held that it (the supreme court) had no authority to draw a grand jury, and the result has been that malefactors of all sorts have had a free carnival. During last month the territorial attorney-general moved, before Chief Justice McKean, for a mandamus, to compel the clerk of the court to issue a venire for a grand jury. The correspondent says: "In making this motion the gentleman cited the late decision of Associate Justice P. H. Emerson, declaring that the law is mandatory upon the clerk, and that it is his bounden duty to issue a venire regularly without any delay. Judge McKean listened, with head down, until the attorney-general closed his remarks, when he said, in a tremulous voice, that he would take the papers, and hold the case under advisement. The expression of the bar, as made known during the noon recess of court, was unanimous in the declaration that the papers would be pigeon-holed and no action taken; but late in the afternoon rumors prevailed that a venire had actually been issued. Without awaiting Judge McKean's action the clerk took steps to have a grand jury drawn. This 'responsibility' was taken to avoid the unpleasant necessity of McKean's attempting to controvert Emerson's decision, or refusing to issue the mandamus."

Some of the most prominent lawyers of New York city among the number Wm. M. Evarts, Henry Nicoll and Henry E. Davies- last week addressed a letter to Attorney-General Barlow, urging him to allow his name to be presented as a candidate for re-election to that office. The letter spoke in very flattering terms of the energy, fidelity and ability, with which Mr. Barlow has discharged the duties of his office. Such a letter coming from such a source, was undoubtedly a very gratifying testimonial, but it appears at this writing, not to have induced Mr. Barlow to consent to be a candidate. It is stated, however, on very good authority, that Mr. Barlow will accept, provided he receives the nomination.

A Tribune Washington correspondent gives currency to a report, which, he says, comes with such directness from the President, that were it not for its extraordinary character, could not fail to be believed" to the effect that no choice of a Chief Justice will be made until after the New York election, and that then, if the New York legislature is such as to enable Mr. Conkling to dictate his successor in the senate, the chief justiceship will be given to him. There is very likely very little foundation for such a rumor. announced soon after the vacancy occurred that no appointment would be made until the meeting of congress. So that the present delay is no indication that the President is awaiting the result in New York. There is unquestionably a strong feeling among a very large and respectable portion of the members of the legal profession against the appointment of Senator

It was

Conkling, or of any one else whose distinction has been achieved mainly in political life. The position demands, and the profession demand, a great lawyer rather than a great politician and although Senator Conkling is a lawyer of good ability his chief claim to place and honor is as a politician. Associate Justice Miller is strongly pressed by his friends, as is also Associate Justice Swayne. Either would give entire satisfaction, though the advanced age of the latter might perhaps be at sometimes a drawback.

The extradition proceedings in the case of Carl Vogt terminated on Thursday week, by his formal discharge by Judge Blatchford. As the case has attracted considerable professional interest, we give a brief rehearsal of its principal points. On the morning of October 1, 1871, the Chevalier de Bianco, an aged and wealthy nobleman residing at Brussels, Belgium, was found murdered in his bed, his safe broker open and robbed of a large amount of valuable securities. No clue was obtained to the perpetrator of the crime until the March following, when some bonds, known to have been the dead man's property, reached Antwerp, from this country, for redemption. This led to the arrest of Vogt in Philadelphia. He was a native of Prussia, and his real name Stupp. His possession of the stolen securities, the statements of one of the women with whom he fled from Belgium, and other facts which the detectives unearthed, tended very strongly to fix the crime on him. Then came a diplomatic request from Belgium to the United States, asking a surrender of Vogt on the ground of national comity. The request was refused, there being no extradition treaty between the two countries. Application was, therefore, made to the governor of the State, who ordered a rendition of the criminal under the statute of 1822. Just as he was about to be taken on board the steamer for Europe, a writ of habeas corpus was served, bringing him before Judge Curtis of the superior court, who declared the statute unconstitutional, and the order of rendition void. This decision was affirmed by the supreme court and by the court of appeals. Then followed a demand for his surrender from the Prussian government-with which we have a treaty of extradition on the ground that, as Stupp or Vogt was a German citizen, he was amenable to that country under a local law, which provided that any citizen of the empire committing a crime in any country, which was not taken cognizance of and punished by that power, was liable to trial in Germany. Judge Blatchford, after a very elaborare examination, decided that Vogt came within the terms of the treaty with Prussia, and ordered his extradition. Vogt's counsel immediately entered a protest with the Secretary of State at Washington, who referred the case to the attorney-general. The attorneygeneral gave it as his opinion that Judge Blatchford

was wrong, and the Secretary of State thereupon refused to recognize the right of Prussia in the premises. Thus ends the case, except a civil suit for a recovery of the stolen bonds.

NOTES OF CASES.

An important point of commercial law was decided by the supreme court of the United States at the last session, in Carpenter v. Lingan (not reported). The plaintiff was the assignee for value, before maturity, of a negotiable promissory note made by defendant, and of a mortgage bearing even date, executed by defendant and conditioned for the payment of the note at maturity, according to its effect. The suit was for a foreclosure of the mortgage, the note not having been paid at maturity. The defendant set up facts which would have constituted a valid equitable defense to a suit between the parties to the note and mortgage, but notice of such facts was not brought home to plaintiff. The court held that the plaintiff, as assignee, took the mortgage as he took the note, free from the objections to which it was liable, and cited the following authorities in support thereof: Powell on Mortgages, 908; 1 Hilliard on Mortgages, 572; Coote on Mortgages, 304; Reeves v. Scully, Walker's Ch. 248; Fisher v. Otis, 3 Chand. 83; 4 id. 153; Bloomer v. Henderson, 8 Mich. 395; Potts v. Blackwell, 4 Jones, 58; Cicoth v. Gagman, 2 Mich. 381; Pierce v. Faunce, 47 Me. 507; Palmer v. Yates, 3 Sandf. 137; Taylor v. Paige, 6 Allen, 86; Cornell v. Hitchins, 11 Wis. 353. It must be admitted, however, that there is considerable discrepancy in the authorities upon this question. For instance, in Bailey v. Smith, 14 Ohio St. 346, the court, in an opinion marked by great ability and fullness of research, came to a conclusion directly opposite to that above. The judgment in that case was put, chiefly, upon the ground that notes negotiable are made so by statute, while mortgages are not. But as the court, in the principal case, pointed out, the debt is the principal thing, and the mortgage an accessory. Equity puts the principal and accessory upon the same footing, and a transfer of the former carries with it, of necessity, the latter. The case is entirely unlike one where the mortgage stands alone, or the note is non-negotiable or is assigned after maturity. Such a case was Mathew v. Walwyn, 4 Ves. 126.

The decision of the court of appeals of this State in Kelly v. Crapo, 45 N. Y. 86 (6 Am. Rep. 35), was reversed by the supreme court of the United States at the last term. The case involves a curious question of conflict of jurisdiction, and was very elaborately considered both by the State and federal courts. The following were, briefly, the facts: In February, 1861, the insolvent court of Massachusetts appointed Crapo and others assignees in insolvency of Gibbs & Jenny, residents of that State; and the judge of that

court executed and delivered to them an assignment of all the personal property of Gibbs & Jenny. At this date Gibbs & Jenny were owners of the ship Arctic, registered in Massachusetts, but which was then in the Pacific ocean. On the 30th day of the following April the Arctic arrived in the port of New York, and was at once seized by Kelly, sheriff, under an attachment, at the suit of a New York creditor of Gibbs & Jenny. Crapo and his co-assignees claimed the vessel and gave the usual bond for her release. This action was brought on the bond. At the trial the plaintiff had a verdict, subject to the opinion of the court at general term. The general term ordered a judgment for the defendant, which judgment the court of appeals reversed, holding that the lien under the attachment was valid against the claim of the assignees in insolvency, on the ground that the vessel was never within the operation of the insolvent proceedings in Massachusetts. The prevailing opinion in the United States supreme court was delivered by Mr. Justice Hunt, and is very elaborate. It takes the ground that, under the facts of the case, the relation of Massachusetts to the Union had no effect upon the title to the vessel. "It stands as if that State were an independent sovereign State." And under the rule that both the public and private vessels of every nation on the high seas, and out of the territorial limits of any other State, are subject to the jurisdiction of the State, to which they belong, the ship was a portion of the territory of Massachusetts, and the assigment by the insolvent court of that State passed the title to her, in the same manner and with like effect as if she had been physically within the bounds of the State. Mr. Justice Clifford dissented from this opinion, but concurred in the result, on the ground that under the constitution of the United States, the proceedings of the insolvent court of Massachusetts were entitled to the same force and effect in New York as in Massachusetts. Mr. Justice Bradley and Mr. Justice Field were for affirmance.

In connection with the article recently published in the LAW JOURNAL, entitled "Some recent decisions under Sunday laws," Mr. E. B. Smith, State reporter of Maine, calls our attention to a case on the subject in the last volume of Maine reports -Parker v. Latner, 60 Me. 528. The plaintiff let his horse and carriage to the defendant, on Sunday, for a pleasure drive to Scarborough, during which drive the property was injured through the negligence of defendant. Plaintiff brought an action on the case to recover damages. The court held that the plaintiff could not recover, the contract of letting being illegal under the Sunday law. The court said: "The case finds that the contract between the parties was one of bailment. The defendant's possession was under and by virtue of such contract. His liability arose under it. His possession was obtained by virtue of it. As a bailee, the

defendant was bound to pay the stipulated price for the use of the property loaned, and to use it with ordinary care and diligence. In case of a negligent or careless use thereof, he would be liable upon his contract for the damages arising from such negligence and carelessness. Such is the general rule; but in this case the contract was illegal. Had the plaintiff sued for the hire of the articles loaned he could not have recovered. Suing for damages, arising from the violation of his contract, he can be in no better condition. The defendant could not have recovered against a town for any injuries arising from defects in its highway, because he was traveling in violation of law. If he could not against the town, much more cannot the plaintiff recover against him, inasmuch as he was a party to the illegal contract by which the defendant had possession of the horse and carriage. It is said that the case, as charged in the declaration, is one of simple wrong, outside of and independent of any contract. That may be so, but it does not affect the question when the facts are shown, for it appears from the report that the defendant was not in the lawful possession of plaintiff's horse and carriage,' but, on the contrary, he was in possession of the same by virtue of a contract made in violation of law." This case does not conflict with the decision in Hall v. Corcoran, 107 Mass. 251. That was an action for the conversion of the horse by driving it to a place without the contract. The defendant had departed from the object of the bailment, and was, therefore, held liable. The court indicated very clearly that its decision would have been otherwise, had the facts been as presented in Parker v. Latner.

THE TESTIMONIAL OF THE BENCH AND BAR OF THE STATE TO JUDGE NELSON. [From the Cooperstown Journal.]

It is already known to our readers that shortly after the retirement of Judge Nelson from the bench of the supreme court of the United States, the bench and bar of this State, as represented at the time at the capitol, adopted an address to him, prepared by Hon. John V. L. Pruyn; it was signed as a general thing in open court by the judges of the court of appeals, and the larger body of the judges of the supreme, the superior, and some of the county courts, and by the great body of the leading lawyers of the State, nearly all of whom were personally well known to Judge Nelsou. Messrs. Pruyn, Wm. M. Evarts and Dudley Burwell were appointed a committee to present this address to the judge, and were prepared to do so in a more formal manner in June, but an attack of illness from which Judge Nelson was suffering at that time prevented.

On Saturday last the chairman of this committee telegraphed a friend that he would arrive here that evening, and Judge Nelson was prepared to receive him. After a few moments spent in general conversation, Mr. Pruyn took from its case the elegantly bound testimonial - the address being engrossed with the pen, in a style which closely resembles a fine engraving - and remarked in substance as follows:

It is my very agreeable duty, Judge Nelson, on behalf

of a committee appointed by the court of appeals, to present to you an address from the bench and the bar of your native State, on your retirement from the high judicial station which you have so long occupied to the advancement of justice, to the honor of the bench, and to the satisfaction of the country.

This address, I beg to assure you, when submitted to the court of appeals, was very cordially approved, and warmly responded to by Chief Justice Church, for himself and on behalf of his brethren of the bench.

My associates of the committee, Mr. Burwell and Mr. Evarts, have requested me to say how much they regret that they cannot be here at this time, and to convey to you the expression of their high respect.

Our long, and I trust I may add our cordial relationships, as well at home in our State as at Washington, render this duty a very pleasant one to me, and I regret that circumstances as to which you have been informed, have for some time delayed its discharge. With your permission I will now read the address and the order of the court of appeals.

Judge Nelson said he should be happy to listen to it, and Mr. Pruyn read as follows:

To the Honorable Samuel Nelson, late senior associate justice of the supreme court of the United States:

SIR: Your professional brethren of the bench and of the bar of the State of New York, beg leave on your retirement, after nearly fifty years of service in the courts of your native State and the United States, to express to you their warm regard for your personal character and their sense of the integrity, the learning, the usefulness and the dignity which have marked your entire judicial life.

During this long period, you have been called upon to take part in the decision of points of great interest and delicacy in international law, and in settling questions of profound importance in our constitutional

jurisprudence, many of them under anomalous and exciting circumstances. To these we may add your patient and well-directed industry, in expounding our patent laws, in passing upon questions of personal rights, and in disposing of the great mass of litigations growing out of commercial and business transactions, which uniformly pressed upon you for judicial determination. In the discharge of these duties, you have at all times enjoyed the confidence of your professional brethren, of the litigants who were before you, and of the public, to an extent never exceeded by any judge who has presided in a court in which our language was spoken, or in which the great principles of constitutional liberty were respected and enforced. You have illustrated by your example that careful and discriminating integrity, and learning, joined to common sense, the conceded qualities of a great judge, thoroughly harmonize with courtesy and kindness to the members of the bar, and with fearlessness and firmness in the discharge of a duty. How much you have thus made the practice of the profession in the courts in which you have presided an agreeable duty, is impressed upon many grateful memories, and it is gratifying to feel assured that after we shall have passed away, history will preserve in its strongest colors the record of your judicial labors, and will pronounce it "well done" in the warmest terms of approval.

Our best wishes are with you in the retirement you have chosen, and our prayer to the Final Judge of all is, that your future days may be as peaceful and happy as your past life has been useful and honorable. We are your brethren and friends.

STATE OF NEW YORK,

IN COURT OF APPEALS,
ALBANY, January 28, 1873.

Ordered, That Messrs. John V. L. Pruyn, William M. Evarts and Dudley Burwell be a committee to deliver to Judge Nelson the address from the bench and bar of this State, this day signed by the judges of this court.

COR'S TEN BROECK,

Deputy Clerk.

This having been done, Judge Nelson remarked how deeply he was impressed by the kindness and consideration of his professional brethren, and stated that he would at an early day communicate with the committee in writing. A copy of his letter we have been kindly furnished, in time for publication in this connection:

To Messrs. J. V. L. Pruyn, Chairman; William M. Evarts and Dudley Burwell, Committee:

The volume presented to me, containing the address of the judges of the court of appeals of the State of New York on my retirement from the bench of the supreme court of the United States, and which has been adopted by the commission of appeals, and judges of the supreme and superior courts of the State, and subscribed by about five hundred leading members of the bar, among the most distinguished of the State, confers an amount of honor and regard for which I find it difficult to make any adequate acknowledgment. If I could feel that my nearly fifty years of judicial labor in the State and National governments had earned the commendations thus bestowed, I could proudly say that every wish and resolution of my life in this respect have been accomplished. But allowance must be made for the well-known generosity and magnanimity of the profession, and the affection and friendship growing out of a long official and personal intercourse. Yet this does not lessen my sense of obligation for the unusual and extraordinary tribute of affection and respect, so elaborately prepared, and which I shall preserve with gratitude and care for the remainder of my life, and leave it at last as a precious legacy to my children.

I beg to express my thanks to the committee appointed by the court of appeals to present the address of the bench and bar, for the civil and complimentary manner with which that duty has been performed by its chairman.

Yours respectfully,

S. NELSON.

In the hour of social intercourse which followed the delivery of the testimonial, Mr. Pruyn narrated a pleasant incident which occurred at his own house a few years ago, while Chief Justice Chase was his guest, and which as a compliment to our esteemed "first citizen," and an honor to the late chief, we think will bear publication: Mr. P. said that in the course of conversation in regard to the supreme court, he addressed his guest as "Chief Justice," when the latter pleasantly answered: "Oh, I am not 'Chief Justice,'-our brother, Nelson, is the chief justice." How deeply the late chief regretted the retirement of Judge Nelson from the bench, where all looked up to him as the leading mind, is well known to the personal friends of both.

John R. Griffin, Esq., a well-known and popular lawyer of northern Louisiana, died at San Antonio, Texas, on the 16th ult.

JURY PREROGATIVES.

SHOULD THE JURY BE JUDGES OF THE LAW AS WELL AS THE FACTS IN CRIMINAL CASES ? The following article was first published in the New York Times early in 1855. The first paragraph will explain the occasion of it. The note was added on its publication in the Law Magazine, in June, 1855. The late decision of Judge Hunt in Miss Anthony's case has suggested its republication, which is done with great deference to that eminent judge, who, so far as we know, has won golden opinions since his elevation to the United States bench, and without a doubt that the jury would have decided the law as he did if it had been submitted to them, whatever may have been their opinion as to the abstract right of woman suffrage. GEORGE MILLER.

The Code of Criminal Procedure reported to the legislature of the State of New York, by its four hundred and seventy-sixth section, provides that on the trial of an indictment for any other offense than a libel, questions of law are to be decided by the court, and that the jury are bound to receive as law what is laid down to them as such by the court. It appears from the papers that a committee of the assembly has reported in favor of the adoption of this Code at the present session of the legislature. The effect of this section is to authorize the court, in all criminal cases except libel, to decide upon all questions of law arising upon the trial, and of course to settle what are the questions of law and what are the questions of fact arising, and require the jury to pass upon the facts given to them as such by the judge, and to find their verdict according to the law laid down by the court, however strong their convictions may be that the court is mistaken as to the law. We protest against such a statute as this. If we are to be hung, we insist that it shall be only when twelve honest and impartial men, after the advice, not the dictation, of the court, shall declare, upon their oaths, that we have violated a law so plain that they and ourselves can understand it.

If the people of this State adopt the law, as proposed by the new Code, it is believed we shall be the first Anglo-Saxon people that ever voluntarily subjected themselves to such a law.

The commissioners of the Code, in their note to the above section, say: "It has been very common to tell juries in criminal cases they are judges of the law and fact; this is not so. The rule in this State may now be considered settled, as laid down in this section. All the cases upon this subject, as well as the principles applicable to it, have been reviewed in the case of The People v. Pine, 2 Barb. 568."

This is the only reported adjudication in this State sustaining the doctrine that the jury are judges only of the facts in criminal cases. It is contained in the charge to the jury by the late Judge Barculo, in 1848, on a trial for murder, at a court of oyer and terminer. But the Judge does not review, nor even allude, to the principles or the authorities which have been generally held to distinguish criminal cases from civil cases, and give the jury the right to determine the law as well as the fact in the former. He denies that the jury have any such right, and says: "In this State the jury is presumed to receive the law from the court. The jury, it is true, have the power to disregard the law, and to disregard their oaths, and to render a verdict contrary to both law and evidence." The judge

tells us, "the proposition that the jury can decide the law is perfectly untenable, and has been distinctly repudiated on more than one occasion by the judges of the supreme court of the United States." He cites the case of The United States v. Battiste, 2 Sumn. 240. In this case the decision of Judge Story is contained in his charge to the jury, on a trial for being engaged in the slave trade. He wholly avoids the principles and the authorities which sustain the rights of juries in this matter. Indeed, he cites no authority whatever, except his own opinion, which he says he has held during his professional life. We must say, with great deference to a judge so learned and able, that his reasoning in this case is inconclusive and very obnoxious to criticism.

The case of The Commonwealth v. Porter, 10 Metc., is also cited by Judge Barculo, and he quotes at some length the opinion of the supreme judicial court of Massachusetts, delivered by Chief Justice Shaw. The chief justice reasons well as to the relative duties of the court and the jury on the trial of a civil cause, and says: "This, as a general principle, is applicable alike to civil and criminal causes." He cites no authority for this allegation, and it could not be gathered from this part of the opinion that the distinction between civil and criminal cases was ever heard of before the trial of that cause. It is remarkable that, notwithstanding the doctrine thus laid down by the court, it granted a new trial in the case, which was for selling liquor without license, because the judge, on the trial, decided a point of law, and did not permit the counsel for the defendant to argue such question of law to the jury, and the reason given was that it had always been the custom in Massachusetts, on criminal trials, for the counsel to fully argue questions of law, as well as questions of fact, to the jury.

The case of Townsend v. The State, 2 Blackf. 156, is cited. This was also a liquor case, decided in Indiana in 1828, by two judges against one. Justice Holman delivered the opinion of a majority of the court, and took, as we think, a superficial view of the question, citing Blackstone, Hawkins, Hale, Bacon's Abridgment and Judge Addison, the former being, as will be shown, a decisive authority the other way, and the latter by no means sustaining the doctrine, except Judge Addison, whom we shall further notice. Justice Blackford, the dissenting judge, without going into an argument, stated very clearly and concisely what we consider the true doctrine upon the subject. We may here remark that Justice Blackford was the only one of the judges that was re-appointed when they went out of office two or three years afterward; and that the people of Indiana have annulled the decision by their new constitution of 1851, which provides that " in all criminal cases whatever the jury shall have the right to determine the law and the facts." Furthermore, a bill has lately passed the house, in the legislature of Massachusetts, by a vote of two to one, restoring to juries the right taken away by the above decision of Chief Justice Shaw.

Judge Barculo cites one elementary work, Cowen & Hill's Notes, vol. I, pp. 2, 3. These writers cite the above cases from Sumner and Blackford, and Addison's Reports, 156, 255, and in his supplement, pages 52 to 63, strangely tells us that "all the leading arguments and authorities on the question will be found fully and ably considered by Holman, J.," in Blackford, and that the learning of the question is perhaps exhausted in charge No. six of Judge Addison, page 57."

This remarkable learning of Judge Addison is contained in a charge to the grand jury in 1792, when he was president of the court of common pleas of the fifth circuit of Pennsylvania. He cites two of his own charges which refer to no authorities. 5 Bac. Abr. 284; P. Williams, 212; Eumonion's Dialogues, Burrow, 1,216, 2,669, Cases 3; Ld. Hardwicke, 26; Blacks. and Har.; Co. Lit. 155, n. 5. The last two are strong authorities against his doctrine, and the others, as far as we have consulted them, are very indecisive in its favor. Judge Barculo cites one other case (United States v. Wilson, 1 Bald. 78), but this case is against his doctrine, as we shall see presently.

This is the sum of the judicial authority upon which the commissioners of the Code tell us that the rule may be considered settled in this State. But in truth the contrary rule is scarcely unsettled. All we have is the opinion of a very good judge in his charge to the jury, at a court of oyer and terminer. This can have no binding authority upon the other tribunals of the State. All the American authorities cited are charges to juries, except two cases which arose under excise laws, and were decided on argument by the bench of judges. One of these cases was in Indiana and the other in Massachusetts. The former has been overturned by the constitution, and the latter has been, or is about to be, annulled by the legislature.

The most extraordinary thing in regard to these American authorities is, that they have avoided the authorities, the statutes and the discussions by which the rights of juries have been sustained for ages. Crozwell's case, 3 Johns. Cas. 337, is by far the most important case upon this subject in this country. That was on an indictment for a libel on Thomas Jefferson, and the question was whether the defendant could give in evidence the truth of the words charged as libelous, and whether the jury could determine the law and the fact. That is, whether the jury should only find whether the defendant published the words charged, and that they had the meaning imputed in the indictment, and leave it to the court to determine whether the words were libelous, or whether the jury should determine the whole matter. The leading counsel on opposite sides were Hamilton and Spencer, afterward chief justice. The court was equally dividedJustices Kent and Thompson being in favor of the right of the jury, and Lewis, chief justice, and Livingston, J., opposed. The arguments of the counsel and the opinions of the judges turned upon the question whether, by the common law, the jury had the right to determine the law and the facts in criminal cases. It was not pretended that the jury had any more right to determine the law on an indictment for a libel than on any other indictment.

The next year, 1805, the legislature of New York passed a declaratory act, providing that the truth may be given in evidence on the trial of an indictment for a libel, and that the jury shall have a right to determine the law and the fact, under the direction of the court, in like manner as in other criminal cases.”

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This statute settled the law in this State as to the right of juries, not only in libel cases but in all other criminal cases. So the law has stood, from that day to this, making it the duty of the court to direct and instruct the jury as to the law, and giving the jury the right to determine the law as well as the fact. The charge of Judge Barculo has not shaken this law, much less settled it the other way.

The principle of this statute, as to libels, was incor