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

IL
adjust the various controversies, then rife IN
tue country, in relation to such contracts,
whether of an equitable or legal nature 10
settle the rights of the parties under such
contracts, and 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
lied the disturbances of the country, which
really called the court into existence. With
out such power, a vast majority of the cases
wOnld 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 1o use their power in such cases
In the numerous cases that have been
| brought here from that court, there is scarce
| Is one, where a court of equity, ON general
principles and apart from the order of the
/ Provisional Governor, would have jurisdle-
| ton.
In the third place, the Judge is clothed
| with power to proceed in a summary way
| on petition, to enforce specific performance
or rescind contracts" This appears TO me
| to be a 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-
| eific performance or to rescind contracts, yet
ii seems TO me to be doing violence to the
clear language to say, that that jurisdiction
/ was not 70 he exercised in "dlt contracts Tor
| cotton whether embraced within ordinary
equitable rules or not; aud that constrnc-
| 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 IN the usual
slow march of Chaneery Courts, but in
summary because the emergencies arising
| from hot disputes about cotton contracts,
| We're 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,
4 short time after the Court had gone in
| to operation under this order, supplement
tary declaration was issued by the Provis-
| ional Governor. stating that whereas doubts
| had arisen in the minds of some persons III
| 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 or other property, he has
/ power to make his decree in the alternative,
| for the cotton or other property or for
it's value, if 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"
1t is to be observed that the doubts re-
| ferred to are not mentioned as having refer
| encc 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
| IN declaratory. 1t declares that he has, not
| shall have rover. ]. 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 OF disposed of ?. To fix the
| measure of value at the time of suit brought
| ,. 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 detiHHe and it
| shows clearly that the first order was i'll
| tended to confer powers unknown to equity
| proceedings, and to give the powers of
| court of law. , 1t allows a decree for spe-
| cific 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 i'll 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 ac-
| ton of DetiHHe.
| 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 broad en-
toll
| tent with its rules of ordinary jurisdiction
and it shows clearly that, though the Court
| was to proceed according to the rules of
/ procedure ola court of chaneery, 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 i'll
| 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,
and no fact tried by jury shall be other
wise re-examined in any court of the United
States, than according to the rules of the
common law"
-, H..
ton here given, the order would transfer to
courts of equity matters properly cOgniza-
bic at law, and thereby deprive the defend
ant of the right of trial by jury, to which ne
was entitled under this article of the Consti-
tuition. But this view seems to me to be I'M
tenable.
l. 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, 3 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.
? 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 I'M
der the regular action of the Federal Gov
eminent As has been shown III 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-
dition 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 constellation could have
had no reference to 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 acting Governor of New
Mexico and 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 a 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 au. hority, by which the Provisional |
Governor was appointed and under which
he was acting, must do acts irreeoneilable
with the Constitution and laws, during the
period of temporary military occupation of
the State; because in such circumstances |
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 nOuar which ba ~ |