cepts specially, the receiving the reward cannot put him to greater diligence than what the law determines that fact shall put a depositary to, which is ordinary diligence (Story on Bail., sec. 442), and nothing more. the depositary would not be liable for a theft | ly, and of the depositary for a reward, is the committed without his default, and that in such same; and if the depositary for a reward accase he is only liable for ordinary diligence. The case relied on, chiefly, on the other side, is a dictum of Lord Chief Justice Willes (Kettle v. Bromsall, Willes R., 118), where he speaks of the liability of the depositary to keep safely, in case he is robbed of the goods. But it is to be observed that this is said as being according to Southcote's case, the case of Coggs V. Bernard. (Willes R., 121.) It is hardly conceivable how the judge who delivered the opinion in Kettle v. Bromsall could have fallen into such error, for the first authority cited by him (Southcote's case), had been expressly overruled in the last authority cited (Coggs v. Bernard); and in the last case, Lord Holt and the majority of the court, dissenting from Southcote's case, lay down a contrary rule (as we have shown above), viz.: that the depositary would not be liable for the acts of wrong-doers, without his default. The cases and authorities that expound the meaning of the words "keep safely," speak of them generally in reference to the contract of depositum, or naked bailment without reward (Story on Bail., sec. 33, the opinion of the judges in Coggs v. Bernard, in relation to these words altering the responsibility in case of naked bailment; Southcote's case, 2 Black. Com., 452; 17 Mass. Rep., 479); and as enlarging the responsibility from slight diligence, in such case, to ordinary diligence. If the cases and authorities are silent as to the effect of these words in the cases of other bailees, such as the depositary for hire, common carrier, &c., it is because, in these cases, their ordinary legal Chancellor Kent says, in the note above reliability is the same, or more extensive, than ferred to, that the doctrine in Kettle v. Brom- the words "keep safely" import, requiring ordiBall (Willes R., 118) and in Southcote's case, "is nary diligence in some, and extraordinary diliheld to be exploded in the case of Foster v. gence in others. No one would contend that Essex Bank." these words enlarge the responsibility of a common carrier, who is liable for more than what they would import, viz., for all losses except "by the act of God, or the king's enemies;" neither should it be contended that [*586 they enlarge the responsibility of the bailee for hire, whose usual legal responsibility is the same as what the special acceptance in the case of simple deposit has been decided to be, viz., ordinary diligence. These words only make a difference in the case of depositum, or naked bailment, because the usual liability in that It is to be observed that where there is a spe- case, for gross neglect only, is inconsistent with cial contract to "keep safely," the contract is safe keeping. And this agrees with Sir William expounded according to the meaning of the Jones (p. 61, original ed.) where he says, in terms themselves, without inquiring whether a remarking upon the opinion of Powell, J., in reward was paid or not. The acceptance is a Coggs v. Bernard, "Now, the reason assigned by sufficient consideration for the promise to keep the learned judge for the cases in the register safely, as was determined by the case in point in Coggs v. Bernard (see first marg. note); and and year books, which were the same with in that case the court decided that the bailee, Coggs v. Bernard, viz., the party's special asto keep or carry safely, is liable for ordinary sumpsit, obliged him so to do the thing that the negligence, without inquiring whether he receiv-bailor come to no damage by his neglect, seems ed a reward or not. None was averred in the declaration, and there might or might not have A distinction has sometimes been taken between a loss by theft, and a loss by robbery, from the last being considered irresistible, and the former not so. But see, as to this, Story on Bail., sec. 39, 2d edition, where the distinction is refuted; and it is held that "no degree of vigilance will always secure a party from losses by theft," &c., &c. 585*] *When the contract is a special ac ceptance, the taking a reward can make no difference in the construction of it. been one. In Hargrave & Butler's note to 2 Co. Litt. n., 78, it is said, in reference to the decision in the case of Coggs v. Bernard, that "it was wholly grounded on a special undertaking to carry safely, without stating either that the defendant was to have hire or was a common carrier." In giving an exposition, therefore, to the contract "to keep safely," it makes no difference whether a reward was paid or not. It is the special acceptance that makes the party bound to ordinary diligence and liable for ordinary neglect. Again In the contract "to keep safely" it is the special acceptance (without inquiring into a reward or not) that makes the party bound to ordinary diligence; and in the ordinary contract of a depositary for a reward, it is the reward that puts the party to ordinary diligence. (Story on Bail., sec. 442; Jones on Bail., 49, 91, 98, 99, original ed.) The liability, therefore, of the special depositary to keep safe11 L. ed. U. S., Book 11. to intimate that the omission of the words salvo et secure would have made a difference in this case, as in that of a deposit, but I humbly contend that those words are implied by the nature of a contract which lies in feasance," &c. In the present case the duty of the receiver, for which he is paid, lies in feasance, for he is to receive, keep, transfer, and pay out, and do all other acts, as fiscal agent, which may be imposed on him by law, or the directions of the Treasury Department. (Sec. 6, Act of 1840.) By section 12 of the Act of 4th July, 1840, government agents are required to examine "the money on hand and the manner of its being kept;" and by section 13, the register is required to examine and report, from time to time, the condition of the money on hand with the receiver; and by section 14, the officers may be allowed for fire-proof chests, vaults, &c., for safe keeping, to be expressly authorized by the Secretary of the Treasury, whose directions, &c., "are to be strictly followed." The law, then, vests the discretion of the safe keeping, in a measure, in government agents, 47 737 and in the Secretary of the Treasury, "whose directions are to be strictly followed." If, then, the Secretary of the Treasury has directed the money, deposited with the receiver, to be placed in a particular place, vault, &c., and it is stolen there or, if the government agent, having examined "the manner of its being kept," is satisfied, and so reports, and still the money is stolen; the receiver, in either case, would not be liable, without his default (Story on Bail., sec. 74, 2d ed.); "if the depositor agree that the goods may be kept in a particular place, &c., he cannot object afterwards that the place is not a safe one." And non constat but that, in the present case, the money had been directed to be kept in the particular place where it was stolen, nor but that the government agent had examined "the manner of its being kept," and reported it to be safe; in either of which cases the defendant, without his own default, would not be liable. Finally, it may be said that government requires nothing unreasonable from its officers. If, as in the case of The Essex Bank, where $53,000 of gold was deposited, under a memo., 587*] *for safe keeping, and who might be considered in the light of a public depositary, and where considerations of public policy, in return for the extraordinary privileges conferred on the bank, were entitled to all their weight, the bank was held to ordinary neglect only, why should greater responsibility be thrown on a receiver of public money? Chief Justice Parker in that case (17 Mass. Rep., 501) says, "and this certainly is the more reasonable doctrine, for the common understanding of a promise to keep safely, would be, that the party would use due diligence and care to prevent the loss or accident; and there is no breach of faith or trust, if, notwithstanding such care, the goods should be spoiled or purloined." A contrary doctrine to this would be unreasonable. It would also be against public policy; for, if the receiver is to be held liable, when money is stolen from him without his default, having used due diligence and care in the safe keeping, men of common prudence and responsibility would cease to become his sureties, since they would make themselves responsible, not merely for his prudence, good faith, and honesty, in keeping money, but sureties against the cunning, dishonesty, and villainy of all mankind. Mr. Justice MCLEAN delivered the opinion of the court: This action was brought in the Circuit Court for the District of Illinois, on a bond given by Prescott, with the other defendants as his sureties, for his faithful performance of the duties of receiver of public moneys, at Chicago, in the State of Illinois. The defense pleaded was, that the sum not paid over by the defendant, Prescott, and for which the action was brought, had been feloniously stolen, taken, and carried away, from his possession, by some person or persons unknown to him, and without any fault or negligence on his part; and he avers that he used ordinary care and diligence in keeping said money, and preventing it from being stolen. To this plea the plaintiffs filed a general demurrer; and on the argument of the demurrer, the opinions of the judges were opposed on the question, whether "the felonious taking and carrying away the public moneys in the custody of a receiver of public moneys, without any fault or negligence on his part, discharged him and his sureties, and may be set up as a defense to an action on his official bond." And this point is now before this court, it having been certified to us under the act of Congress. On the part of the defendant it is contended that the defendant, Prescott, was a depositary for hire; and that unless his liability was enlarged by the special contract to keep safely, he is only subject to the liabilities imposed by law upon such a depositary; that the special contract does not enlarge his liability. This is not a case of baiiment, and, consequently, the law of bailment does not apply to it. The liability of the defendant, Prescott, arises out of his official bond, and principles which are founded upon *public policy. [*588 The conditions of the bond are, that the said Prescott has "truly and faithfully executed and discharged, and shall truly and faithfully continue to execute and discharge, all the duties of said office" (of receiver of public moneys at Chicago), "according to the laws of the United States; and moreover has well, truly, and faithfully, and shall well, truly, and faithfully, keep safely, without loaning or using, all the public moneys collected by him, or otherwise at any time placed in his possession and custody, till the same had been or should be ordered, by the proper department or officer of the government, to be transferred or paid out; and when such orders for transfer or payment had been or should be received, had faithfully and promptly made, and would faithfully and promptly make, the same, as directed," &c. The condition of the bond has been broken, as the defendant, Prescott, failed to pay over the money received by him, when required to do so; and the question is, whether he shall be exonerated from the condition of his bond, on the ground that the money had been stolen from him. The objection of this defense is, that it is not within the condition of the bond; and this would seem to be conclusive. The contract was entered into on his part, and there is no allegation of failure on the part of the government; how, then, can Prescott be discharged from his bond? He knew the extent of his obligation, when he entered into it, and he has realized the fruits of this obligation by the enjoyment of the office. Shall he be discharged from liability, contrary to his own express undertaking? There is no principle on which such a defense can be sustained. The obligation to keep safely the public money is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond. The case of Foster et al v. The Essex Bank (17 Mass. Rep., 479) was a mere naked bailment, and of course does not apply in principle to this case. The deposit in that case was for the accommodation of the depositor, and without any advantage to the bank, as the court say, "which can tend to increase its liability. No control whatever of the chest, or of the gold contained in it, was left with the bank or its officers. It would have been a breach of trust to have opened the chest, or to inspect its of Louisiana, than other acts of Congress, organizcontents." Public policy requires that every depositary of the public money should be held to a strict accountability. Not only that he should exercise the highest degree of vigilance, but that "he should keep safely" the moneys which come to his hands. Any relaxation of this condition would open a door to frauds, which might be practiced with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs, so as to establish his loss, without laches on his part. Let such a principle be applied to our postmasters, collectors of the customs, receivers of public 589*] *moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public? No such principle has been recognized or admitted as a legal defense. And it is believed the instances are few, if indeed any can be found, where any relief has been given in such cases by the interposition of Congress. As every depositary receives the office with a full knowledge of its responsibilities, he cannot, In case of loss, complain of hardship. He must stand by his bond, and meet the hazards which he voluntarily incurs. The question certified to us is answered, that the defendant, Prescott, and his sureties, are not discharged from the bond, by a felonious stealing of the money, without any fault or negligence on the part of the depositary; and, consequently, that no such defense to the bond can be made. ing the territorial government, and standing in connection with the ordinance. They are none of them in force unless they were adopted by the State constitution. This case was brought up by writ of error, under the 25th section of the Judiciary Act, from the City Court of New Orleans, the highest appellate court in the State to which the question could be carried. In 1842, the defendants in error passed the following ordinance: *"Municipality No. 1 of the City of [*590 New Orleans. "Sitting of Monday, October 31st, 1842. Resolved, that from and after the promulgation of the present ordinance, it shall be unlawful to carry to, and expose in, any of the Catholic churches of this municipality, any corpse, under the penalty of a fine of fifty dollars, to be recovered for the use of this municipality, against any person who may have carried into or exposed in any of the aforesaid churches any corpse, and under penalty of a similar fine of fifty dollars against any priest who may celebrate any funeral at any of the aforesaid churches; and that all the corpses shall be brought to the obituary chapel, situated in Rampart Street, wherein all funeral rites shall be performed as heretofore. "Paul Bertus, Recorder. (Signed) "Approved, November 3d. (Signed) "D. Prieur, Mayor." And a few days afterwards, the following: "Sitting of November 7th, 1842. Resolved, that the resolution passed on the 31st October last, concerning the exposition of corpses in the Catholic churches, be so amended as to annul in said resolution the fine imposed against all BERNARD PERMOLI, Plaintiff in Error, persons who should transport and expose, or V. MUNICIPALITY NO. 1 OF THE CITY OF NEW ORLEANS, Defendant in Error. Religious liberties, right to protect citizens in, given by U. S. Constitution to respective States -Act admitting Louisiana into the Union Superseded former protective acts. This court has not jurisdiction, under the 25th section of the Judiciary Act, of a question whether an ordinance of the corporate authorities of New Orleans does or does not impair religious liberty. The Constitution of the United States makes no provision for protecting the citizens of the respectIve States in their religious liberties; this is left to the State constitutions and laws. The Act of February 20th, 1811, authorizing the people of the territory of Orleans to form a constitution and State government, contained, in the third section thereof, two provisos; one in the nature of instructions how the constitution was to be formed, and the other, reserving to the United States the property in the public lands, their exemption from State taxation, and the common right to navigate the Mississippi. The first of these provisos was fully satisfied by the Act of 1812, admitting Louisiana into the Union, "on an equal footing with the original States." The conditions and terms referred to in the act of admission referred solely to the second proviso, involving rights of property and navigation. The Act of 1805 (chap. 83), extending to the inhabitants of the Orleans territory the rights, privlleges and advantages secured to the Northwestern territory by the ordinance of 1787, had no further force after the adoption of the State constitution cause to be transported or exposed, any corpses in said churches. "Be it further Resolved, That the said fine shall be imposed on any priest who shall officiate at any funerals made in any other church than the obituary chapel. (Signed) "Paul Bertus, Recorder. "Approved, November, 9th. (Signed) "D. Prieur, Mayor." On the 11th of November, 1842, the municipality issued the following warrant against Permoli, a Catholic priest. "Municipality No. 1 V. Bernard Permoli. "Plaintiff demands of defendant fifty dollars fine, for having, on the 9th November, 1842, officiated on the body of Mr. Louis Le Roy, in the church St. Augustin, in contravention of an ordinance passed on the 31st of October last." To which the following answer was filed: "The answer of the Reverend B. Permoli, residing at New Orleans, to the complaint of Municipality No. 1. "This respondent, for answer, says: true it is that the corpse of Mr. Louis Le Roy, deceased, was brought (inclosed in a coffin) in the Roman Catholic church of St. Augustin, and there exposed; and that when there thus exposed, this respondent, as stated in the complaint, officiated | cil thereupon passed the ordinances, for the on it, by blessing it, by reciting on it all the violation of which the defendant is sued. other funeral prayers and solemnity, all the "The case was presented here on the same 591*] usual funeral ceremonies *prescribed by pleadings as in the court below, but the plainthe Rites of the Roman Catholic religion, of tiff's counsel introduced evidence to prove sevwhich this respondent is a priest. That in this eral facts: this evidence was in substance as act he was assisted by two other priests, and follows: by the chanters or singers of the said church. "This respondent avers, that in so doing he was warranted by the Constitution and laws of the United States, which prevent the enact ment of any law prohibiting the free exercise of any religion. He contends that the ordinance on which the complainants rely is null and void, being contrary to the provisions of the act of incorporation of the city of New Orleans, and to those of the Constitution and law of the United States, as above recited. "This respondent therefore prays to be hence dismissed with costs. (Signed) "D. Seghers, of counsel." The judge before whom the case was tried, decided that the ordinance was illegal, and not supported by any of the acts of the Legislature incorporating the city of New Orleans. But the case being carried up by appeal to the City Court, the decision was reversed, and judgment entered in favor of Municipality No. 1 against Permoli for fifty dollars and costs. The judge of the City Court, before deciding the case, made the following remarks, which it may not be inappropriate to transcribe. "Before entering into a statement of the case, as it appeared on trial before this court, I consider it necessary to give a mere outline of the circumstances which induced the Council of the First Municipality to pass the ordinances of the 31st of October and 7th of November, 1842. "By an ordinance of the corporation of the city of New Orleans, approved 26th September, 1827, and entitled 'An ordinance supplementary to an ordinance concerning public health,' it was 'Resolved, that from and after the first of November next, 1827, it shall not be lawful to convey and expose into the parochial church of St. Louis any dead person, under penalty of a fine of fifty dollars, to be recovered for the use of the corporation, against any person who should have conveyed or exposed any dead person into the aforesaid church; and also under penalty of a similar fine of fifty dollars, against all priests who should minister to the celebration of any funeral in said church; and that from the first of November of the present year (1827), all dead persons shall be conveyed into the obituary chapel in Rampart Street, where the funeral rites may be performed in the usual manner.' "This ordinance continued in force during a period of fifteen years, without any opposition on the part of the Catholic clergy or population; but in the year 1842, the late lamented and venerable revered Abbé Moni, curate of the parish of St. Louis, having departed this life, some misunderstanding took place between his successor and the church-wardens. The new curate and assistant clergy abandoned the cathedral, and commenced to celebrate funeral ceremonies in other churches than the obituary 592*] chapel, this chapel being under the administration of the said wardens. The coun "The Right Reverend A. Blanc, Bishop of New Orleans, testified that the dogmas of the Roman Catholic religion did not require that the dead should be brought to a church, in order that the funeral ceremonies should be performed over them; that this was a matter of discipline only; that the witness, as bishop of this diocese, had authorized the clergy to leave the cathedral, and not to officiate at funeral rites at the obituary chapel, and that these ceremonies might be celebrated at the house where the dead person expired, or at any other place designated by the bishop. "The Reverend C. Maenhant, curate of the parish of St. Louis, testified, that he was the curate of said parish, and in that capacity he had given orders for no funeral service to be said at the obituary chapel; that, from the situation of the clergy with regard to the wardens, these funeral services could not, with propriety, be performed at said chapel; that he had been several times applied to, by persons who wished these ceremonies celebrated over the dead bodies of their friends or relatives at the obituary chapel, but he had replied that, under present circumstances, these ceremonies would not be performed at that place, but at the chapel of St. Augustin, or in the house were the deceased person was lying, at the choice of the relatives. "Cross-examined. This witness testified, that the St. Augustin chapel was, in his opinion, as conveniently situated for these purposes as the obituary chapel; that, in the funeral office, there is nothing calculated to disturb the public peace, nothing contrary to morals, and that the greatest decency is always observed in these mortuary rites. "The Reverend Jacques Lesne testified, that he is the priest employed as chaplain at the obituary chapel; that he is entitled to no remuneration, besides what he receives from the church-wardens, for attending at the chapel, to bless the bodies of the dead which are brought there; that he does not celebrate funeral obsequies with that pomp which is given to them in special cases, but he continues, with the permission of the hishop, to read the office of the dead, whenever required, at the obituary chapel, as he did previous to the departure of the clergy from the cathedral; that he is not permitted to leave the chapel to accompany funerals to the cemetery. "Cross-examined. He said, there is nothing immoral or contrary to the public tranquility in the prayers which are said at funerals. "Messrs. José Fernandez, Bernard Turpin, Anthony Fernandez, and Joseph Génois, proved that, for fifteen years passed, the funeral service has been performed at the obituary [*593 chapel, only that this chapel is the best situated for this purpose, and that nothing disorderly ever occurred there. "Mr. A. Fernandez, cross-examined, added that he had never known of the occurrence of any disturbance of the public peace, during the cere monies at the St. Augustin chapel, but he had heard a great deal of complaint about it; and that, being a native of New Orleans, and having almost constantly resided here, he has never seen or heard of the performance of funeral rites at any of the Protestant churches. "The Honorable Paul Bertus, recorder of Municipality No. 1, proved, that having the misfortune to lose his sister-in-law, he desired that the funeral solemnities should have been celebrated at the obituary chapel; but that the clergy had left him no choice but between the St. Augustin chapel and the mortuary house, and that he determined upon the latter place. "The following resolutions, passed by the church-wardens of the parish of St. Louis, were next introduced: "Sitting of Friday, 11th November, 1842. Resolved, That the obituary chapel shall be open for the reception of the remains of all deceased Catholics. Resolved, That all persons who desire to have dead bodies exposed in funeral state, at the said chapel, are requested to give notice to the secretary of the wardens, in order that he may cause the necessary preparations to be made. "Resolved, That the public be informed that the Reverend Abbé Lesne shall continue 1. The first question is settled affirmatively by a bare inspection of the record. It falls within the very terms of the act. 2. For an answer to the second question, we must go back, in the first place, to the "ordinance for the government of the territory of the United States northwest of the river Ohio," passed by Congress on the 13th of July, A. D. 1787; part of preamble and article 1st: "And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws, and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory.......It is hereby ordained and declared....That the following articles shall be considered as articles of compact between the original States and the people and States in the said territory, and forever remain unalterable unless by common consent, to wit: "Art. 1st. No person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments in the said territory." This ordinance, so comprehensive, so farreaching, so simple, and sublime, established a new era for the millions who were destined to swarm within the sphere of its benevolent operation. For them, we may say in the words of the Roman poet, "magnus ab integro sæclorum nascitur ordo!" Till then, the right of the civil power to control the religion of the State had always been practically asserted and recog to bless all bodies of persons brought to the obituary chapel, and that he will continue to say the usual funeral prayers at said chapel.' "A correspondence between the mayor and the curate was also introduced, by consent of parties; but the court, considering this evidence as having no legal effect upon the case, contents itself merely with the mention of its introduc"Henry St. Paul, Esq. (one of the defend-pized; if not by moralists and theologians, at ant's counsel), testified that at Lexington, Kentucky, he saw the body of a deceased person taken into the Methodist Episcopal church, where a funeral oration was pronounced for the occasion by the Reverend Maffit, a minister of that persuasion, and that said oration was followed by prayers. tion. "Finally, the testimony of Mr. P. E. Crozat proved that one of his friends having departed this life, and having been warned by Mr. Rufino Fernandez of the existence of the ordinance, he had nevertheless insisted that the body should be taken to the St. Augustin chapel for the funeral rites, holding himself responsible for the fine imposed, for his opinion was on the side of the clergy." The judge of the City Court then gave his opinion at large and decided, as has already been stated, in favor of Municipality No. 1, from which decision a writ of error brought the case up to this court. 594*] *Messrs. William G. Read and Core for the plaintiff in error. Mr. Barton for the defendant in error. Mr. Read's argument was as follows: Three questions arise on this record: 1. Is the cause before the court in accordance with the requirements of the Act of September 24th, 1789, sec. 25? 2. Have the court jurisdiction over cases of infringement of the religious liberty, of citizens of Louisiana by the municipal authorities of that State? 3. Do the ordinances of November 3d and November 9th, recited in the record, infringe the religious liberty of citizens of Louisiana? least by statesmen and jurists. Such has been the theory and practice of European governments, from the times when the emperors lighted the streets of Rome with blazing Christians, to the last liturgy forced on his Protestant subjects by the despot of Prussia. Even these American States, planted as they were by refugees from religious persecution, presented for generations anything but a land of religious liberty. The government of the Puritans was the very opposite of tolerant; and if they spilled not the lives of their dissentient brethren as freely as others had done, it was because they fled from before their face into the wilderness. The government of Virginia *was [*595 equally exclusive; and the land of the Calverts was peopled by exiles from both. Even old Maryland, the primal seat of Christian freedom, has enfranchised the Israelite within our own brief memories. It was but yesterday that the Catholic was made eligible to office in North Carolina; and his continued exclusion from it disgraces New Hampshire to-day. But the ordinance of 1787 drew a broad line of distinction between the thirteen original States, which, in conquering their independence, acceded to all the known attributes of sovereignty, and the new ones to be carved out of the immense regions northwest of the Ohio; which come into the national community shorn of this flower, or rather thorn, of prerogative. It has left not the trace of a foundation, within Itheir vast extent, whereon bigotry can erect her citadels. The United States have guarantied, to their inhabitants, religious liberty as absolutely as they have republican government to us all. |