode was by ‘ petition of right.’ * * * An alien can, under the provisions of this statute, prosecute a claim against the British government, precisely in the same manner as he could sue an ordinary subject of the British government. The prosecution of such a claim has to be made in the form of a petition of right, and the claim being thus commenced, the practice and course of procedure is analogous to that between subject and subject, unless otherwise ordered by the court in which the petition of right is presented. In substance, the petition of right is the mode of commencing that which, between subject and subject, is called an action of right. # * The fiat of the Crown would, except in a very extraordinary case, be granted as a matter of right, to any suppliant, whether an alien or British subject. * * ’ The petition, in point of practice, is left with the secretary of state for the home department, and one of the ministers of the Crown for the time being, and the fiat is there obtained as a mere matter of official routine. * * * I Imoiv of no law of England which discriminates between the rights of aliens at all, and there is no lato which deprives an American citizen of the rights of every other alien.”
    This testimony, with the statute itself, proves that American citizens residing in Great Britain are placed upon the same footing as English subjects, in respect to the.right of bringing suit against the government; and this is all that our statute of July 27,1868, requires.
    This testimony would be sufficient to establish the existence of this right without the production and proof of this statute.
    In Codes v. Purdy, (2 0. & K.,) the court held that uthe proper course to ascertain the law of a foreign country is to call a witness, expert in it, and ask him on his responsibility what the law is, and not to read any fragments of a code, which would only mislead.”
    In the Sussex Peerage'Case, (11 01. & Fin.,) the same doctrine is held. The court also say in this case, that the witness being an expert, may refresh his recollection of w7hat the law is by reference to statutes, or other law-books relating to the subject, hut that the law itself must he talcen from the ivitness.
    
    The same principle is also asserted in Barón de Bodes1 Case, (8 Q.B., 208.) In that case it ivas proposed, by a French lawyer, to prove what the law of inheritance was in Alsace at a particular time. The witness testified that the feudal law had been put an end to there, by a decree of the French National Assembly to that effect, of the 4th of August, 1789, and that he had learned this fact in the course of his legal studies. Lord Denman held this evidence sufficient, although no other proof was given of the contents of the decree.
    That this witness is entitled to speak with some degree of authority upon the existence of this right, both as a matter of fact as well as law, will, I think, be conceded by any one who listened to the argument of the learned counsel for the United States. It would have surprised an English lawyer to have learned from him that the boasted petition of right was but an idle ceremony at best, and really gave to the subject no practical benefit. He said it was true the subject might petition the Crown; but that the Crown might refuse to grant the process, and that, therefore, the petition of right was no right at all.
    The authorities to which the counsel for the United States referred, confirm the testimony of this witness as to the existence of this right.
    In the case of the Queen and Carl Von Frantzius, (2 De G-ex and Jones, 126,) the claimant was a Prussian subject, and brought his petition of right for an alleged violation of contract by the Lords of the Admiralty. No question as to the right of the alien to bring his petition was made. The only question was whether the law-officer of the Crown should have a right to demur to the petition after the preliminary investigation, for which the practice under petitions of right provided had been made.. The court held that lie should have the right to demur to the petition.
    The case of Baron De Bode, a French subject, was an action instituted by petition of right, and no question of his right to bring the petition was made.
    The case of Irwin v. Gray (3 Fost. and Finí., 635) decides nothing but that the petition presented to the secretary of state, under the statute of 23 and 2á Victoria, chapter 34, did not present such a case as justified the secretary of state in advising the Queen to issue the process, by which further proceedings might be had.
    The act for the organization of this court had, in its fourth ■section, a provision which authorized the court to refuse a commission if the petition did not, upon its face, disclose a legal cause of action against the United States. The withholding of the fiat or process, under the English statute, is nothing more than this. If, however, the court shall hold that the evidence of the witness, upon whose testimony we rely, is not sufficient, then it is submitted that there is sufficient proof of the written law to authorize the court to receive it in evidence.
    In Fnnis v. Smith, (14 ITow., 400,) the Civil Code of France, purporting to be printed at the royal press in Paris, and received in our international exchanges, ivas admitted in evidence as proof of the law of France. Here we have the evidence that the book in which this act is to be found was printed by the Queen’s printer, in London; and in addition to this, tliis witness testifies that, “of my own knowledge I,know such a statute was passed, for I was in the House of Commons at the time, as a member, aud took a part in the debate at the time. The statute was passed and received the royal assent on the 3d of July, 1860, and is entitled ‘ An act to amend the law relating to petitions of right, to simplify the proceedings, aud to make provisions for the costs thereof.’ ”
    As the result of all the authorities upon this subject, the court will find the following propositions established:
    1. That the existence of foreign law is a fact to be found by the court.
    2. That what is sufficient evidence to establish the fact, is for the determination of the court.
    3. That the existence of foreign laws is sufficiently established either by the testimony of persons learned in the law, in respect to which they testify, or by the production of a copy of the statute containing the law, printed by the authority of the state or nation by which the statute is enacted.
    
      21r. R. 8. Sale, special counsel of the Treasury, for the defendants.
   Loeing-, J.,

delivered the opinion of the court :

The petitioner claims of the United States the net proceeds -of eighteen bales upland cotton, and the court finds the facts to be:

1. That the claimant' is an English subject, and in January I860, resided in the city of Savannah, in the State of Georgia, and owned and had in his possession eighteen bales of upland cotton, stored in a house numbered 148 Broughton street.

2. That the United States took possession of said cotton, by placing a military guard over it, in the house in which it was stored. That subsequently a fire broke out in the cellar in which this and other cotton was stored. That the cotton in the cellar was got out of it, some burned, some wet, some in broken bales, and some in whole bales, and some loose; that it was carried away b3r the United States and repacked and sold, and the net proceeds thereof paid into the Treasury.

That ten bales of said cotton belonged to the claimant.

That the government of England accords to its subjects and aliens tbe right to prosecute claims against it by petition of yight given by the common law of England, and regulated by-statute 23d and 24th Victoria, July 3,1860, as to the mode of procedure; in-which j;he petition addressed to the King is, by his fiat indorsed thereon, directed to a court of his kingdom to hear and determine the case. The fiat, except in a very extraordinary case, is granted as a matter of right to any suppliant, subject or alien. The petition is in form addressed to the grace and favor of the King, but in practice is left at the office of the home secretary, and the fiat is then obtained as a matter of official routine.

That the petitioner had not in any way voluntarily aided, abetted, or given encouragement to the rebellion against the . government.

The evidence showed that the cláimaut purchased the eighteen bales of cotton above mentioned in the latter part of the year 1864, and removed them for storage to the house 148 Broughton street, then in the occupation of Thomas Daniels; that afterward a military guard was placed over the cotton by the United States; that a fire occurred in the cellar in which , this and other cotton were stored, and all the cotton was got out, some of it burned, some of it wet, some in whole, some in broken bales, and large quantities of it loose, and was carried away by the United States. Mr. Daniels, who was at the fire, and assisted in removing the cotton from the cellar, testified on his first examination as follows: “ I do not suppose there was any of O’Keefe’s cotton destroyed. I had eight bales destroyed ; the bales were broken and I Could not tell what part of them was burned. I should not think there was a good deal of cotton burned, but there was a good deal damaged by water.” Ón his reexamination he testified that “he did not know what cotton was burned and what was not,” nor how much that was taken out belonged to O’Keefe, nor how much was saved; and “that he waived his claim in favor of O’Keefe, because it was on his premises when burned; that he could not separate his cotton from O’Keefe’s, and gave him the benefit of all that was saved; that he himself had ten or eleven bales there.”

It is very clear that Daniels,' who, from his residence, must be presumed' to have been a rebel, could not, after the'United States had taken actual possession of the cotton by placing a military guard over it, transfer any of tbe cotton, or any right in it, to the claimant. In the registration book of the claimants at Savannah there is this entry: “ James O’Keefe, February 7, ten baleá upland. Eight bales upland, stored 148 Broughton street.” But this only shows that O’Keefe claimed eighteen bales of cotton, but serves in no way to identify his bales, or to remove the uncertainty as to how much of the claimant’s cotton was burned or mingled with other cotton, or lost, or replaced to him by Daniels’s waiver of his claim in his. favor. Under the circumstances, we find the claimant entitled to the net proceeds of ten bales of cotton.

It was objected for the defendants that the petitioner was an alien and a British subject, and as such has no status in this court under the second section of the act of July 27,1868. And in reply to this the petitioner claimed that the evidence adduced by him brought him within the proviso of the section, by proving that the British government accorded to American citizens, as well as to its own subjects the right to prosecute claims, against it in its courts by the petition of right given by the common law, and regulated as to the mode of procedure by the statute of 23d and 24th Victoria, 1860.

The common law was proved by .Ed win James, esq., formerly a barrister in England, and Queen’s counsel. But it was objected that the statute was not legally proved. We think it was. brought within the rule laid down by the Supreme Court. In the case of Ennis v. Smith, (14 How., 400,) cited by the counsel for the petitioner, the court, after citing and commenting upon the cases on the point, said as follows: “Notwithstanding the differences in the cases cited, we think that the true rule in respect to the admissibility of foreign law in evidence may be gathered from them. In our view it is this, that a foreign law may be received when it is found in a statute book, with proof that the book has been officially published by the government which made the law. Such is the foundation of Lord Tenterden’s rule in Lacon v. Higgins, (3 Starkie’s Reports, p. 178.”) Now the evidence in that case was as follows: “ The vice-consul of France (called as a witness) produced a book which he said contained the French code of laws upon which he acted in his office. He stated that there was in Paris an office for the printing of the laws of France, called the royal printing office, where the laws were printed by the authority of the French government. The book itself, Avliieb not only contained a body of French laws but also a commentary upon them by Mr. Lirée, purported to have been printed at that office and to contain a copy of the constitutional charter of France. The witness also stated that the book would have been acted on in any of the French courts.”

In the case before us the witness, Mr. James, produced a volume of the English statutes purporting on its title-page to be the statutes of England, printed by the printers to the Queen, and he testified thus: “I produce a. copy of the statute printed by the Queen’s printers, in England, which is made evidence in all the English courts, and it so happens that of my own knowledge I know such a statute was passed, for I was in the House of Commons at the time as a member, and took a part in the debate at the time. The statute was passed and received the royal assent on the 3d of July, 1860, and is entitled ‘An act to amend the laio relating to petitions of right, to simplify the proceedings, and to malee provisions for the cost thereof;’ and is to be found on pages 207 and 214, inclusive, of the statutes passed in the 23d and 24th years of the reign of Queen Victoria, printed by the Queen’s printers, and I can identify the volume exhibited as an authorized copy of the statutes so far as the law of England is concerned.”

This testimony brings this case within the rule laid down by the Supreme Court and Avithin the authority of the case ruled by Lord Tenterdén, and cited and approved by the Supreme Court.

It AAras objected that the allowance of the petition of right in England “ Avas a matter of grace and favor only of the sovereign, to alloAv himself to be brought into court, and not a matter of right or ex debito justiitia.”

This is true and necessarily true, for neither in England nor in this country can the sovereign be subjected to suit, except by his own consent and according to it. justice Story, in his Commentaries on the Constitution, Avheu commenting on the clause which extends the judicial power to controversies to which the United States shall be a party,” (§ 1675,) says as follows: “It is observable that the language used does not confer upon any court cognizance of all controversies to Avkich the United States shall be a party, so as to justify á suit to be brought against the United States without the consent of Congress, and the language was doubtless thus guardedly introduced for the purpose of avoiding any suck conclusion. It is a known maxim, justified by the general sense and practice of mankind and recognized in the law of nations, that it is inherent in the nature of sovereignty not to be amenable to the suit of any private person without its own consent. This exemption is an attribute of sovereignty, belonging to it in every State in this Union, and was designedly retained by the national government.”

This is the familiar commentary on our own Constitution, which is a form of government ordained and established by the people collectively or as sovereign, for the people individually or as subjects j and the discretionary power it gives to Congress, by which this court was established for suits against the sovereign, is but his fiat, “Let right be done.” And in theory and in fact, and as a corollary'- of the maxim of jurisprudence cited by Justice Story, that it is inherent in sovereignty not to be amenable to the suit of a private person without its own consent, every suit on our docket is there by this grant and fiat of the sovereign; and this the Supreme Court declared in the case of Da Oroot, appealed to it from this court, when, spéaking in reference to suits here, they said, “The government of the United States cannot be sued for a claim or demand against it without its consent.”

Here this assent is declared by the Constitution, which is only the declaration of the sovereign’s will; and which authorized Congress and imposed it on it, as a duty, subject to its legislative discretion, as to time and mode, to provide for the trial of suits against the United States. In England the assent of the sovereign is declared by his fiat indorsed on the petition. But how the assent of the sovereign is declared cannot be material, for declared in either way it is precisely the same thing, the assent of the sovereign to be brought into court.

And certainly our legislation is cognizant of the maxims of jurisprudence and the attributes inherent in sovereignty here and elsewhere $ and I think this is shown in the language of the proviso in question here, which is, “ any government which accords to citizens of the United States the right to prosecute claims against such government in its courts.” And to accord is to grant ex gratia, and not to admit as a right.

And as to the petition of right in England the text-books show that its allowance by the sovereign on probable cause shown is held to be a duty in him, and so far a right of the subject. Mr. Manning, in bis treatise on tbe Practice of the Court of Exchequer, page 84, says, as the prayer is granted ex debito justitia, it is called a petition of right, and that it seems to be within Magna Charta, “ Nulli vendenms, nulli negabimus, ant differemusjustitiam, vel rectum? And Justice Story says, speaking of the common law right: “In England, if any person has in point of property a just demand upon the King, he may petition him in his court of chancery by what is called a petition of right, ivlien the chancellor will administer right, theoretically as a matter of grace and not upon compulsion, but in fact as a-matter of constitutional duty? And the text-books and the evidence show that in practice, on the presentation of the petition, the fiat issues as a matter of course and official routine. Blackstone (vol. 3, p. 255) says that “as it (the law) presumes that to Icnoio of any injury and to redress it are inseparable in the royal breast, it then. issues as of course in the King’s own name his orders to his judges to do justice to the party aggrieved.” And Mr. James says, “The petition in point of fact is left with the Secretary of the Home Department, * * * and the fiat is then obtained as a mere matter of official routine?

Mr. James also said, “There might arise some case, either from political considerations or otherwise, in which the fiat might be withheld, but I can hardly imagine the existence of such a case.” And if such a case should occur, it would be an exercise of the same power that, is used in the act of July 27, 1868, which distinguishes between aliens and subjects, and between aliens, for of these it admits some to this court while it' excludes others.. If the assent of the sovereign is necessary to a suit against him, he may of course dissent.

And the objection seems to have been made in misapprehension of the purpose and effect of the fiat of the sovereign, which was to create and enforce a jurisdiction and not merely to express his personal pleasure in the matter, for that was referable to his “constitutional duty,” and his coronation oath “to'accord unto all men sure and righteous justice.” In the earliest and simplest times the sovereign administered justice, and afterward his universal jurisdiction was parcelled out in different courts as they came to be instituted, each with its limited and special jurisdiction. But there remained cases falling within none of these jurisdictions, and among them cases against the sovereign as well as cases against private persons. And for those not within the jurisdiction of any of the courts, whether they were cases against the sovereign or against private individuals, the only remedy was by petition of right to the sovereign, of whom the theory was, in the words ’ of an English writer on the subject, “all the justice of the realm is hers alone, and she has the first and chiefest place upon the seat whence it is to be administered, and thereunto by the power of her oath is holden bound.” And the fiat of the sovereign, “Let right be done to the party,” indorsed on the petition and directed to the court which was to hear and determine the case, made that duty imperative on that court, whatever its special jurisdiction might be, and whatever the subject or nature of the claim might be; so that the want of jurisdiction could not be objected by the court or by anybody else, nor could the suit be barred or delayed by defences available elsewhere, such as the death of the sovereign, (in former times,) the statute of limitations, &e. Thus the fiat of the sovereign created a jurisdiction where there would have been none otherwise, and prevented a failure of justice.

On the whole case, we think it is- proved that the government of England accords to American citizens the right to prosecute claims against it in its courts by the petition of right, and we see no reason to doubt that the remedy is as practical as any against the government here or anywhere else.

And that the claimant is entitled to judgment against the United States for the net proceeds of said ten bales of cotton, amounting to the sum of $1, 904 70.

Casey, Oh. J.,

concurring:

I concur in the conclusions reached by the court in this case, but do not fully conoide with all the doctrines announced in the opinion of my brother Loring, just read. The relations of the citizen to the government, theoretical and practical, in this free representative republic, are widely different from those of the subjects of monarchies and empires to their sovereigns. There, in theory at least, all the powers of government, executive, legislative, and judicial, are vested in or derived from the ruler. He represents in his person and character the sovereignty and power of the nation; and hence is considered of such supreme dignity and excellence that he is not amenable to the tribunals that regulate, define, and enforce the rights of subjects as between themselves. And the privilege of impleading the sovereignty in any of his own courts, by any of his subjects, is considered as a mark of special grace and favor to such sub-iect, and of great condescension on the part of the sovereign.

But here the whole structure of the government rests upon different principles, and that difference is fundamental and radical. Here all the just powers of government are derived from the people, are vested in them, and exercised by and for them. A portion of this sovereignty is delegated to the chosen officers of the government by the Constitution, the organic law of this society. But they exercise only a limited, prescribed, and derivative authority, the ultimate and supreme sovereignty of the State resting in the people alone. These' delegated powers are to be exercised for the purposes, in the mode, and by the functionaries designated in the Constitution. And none of their acts, designed to protect private rights, to promote public justice, to insure domestic tranquillity and social order, and thus secure to all the people the blessings of liberty and free government, can be regarded as matters of grace and favor, but are the undoubted right, the inalienable heritage of every citizen.

This fundamental law vests all the delegated powers of government in three departments — the legislative, executive, and judicial. All the judicial powers of this government are “ vested in one Supreme Court, and in such inferior courts as the Congress may from time to time establish.” And this power so vested extends, among other things, “to controversies to which the United States shall be a party.” Whatever, therefore, constitutes a judicial question, and in its operation and enforcement involves the exercise of judicial powers and functions, can only, under our system, be x>roperly referred to a regularly constituted court.

It is not within the constitutional faculties of Congress or the executive, or both combined, to exercise judicial power, or to vest it in any other officers or department other than the regularly constituted courts of the nation. And whenever there is a controversy to be decided, or a right to be established, between the United States on the one side and a citizen on the other, involving the exercise of judicial powers and functions, that is, embracing- controverted questions of law, or disputed matters of fact, it is the undoubted right of the citizen to have that question decided by a court. At the same time, it is as plainly the duty of the government to provide a proper tribunal and prescribe the means by which such matter can be judicially determined. In this there is no grace and favor conferred on the one side, nor a special privilege received on the other. But, on the contrary, the government but discharges its duty, and the citizen receives only that which he had a right to demand.

I cannot give my assent to the proposition that the power to sue the government in this court is a privilege bestowed by Congress, and not a right conferred by the Constitution. The grant of such a right to the citizen is as express and explicit as any other contained in the Constitution of the United States. And it is as much the duty of Congress to provide such a tribunal and to define the mode of proceeding in judicial controversies between the United States and its citizens as it is to lirovide for the same cases between man and man.

I fully adhere to the doctrine contained in my dissenting opinion in Pargoud’s Case, (4 C. Cls. R., p. 344.)  