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pared digests of English law reports, State reports
social science congress), the essays and discussions in and bankruptcy decisions also appear. The book no
which should be preserved in print, and at which tices are judiciously written, and the summary of
should be taken up such questions as most troubled events contains much of interest to the profession.
the framers of the constitution and which are not yet The number is in many respects a superior one.
completely settled; questions of inter-State com
merce and national control of railroads; extradition; The Great Pew Case is the title of a pamphlet of
naturalization; citizenship; suffrage; uniform divorce something over a hundred pages, compiled by Mr. R.
laws, etc., etc., I predict the Federalist and ElliD. McGibbon, B. A., student at law, Montreal, and
ott's Debates and the like might be put completely containing a complete synopsis of the somewhat fa
in the shade and a mine of legal political wisdom be mous case of Johnson v. The Minister and Trustees of
thus supplied from which half-educated congressmen St. Andrew's Church, from its institution to the final
and legislators might thereafter draw with great profit decree of the Supreme Court of Canada. The com- , to
| to themselves and the people. Membership in a pilation comprises the pleadings, and the judgments of
State Bar Association may indirectly in some measure the Superior Court, of the Court of Appeals for Lower
aid a consummation so devoutly to be wished.” Canada and of the Supreme Court of Canada; the remarks of all the judges and of their lordsbips, the jus
In the last number of Le Journal de Droit Internatices of the Supreme Court, with an introduction and tional Privé, M. Demangeat discusses the course taken an appendix. The work is a very valuable contribu
by the French court in refusing to exercise jurisdiotion to the law regulating church corporations and the tion in an action brought by the Loudon, Chatham rights of pew-holders in churches.
and Dover Railway Company against the Southeastern
Railway Company, the dispute between those compaA convention of the General Term Justices of the nies having reference to a contract entered into by Supreme Court and the Chief Judges of the Superior
them in France. The short point is, under what cirCity Courts met in this city on Wednesday of last week
cumstances can a French court decline to adjudicate for the revision of the rules of practice pursuant to upon a litigation between foreigners? An action was section 17 of the Code of Civil Procedure. Several brought against the Northern Railway of France for changes were made in the rules heretofore existing. | the loss of a package lost during transit from London The rules adopted were referred to a committee for to Paris. The action was successful. The Northern the correction of grammatical and other errors, and Railway Company thereupon, by virtue of a contract the convention adjourned sine die. By section 18 of between that company and the Loudon, Chatham and the Code the rules adopted must be published three Dover Company, recovered the loss from the Loudon, weeks in the State paper before taking effect.
Chatham and Dover in the court of Paris. There was
a sub-contract of guarantee by the Southeastern RailA somewhat startling and rather curious judgment way Company with the London, Chatham and Dover was recently delivered by a sessions judge in one of the Company, which contract the latter company sought Bengal districts. Four persons were brought before to enforce in France. No objectiou to the jurisdichim on a charge of murder, and were duly convicted; tion of the court of Paris was raised by the defendant but in passing sentence the judge apparently found company, but the court voluntarily declined jurisdichimself in a difficulty. "There is no doubt," said he. | tion. The Court of Cassation decided that a discre“that all four are guilty of murder, and are therefore | tion exists in the French judges to decline to exercise liable to be hanged; but I do not think it is necessary jurisdiction in suits between foreigners, if under the for four lives to be taken for one, but that one case of circumstances, and having regard to the nature of capital punishment will be enough for example!” Al the litigation, they think that it is more convenient though, in addition to this, he said further on that "all to do so. M. Demangeat very strongly denounces four seem to have been equally active," yet he con
this decision. He says there is nothing in the law of cluded by sentencing the apparently oldest and strong
France to justify it. “The incompetence of French est of the prisoners to death, and the other three to tribunals to take cognizance of personal disputes imprisonment for life. It is needless to say that on between foreigners," he writes, “is not, according an appeal to the High Court the sentence was not con: to the Cour de Cassation, either an in mpetence firmed. Yet such is the reading of the law by some of
ratione materiæ, nor an incompetence ratione persone; the Indian judges.
it is au incompetence sui generis that is not mentioned
in any article of our laws.”. A correspondent writes as follows: “In addition to the reasons given in a late number for membership in Judge Handley, of the Common Pleas Court of Lua State Bar Association, I would add one which, as itzerne county, Pa., in passing upon the exceptions to a strikes me, is as weighty as any you mention. It is referee's report in a recent case, said that “the numthat such an association affords an opportunity for the ber of exceptions filed in any case ought not to exceed coming together of lawyers and the discussion and the number of the apostles; and unless the pleader is elucidation by them of legal and social-legal problems confused, one-half of that number will generally preof the very highest consequence, not merely to law sent all the errors that any court, presided over by any yers but to society. No class is more competent to aid man, may commit while trudging through the dark the advancement of civilization in such manner nor is avenues of the law.” Courts, in words, condemn the there any whose province it more naturally and prop- disposition on the part of counsel to take numerous erly is. Suppose, for example, that there were State exceptions, but by decisions refusing to look into errors Bar Associations in every State, and suppose each not excepted to, encourage the multiplicity of excepshould send two or four delegates able to rank, if pos
tions. A counsel should except to every error, and if sible, with our O'Conor and Porter, to a legal congress
the court below makes more errors than there were
apostles, he should be permitted to except to every of a week's duration, in Washington (in analogy to the l one, and should have the benetit of his exceptions.
ALL communications intended for publication in the system is very faulty in many respects, but it is unLAW Journal should be addressed to the editor, and the derstood that the changes proposed will meet all the name of the writer should be given, though not necessa
faults now complained of. It is, we believe, admitted rily for publication.
Communications on business matters should be ad- that the plan under which the inferior Federal dressed to the publishers.
Courts are organized is defective in three respects: 1. There are two courts of original jurisdiction, where one would answer. 2. There is in reality no
appeal, except to the Supreme Court, that is at all ALBANY, OCTOBER 20, 1877.
satisfactory, or gives a chance for an unprejudiced review. 3. The Supreme Court is accessible to only
a limited number of cases, and even those which CURRENT TOPICS.
can reach there are not disposed of for some years.
The Albany Law Journal.
I forward to with much interest, it being believed of a uniform practice. Any measure that does not that important measures would be introduced and relieve in all these particulars will do only partial discussed, and, perhaps, changes of moment be justice. All actions should be originally brought in made in the existing statutes. There is need of the District Courts, and an appeal should be allowed legislation in many matters, but the danger is that upon law questions, and controverted questions of where the need most exists nothing will be done, fact not determined by a jury, to the Circuit Court, while, in respect to matters that are well enough which should be composed of all the judges in the now, there will be an abundance of enactments. circuit, and a further appeal in certain cases to the Congress is looked to for relief in almost every di Supreme Court. No judge should, however, review rection, many people having a confidence that low his own decisions. An Appellate Court, intermediate wages, want of employment, stringency in the money between the Circuit and Supreme Court, might be market, and even differences in social condition, can
necessary, but we think with a change such as sugbe done away with by legislation. These individ gested in the Circuit and District Courts, it would uals, many of them honestly seeking to better the not be. There would be a need of more inferior condition of the people, flock to the seat of govern judges, but that need exists now, as both the disment with their schemes, and though they do not trict and circuit judiciary are, in many sections, procure all they ask for, cause much mischievous overworked. legislation. There is not much probability, however, that any harm will be done at this session, which is
At the meeting at Aberdeen of the British Social an extra one, called chiefly for the purpose of
Science Association, recently held, the discussions
upon questions of jurisprudence were for the most procuring appropriations needed to meet ordinary governmental expenses. The late Congress spent its
part of local interest only. There were, however, a closing session in the transaction of business that
few very interesting papers on general subjects. was deemed so important that the regular matters
Professor Sheldon Amos read one upon the question coming before it could not receive its proper con
" whether the jurisprudence of a nation over the sideration. We trust the first action of the present
seas adjoining its territory, ought to be general or Congress will be to provide means for carrying on
limited, and if limited, to what extent ?” In this the national courts, which are said to be in a decid
paper the Franconia case was, of course, referred to: edly impoverished condition. The Supreme Court,
and its importance in directing attention to the and some of the Circuit and District Courts sus
necessity of legislation upon the subject pointed
out. The subject of frauds by promoters of corpended last spring for want of funds, and we think embarrassment is felt in all the tribunals. The
porations received an extended discussion. The judges might possibly go on a year or so without
Emma Mine and Lisbon Tramways enterprises, and
others of that ilk, have thoroughly aroused the their salaries, but the other officials of the courts cannot wait for theirs, and the incidental expen
British public to the necessity of more stringent ses must be paid in cash. The spectacle of a sus
legislation in respect to the swindling which is apt
to attend the organization of companies for the pension of the tribunals of justice of a great nation, because their running expenses are unpaid, is not
transaction of business in foreign countries. A an edifying one, and one which we presume will
paper was read by the chief-constable of Aberdeen
shire upon the English detective system, in which not again occur.
the short-comings of the system, as exemplified by It is said that Senator Davis, of Illinois, intends the exposures in London, were pointed out and to introduce a bill for the revision of the judiciary remedies suggested therefor. The meeting seems to system, and that he and Judge Drummond of the have been a very successful one, though the London United States Circuit Court have been engaged for Law Times, in commenting upon it, takes occasion some time past in preparing such bill. The present I to say that such meetings fail utterly to bring about
practical results, and are besides demoralizing. To an alleged misuse of judicial power. See Potter's some extent this notion is true, but the discussions Dwarris on Statutes, p. 573. We imagine the of a body of learned men cannot be without value, and Pennsylvania case will result in the grand jury of results are apt to flow from them that are not always Alleghany county yielding its position. traceable to their true source. These gatherings, as a rule, do nothing more than sow the seed from which spring important reformatory measures, and
The United States Supreme Court resumed its this is all that is expected from them.
sittings last week, and is now engaged in the active transaction of business, and the delivery of opinions
will soon commence. We shall give all the decisThe Penge murder case, which has attracted con- sions rendered that are of any value whatever, as siderable attention not only in London, near which soon as possible after their announcement. Those of the murder was committed, but elsewhere on ac- general interest will be published in full, and of those count of its remarkable character, has given occa involving only points of minor importance, suffision for the exercise of royal clemency, the sentence cient will be given to include every thing that is of death, which was imposed upon those convicted | worth printing. The profession will thus be able of its commission, having been commuted to con to reach all that is of use to them in the decisions finement during the pleasure of the Queen. It is of this court, many months before it will be accessible a somewhat unusual thing for those convicted of to them in the regular way. In this connection we deliberate murder in England to escape the extreme wish to refer to a matter which we have occasionally penalty of the law, but the circumstances surround touched upon, but which does not seem to be fully ing this case, as detailed by our London correspond- understood. In the daily newspapers published in ent in our last issue, were such as to render it proper New York and elsewhere, under the head of Washto mitigate the punishment to which the verdict of ington news is given what purports to be abstracts the jury cousigned the accused. Mr. Justice Haw of recent decisions of the Supreme Court. These kins, who tried the case, recommended the course abstracts are continued throughout the year, and pursued, which indicates that he, upon a reconsid
appear at any time, without regard to whether the eration of the evidence, bad changed his mind as to
court is in session or not. There is no direct statethe degree of culpability of those against whom he ment made in connection with them that the decishad so strongly charged when giving the case to the ions they represent have just been rendered, but they jury. At any rate the popular sentiment, which are presented in such a way as to produce that imreaches in such instances about the correct conclu pression. Many of these abstracts, given as of resion, appears to be in accord with what has been
cent decisions, relate to decisions published in the done.
ALBANY LAW JOURNAL some time previously. These
abstracts are frequently unreliable, but apart from The question whether the executive officials of that they are hardly ever of very late decisions. the State have a right to refuse to testify before a grand jury as to facts relative to official acts alleged to have been done by them, and which they claim
NOTES OF CASES. the public interests forbid them to divulge, has In the case of State v. Haynes, 66 Me. 307, the dearisen in Pennsylvania. The governor and attor- fendant was indicted for arson. The evidence ney-general were subpænaed to appear before the showed that he set fire to a dwelling-house at the grand jury of Allegheny county, to testify relative instance of the owner, and for her benefit, in order to military matters in connection with the late strike that she might procure the amount for which it was riots, but they refused to obey the subpænas on the insured. The court held that the indictment was ground that to do so would be incompatible with not sustained, and that arson cannot, under the comthe public interests. A motion for the issue of an mon law, or any statute following that law, be comattachment to compel them to testify was set down mitted by a person in respect to his own property. for argument this week, but the result of such argu | Arson by the common law is an offense against the ment has not yet transpired. Under the rule, as security of the dwelling-house. It is described by generally understood, the position taken by the Lord Coke to be “the malicious and voluntary burngovernor and attorney-general is correct. Each de- ing of the house of another by night or by day.” partment of the government, in the exercise of its Cap. 15, p. 56; 1 Bish. Cr. Law, $ 389; Erskine v. functions, is independent. The acts of the execu- | Commonwealth, 8 Gratt. 624. And it has been said tive cannot be overhauled, or even pried into by a that a wife who burns her husband's house is not grand jury. The independence of the judiciary guilty of arson. Rex v. March, 1 Moody, 182. The from legislative interference was well maintained in statute iu Maine follows the common law, but in New this State in the case of Judge Potter, who was York, where the willfully setting fire to or burnsummoned to answer at the bar of the Assembly for I ing any inhabited dwelling-house is made arson, it has been held that burning one's own house was It has been said, however, that if the congregation, sufficient to constitute that crime. Sheperd v. The from motives of convenience or ornament only, rePeople, 19 N. Y. 537. But previous to this decision solve to make a change destructive of the right of it had been held that it was necessary to constitute the pew owner, he may have compensation, but not arson in the first degree, that the house be the prop- otherwise. See also Gay v. Baker, 17 Mass. 435; erty of another. People v. Gates, 15 Wend. 159; | Wentworth v. First Parish in Canton, 3 Pick. 344; People v. Henderson, Park. Cr. 560. These two latter | Howard v. First Parish in North Bridgewater, 7 id. cases were expressly overruled in Sheperd v. People, 138; Fassett v. First Parish in Boylston, 19 id. 361; supra. And in England, Parliament has so modified Freligh v. Platt, 5 Cow. 494; Voorhees v. Presb. Ch. the law, that ownership is now immaterial. 1 Vict., of Amsterdam, 8 Barb. 135; S. C., 17 id. 103; Matchap. 89, $ 3; Reg. v. Ball, 1 Moo. C. C. 30. In the ter of Reformed Church in Saugerties, 16 id. 237; principal case, the defendant, in committing the of- Cooper v. First Pres. Ch. of Sandy Hill, 32 id. 222; fense, acted as the agent of the owner. The same Matter of Brick Pres. Ch., 3 Edw. Ch. 133; Bap. Ch. question arose in Robbins v. State, 7 Cold. (Tenn.) in Hartford v. Witherell, 3 Paige, 296; Kellogg v. 359, and it was then held that it was not arson to Dickinson, 18 Vt. 266; Perrin v. Grange, 33 id. procure one's own house to be burned, and that the 101. guilt of the agent was only co-extensive with that of the principal. See also Snyder v. People, 26 Mich. In the case of The Queen v. Bradlaugh, L. R., 2 106; 12 Am. Rep. 302, where it is held that a hus- | Q. B. D. 569, the defendants were indicted for pubband living with his wife, and having a rightful lishing an obscene book, called " The Fruits of possession jointly with her of a dwelling-house, Philosophy,” and it was objected to the indictment, which she owns, and they both occupy, is not guilty that, being for an obscene libel, the words supposed of arson by the common law in burning such dwell- 1 to be criminal in that libel ought to have ing-house, and this rule is not changed by a statute | been expressly specified in the indictment, which securing to the wife her separate property.
was not done. The court held the indictment suffi
cient. The case of obscene publications seems to What is the interest of the owner of a pew in a be an exception to the general rule that, where church in such pew, was a question discussed in words are the gist of the offense, they must be set Proprietors of Union Meeting House v. Rowell, 66 Me. out with, particularity in the indictment. Archb. 400, and it was held that such interest was only an Cr. Pl. 58 (18th ed.) The precise question at issue easement, and that the corporation had the fee in does not appear to have previously come before the the land upon which the church was situated. This English courts, Regina v. Dugdale, Dears. & P. C. is in accordance with the general rule followed in C. 64, being the only case that bears in any way numerous cases. Washb. on Real Estate, 13; Daniel v. upon it, and in that case the objection raised was Wood, 1 Pick. 102; Trustees v. Bigelow, 16 Wend. 28; not pressed by counsel. It has, however, come before Cox v. Baker, 17 Mass. 438; Jackson v. Rounseville, 5 the American courts in several cases. In CommonMetc. 127. See also Kincaid's Appeal, 66 Penn. St. wealth v. Holmes, 17 Mass. 335, where the defendant 411; 5 Am. Rep. 377, where the subject is very was indicted for an obscene libel, described as the learnedly discussed. It is there said that the grant
“Memoirs of a Woman of Pleasure,” Parker, of a pew in a church in perpetuity, does not give to C. J., said that it never could be required that the the pew owner an absolute right of property as in a obscene book or picture should be displayed on the grant of land in fee. He has a limited usufructuary records of the court. This would be to require right only. If the edifice becomes useless by dilap that the public itself should give prominence and idation, or is destroyed by fire or any other casu- notoriety to indecency in order to punish it. In alty, the right of the pew owner is gone. So, if | Commonwealth v. Sharpless, 2 Serg. & Rawle, the infrom age, decay, or other injury, the house has to dictment was for exhibiting an indecent picture, be rebuilt in the same place, or from some necessary | and the objection was taken by the defendant that cause location must be changed, the old edifice sold, it ought to be set out distinctly, so that he might and a new one erected in another spot, the pew | prepare his defense, and that the court might know holder has no claim in law or in equity. So in precisely the charge it had to try. Tilghman, C. J., Church v. Wells' Ex'rs, 12 Harr. 249, the court says, said: “Must the indictment describe minutely the that a pew right is not of such a character as to attitude and posture of the figures. I am of opinprevent an absolute sale of the church edifice, either ion that the description is sufficient.” See also by contract or judicial process; by itself it was Commonwealth v. Tarbox, 1 Cush. 66; People v. never known as an object of taxation, and the pew | Girardin, 1 Mason, 90; State v. Brown, 1 Williams, owner may not decorate it according to his fancy, 619. An interesting resume of the principal case neither may he cut it down or carry it away, and it will be found in our issue of September 29, 1877, gives him no right to the ground on which it stands. at page 220.
elections these qualifications are to be prescribed by THE ELECTIVE FRANCHISE.
the legislative assembly of each territory, subject BY SAMUEL T. SPEAR, D. D.
to certain restrictions imposed on its power. It is not THE elective franchise, or the right of choosing necessary to specify this legislation in detail, since I the officers of government, is, in this country, it is erough for all the purposes of this article that limited to a class of persons far less numerous than the Constitution vests in Congress the whole juristhe whole body of citizens. This settles the ques diction over the District of Columbia and the territion that citizenship and suffrage are not necessarilytories of the United States. Whatever laws in co-existent. They certainly are not, and never have either regulate the elective franchise are either dibeen, co-extensive among the American people. rectly enacted by Congress, or enacted under and The right of voting is not, like that of life or lib- subject to its authority. erty, treated as a natural right. Like any other 2. The elective officers of the United States are matter affecting the interests of society, the ques- the President and Vice-President, and the members tion as to the persons who shall possess the voting of the two houses of Congress. The Constitution franchise is practically regarded as simply one of contains a series of provisions relating to the elecexpediency. The answer is given by constitutional | tion of these officers. provisions and legal enactments, prescribing quali Article 2, section 1, provides that the President fications for voting, excluding all who are destitute and Vice-President shall be chosen by electors; that of these qualifications, and providing for an or
" each State shall appoint, in such manner as the derly exercise of the power.
legislature thereof may direct, a number of electors How far, then, does the Constitution of the United equal to the whole number of Senators and RepreStates furnish any rule on this subject, or authorize sentatives to which the State may be entitled in the Congress to do so, and how far does it leave the Congress; ” and that “Congress may determine the question to be disposed of by State authority? In time of choosing the electors, and the day on which answer to this inquiry it is proposed briefly to ex- | they shall give their votes, which day shall be the amine all the provisions of the Constitution that can same throughout the United States." The Twelfth by any possibility be supposed to have any reference Amendment adds specific provisions for regulating to it.
the action of these electors, and glves directions in 1. Two of these provisions grant to Congress a respect to the final counting of their votes. What general and exclusive jurisdiction over the terri- has all this to do with the elective franchise in the tory to which they apply. The first, found in arti- several States, so far as the power of Congress is concle 1, section 8, authorizes Congress “to exercise cerned ? Nothing, absolutely nothing whatever, exclusive legislation in all cases whatsoever” over with the single exception of determining the time the District of Columbia. The second, found in | of choosing Presidential electors. These electors article 4, section 3, empowers Congress to “make are to be appointed by the several States in such all needful rules and regulations respecting the ter. manner as their respective legislatures may preritory or other property belonging to the United scribe; and whether they shall be chosen directly States." The power here granted embraces in both by the legislatures themselves, or by the qualified cases all the subjects, both as to persons and things, voters in each State on a general ticket or by disupon which legislation can act at all, and excludes tricts, and, if by these voters, then what shall be all other authority except as it may be derived from their qualifications, and what shall be the laws with Congress. The elective franchise is, of course, here reference to receiving and counting their votes a matter for Congress to regulate and determine; these are questions which the Constitution comand with it in these localities the States have noth- mits to the States themselves, and over which Coning to do.
gress has no jurisdiction. The appointment of elecCongress has determined this question in the Dis tors is exclusively a State affair from beginning to trict of Columbia by the Revised Statutes of the end, with the exception of the time of making the United States relating to that District, establishing appointment. a government therein, constituting the inhabitants Article 1, section 3, provides that “the Senate thereof "a body corporate for municipal purposes," of the United States shall be composed of two providing for certain elective officers, and designat Senators from each State, chosen by the legislaing the qualifications of those who shall be electors. ture thereof for six years." The persons who in So, also, the Revised Statutes of the United States, | each State elect the legislature are the qualified in title 23, contain the legislation of Congress in voters in that State; and as to those who shall be reference to the territory of the United States, or such voters each State is the sole judge, subject to ganized and unorganized. One rf the subjects a restraint upon its power to be considered in the treated of is the elective franchise, the qualifica sequel. tions for the exercise of which at the first election Article 1, section 2, provides that “the House of in any territory are stated; and at all subsequent ' Representatives shall be composed of members