Howard et al. v. Ingersoll.

Something must depend also upon the rapidity of the stream and other circumstances. But in all cases the bed of a river is a natural object, and is to be sought for, not merely by the application of any abstract rules, but as other natural objects are sought for and found, by the distinctive appearances they present; the banks being fast land, on which vegetation, appropriate to such land in the particular locality, grows wherever the bank is not too steep to permit such growth, and the bed being soil of a different character and having no vegetation, or only such as exists when commonly submerged in water.

4. Taking along with us these views respecting the bed and banks of a river, it will be obvious that the lowest line of the bank, being the line which separates the bank from the bed, is a natural line, capable of being found in all parts of the river, impressed on the soil; and this is true of no other line on the bank; for though in some places the banks of a river may have so marked a character, that there would be no difficulty in tracing the upper line of the bank, and pronouncing, with certainty,. that the bank there terminates, yet it is not to be supposed that this would be true throughout the course of a long river, and one of these cases finds, that in some places the banks of this river are low, and the adjacent lands on either side subject to occasional inundation. In such places it would be impracticable to fix on a precise line as the upper termination of the bank. Now, it is clear, that inasmuch as this line of the act of cession was to be a line of boundary of political jurisdiction, it must have been deemed by the commissioners when they fixed it, and by the parties when they assented to it, of great importance, to have a natural boundary, capable, not only of being ascertained upon inquiring, but of being seen and recognized in the common practical affairs of life. And, therefore, I am of opinion, that as the calls for this line do not expressly require it to be on any particular part of the bank, it should be located on the bank where the leading purpose, to have a natural boundary between the two jurisdictions, will be most effectually attained. The convenience and advantage of both parties require this. The line, therefore, is at the lowest edge of the bank, being the same natural line which divides the bank from the bed of the river.

The above brief statement of my views, while it exhibits all to which I have given my assent in these cases, will show why I concur in the opinion that the rulings, brought before us by these writs of error, were erroneous.

Order in No. 121.

This cause came on to be heard on the transcript of the re

Norris v. Crocker et al.

cord from the Supreme Court of the State of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Supreme Court to be proceeded with in conformity to the opinion of this court, and as to law and justice may appertain.

Order in No. 131.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Georgia, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo, and to proceed therewith, in conformity to the opinion of this court.

JOHN NORRIS, PLAINTIFF, V. EDWIN B. CROCKER AND ELISHA

EGBERT.

The fourth section of the act of Congress, approved on the 12th day of February, 1793, (1 Stat. at Large, 302,) entitled "An act respecting fugitives escaping from justice, and persons escaping from the service of their masters," is repealed, so far as relates to the penalty, by the act of Congress approved September 18th, 1850, (9 Stat. at Large, 462,) entitled "An act to amend, and supplementary to, the above act." Therefore, where an action for the recovery of the penalty prescribed in the act of 1793 was pending at the time of the repeal, such repeal is a bar to the action.

THIS case came up from the Circuit Court of the United States for the District of Indiana, upon a certificate of division in opinion between the judges thereof.

The following certificate explains the question:

UNITED STATES OF AMERICA,

District of Indiana.

At a Circuit Court of the United States, begun and holden at Indianapolis, for the District of Indiana, on Monday, the nineteenth day of May, in the year one thousand eight hundred and fifty-one, and continued from day to day until Friday, the thirtieth day of May, one thousand eight hundred and fifty-one.

Norris v. Crocker et al.

JOHN NORRIS,

v.

EDWIN B. CROCKER AND Elisha Egbert.

Present, honorable John McLean, and the honorable Elisha M. Huntington, judges.

This is an action of debt brought to recover the penalty of five hundred dollars, upon the fourth section of the act of Congress, approved February 12, 1793, entitled "An act respecting fugitives from justice, and persons escaping from the service of their masters;" declaration in the usual form, and demurrer and joinder thereto.

The case coming on to be argued on demurrer, it occurred as a question, whether the aforesaid section of the aforesaid act of February 12, 1793, is repealed, so far as relates to the penalty given by said section, by the act of Congress of September 18th, 1850, entitled "An act to amend and supplementary to the act entitled, 'An act respecting fugitives from justice, and persons escaping from the service of their masters," approved February 12th, 1793; and whether, if repealed, the same can affect this action, which was pending before the passage of the last-named act; on which questions the opinions of the judges were opposed.

Whereupon, on motion of the plaintiff, by his counsel, that the points on which the disagreements hath happened, may, during the term, be stated under the direction of the judges, and certified under the seal of the court to the Supreme Court to be finally decided.

It is ordered that the foregoing statement of the pleadings and the following questions involved, which are made under the direction of the judges, be certified according to the request of the plaintiff, by his counsel, and the law in that case made and provided, to wit:

I. Is the fourth section of the act of Corgress, approved on the 12th day of February, A. D. 1793, entitled "An act respecting fugitives from justice, and persons escaping from the service of their masters," repealed, so far as relates to the penalty, by the act of Congress, approved September 18th, 1850, entitled "An act to amend, and supplementary to the act entitled 'An act respecting fugitives from justice, and persons escaping from the service of their masters,"" approved February 12th, 1793.

II. Whether, if the fourth section of the last-named act of February 12th, 1793, is repealed, so far as relates to the penalty by the act to amend and supplementary to the same, that repeal will, in law, bar the present action that was pending at the time of the repeal.

Norris v. Crocker et al.

Upon this certificate, the cause came up to this court, and was argued by Mr. O. H. Smith, for the plaintiff, and Mr. Chase, for the defendants.

Mr. Smith, for the plaintiff.

On the part of the plaintiff, we contend that the act of 1850, does not repeal the fourth section of the act of 1793, but is only cumulative; and we ask this court so to certify to the Circuit Court.

The defendants maintain that the act of 1850 does repeal, by implication, the fourth section of the act of 1793, and every distinct offence created by that section; therefore, if the court should even think that part of the section is repealed by implication, which we submit they will not, still if the whole of the section is not repealed, the certificate must be for the plaintiff, and the demurrer in the Circuit Court must be overruled.

Before we proceed to examine the two acts, and to compare them, we will direct the attention of the court to some. plain and familiar principles, for the construction of statutes, by which we are willing to construe these acts, as applicable to this case.

1. "Generally, statutes are to be construed to operate in futuro, unless a retrospective effect be clearly intended." Prince v. United States, 2 Gallis. C. C. R. 204.

2. "In doubtful cases, a court should compare all the parts of a statute, and different statutes in pari materia, to ascertain the intention of the legislature." Sloop Elizabeth, Paine's C. C. R. 11.

3. "Where a statute is made in addition to another statute on the same subject, without repealing any part of it, the provisions of both must be construed together." 13 Mass. 324, 344.

4. "Statutes can never be applied retrospectively, by mere construction." 9 B. A. 221; 10 Mass. 437; 12 Mass. 383; 16 Mass. 215; 1 Blackf. R. 220.

5. "Subsequent statutes, which add accumulative penalties, and institute new methods of proceeding, do not repeal former penalties and methods of proceeding, ordained by preceding statutes, without negative words." 6 Price, 131; 9 B. A. 227.

6. "The law does not favor a repeal by implication, nor is it to be allowed unless the repugnancy be quite plain; for as such repeal carries with it a reflection upon the wisdom of the former parliament, it has ever been confined to the repealing as little as possible of the preceding statute." 2 Wash. 297; 2 Barn. & Ald. 149; 6 Maule & Selwyn, 116; 15 East, 372; 9 B. A. 228. 7. "Although two acts of parliament are seemingly repugnant, yet if there be no clause of non obstante in the latter, they shall, if possible, have such construction that the latter may not

Norris v. Crocker et al.

be a repeal of the former by implication." Weston's case, Dyer, 347; 11 Rep. 63; Hard. 344; 9 B. A. 228.

With these general and fundamental principles before us, we proceed to direct the mind of the court

1st. To the section of the act of Congress upon which this action was brought, and

2d. To the section of the act of 1850, passed pending the action, which is relied upon as repealing the fourth section of the act of 1793.

1. The section of the act of 1793, upon which this action is founded, reads as follows:

"That any person who shall, knowingly and willingly, obstruct or hinder such claimant, his agent, or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent, or attorney, when so arrested, pursuant to the authority herein given or declared, or shall harbor or conceal such person, after notice that he or she was a fugitive from labor as aforesaid, shall for either of the said offences forfeit and pay the sum of five hundred dollars; which penalty may be recovered by and for the benefit of such claimant, by action of debt in any court proper to try the same," saving, &c.

This section, the court will see, gave several distinct causes of action for the penalty:

1. Against any person who should knowingly and willingly "obstruct" the claimant, his agent, or attorney, from "seizing or arresting the fugitive.”

2. Against those who shall knowingly and willingly "hinder" the claimant, his agent, or attorney, in so "seizing or arresting the fugitive."

3. Any persons who shall knowingly and willingly "rescue" such fugitive from such claimant, his agent, or attorney, when so arrested, pursuant to the authority herein given or declared." 4. Against persons "who shall harbor' such fugitive" "after notice that he or she was a fugitive from labor."

5. Against persons "who shall conceal such person, after notice that he or she was a fugitive from labor."

The section of the act of 1850, that is relied upon as repeal- ing the fourth section of the act of 1793, as to the penalty, by implication, we maintain is merely cumulative. We proceed to give the section; and in order to show the additions that have been made to the section of the act of 1793, by the act of 1850, we give the section, and place the additions in brackets.

"That any person who shall knowingly and willingly obstruct [or prevent] such claimant, his agent, or attorney, [or any person or persons lawfully assisting him, her, or them,] from arresting