rendered, and twenty days allowed to elapse so that no appeal can be taken. Then an execution against the person is issued, and the debtor is compelled to pay or be imprisoned. These instances will show that the method of procedure in justices' courts sadly needs amendment.

The Vanderbilt will case bids fair to occupy a most important position among litigated suits. In the amount involved it by far exceeds any case ever before the courts of this country, if not any one before the courts of any country. Counsel of national eminence are engaged on the part of the contestants, and we suppose the proponent will retain in his behalf those of equal position. The facts, so far as they have been made known to the public, would not indicate very strong grounds for opposing the probate of the will, but the counsel for the heirs and next of kin of the deceased who oppose are men who would not enter upon the struggle without being assured of strength in the cause they sustain. The public will, of course, take a great interest in the proceedings, though we do not anticipate that it will so wholly fill the popular mind and the newspapers as did the last cause celèbrè we had among us. It will, however, be liable to involve questions of fully as great interest to the intelligent mind as did the other one, while it will be free from those details which degraded that case into a quarrel fit only for the consideration of the vulgar. While it would be well if the last will of a competent testator could be carried out without opposition or interference on the part of the descendants of such testator, we cannot forget that if it were not for sickness physicians would starve, and if it were not for litigation the judicial office would be a sinecure.

There is one thing which it is to be hoped will not again occur, and that is, the introduction of the Supreme Court of the United States into a political contest. We regretted very much the late necessity of bringing the question of a disputed presidential election before a tribunal of which the judges of that court made up an important part, but there seemed to be no escape from such an expedient practicable. The result has justified our fears as to the manner in which the members of the court who took part in the commission would be treated. The political papers have not hesitated to question the motives which influenced the action of the several

judges, and these gentlemen will go back to their judicial labors feeling that they have devoted their energies, during a period when they could ill afford to intermit their regular duties, to the performance of a thankless task, and one which has exposed them, individually, to unmerited criticism. The high position occupied by the judiciary of the superior courts in the respect of the people has been largely due to the fact that it has been kept inde

pendent of partisan contests. That it may still continue to be kept thus independent is, we are confident, the earnest desire of every well-wisher of his country.

The forty-fourth Congress closed its final session as the clock struck the midday hour, on the fourth of March, after having transacted a smaller amount of business than almost any one of its predecessors. Besides the well-known electoral commission law, barely half a dozen acts cover the whole legislation of the session, having any general interest whatsoThese acts are briefly the following: To amend section 5457 of the Revised Statutes, relating to counterfeiting; to annul sections 533, 556, 571 and 572, relating to courts in Arkansas and other States; to perfect the revision of the statutes of the United States, and of the statutes relating to the District of Columbia; to allow a pension of $36 per month to soldiers who have lost both an arm and a

ever.

leg; to amend the pension law so as to remove the disability of those who, having participated in the rebellion, have, since its termination, enlisted in the United States Army, and to amend section 2291 of the Revised Statutes, in relation to proof required in homestead entries.

Among the bills introduced in the State legislature we notice the following: Relating to taxation,

amending title 1, chap. 13, part 1 of the Revised Statutes; relating to life insurance, doing away with the clauses contained in policies declaring the person effecting the insurance the agent of the applicant and not of the insurance company, and providing that the statements in application for insurance shall be warranties avoiding the policy if false; relating to the Court of Appeals reporter, providing that he shall receive no salary. The bill to authorize the election of women to school offices failed to

pass the Senate and is probably dead for the session.

The litigation in New York city, aiming at the appointment of a receiver of the Delaware and Hudson Canal Company, does not seem to be abandoned

notwithstanding the prompt vacation of the order to show cause, which was inadvertently granted. A second order to show cause was obtained and a motion for a receiver argued before the Supreme Court, which denied the same. We presume, however, that an appeal will be taken from the decision, and thus another suit, involving a vast amount of money, commence a tedious journey in the courts.

NOTES OF CASES.

IN the case of Queen v. Faulkner, decided Jan. 16, 1877, by the Irish Court for Crown Cases reserved (11 Irish L.T. R. 13) the question was whether the crime of arson would be committed when the fire was set accidentally by one engaged in the com

mission of another offense. The case was this: The prisoner, a seaman, went into the hold of the vessel to which he belonged for the purpose of stealing rum there stored. Having tapped a barrel, the rum ran out, and when he was trying to put a spile in the hole out of which it was escaping, the rum caught fire from a lighted match in his hand, in consequence of which the ship took fire and was consumed. It was conceded that the prisoner did not in fact intend to burn the ship. The court be- | low directed the jury to find the prisoner guilty if | they should find that he was engaged in stealing the rum when he set the fire. The appellate court quashed a conviction, holding that the direction was erroneous. The case in some respects resembles Luke v. The State, 49 Ala. 30, where the prisoner set fire to a jail in which he was confined, for the purpose of burning a hole through which to escape. The fire was kept by the prisoner within control, so that it could not destroy the building. The Supreme Court of Alabama held, however, that he was guilty of arson. The principal case is, however, in harmony with People v. Cottrell, 18 Johns. 115, where a fire accidentally set by a prisoner in an attempt to escape jail was held not arson. See also State v. Mitchell, 5 Ired. 350. But it has been held in England, where one, in attempting to commit a felony, sets fire accidentally, it is arson. Foster, 258, 259; 1 Hale, 567, 569; 3 Inst. 67. See also 2 East's P. C. 1033; Jesse v. State, 28 Miss. 100; Com. v. Posey, 4 Cal. 109; Stevens v. Com., 4 Leigh, 683.

The case of Mann, plaintiff in error, v. Wiland, just decided by the Supreme Court of Pennsylvania, was an action brought by a widow for the death of her husband, which was caused by the running away of horses which were frightened by an attack upon them by dogs belonging to Mann, and which it was alleged were accustomed to attack and frighten horses. The questions arose whether it was necessary to show vicious acts on the part of the dogs, to the knowledge of the owner, precisely similar to the one upon which the action was founded; whether one or two vicious acts were enough to establish the liability of the owner, and whether evidence of the good conduct of the dogs on other occasions could be introduced to defeat the action. The court answered the first question in the negative, and the second in the affirmative. As to the third it held that while the evidence mentioned could not be introduced to defeat the action, it 'might, in case of a conflict of testimony as to the particular acts, be considered in determining the credit to be given to witnesses. In respect to the second question it is held in many cases that knowledge of one vicious act is sufficient to render the owner of the offending animal liable. Smith v. Pelch, 2 Strange, 1264; Ketteridge v. Elliott, 16 N. H.

77; Loomis v. Terry, 17 Wend. 496; Cockerham v. Nixon, 11 Ired. 269. The decision on the first question is in accordance with the doctrine as stated in Shearm. & Redf. on Negl., § 190 (see also McCaskill v. Elliott, 5 Strobh. 196), although not agreeing with what is said in Wood on Nuisance, § 761. The decision of the court upon the other question, so far as excluding the evidence of the general good conduct of an animal proved to have committed vicious acts, to defeat the action, accords with that in Buckley v. Leonard, 4 Den. 500. Upon the subject of liability for injuries done by domestic animals of vicious propensities, see Laverone v. Mangianti (41 Cal. 138); 10 Am. Rep. 268, and note at p. 270.

In the case of Lyon v. The Wardens, etc., of the Fishmongers' Co. et al., L. R., 1 App. Cas. 662, recently decided by the House of Lords, the question of the rights of a riparian owner along a navigable stream was discussed. The court held that, while the right of navigating a tidal river is common to the subjects of the realm, it may be connected with a right of exclusive access to particular land on the bank of the river, and the latter is a private right to the enjoyment of the land, the invasion of which may form the ground for an action for damages, or for an injunction. The Lord Chancellor said that he could not entertain any doubt that the riparian owner, "in addition to the right connected with navigation, to which he is entitled as one of the public retains, his rights as an ordinary riparian owner, underlying and controlled, but not extinguished, by the public right of navigation." The right of a riparian owner to the use of the stream was also said not to depend on the ownership of the soil thereunder. In this case the respondent, a riparian owner, under a license from the public was erecting a structure which would injuriously interfere with the use of the stream by appellant, another riparian owner, and an injunction was allowed against the respondThis case follows Rose v. Groves, 5 Man. & Grang. 613, but seems not entirely in harmony with the cases of Attorney-General v. Conservators of the Thames, L. R., 1 H. & M. 1, and Kearns v. Cordwainers Co., 6 C. B. (N. S.) 338; 28 L. J. (C. P.) 285. Some American courts, however, deny the special right of the riparian proprietor, and hold that, along a navigable river where the tide ebbs and flows, he has no greater right than any other citizen. Stevens v. Patt. & New. R. R. Co., 34 N. J. 532; 3 Am. Rep. 269; Tomlin v. Du., Bell. & Miss. R. R. Co., 32 Iowa, 106; 7 Am. Rep. 176. In both of these cases it was held that the riparian owner could not recover damages for being deprived of access to a navigable river by reason of the building of a railroad along its banks below high-water mark. See, also, note to the latter case, 7 Am. Rep. 179, in which the cases upon this subject are collated.

ent.

CONTESTING A PRESIDENTIAL ELECTION. BY SAMUEL T. SPEAR, D. D.

THERE is no doubt that the several States, under their power to appoint Presidential electors, could provide for judicially determining the title of

tains any provision under which, with suitable legislation to make it operative, the title to the office of President may be judicially determined in the form of a suit brought for this purpose. The third article of the Constitution declares that "the

proper authority, been declared elected, and before their action as electoral colleges. Such a provision would belong to the manner of the appointment; and there is no reason why it should not apply to this office as fully as to any other. The only diffi

culty, as the laws of the United States now stand,

is the lack of sufficient time to hear and decide such a contest; yet Congress might remove this difficulty by designating an earlier day for choosing the electors, or a later one for their meeting to give their votes. The intervening period might be made two or even three months, and this would afford time enough for the judicial determination of all contested questions in respect to the appointment of electors. The States are fully competent to provide a remedy to this extent in their own courts against any illegal or wrongful action in the election of the President and Vice-President of the United States.

When the electors have been invested with the insignia of office in the manner prescribed by law, and have exercised the power conferred upon them by the laws of the State and the Constitution of the United States, and have thereafter ceased to be electors, then their action, and that of the State in appointing them, have become legally complete and accomplished facts. It is then too late to contest their appointment under State authority. They are out of office, and all that they were selected to do they have done. The State can no more recall the appointment or invalidate it by judicial action, than can the electors themselves recall their own votes after

they have transmitted them to the President of the Senate. The State has actually cast its votes through these electors, and its power over the subject for that Presidential election is at an end.

Nothing can well be more absurd than the effort made in Florida, by legislative proceedings in part and judicial proceedings in part, to undo and invalidate the Electoral vote of that State, after all the forms of law had been complied with in appointing electors, and the electors themselves had finished their entire work. Such a principle, if admitted, would undermine the whole electoral system. The title of the President to his office might, under this principle, be indirectly challenged in the courts of every State and during the whole period of his incumbency. The refusal of the Electoral Commission to recognize such an absurd proposition was alike good law and good sense.

Passing then to the authority of the United States, we raise the inquiry, whether the Constitution con

in one Supreme Court, and in such inferior courts establish," and that this "power shall extend to all as the Congress may from time to time ordain and cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their author

ity." Judge Story, in his Commentaries on the Constitution (section 1646), says:

"It is clear that the judicial department is authorized to exercise jurisdiction to the full extent of the Constitution, laws and treaties of the United States whenever any question respecting them shall assume such a form that the judicial power is capa ble of acting upon it. When it has assumed such

a form, it then becomes a case; and then, and not till then, the judicial power attaches to it. A case, then, in the sense of this clause of the Constitution, arises when some subject touching the Constitution, laws or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law. In other words, a case is a suit in law or equity, instituted according to the regular course of judicial proceedings; and when tion, laws or treaties of the United States, it is it involves any question arising under the Constituwithin the judicial power confided to the Union."

Chief Justice Marshall, in Cohens v. Virginia, 6 Wheaton, 264, said:

"A case in law and equity consists of the right of one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either."

The same eminent jurist, in Osborn v. The Bank of the United States, 9 Wheaton, 738, after referring to the clause relating to cases arising under the Constitution, etc., proceeded to say:

"This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws and treaties of the United States, wher any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws and treaties of the United States."

The doctrine thus set forth is, that any question involving rights arising under the Constitution, laws or treaties of the United States, when in the form prescribed by law, submitted to a court having jurisdiction, by a party claiming these rights, is a case to which the judicial power of the United States extends. The question has then assumed a form in which that power can act upon it. Its ele

ments are a party or parties presenting it, laws prescribing the mode and conferring the jurisdiction, and rights arising under the Constitution, laws or treaties of the United States.

Now, is the title to the Presidential office a question that can be brought within this description? The Constitution not only provides for the office and vests the executive power of the United States in the incumbent, but it also provides for the manner in which this power shall be vested in any given person. Such person must be elected by a majority of all the votes cast by Presidential electors on the day prescribed by law, and these electors must have been appointed in such manner as the legislatures of the several States have respectively directed; or, in the failure of the electors to choose a President, he must be elected by the House of Representatives, as provided in the Constitution. He must, moreover, be eligible to the office. His title rests upon these provisions; and if the facts do not correspond therewith, then he has no title to the office. It is conceivable that a person might be declared elected as President, and even inaugurated, in violation of the Constitution. He would, then, be a President de facto, but not de jure.

The question whether the Presidential office is held by the lawful incumbent seems very clearly to be a case arising under the Constitution, and hence within the scope of the judicial power of the United States, provided Congress has power to vest its determination in a Federal court and has exercised that power, and provided it is presented for consideration in the manner prescribed by law. The Constitution says that Congress shall have power "to constitute tribunals inferior to the Supreme Court;" and also, "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers [namely, the seventeen express powers previously stated], and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." Here is a grant of legislative power to create courts inferior to the Supreme Court, and also to provide for carrying into execution any part or the whole of the judicial power of the United States. A portion of this judicial power relates to cases arising under the Constitution; and the title to the Presidential office is manifestly a case of this character.

We hence conclude that Congress can by law create a court and vest in it the power to hear and determine a contest in respect to the title to this office, unless it be true that the Constitution makes the counting of the electoral votes, or election by the House of Representatives, when the right devolves upon that house, final and exclusive of all subsequent judicial inquiry. What the Constitution says in respect to the counting of the electoral votes, is in these words: "The President of the

Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed." Here, certainly, is no intimation that the counting is so conclusive as to preclude the possibility of judicial investigation into its legality. The counting is not a judgment rendered by a court of justice. There is nothing in express words, and nothing necessarily implied, to show that it is final as against all judicial remedy for the correction of frauds or errors. fact that the President of the Senate or that Congress counts the votes carries with it no such legal consequence, any more than if the counting were done by any other appointed agency.

The

So, also, the provision relating to the choice of President by the House of Representatives contains no intimation that the action is any more final than when the President is chosen by the electors. The Constitution provides, that if no person has the requisite majority of the electoral votes, "then, from the persons having the highest numbers, not exceeding three on the list of those voted for as President, the House of Representatives shall choose, immediately by ballot, the President." This is followed by a series of provisions relating to the manner of the choice. There is nothing in this language to exclude the right to contest an election when made by the House of Representatives, provided the right arises under the Constitution in its grant of judicial power, and Congress has seen fit to pass the necessary laws for this purpose. The language neither asserts nor implies any limitation upon the scope of the judicial power, as stated in the third article of the Constitution.

We see no reason, in the dignity and high character of the office, why the title to it should be beyond the reach of judicial investigation. The President may be impeached and, on conviction, removed from office; and if so, then why should he not be ousted by the judicial processes of law, if he has no constitutional title to the office? The right to the office is the gift of the people; and if the incumbent really has no such right, then there ought to be some peaceful method for his displacement. The judicial power, as administered by courts of justice, is the final and only peaceful resort, not only for the punishment of crimes, but also for the settlement of rights and the correction of wrongs and illegalities, when existing under the forms but without the authority of law. In this high and important sense, it stands guard over all the interests of the body politic.

The fact that a special court is established by the Constitution to try an impeachment accusation against the President, does not prove that the judicial power of the United States may not act upon his

title to the office. "All civil officers of the United States" are impeachable and, on conviction, removable by this special court; and yet no one will pretend that for this reason their title to the offices they may hold admits of no judicial investigation. Impeachment is a process of removal from office for "treason, bribery or other high crimes and misdemeanors, ," and has nothing to do with any dispute as to the validity of the title to office. It is a method of getting one out of office who has a good title to it, but who has committed such offenses as to make him an unworthy incumbent. The fact that an officer of the United States, even though he be the President, is impeachable, and that a special court is established to try an impeachment, involves no affirmation or denial in respect to any judicial remedy that relates simply to his title to office. The two questions are entirely distinct.

The Constitution expressly limits the original jurisdiction of the Supreme Court of the United States to 66 cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party." In all the other cases enumerated, it provides that this court "shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." Congress could not, therefore, authorize the Supreme Court to try the title to the Presidential office in the first instance. however, vest this power in a Circuit Court, or in the Supreme Court of the District of Columbia, or in a court specially created for the purpose, with the right of appeal to the Supreme Court of the United States, by which the question would be finally decided.

It may,

A law for this purpose might provide that a contest might be instituted in the court designated against one who had been declared elected to the Presidential office, immediately after such declaration, by any person eligible to the office who had received any number of electoral votes therefor, or votes in the House of Representatives, when the right to choose a President devolves upon that house; or it might provide for a proceeding in quo warranto, commenced after induction into the office; or it might contain both of these provisions. There is no difficulty in framing a law conferring the requisite jurisdiction, provided the power of Congress thus to legislate be conceded. It is true that Congress has not so legislated; yet if the above argument be valid, the power clearly exists under the Constitution as it is, without any amendment.

What, then, is the extent or scope of the jurisdiction which Congress may confer?

The first and most obvious answer to this question is, that the jurisdiction could extend to all questions of error or fraud directly connected with the final counting of the electoral votes, to all ques

tions relating to the qualifications of the person declared to be elected, and also all questions relating to the action of the House of Representatives, when the President is chosen by that house. If the person were ineligible, or if he had been counted in by mistake or fraud, or if he had been elected by the House of Representatives when the right to elect had not devolved upon that house, or if he had been elected by an exercise of the right not in the manner prescribed by the Constitution, then in each of these cases an issue of fact and constitutional law would arise, to be determined by the evidence submitted; and it would be the business of the court to decide, in the light of the evidence, whether the person declared elected, or the incumbent in office, if he had been inaugurated, had a constitutional title thereto. The judicial remedy should at least cover the entire ground of all questions that relate to the final steps had in a Presidential election.

We see no reason in the Constitution why the jurisdiction should not also extend to all questions in regard to the official acts of Presidential electors, for the purpose of determining whether those acts were in conformity with the Constitution and the laws applicable thereto. After these electors are appointed and organized as electoral colleges, their action comes directly under the authority of the Constitution and laws of the United States; and in this sense, and to this extent, they are Federal officers. They exercise powers granted by the Constitution, and are charged with duties imposed by it. Whether their proceedings were legal in the sense of being conformed to the Constitution and the law, and if they were not, to what extent they were illegal, and whether the illegality was such as to destroy their validity altogether these would be proper questions for determination by a court authorized to try a contest in respect to the Presidential office, provided they formed a part of the issue presented to the court.

So, also, the question whether the action of a disqualified elector, regularly appointed by State authority, vested with the title to the office, and acting under color of law, is legally valid, might be an inquiry coming within the scope of the powers of such a court, if the disqualification were alleged and established by evidence. It is a general principle of law that appointment to an office of a person not qualified to hold it, makes him a de facto officer until the office is vacated by some proper proceeding, and that the official acts of such a person, done under color of law, are legally valid. He is, for the time being, the incumbent of the office with a prima facie right to exercise its powers; and to treat all his acts as having no validity, because he has been subsequently ousted by some legal process, would work serious inconvenience and harm to society. A court is the proper tribunal to decide whether