SUMMARY PROCEEDINGS -INTERSTATE COMMERCE ACT.-Under the sixteenth section of the Interstate Commerce Act, the duty is imposed upon federal courts to act, under certain specified circumstances, in a summary manner and to arrive at speedy conclusions. This is a new departure for those courts which have been accustomed to act with the utmost deliberation, especially in corporation cases, operating railroads for indefinite years through the instrumentality of receivers. It will be interesting to observe how far they possess the versatility necessary to change front and administer justice with the prescribed expedition. Lord Eldon the most deliberate and dilatory of equity judges, was in political matters as practical, prompt, and energetic as a modern ward politician. Perhaps the federal judges can as readily adapt themselves to the new style of duty which the statute requires at their hands.

This expeditious procedure is required in case a carrier violates any lawful order of the interstate commission, the aggrieved party may file a petition in the circuit court in equity alleging the violation. The court prescribes the notice to be given, and this is the process required. Of course the carrier is entitled to answer, and the mode of trial is thus prescribed in the statute:

"The court shall proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in equity, but in such a manner as to do justice in the premises; and to this end such court shall have power, if it think fit, to direct and prosecute, in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition."

Now, wherein this procedure differs from an ordinary chancery suit is not very apparent. The petition is, to all intents and purposes, a bill in equity; the notice is the subpoena to answer; the answer to the petition is equivalent to the answer to the bill. There is no replication provided for, but in ordinary equity practice the replication is merely formal. There is, it is true, no provision for an exception to the answer, but we may presume that the right to except is implied. "The court may direct and prosecute,

in such mode and by such persons as it may appoint, all such inquiries as the court may think needful." Wherein does this differ from an ordinary reference to the master, or to a special commissioner?

The only material 'difference that we can see, is that in this statute congress exhorts the courts to use special expedition in applying their customary procedure to cases of this character, and we do not see why the like expedition might not be practiced in most other equity cases.

NOTES OF RECENT DECISIONS.

TESTIMONY OF A PARTY AGAINST HIMSELF DEPOSITION NOTARY PUBLIC CONSTITUTIONAL LAW.—There was recently decided by the court of Nebraska a case or some interest, relating to the liability of parties to civil actions to be compelled to testify against themselves and the powers of a notary public to discipline a witness who refuses to testify before him at all.

The facts of the case were that Otto H. Dogge and his wife, Bertha Dogge, were defendants in a suit brought by Hart Brothers, who specially desired that Mrs. Dogge should give her deposition. She was duly subpœnaed to appear before a notary public for that purpose, but steadfastly refused to appear at the appointed time and place, and very considerately notified the notary that she would not appear, and why she would not. The notary, upon her refusal, issued an attachment against her and she was duly arrested by the defendant Melick, sheriff of the county, and, persisting in her contumacy, she was committed to prison by the notary.

The supreme court sustained the notary, and establishad as law in Nebraska three propositions. That a party to an action at law can be compelled to testify as the witness of his adversary, and upon the requisition of the notary to give his deposition; that a notary public can, upon an ex parte application, issue a subpoena, which the witness is bound to obey, and can commit to prison any witness who refuses to give his deposition; and that the notary has so far judicial power that he can decide definitely, upon an ex parte ap1 Dogge v. Melick, 1 West. Leg. News, p. 1.

plication, whether the testimony of a witness shall be embodied in a deposition taken before him, or reserved to be given ore tenus upon the trial of the cause in open court.

The questions were elaborately argued, and we have been favored with copies of the briefs on both sides. Upon the first point the conclusion of the supreme court seems to be fully sustained by the civil code of Nebraska, which provides generally that "all persons with sufficient capacity to understand the obligations of an oath are competent witnesses in all cases, civil and criminal, except as is otherwise declared." Under the sweeping terms of this section, the court concludes, with good reason, that one who may be a competent witness on one side, must be (in civil cases only, we think) a competent witness on the other. Granting, however, that Mrs. Dogge was a competent and compellable witness at the instance of her adversary, does it follow that she can be required to give her testimony in the shape of a deposition before a notary? On this point the opinion of the court, is to our surprise, absolutely silent, and so is the brief of the counsel for the defendants in error. Mrs. Dogge's counsel, however, argue in their brief, we think, very forcibly that, inasmuch as statutes authorizing depositions to be taken in courts of law are in derogation of the common law, they must be strictly pursued3. They argue further that there is in the statutes of Nebraska no provision whatever authorizing the deposition of an adverse party to be taken, and that no authority is conferred by the general law upon a notary public to take such a deposition. The strict construction applicable to all statutes in derogation of common law should preclude the inference that the general statute conferred any such power. Especially does this seem reasonable as it appears that Mrs. Dogge was not ill, nor absent, nor likely to be, but on the contrary was in town, at her home, and, in short, that none of the contingencies existed which would authorize the taking of her deposition or its use if taken.

The principal question in the case was, whether a notary has the power to commit for contempt a witness who refuses to testify before him. The statute gives him that power expressly, and no doubt he has it if the statute

2 Civ. Code Neb. § 328.

3 Graham v. Whiteley, 26 N. J. L. 254.

is constitutional. The Nebraska constitution of 1875 vests the judicial power of the State in certain named courts, and certain other officers (not including notatries) and "such other courts * as may be created by law for cities and incorporated towns." The constitution is of course paramount, and abrogates all pre-existing statutes repugnant to it. The statute which conferred upon notaries the power to commit witnesses for contempt was passed before the adoption of the constitution of 1875, and was repugnant to it if, by conferring upon them judicial powers, it made them courts in fact though not in name. What is a court? And what is judicial power? To answer the last of these questions first, we say that judicial power is the power conferred by law to hear, to determine, and to pass judgment or sentence. And, answering the first question, whatsoever officer or person exercises these functions is a court, pro hac vice, and to this extent. These propositions we think can hardly be controverted. It follows that a notary public exercising these functions, hearing, deciding, and passing sentence is a court pro tanto, and not being one of the courts or magistrates enumerated in the constitution of Nebraska, nor yet a court created for cities or incorporated towns, is not a lawful court, and the statute which empowers him so to act is repugnant to the constitution of 1875 and void.

All this the supreme court of Nebraska in substance concedes, although it stickles at admitting that all officers exercising judicial functions are courts in any proper sense, it furnishes a complete answer in the following subsequent clause of the constitution: "All existing courts which are not in this constitution specifically enumerated, and concerning which no other provision is herein made, shall continue in existence, and exercise their present jurisdiction until otherwise provided by law."

out to each other good in peace, and do as little harm as possible to their antagonists in war without injuring their own autonomy.1

This doctrine expresses the correct international polity and ought to be generally adopted. The penal laws of a sovereignty, are local and to be applied to crimes within the jurisdiction of the State. But some courts hold that all civilized nations should prosecute every violator of law whenever found in their territory, irrespective of the time, or in what country, the crime was committed. This, however, is not the accepted doctrine, and is not generally followed in England or in this country.

The suppression of crime is demanded by the best interests of all. Nations represent but a sisterhood of States, and every friendly power is morally, if not legally, bound to protect all of its citizens in lawful pursuit from injury from other sovereigns or their subjects. Conspiracies concocted in one jurisdiction or country to be performed in another, render the instigators amenable to the power where consummated. Within a short time past, a question has arisen whether the United States government has not rejected its own accepted doctrine and violated international law. England claims that our government allows dynamite plots to be organized within our domains, which are to be consummated in Great Britain; that these dynamiters used "the resources of civilization" against the English House of Commons and the Tower of London; that money is raised in our country to be used in disturbing the peace of her realm. Some English publicists claim that this mode of procedure against England does not differ in principle from organization and equipment of military expeditions on our soil to be sent to wage war against that government. She brings to our notice that, because cruisers escaped from her ports in time of our war to prey on our commerce, the Geneva arbitration court awarded the United States damage. This award undoubtedly was gruous with international law, and the British government complied with the conditions. But O'Donovan Rossa and his confederates

con

1 Montesquieu's L'Esprit des Lois, 6. 1, ch. 3; Huberus' de Conflictu Legum, Lib. 1, tit. 3, § 3, p. 538. 2 Rorer's Inter. State L. 227; 1 Bish. Cr. L. 79.

8 Holmes v. Jennison, 14 Pet. 540.

4 Whar. Cr. L. §, 284, note 1.

openly declare against England, and claim that the explosion in the house of commons and the tower of London was the consummation of a plot organized in the United States. Complications between England and this country will undoubtedly arise, when some of these.conspirators enter British territory and are arrested, when they will claim American citizenship and our protection. If our government follows the precedent established in the Cutting case," a demand will be made on England for their release. Cutting having published a libel on a Mexican citizen, in an El Paso (Texas) paper which circulated in Mexico, went on to Mexican territory, was arrested and then claimed protection of the United States government, which led to a demand for his release. This was truly a case where the instrumentalities of the crime were set in motion on American soil but consummated on Mexican territory. Does this case indicate the policy of the United States? Generally speaking, the laws of a country have no effect outside of its territorial limits, and a person shall not be held for a crime extraterritorial. But when a person puts extraterritorially into motion agencies which take effect infraterritorially, the sovereignity affected can hold him amenable for the crime, and when he enters the realm of the sovereign be arrested and punished, though his allegiance belongs to another government. He is responsible for the injury inflicted though personally absent."

A person can violate the laws of a country though absent from it; but if he enters the country whose laws have been infracted by him, he can be punished. Offenses against the United States government. though concocted outside of our territory, are indictable in this country. Personal presence is not an essential condition to indictability. England gave us an exemplification of this doctrine in holding the Fenians responsible who were found in her realm, and who claimed American citizenship and allegiance to our government.8

5 See President's Message, Dec., 1886. 61 Bish. Cr. L. § 109, 110; R. v. Johnson, 7 East, 65; R. v. Burdet, 4 B. &. A. 95; Cooley's Const. Lim. 155. 71 Whart. Cr. L. § 284; R. I. v. Manley, Cox. C. C. 104; R. v. Ball, 1 Cox. C. C. 281.

U. S. Dip. Cor. (1868), pt. 1, pp. 51, 193, 342. See R. v. McCafferty, 10 Cox C. C. 603; Cockburn on Nationality (1869), 82; 1 Whar. Cr. L. § 904.

It is a general international doctrine that, because a person owes allegiance to another country from the one where indicted, but where the crime was consummated, will not release him from responsibility, though the agencies back of the crime were put into motion extraterritorially. This is the only safe doctrine that nations can adopt, and if our government ignores it, she is retarding the best interests of all concerned. It is to our interest to suppress plots, organizing in our country, with all reasonable diligence, and to allow our citizens who violate the law of foreign nations to suffer the consequences. belief has grown in this country. propagated by the hustings that the phrase "American citizenship" is talismanic, so much so that our citizens can violate foreign laws and yet escape punishment. It is high time that this belief was corrected.

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Sir Phillimore said: "It is a monstrous thing that any technical rule of venue should prevent justice from being done in this country on a criminal for an offense which was perpetrated here, but the execution of which was concocted in another county.' The honorable gentleman is right, and his language sounds the correct rule which must be recognized by all civilized people. The different States of our union recognize this rule, and many of them have fortified it by statutes. Personal presence at the consummation of the offense is not an essential condition of indictability."1

It is also held that parties are amenable to the State whose laws are broken, though they are non-resident and outside of the territorial limits. If the criminal is found within the State whose laws have been infracted, he may be indicted and punished. 12 Venue at common law was a matter of substance, and an offense partly committed in one county and partly in another could not be tried in either. But this rule was greatly modified by the introduction of exceptions at an early date, which gave a remedy.14

The common law holds that the place of consummation of an offense indicates its

9 Story Con. L. § 6256.

10 U. S. Dip. Cor. (1868), pt. 2, p. 147.

11 Com. v. White, 123 Mass. 430.

12 Adams v. People, 1 N. Y. 173; Ham v. State, 4 Tex.

670.

13 State v. Moore, 26 N. H. 448.

14 4 Black. Com. 303.

If a

venue where it must be indictable. 15 party sends poison in the shape of medicine from one end of the country to the other, he would be as guilty at the place of reception as if he was personally present and delivered it with his own hands. 16 The distance over which the agencies act with no break in the physical impulse does not acquit one of crime. 17 A party forty miles away in another county, signalling to a confederate when to rob a stage, is as guilty of the crime at its situs as if present in body and assisting by manual exertion. 18 If a party dies within the State from a mortal blow inflicted without, the offense is indictable where the death occurs.19 It is provided by some of the States that, if an offense is partially committed in one county and completed in another, the criminal may be indicted in either. 20 So also when a mortal blow is given in one State and death occurs in another, the criminal can be indicted and tried in the former, where the blow was inflicted.2

A party forging a deed in Louisiana to land in Texas is indictable in the latter State. 22 A party can be indicted in one State for publishing a libel in another State, the paper containing the libel having circulated at the place of prosecution.23 So where one publishes a libel in one county he is indictable in another where the paper circulates.24

If a person, standing on one side of the boundary of a country, and shoots a party on the other side in another country, he is amenable to the laws of the nation on whose territory the blow is received.

England, 25 the United States, 26 and the gov

15 People v. Griffin, 2 Barb. 427; Com. v. Gillespie, 7 Serg. & R. 469; R. v. Girdwood, 1 Leach, 169; R. v. Johnson, 7 East, 65.

16 Green v. State, 13 Mo. 382; People v. Bush, 4 Hill (N. Y.), 133. See Robbins v. State, 8 Ohio St. 131. 17 R. v. Harley, 4 Car. & P. 369; R. v. Kelley, 2 Car. & K. 379; R. v. Halloway, 2 Den. Cr. C. 287. 18 State v. Hamilton, 13 Nev. 386. 19 Taylor v. People, 8 Mich. 320.

20 Nash v. State, 2 Greene, 286; Com. v. Linton, 2 Va. Cas. 205; Hurd's Stat. (Ill.) p. 402, § 396.

21 U. S. v. Guiteau, 1 Mackey, 498.
22 Hanks v. State, 13 Tex. 307.
23 Com. v. Blanding, 3 Pick. 311.
24 Belo v. Wren, Tex. L. R. 149.

254 Black. Com. 305; R. v. Azzopordi, 1 Car. & K. 203; Lewis's Foreign Jurisdiction, etc., 20; Bar's Private International Right, 530, § 138; Ortolan's Historical Exposition, etc., No. 880; Dana's Wheaton, § 113; Whar. Confl. L. § 70.

26 U. S. v. Davis, 2 Sumn. 482; State v. Wyckoff, 2