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the cause is, whether, under the circumstances of the present case, such a pre-existing debt constitutes a valuable consideration in the sense of the general rule applicable to negotiable instruments. We say, under the circumstances of the present case, for the acceptance having been made in New York, the argument on behalf of the defendant is, that the contract is to be treated as a New York contract, and therefore to be governed by the laws of New York, as expounded by its courts, as well upon general principles, as by the express provisions of the 34th section of the Judiciary Act of 1789, c. 20. And then it is further contended that, by the law of New York, as thus expounded by its courts, a pre-existing debt does not constitute, in the sense of the general rule, a valuable consideration applicable to negotiable instruments.

But, admitting the doctrine to be fully settled in New York, it remains to be considered whether it is obligatory upon this court, if it differs from the principles established in the general commercial law. It is observable that the courts of New York do not found their decisions upon this point upon any local statute or positive, fixed or ancient local usage; but they deduce the doctrine from the general principles of commercial law." It is, however, contended that the 34th section of the Judiciary Act of 1789, c. 20, furnishes a rule obligatory upon this court to follow the decisions of the State tribunals in all cases to which they apply. That section provides "that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.” In order to maintain the argument, it is essential, therefore, to hold that the word "laws," in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language, it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not of themselves laws. They are often reexamined, reversed, and qualified by the courts themselves, whe ever they are found to be either defective, or ill-founded or otherwise incorrect. The laws of a State are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the various cases, which have hitherto come before us for decision, this court has uniformly supposed that the true interpretation of the 34th section limited its application to State laws strictly local, that is to say, to the positive statutes of the State, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did not apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statues or local usages of a fixed and permanent opera


tion, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared, in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 882, 887, to be in a great measure, not the law of a single country only, but of the commercial world.

This question has been several times before this court, and it has been uniformly held, that it makes no difference whatsoever as to the rights of the holder, whether the debt, for which the negotiable instrument is transferred to him, is a pre-existing debt or is contracted at the time of the transfer. In each case, he equally gives credit to the instrument. The case of Coolidge v. Payson, 2 Wheat. 66, 70, 73, and Townsley v. Sumrall, 2 Pet. 170, 182, are directly in point.

We are all, therefore, of opinion that the question on this point, propounded by the Circuit Court for our consideration, ought to be answered in the negative; and we shall accordingly direct it so to be certified to the Circuit Court.




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Section 4.



1. As to Acts of Congress.
Marbury v. Madison, page 23.
Hepburn v. Griswold, page 221.
Pollock v. Farmers' Loan and Trust Company, page 57.

2. As to Acts of State Legislature.
M'Culloch v. Maryland, page 50.
Gibbons v. Ogden, page 72.
Brown v. Maryland, page 166.


Constitutional Guarantees

Section 1.



4 WALLACE, 2. 1866.

On the 10th day of May, 1869, Lambdin P. Milligan presented a petition to the Circuit Court of the United States for the District of Indiana in which he prayed that he be discharged from an alleged unlawful imprisonment. The facts of the case were as follows: Milligan was a citizen of the United States and a resident for twenty years of the State of Indiana. He was not, nor ever had been, in the military or naval service of the United States. While at his home, on the 5th day of October, 1864, he was arrested by order of General Hovey, commanding the military district of Indiana, and confined in a military prison near Indianapolis. On the 21st day of October, 1864, he was brought before a military commission, convened at Indianapolis, by order of General Hovey, was tried on the charge of conspiracy against the Government of the United States, affording aid and comfort to rebels against the authority of the United States, and other charges. He was found guilty and sentenced to be hanged. The sentence was approved by the President of the United States. On the 2d day of January, 1865, after the proceedings of the military commission were at an end, the Circuit Court of the United States for Indiana met at Indianapolis and empanelled a jury, who were charged to inquire whether the laws of the United States had been violated. The court adjourned January 27, 1865, and discharged the jury from further service. No bill of indictment or presentment was found against Milligan, for any offense whatever by the grand jury for Indiana. Milligan insisted that the military commission had no jurisdiction to try him, that he had not been a citizen of any of the States arrayed against the government, and that the right of trial by jury was guaranteed to him by the Constitution of the United States.

MR. JUSTICE Davis delivered the opinion of the court.

** * The discipline necessary to the efficiency of the army and navy requires other and swifter modes of trial than are furnished by the common law courts; and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offenses committed while the party is in the military or naval service. Every one connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of States where the courts are open, if charged with crime, are guaranteed the inestimable privilege of a trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of State or political necessity. When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty; for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion-if the passions of men are aroused and the restraints of law weakened, if not disregarded-these safeguards need, and should receive the watchful care of those intrusted with the guardianship of the Constitution and laws. It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this; that in a time of war the commander of an armed force * * * has the power, within the lines of his military district to suspend all civil rights and their remedies, and subject citizens as well as soldiers, to the rule of his will, and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of each one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law * * * Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish. *** The necessities of the service, during the late Rebellion, required that the loyal States should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration. It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as well as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.

The prisoner was discharged See also Hawaii v. Mankichi, page 245.

Section 2.



109 U. S., 3. 1883.

The Act of Congress of March 1, 1875, known as the Civil Rights Act, made it a criminal offense for any person to deny any citizen on account of race or color the full and equal enjoyment of the privileges and accommodations of inns, public conveyances, theatres, and other places of public amusement. Certain persons were indicted for violations of this act, and carried these cases to the Supreme Court of the United States in order to test the constitutionality of this act, their contention being that, as the Constitution and its Amendments do not authorize Congress to regulate private rights, the indictments under the act of 1875 were void. The government contended that the act was authorized by the 1st section of the Fourteenth Amendment, which declares, "No State shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

MR. JUSTICE BRADLEY, speaking in reference to the 1st section of the Fourteenth Amendment, says:

It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of

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