and specifications against him, and his trial by court-martial, if a courtmartial should be ordered; and that the court issuing the habeas corpus had no power to deal with any question of harshness on the part of General Schofield in exercising the power in question; but that it was sufficient, for the purpose of the decision of the habeas corpus proceeding, that the power was a lawful power. But Judge Bradley having criticised the conduct of General Schofield in severe language, Judge Morris takes occasion to say: "That because the military authorities in the present instance thought proper to insist on rigorous action towards the appellee, does not justify us in characterizing that action as either arbitrary or tyrannical. And certainly it does not justify us in applying to harshness or caprice the remedy of habeas corpus, where there is an unquestionable right of arrest and detention." The learned judge also uses this language:

But it is urged, in the next place, that the detention of the appellee without the existence of charges invalidated his arrest and confinement. If by this is meant that before an officer of the army of the United States can be placed under arrest and held for trial under the Articles of War, formal charges in writing, with specifications in due form, such as are set forth in the record of this case, must have been preferred against him, the position is not tenable for a moment. Lord Coke seems to have thought that, at the common law, indictment or information was necessary before there could be a lawful arrest. But that theory was repudiated long ago, in fact very soon after it was advanced; and it has long been the settled law, both of England and the United States, that indictment or information is never required in any case as a prerequisite to arrest and detention. Warrant is required in some cases, with affidavit or other testimony to support it, to justify an arrest; and in other cases, there may be an arrest without warrant.

There is no reason to hold that it is different in the military law. That law cannot be more jealous of the liberty of its officers than is the common law of the liberty of its citizens. The fact of the commission of apparent crime or offense is the primary ground for arrest in either system of jurisprudence. In either system an officer charged with the duty of making arrests has personal knowledge that an offense has been committed, he is entitled to arrest without warrant, or without the issue of formal order to that effect, as the case may be. The exigencies of the military service imperatively demand that, when an offense against the Articles of War has been committed in the presence of a commanding officer, he should have the right immediately to place the offender under arrest. Both the General Commanding the Army and the Secretary of War have that right; and whether the offense charged against the appellee be

illustrates what we have often had occasion to observe, the general untrustworthiness of newspaper reports of judicial proceedings. He was confined in the military barracks at

Washington, which, of course, meant officers' quarters in such barracks. This was imprisonment in a legal sense, but not of a harsh or degrading kind.

regarded as having been committed in the presence of the General Commanding the army or of the Secretary of War, in both which capacities Gen. Schofield was acting at the time, it is clear that in either capacity he was entitled to order the offender under instant arrest. The offense was flagrant. Whatever reason the appellee may have had for thinking that he had justification or provocation for his conduct, his letter on its face was a direct personal insult to his commanding officer, and a most grave offense against the military law, committed in the actual presence and in the personal knowledge of that commanding officer; and to hold that that officer was not entitled, if he so thought proper, to take immediate cognizance of it by directing the arrest of the offender would be to nullify the Articles of War, to subvert the discipline of the army, and to destroy the efficiency of that body. If the honor of an officer on the retired list requires vindication, it does not seem to us that for that purpose he is entitled to insult his commanding officer with impunity, and to escape arrest therefor and be at large, until specific charges therefor have been formulated and served upon him.

The provisions of Article 71 of the Articles of War fully corroborate this view. That article provides that "when an officer is put in arrest for the purpose of trial, the officer, by whose order he is arrested, shall see that a copy of the charges on which he is to be tried is served upon him within eight days after his arrest." Now, if the charges have already been formulated and communicated to him before his arrest, the service of a copy within eight days thereafter would be a work of most useless supererogation.

IMPERATIVE NECESSITY OF OBSERVING RULES OF NAVIGATION: ADVISABILITY OF INTERNATIONAL RULES.- The Circuit Court of Appeals, for the Ninth Circuit, in affirming the decision of the District Court in the case of Smith et al. v. Occidental & Oriental S. S. Co., involving damages for loss of life by reason of a collision between the steamers Oceanic and City of Chester in Golden Gate Channel at the entrance to San Francisco Bay, occasioned by the negligence of both vessels in failing to observe the rules of navigation, said: "This case affords an opportunity which should not be lost, for emphasizing another important rule for preventing collisions, which must be observed by navigators. This is found in Article 21 of the International Rules above referred to, and Article 25 of the act of August 19, 1890,1 which reads as follows: 'In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fair-way or mid-channel which lies on the starboard side of such vessel.' The statutes of California contain a similar provision, to which reference was made in the opinion of the District Judge. This rule was violated by the Oceanic in entering the Golden Gate on the occasion of the disaster involved in these suits, and the only

1 1 Sup. R. S., second ed. 781-788.

excuse offered for taking the north side, is that it is customary for large vessels in entering to take the north side. We can not find in the testimony or argument of counsel, any attempt to give a reason for the alleged custom, and if it be true that there is such a custom, it is bad in principle and contrary to law, and the courts will not recognize it as affording any ground for exempting a vessel from liabilities incurred by disregarding the law." 1

This is but one of numerous instances where Courts of Admiralty have pointed out in umistakable terms the danger of violating rules of navigation and have repeatedly warned navigators that an infraction of these rules would be deemed prima facie evidence of negligence. But in spite of these judicial warnings and remonstrances, masters and pilots will insist on violating them, and collisions and consequent loss of life and property ensue. In the above case, it appeared that if both vessels had complied with the rule of the road, the regulation of Congress, and the law of the State, all of which required them in narrow channels to go to the right and keep to the right, there would have been no collision, and the terrible loss of life and property would have been averted. It is a well-settled rule of admiralty law respecting rules of navigation to prevent collisions, that they are promulgated not only to avoid collisions, but to avoid even a risk of collision. The rules themselves are simple, plain and easily followed. The chief difficulty lies in the fact that they are not observed as scrupulously as they should be. The imperative necessity of a strict observance, in these days of constant travel and immense commercial dealings, is obvious. Of course, it is conceded that there may be exigencies when a literal observance of the rules would precipitate, instead of averting, a collision; but these cases are exceptions and rare ones at that- and not the rule. In justice to the traveling public, obedience and care should be rigorously exacted, particularly so in this country, in view of the extreme difficulty of recovering damages from the owners of delinquent vessels because of the exemptions granted them by the Limited Liability Act of 1851, and its various amendments enlarging these exemptions. Perhaps, the imposition of a penalty, in case of a collision, on a master departing from the rules, would have a salutary effect, and secure a more rigid obedience to the rules. Such a measure would not operate inequitably to the commanding officer, for provision could be made per. mitting him to show that the collision was not due to the violation of the rule; but the burden would be thrown on him to establish that fact. Thoroughly alive to the great importance of securing uniform rules on

1 Citing The Victory, 68 Fed. Rep. 395; The Britannia, 153 U. S. 130.

the subject, to be followed by the maritime countries of the world, Congress, in 1888, created the International Marine Conference. Delegates from all the leading maritime countries attended the conference at Washington and adopted a set of rules 1 providing for the conduct and movement of vessels in order to prevent collisions at sea. These rules were reported by the delegates to their respective countries, and an understanding reached by the principal maritime powers that the Revised International Rules should go into effect on March 1, 1895. Owing to the subsequent refusal of Great Britain to agree to all of the rules as recommended, and a like action on the part of several other nations, the date of promulgation was postponed indefinitely. Meanwhile Congress has provided for the reconvening of the delegates of the United States to the International Marine Conference of 1889. The bill has passed both the Senate and House, and, it is confidently expected, will be signed by the President. The House Committee, among other things, reported as follows: "This matter is a very important one, as the report of the conference which was adopted as above stated covered all the rules and regulations for the safety of lives and property carried by vessels navigating the high seas. There is no doubt but that the result of the work of the commission was a great advance over the rules now in force. Whatever amendments are now proposed should be submitted promptly to the able experts who were the delegates of the United States to the conference, and who are familiar with the work of the conference, and are able to give to Congress promptly reliable information upon any amendments which may be offered by any other government. Congress should respond quickly and intelligently to any proposed change in the rules of the conference, in order that the new rules may go into force as speedily as possible." 2

SNAKES, USED BY A SNAKE-CHARMER IN HER EXHIBITIONS, ARE INSTRUMENTS OF TRADE WITHIN THE Meaning of the Tariff Act.— Judge Lacombe, delivering the opinion of the Circuit Court of Appeals, Second Circuit, holds that snakes imported into this country by a snakecharmer, who brought them along with her and uses them only in her exhibitions, are "instruments of trade," within the meaning of the tariff act and, therefore, not subject to a duty of 20 per cent ad valorem imposed on all other live animals not specially provided for." There is no special provision in the tariff act for snakes. The learned

1 26 Stat. L. 320.

2 Since the above was written, the

President has signed the bill referred to, and it is now the law.

judge says: "It is no doubt true that we usually associate the word 'instrument' with inanimate objects, but that is no reason why the word, when used in the tariff act, should not be given its comprehensive meaning when there is nothing to indicate an intention to restrict such meaning. It is no more surprising to find live animals referred to in such a statute as 'instruments' than it is to find them referred to as 'articles.' This very tariff act of 1890 begins with the statement in its first section that on and after October 6, 1890, unless otherwise specially provided for in said act, there shall be levied, collected and paid upon all articles imported from foreign countries and mentioned in the schedules herein contained, the rates of duty' respectively prescribed; and the schedules contained in the first section include horses, cattle, hogs, sheep, and live poultry.1

เ

RAILWAY NEGLIGENCE: INJURIES FROM FIRES WHETHER THE FACT THAT A FIRE HAS BEEN COMMUNICATED BY A RAILWAY LOCOMOTIVE IS PRIMA FACIE EVIDENCE OF Negligence. The decision of the Supreme Court of Indiana, rendered in 1886, in Pittsburgh &c. R. Co. v. Hixon, is not a recent decision," but it is sufficiently recent to deserve animadversion on the ground of carelessness and inadvertence. The court overruling their decision in the same case on a former appeal,3 but applying it for the purpose of the particular appeal, on the ground that it is the law of the case, decide that the burning of adjacent property by sparks from a locomotive engine is not prima facie evidence of negligence in the company and their servants having the management of the engine, rendering it incumbent upon the company to show that proper precautions had been taken to prevent the escape of sparks. The court erroneously suppose that, in deciding the contrary on the former appeal, they fell into a blunder. On the contrary, they fell into a blunder on the second appeal; and the blunder is all the worse from the fact that the court do not undertake to decide it on principle and reason, but undertake to decide it on authority. "The American cases,' says Howk, J., in writing the opinion, "except in those States where it is regulated by statute, seem generally to concur in holding that no such inference can arise from the fact alone that a fire is thus produced." 994 Exactly the reverse is the state of Ameri

1 United States v. Magnon, 71 Fed.

R. 2936.

2 110 Ind. 225.

3 Pittsbugh &c. R. Co. v. Hixon, 79 Ind. 111.

4 Ibid., 110 Ind., p. 233.