Daily Mississippi clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-06-21

1
adjust the various controversies, then rife in
tue country, in relation to such contracts,
whether of an equitable or legal nature to
settle the rights of the parties under such
contracts, aud administer plenary justice
between them, according to the circum-
stances of each case. And nothing short OF
this would have met the eXigencies and set
tied the disturbances of the country, which
really called the court into existence. With
out such power, vast majority of the cases
would not have been relievable in the court,
and must have been left to the arbitrary rule
of military officers, who seemed, by no |
means, 10th to use their power in such cases.
In the numerous cases that have been |
brought here from that court, there is scarce |
ly one, where court of equity, on general
principles, and apart from the order of the |
Provisional Governor, would have jurisdic- |
ton. |
In the third place, the Judge is clothed |
with power to proceed in summary way |
ON petition, to enforce specific performance
or rescind contracts" This appears to me |
to be distinct and substantive branch of
the power conferred, or it, at least, was in
tended to specify two of the particulars only
in which the general power granted in the
preceding clause was intended to be exer
cised. But if it be considered as part of the
preceding clause, and that both the clauses
have reference to the power to enforce spe
| CHIC OF 10 TtScIuu cOnITslCIsg ycI
| it seems to me to be doing violence to the
clear language to say, that that jurisdiction
was not to be exercised in "dU contracts for
| cotton" whether embraced within ordinary
| equitable rules or not; aud that cOnstruc-
ton would debar the court of the power to
settle the controversy in nearly all the cases
| intended for its adjudication.
The Court was to proceed, not i'll the usual
slow march of Chancery Courts, but lin a
summary;" because the emergencies arising
| from hot disputes about cotton contracts,
were pressing and required prompt action to
remedy the evils existing, and to settle the
controversies. And this tends to show that
the Court was in no wise intended to be re-
stricted to the ordinary rules governing
courts of equity,
| A short time after the Court had gone in
| to operation under this order, q supplement
| tary declaration was issued by the Provis-
| iOnal Governor. stating that whereas doubts
had arisen in the minds of some persons in
regard to the extent of the jurisdiction in
tended to be conferred on Judge Swami, it
was thereby declared that in decreeing
| specific performance of contracts in refer
| ence to cotton other property, he has
power to make his decree in the alternative,
for the cotton or other property OF for
its value, ii the property itself can
not be had, or has beens old or disposed
| of, the measure of value to be regula-
| ted by the value of the thing at the
time suit was brought with ten per cent
| damages" .--...a
| 1t is to be observed that the doubts re-
| ferred to are not mentioned as having refer
ence to the general power of court of
| equity in relation to contracts for personal
property, but to the jurisdiction intended to
be conferred by the first order This second
document then proceeds to declare the power
| which he had granted under the previous
order, not to grant new powers. 1t is Who'll
| " declaratory. 1t declares that he has, not
shall have power. ]. To make his DEGREES in
the alternative, for the cotton or for its value,
| if the property itself cannot be had, or has
been sold or disposed of. 2. To fix the
measure of value at the time of suit brought.
3. To allow ten per cent damages.
| Now this document had reference to only
one branch of the power conferred in the
previous order, and it is perfectly clear that
| it recognizes rules of action by the judge
under the previous order, totally unknown
| to the ordinary rules of equity jurisdiction
in cases of specific performance in allow
ing decree in the alternative, for the prop
erty or its value. This was the rule at law
applicable TO the action of defiHne and it
shows clearly that the first order was in
tended to confer powers unknown to equity
| proceedings, and to give the powers of
court of law. 3 1t allows a decree for spe-
cifc performance, or the value Ofthe proper
ty, "if it cannot be had, or has been sold or
| disposed Of" without regard to the circum-
| stances under which, or the time when, it
has been disposed of. This is in opposition
| to the well settled rule in courts of equity
but it is the rule at law. The measure of
damages is fixed as to time; and that like
wise is the rule at law, and follows the
ton of Detinue.
All this is to be done by virtue of the first
order, and is embraced under the general
power contained in the first clause of that
order. But at all events, it is a broad en-
largement of equity power totally inconsis-
tent with its rules of ordinary jurisdiction
and it shows clearly that, though the Court
was to proceed according to the rules of
procedure of court of chancery, yet its es-
sential powers were, by no means, to be cir
cumscribed by the rules of that Court. This
appears to me to be abundantly clear from
the purposes intended to be accomplished
by the appointment of the Judge, which
would otherwise utterly fail /; and for just
Interpretation of the orders prescribing his
powers. If these orders do not mean this,
they mean nothing. And it is worthy of
remark that this appears to be the view
taken of the subject by almost every men,
Der of this bar for, though the contrary
| view has been somewhat cOntended for in
this case yet in none of the cases that have
| come under my observation here, except one,
| has the objection been made in the Court
below by demurrer, answer or otherwise
which goes far to show that the opinion of
the profession is that it is not tenable.
But it is said that this construction would
render the order of the Provisional Cover
nor repugnant to the 9TH Amendment to the
| Federal Constitution which is as follows:
"In suits at common law, where the value
in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved,
wise re-examined in any court of the United
States, than according to the rules of the
common law"
The argument is, that, under the construc-
ton here given, the order would transfer to
courts of equity matters properly cOgniza-
BILE at law, and thereby deprive the defend
ant of the right of trial by Jury, to which he
was entitled under this article of the Consti-
tuition. But this view seems to me to be I'M
tenable.
|. In the first place, the article has no
application to courts of equity, and is ex-
pressly confined to suits at common law
parsons VS.. Bedford, Peters, 446.) Nor
does it inhibit the enlargement of the pow
ers of courts of equity by competent Leg
islative authority, so as to embrace matters
which were formerly matters of common law
jurisdiction.
2. But the provisions of the Constitution
are not applicable to the state of things ex-
listing here when this Court was estab-
hshed, when there was no established civil
government here, and no Federal courts un-
der the regular action of the Federal Gov
eminent. As has been shown iu the opinion
of the majority of the Court, this Special
| Court of Equity was an emanation of mil
itary power, in the abnormal political con-
dltion in which the State was then placed
and 1T would appear, that the rules for the
ordinary action of the Federal Government
were not applicable to such state of things.
| The right under consideration could have
| had no reference to a state of war or of
| military occupation, which was the condi-
| ton of this State when this Court was es-
tablished. 1t did not apply when Gen
Kearney was acting as Governor of New
Mexico aud organized Government there,
nor when Gen. Quitman was acting as Gov
ernor of Mexico. The power to appoint
! such Governor is not reconcilable with the
Constitution, under the regular civil action
of the Government, and is justified solely on
the ground of necessity as military act of
temporary duration, and in order to restore
| the regular establishment of the Constitu-
| ton and laws of the United States in the
| State. ----
| The powers and acts of the Provisional
Governor must be of the same character, and
| be tested by the same principles. Hence the
military authority, by which the Provisional
Governor was appointed and under which
he was acting, must do acts irreconcilable
with the Constitution and laws, during the
| period of temporary military occupation of
the State; because in such circumstance
| the regular civil action of the Government
| had become impracticable. Upon no other
| ground can either the appointment of the
Provisional Governor or any act done by
him be justified. Hence he was clothed
| with the extraordinary power which he ex-
ercised in this instance, which must be ure-