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pared digests of English law reports, State reports and bankruptcy decisions also appear. The book notices are judiciously written, and the summary of events contains much of interest to the profession. The number is in many respects a superior one.

The Great Pew Case is the title of a pamphlet of something over a hundred pages, compiled by Mr. R. D. McGibbon, B. A., student at law, Montreal, and containing a complete synopsis of the somewhat famous case of Johnson v. The Minister and Trustees of St. Andrew's Church, from its institution to the final decree of the Supreme Court of Canada. The compilation comprises the pleadings, and the judgments of the Superior Court, of the Court of Appeals for Lower Canada and of the Supreme Court of Canada; the remarks of all the judges and of their lordships, the justices of the Supreme Court, with an introduction and an appendix. The work is a very valuable contribution to the law regulating church corporations and the rights of pew-holders in churches.

A convention of the General Term Justices of the Supreme Court and the Chief Judges of the Superior City Courts met in this city on Wednesday of last week for the revision of the rules of practice pursuant to section 17 of the Code of Civil Procedure. Several changes were made in the rules heretofore existing. The rules adopted were referred to a committee for the correction of grammatical and other errors, and the convention adjourned sine die. By section 18 of the Code the rules adopted must be published three weeks in the State paper before taking effect.

A somewhat startling and rather curious judgment was recently delivered by a sessions judge in one of the Bengal districts. Four persons were brought before him on a charge of murder, and were duly convicted: but in passing sentence the judge apparently found himself in a difficulty. "There is no doubt," said he, "that all four are guilty of murder, and are therefore liable to be hanged; but I do not think it is necessary for four lives to be taken for one, but that one case of capital punishment will be enough for example!" Although, in addition to this, he said further on that" all four seem to have been equally active," yet he concluded by sentencing the apparently oldest and strongest of the prisoners to death, and the other three to imprisonment for life. It is needless to say that on an appeal to the High Court the sentence was not confirmed. Yet such is the reading of the law by some of the Indian judges.

A correspondent writes as follows: "In addition to the reasons given in a late number for membership in a State Bar Association, I would add one which, as it strikes me, is as weighty as any you mention. It is that such an association affords an opportunity for the coming together of, lawyers and the discussion and elucidation by them of legal and social-legal problems of the very highest consequence, not merely to lawyers but to society. No class is more competent to aid the advancement of civilization in such manner nor is there any whose province it more naturally and properly is. Suppose, for example, that there were State Bar Associations in every State, and suppose each should send two or four delegates able to rank, if possible, with our O'Conor and Porter, to a legal congress of a week's duration, in Washington (in analogy to the

social science congress), the essays and discussions in which should be preserved in print, and at which should be taken up such questions as most troubled the framers of the constitution and which are not yet completely settled; questions of inter-State commerce and national control of railroads; extradition; naturalization; citizenship; suffrage; uniform divorce laws, etc., etc., I predict the Federalist and Elliott's Debates and the like might be put completely in the shade and a mine of legal political wisdom be thus supplied from which half-educated congressmen and legislators might thereafter draw with great profit to themselves and the people. Membership in a State Bar Association may indirectly in some measure aid a consummation so devoutly to be wished."

In the last number of Le Journal de Droit International Privé, M. Demangeat discusses the course taken by the French court in refusing to exercise jurisdiction in an action brought by the London, Chatham and Dover Railway Company against the Southeastern Railway Company, the dispute between those companies having reference to a contract entered into by them in France. The short point is, under what circumstances can a French court decline to adjudicate upon a litigation between foreigners? An action was brought against the Northern Railway of France for the loss of a package lost during transit from London to Paris. The action was successful. The Northern Railway Company thereupon, by virtue of a contract between that company and the London, Chatham and Dover Company, recovered the loss from the London, Chatham and Dover in the court of Paris. There was a sub-contract of guarantee by the Southeastern Railway Company with the London, Chatham and Dover Company, which contract the latter company sought to enforce in France. No objection to the jurisdiction of the court of Paris was raised by the defendant company, but the court voluntarily declined jurisdiction. The Court of Cassation decided that a discretion exists in the French judges to decline to exercise jurisdiction in suits between foreigners, if under the circumstances, and having regard to the nature of the litigation, they think that it is more convenient to do so. M. Demangeat very strongly denounces this decision. He says there is nothing in the law of France to justify it. "The incompetence of French tribunals to take cognizance of personal disputes between foreigners," he writes, "is not, according to the Cour de Cassation, either an incompetence ratione materiæ, nor an incompetence ratione persona; it is an incompetence sui generis that is not mentioned in any article of our laws."

Judge Handley, of the Common Pleas Court of Luzerne county, Pa., in passing upon the exceptions to a referee's report in a recent case, said that the number of exceptions filed in any case ought not to exceed the number of the apostles; and unless the pleader is confused, one-half of that number will generally present all the errors that any court, presided over by any man, may commit while trudging through the dark avenues of the law." Courts, in words, condemu the disposition on the part of counsel to take numerous exceptions, but by decisions refusing to look into errors not excepted to, encourage the multiplicity of excep tions. A counsel should except to every error, and if apostles, he should be permitted to except to every the court below makes more errors than there were one, and should have the benefit of his exception.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, OCTOBER 20, 1877.

CURRENT TOPICS.

system is very faulty in many respects, but it is understood that the changes proposed will meet all the faults now complained of. It is, we believe, admitted that the plan under which the inferior Federal 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 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 can reach there are not disposed of for some years. We might add another defect, and that is the want of a uniform practice. Any measure that does not relieve in all these particulars will do only partial justice. All actions should be originally brought in the District Courts, and an appeal should be allowed upon law questions, and controverted questions of fact not determined by a jury, to the Circuit Court, which should be composed of all the judges in the circuit, and a further appeal in certain cases to the Supreme Court. No judge should, however, review his own decisions. An Appellate Court, intermediate between the Circuit and Supreme Court, might be necessary, but we think with a change such as sugin the Circuit and District Courts, it would not be. There would be a need of more inferior judges, but that need exists now, as both the district and circuit judiciary are, in many sections, overworked.

THE present session of Congress has been looked forward to with much interest, it being believed that important measures would be introduced and discussed, and, perhaps, changes of moment be made in the existing statutes. There is need of legislation in many matters, but the danger is that where the need most exists nothing will be done, while, in respect to matters that are well enough now, there will be an abundance of enactments. Congress is looked to for relief in almost every direction, many people having a confidence that low wages, want of employment, stringency in the money market, and even differences in social condition, can be done away with by legislation. These individ-gested uals, many of them honestly seeking to better the condition of the people, flock to the seat of government with their schemes, and though they do not procure all they ask for, cause much mischievous legislation. There is not much probability, however, that any harm will be done at this session, which is an extra one, called chiefly for the purpose of procuring appropriations needed to meet ordinary governmental expenses. The late Congress spent its closing session in the transaction of business that was deemed so important that the regular matters coming before it could not receive its proper consideration. We trust the first action of the present Congress will be to provide means for carrying on the national courts, which are said to be in a decidedly impoverished condition. The Supreme Court,

The

and some of the Circuit and District Courts suspended last spring for want of funds, and we think embarrassment is felt in all the tribunals. judges might possibly go on a year or so without their salaries, but the other officials of the courts cannot wait for theirs, and the incidental expenses must be paid in cash. The spectacle of a suspension of the tribunals of justice of a great nation, because their running expenses are unpaid, is not an edifying one, and one which we presume will not again occur.

It is said that Senator Davis, of Illinois, intends to introduce a bill for the revision of the judiciary system, and that he and Judge Drummond of the United States Circuit Court have been engaged for some time past in preparing such bill. The present VOL. 16.- No. 16.

The

At the meeting at Aberdeen of the British Social Science Association, recently held, the discussions upon questions of jurisprudence were for the most part of local interest only. There were, however, a few very interesting papers on general subjects. Professor Sheldon Amos read one upon the question "whether the jurisprudence of a nation over the seas adjoining its territory, ought to be general or limited, and if limited, to what extent?" In this paper the Franconia case was, of course, referred to, necessity of legislation upon the subject pointed and its importance in directing attention to the out. The subject of frauds by promoters of corporations received an extended discussion. Emma Mine and Lisbon Tramways enterprises, and others of that ilk, have thoroughly aroused the British public to the necessity of more stringent legislation in respect to the swindling which is apt to attend the organization of companies for the transaction of business in foreign countries. A paper was read by the chief-constable of Aberdeenshire upon the English detective system, in which the short-comings of the system, as exemplified by the exposures in London, were pointed out and remedies suggested therefor. The meeting seems to have been a very successful one, though the London Law Times, in commenting upon it, takes occasion to say that such meetings fail utterly to bring about

practical results, and are besides demoralizing. To some extent this notion is true, but the discussions of a body of learned men cannot be without value, and results are apt to flow from them that are not always traceable to their true source. These gatherings, as a rule, do nothing more than sow the seed from which spring important reformatory measures, and this is all that is expected from them.

The Penge murder case, which has attracted considerable attention not only in London, near which the murder was committed, but elsewhere on account of its remarkable character, has given occasion for the exercise of royal clemency, the sentence of death, which was imposed upon those convicted of its commission, having been commuted to confinement during the pleasure of the Queen. It is a somewhat unusual thing for those convicted of deliberate murder in England to escape the extreme penalty of the law, but the circumstances surrounding this case, as detailed by our London correspondent in our last issue, were such as to render it proper to mitigate the punishment to which the verdict of the jury consigned the accused. Mr. Justice Hawkins, who tried the case, recommended the course pursued, which indicates that he, upon a reconsideration of the evidence, had changed his mind as to the degree of culpability of those against whom he had so strongly charged when giving the case to the jury. At any rate the popular sentiment, which reaches in such instances about the correct conclusion, appears to be in accord with what has been done.

an alleged misuse of judicial power.
See Potter's
Dwarris on Statutes, p. 573. We imagine the
Pennsylvania case will result in the grand jury of
Alleghany county yielding its position.

The United States Supreme Court resumed its 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 decissions rendered that are of any value whatever, as soon as possible after their announcement. Those of general interest will be published in full, and of those involving only points of minor importance, sufficient will be given to include every thing that is worth printing. The profession will thus be able

to reach all that is of use to them in the decisions of this court, many months before it will be accessible to them in the regular way. In this connection we wish to refer to a matter which we have occasionally touched upon, but which does not seem to be fully understood. In the daily newspapers published in New York and elsewhere, under the head of Washington news is given what purports to be abstracts of recent decisions of the Supreme Court. These abstracts are continued throughout the year, and appear at any time, without regard to whether the court is in session or not. There is no direct statement made in connection with them that the decisions they represent have just been rendered, but they are presented in such a way as to produce that impression. Many of these abstracts, given as of recent decisions, relate to decisions published in the ALBANY LAW JOURNAL some time previously. These abstracts are frequently unreliable, but apart from that they are hardly ever of very late decisions.

N

NOTES OF CASES.

the case of State v. Haynes, 66 Me. 307, the defendant was indicted for arson. The evidence showed that he set fire to a dwelling-house at the instance of the owner, and for her benefit, in order that she might procure the amount for which it was insured. The court held that the indictment was not sustained, and that arson cannot, under the common law, or any statute following that law, be committed by a person in respect to his own property. Arson by the common law is an offense against the security of the dwelling-house. It is described by Lord Coke to be "the malicious and voluntary burn

The question whether the executive officials of 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 the public interests forbid them to divulge, has arisen in Pennsylvania. The governor and attorney-general were subpoenaed to appear before the grand jury of Allegheny county, to testify relative to military matters in connection with the late strike riots, but they refused to obey the subpoenas on the ground that to do so would be incompatible with the public interests. A motion for the issue of an attachment to compel them to testify was set down for argument this week, but the result of such argument has not yet transpired. Under the rule, as generally understood, the position taken by the governor 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 functions, is independent. The acts of the executive cannot be overhauled, or even pried into by a grand jury. The independence of the judiciary from legislative interference was well maintained in this State in the case of Judge Potter, who was summoned to answer at the bar of the Assembly for

Cap. 15, p. 56; 1 Bish. Cr. Law, § 389; Erskine v. Commonwealth, 8 Gratt. 624. And it has been said that a wife who burns her husband's house is not guilty of arson. Rex v. March, 1 Moody, 182. The statute in Maine follows the common law, but in New York, where the willfully setting fire to or burning any inhabited dwelling-house is made arson, it

has been held that burning one's own house was sufficient to constitute that crime. Sheperd v. The People, 19 N. Y. 537. But previous to this decision it had been held that it was necessary to constitute arson in the first degree, that the house be the property of another. People v. Gates, 15 Wend. 159; People v. Henderson, Park. Cr. 560. These two latter cases were expressly overruled in Sheperd v. People, supra. And in England, Parliament has so modified the law, that ownership is now immaterial. 1 Vict., chap. 89, § 3; Reg. v. Ball, 1 Moo. C. C. 30. In the principal case, the defendant, in committing the offense, acted as the agent of the owner. The same question arose in Robbins v. State, 7 Cold. (Tenn.) 359, and it was then held that it was not arson to procure one's own house to be burned, and that the guilt of the agent was only co-extensive with that of the principal. See also Snyder v. People, 26 Mich. 106; 12 Am. Rep. 302, where it is held that a husband living with his wife, and having a rightful possession jointly with her of a dwelling-house, which she owns, and they both occupy, is not guilty of arson by the common law in burning such dwelling-house, and this rule is not changed by a statute securing to the wife her separate property.

What is the interest of the owner of a pew in a church in such pew, was a question discussed in Proprietors of Union Meeting House v. Rowell, 66 Me. 400, and it was held that such interest was only an easement, and that the corporation had the fee in the land upon which the church was situated. This is in accordance with the general rule followed in numerous cases. Washb. on Real Estate, 13; Daniel v. Wood, 1 Pick. 102; Trustees v. Bigelow, 16 Wend. 28; Cox v. Baker, 17 Mass. 438; Jackson v. Rounseville, 5 Metc. 127. See also Kincaid's Appeal, 66 Penn. St. 411; 5 Am. Rep. 377, where the subject is very learnedly discussed. It is there said that the grant of a pew in a church in perpetuity, does not give to the pew owner an absolute right of property as in a grant of land in fee. He has a limited usufructuary right only. If the edifice becomes useless by dilapidation, or is destroyed by fire or any other casualty, the right of the pew owner is gone. So, if from age, decay, or other injury, the house has to be rebuilt in the same place, or from some necessary cause location must be changed, the old edifice sold, and a new one erected in another spot, the pew holder has no claim in law or in equity. So in Church v. Wells' Ex'rs, 12 Harr. 249, the court says, that a pew right is not of such a character as to prevent an absolute sale of the church edifice, either by contract or judicial process; by itself it was never known as an object of taxation, and the pew owner may not decorate it according to his fancy, neither may he cut it down or carry it away, and it gives him no right to the ground on which it stands.

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It has been said, however, that if the congregation, from motives of convenience or ornament only, resolve to make a change destructive of the right of the pew owner, he may have compensation, but not otherwise. See also Gay v. Baker, 17 Mass. 435; Wentworth v. First Parish in Canton, 3 Pick. 344; Howard v. First Parish in North Bridgewater, 7 id. 138; Fassett v. First Parish in Boylston, 19 id. 361; Freligh v. Platt, 5 Cow. 494; Voorhees v. Presb. Ch. of Amsterdam, 8 Barb. 135; S. C., 17 id. 103; Matter of Reformed Church in Saugerties, 16 id. 237; Cooper v. First Pres. Ch. of Sandy Hill, 32 id. 222; Matter of Brick Pres..Ch., 3 Edw. Ch. 133; Bap. Ch. in Hartford v. Witherell, 3 Paige, 296; Kellogg v. Dickinson, 18 Vt. 266; Perrin v. Grange, 33 id. 101.

In the case of The Queen v. Bradlaugh, L. R., 2 Q. B. D. 569, the defendants were indicted for publishing an obscene book, called "The Fruits of Philosophy," and it was objected to the indictment, that, being for an obscene libel, the words supposed to be criminal in that libel ought to have been expressly specified in the indictment, which was not done. The court held the indictment sufficient. The case of obscene publications seems to be an exception to the general rule that, where words are the gist of the offense, they must be set out with, particularity in the indictment. Archb. Cr. Pl. 58 (18th ed.) The precise question at issue does not appear to have previously come before the English courts, Regina v. Dugdale, Dears. & P. C. C. 64, being the only case that bears in any way upon it, and in that case the objection raised was not pressed by counsel. It has, however, come before the American courts in several cases. In Commonwealth v. Holmes, 17 Mass. 335, where the defendant was indicted for an obscene libel, described as the "Memoirs of a Woman of Pleasure," "Parker, C. J., said that it never could be required that the obscene book or picture should be displayed on the records of the court. This would be to require that the public itself should give prominence and notoriety to indecency in order to punish it. In Commonwealth v. Sharpless, 2 Serg. & Rawle, the indictment was for exhibiting an indecent picture, and the objection was taken by the defendant that it ought to be set out distinctly, so that he might prepare his defense, and that the court might know precisely the charge it had to try. Tilghman, C. J., said: "Must the indictment describe minutely the attitude and posture of the figures. I am of opinion that the description is sufficient." See also Commonwealth v. Tarbox, 1 Cush. 66; People v. Girardin, 1 Mason, 90; State v. Brown, 1 Williams, 619. An interesting resume of the principal case will be found in our issue of September 29, 1877, at page 220.

THE ELECTIVE FRANCHISE.

BY SAMUEL T. SPEAR, D. D.

THE HE elective franchise, or the right of choosing the officers of government, is, in this country, limited to a class of persons far less numerous than the whole body of citizens. This settles the question that citizenship and suffrage are not necessarily co-existent. They certainly are not, and never have been, co-extensive among the American people. The right of voting is not, like that of life or liberty, treated as a natural right. Like any other matter affecting the interests of society, the question as to the persons who shall possess the voting franchise is practically regarded as simply one of expediency. The answer is given by constitutional provisions and legal enactments, prescribing qualifications for voting, excluding all who are destitute of these qualifications, and providing for an orderly exercise of the power.

How far, then, does the Constitution of the United States furnish any rule on this subject, or authorize Congress to do so, and how far does it leave the question to be disposed of by State authority? In answer to this inquiry it is proposed briefly to examine all the provisions of the Constitution that can by any possibility be supposed to have any reference

to it.

1. Two of these provisions grant to Congress a general and exclusive jurisdiction over the territory to which they apply. The first, found in article 1, section 8, authorizes Congress "to exercise exclusive legislation in all cases whatsoever" over the District of Columbia. The second, found in article 4, section 3, empowers Congress to "make all needful rules and regulations respecting the territory or other property belonging to the United States." The power here granted embraces in both cases all the subjects, both as to persons and things, upon which legislation can act at all, and excludes all other authority except as it may be derived from Congress. The elective franchise is, of course, here a matter for Congress to regulate and determine; and with it in these localities the States have nothing to do.

Congress has determined this question in the District of Columbia by the Revised Statutes of the United States relating to that District, establishing a government therein, constituting the inhabitants thereof a body corporate for municipal purposes," providing for certain elective officers, and designating the qualifications of those who shall be electors. So, also, the Revised Statutes of the United States, in title 23, contain the legislation of Congress in reference to the territory of the United States, organized and unorganized. One of the subjects treated of is the elective franchise, the qualifications for the exercise of which at the first election in any territory are stated; and at all subsequent

elections these qualifications are to be prescribed by the legislative assembly of each territory, subject to certain restrictions imposed on its power. It is not necessary to specify this legislation in detail, since it is enough for all the purposes of this article that the Constitution vests in Congress the whole jurisdiction over the District of Columbia and the territories of the United States. Whatever laws in either regulate the elective franchise are either directly enacted by Congress, or enacted under and subject to its authority.

2. The elective officers of the United States are the President and Vice-President, and the members of the two houses of Congress. The Constitution contains a series of provisions relating to the election of these officers.

Article 2, section 1, provides that the President and Vice-President shall be chosen by electors; that "each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; " and that "Congress may determine the time of choosing the electors, and the day on which they shall give their votes, which day shall be the same throughout the United States." The Twelfth Amendment adds specific provisions for regulating the action of these electors, and gives directions in respect to the final counting of their votes. What has all this to do with the elective franchise in the several States, so far as the power of Congress is concerned? Nothing, absolutely nothing whatever, with the single exception of determining the time of choosing Presidential electors. These electors are to be appointed by the several States in such manner as their respective legislatures may prescribe; and whether they shall be chosen directly by the legislatures themselves, or by the qualified voters in each State on a general ticket or by districts, and, if by these voters, then what shall be their qualifications, and what shall be the laws with reference to receiving and counting their votes these are questions which the Constitution commits to the States themselves, and over which Congress has no jurisdiction. The appointment of electors is exclusively a State affair from beginning to end, with the exception of the time of making the appointment.

Article 1, section 3, provides that "the Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof for six years." The persons who in each State elect the legislature are the qualified voters in that State; and as to those who shall be such voters each State is the sole judge, subject to a restraint upon its power to be considered in the sequel.

Article 1, section 2, provides that "the House of Representatives shall be composed of members

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