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Ordered, That the twenty-first rule in admiralty be abolished, and that the following be substituted in its place:
In all cases of a final decree for the payment of money, the libellant shall have a writ of execution in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate of the defendant or stipulator.
Ordered, That the last paragraph in the 67th rule in equity be repealed, and the rule be amended as follows:
Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court, the examiner to be furnished with a copy of the bill, and answer, if any, and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re-examination, and which shall be conducted as near as may be in the mode now used in common-law courts. The depositions taken upon such oral examination shall be taken down in writing by the examiner, in the form of narrative, unless he determines the examination shall be by question and answer in special instances, and when completed shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend: provided, if the witness shall refuse to sign the said deposition, then the examiner shall sign the same; and the examiner may, upon all examinations, state any special matters to the court as he shall think fit, and any question or questions which may be objected to shall be noted by
the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions, and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just.
The compulsory attendance of witnesses, in case of refusal to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories.
Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the examiner. may fix by order in each cause.
When the examination of witnesses before the examiner is concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record, in the same mode as prescribed in the 30th section of act of Congress, September 24, 1789.
Testimony may be taken on commission in the usual way by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons, satisfactory to the court or judge.
DEATH OF JUDGE MCLEAN.
Immediately after the opening of the court on Tuesday, December 3, 1861, Mr. BATES, the Attorney General, rose and said:
May it please your Honors:
I appear before you now not on my own motion, but on the request and by the authority of my brethren of this bar, who have desired me to say to you, in their behalf, a few words expressive of their feelings. And it is with an emotion of sadness, bordering upon melancholy, that I find myself constrained by circumstances to mark my first official appearance in this high court with the repulsive prestige of a bearer of bad news.
For the heart of man will sympathize with surrounding facts, and will (often unconsciously) associate ugliness and vice with the messengers of evil, and will, on the contrary, impute beauty and goodness to the agents and instruments of its pleasure. This is a sentiment known of old as a truth rooted in the hu
man heart. "How beautiful," exclaims the holy prophet, "how beautiful, upon the mountains, are the feet of Him that bringeth good tidings that publisheth peace!" Oh! that today it were my delightful office to bring to you good tidings, and to publish to you peace.
But, unhappily, it is not so. Since the first organization of this court, no term has yet been held under circumstances so gloomy and sorrowful. I look up to that honored bench and behold vacant seats. Even this august tribunal, the co-equal partner in the government of a great nation, the revered dispenser of our country's justice, shares with us in feeling the common sorrow, and suffers in the common calamity. It is shorn of its fair proportions, and weakened and diminished in
its strength and beauty, by the present loss of one entire third of its component members. And where are the wise, learned, and just men who used to fill those seats? Gone from this theatre of their fame and usefulness, while all of us remember them with respect and gratitude, and mourn the loss of their valuable services. Two of them have been peacefully gathered to their fathers, and have left their fame safe and unchangeable, beyond the reach of malice, and secure against accident, embalmed in history, and hallowed by the grave. And one of them, in the ripe vigor of his manhood, and in the pride of a noble and highly cultivated mind, has been swept away from his high position by the turbulent waves of faction and civil
And this is not all. Your lawful jurisdiction is practically restrained; your just power is diminished, and into a large portion of our country your writ does not run, and your beneficient authority to administer justice according to law, is for the present, successfully denied and resisted.
I look abroad over the country and behold a ghastly spectacle; a great nation, lately united, prosperous, and happy, and buoyant with hopes of future glory, torn into warring fragments; and a land once beautiful and rich in the flowers and fruits of peaceful culture, stained with blood, and blackened with fire. In all that wide space from the Potomac to the Rio Grande, and from the Atlantic to the Missouri, the still, small voice of legal justice is drowned by the incessant roll of the drum, and the deafening thunder of artillery. To that extent your just and lawful power is practically annulled, for the laws are silent amidst arms. But let us rejoice in the hope that these calamities are only for a season; that the same Almighty hand which sustained our fathers in their arduous struggle to establish the glorious Constitution which this court has so long and so wisely administered, will not be withdrawn from their children in a struggle no less arduous to maintain it. Now, indeed, we are overshadowed with a dark cloud, broad and gloomy as a nation's pall; but, thanks be to God, the eye of faith and patriotism can discern the bow of promise set in that cloud, spanning the gloom with its bright arch, to foreshow the coming of a day of sunshine and calm, and to justify our hope of a speedy restoration of peace, and order, and law.
This much, may it please the court, I have ventured to say, as what seemed to me a fitting preliminary to the discharge of the duty imposed upon me by my brethren of the bar. Of course, all the members of the court know the fact that, since the close of the last term, their old and honored associate, Mr. Justice MCLEAN, has departed this life, for all men take sorrowful notice when "a prince and a great man has fallen in Israel." But the members of the bar, in pursuance of a worthy custom, long established, and stimulated, no doubt, by their personal reverence for the virtues and the learning of the departed judge, have held a meeting and passed a series of resolutions, which they have done me the honor to confide to me, with the request that I would present them here and ask that they may be entered upon the minutes of the court as a memorial of their profound veneration for the dead, and for the high tribunal of which he was so long a worthy member. I shall not take the risk of marring the strength or beauty of the resolutions by attempting to recite them, or to comment upon them. Let them speak for themselves, for they speak well.
But I believe it is the custom here, and I hope it will not be unseemly in me to say a few words of my own about that virtuous man, who, though he is dead, still lives in his good works, and teaches by his bright example. I had not the honor of his intimacy, but I have known him personally for more than thirty years, and under circumstances which attracted and enforced my observation. I did not consider him a man of brilliant genius, but a man of great talents, with a mind able to comprehend the greatest subject, and not afraid to encounter the minutest analysis. He was eminently practical, always in pursuit of truth, and always able to control and utilize any idea that he had once fully conceived.
In short, he was a sincere, earnest, diligent man. And this, I suppose, is the secret of his success, the reason why his course through life was always onward and upward. I am informed by those who have had good opportunity to know him in all the relations of life-as a lawyer, a judge, an executive officer, a neighbor, a friend, a professing Christian-that, in their belief, all his duties, in every relation, were fully performed. As a man he lived a blameless life, and not blame