V.

charge is not sufficient to raise inference of malice.
Lewis v. Chapman, 16 N. Y. 369; Fowles v. Bowen,
30 id. 20; Ormsby v. Douglass, id. 477; Hart v.
Gumpach, L. R., 4 P. C. 439; 4 Moak Eng. 188, 156;
Laughton v. The Bishop, etc., L. R., 4 P. C. 495; 4
Moak Eng. 162, 174; Harwood v. Keech, 4 Hun,
389." "The defendant therefore had the right to
have the jury advised what was required to render
his communication to the commissioner a privileged
one; that it was not dependent on the truth of the
words spoken, but only on his belief that they were
true and the good faith of the communication.
This proposition is so well settled that no discussion
of it as applied to this case seems necessary. Hal
stead v.
Nelson, 24 Hun, 395; O'Donaghue v. McGov-
ern, 23 Wend. 26; Bradley v. Heath, 12 Pick. 163;
Gassett v. Gilbert, 6 Gray, 94; Hatch v. Lane, 105
Mass. 394; Vanderzee v. McGregor, 12 Wend. 545;
Streety v. Wood, 15 Barb. 105; Whiteley v. Adams,
15 C. B. (N. S.) 392; Dawkins v. Lord Paulet, L.
R., 5 Q. B. 102. The relation of the defendant to
the school district and school enabled him to deem
it his duty to communicate to the officer having the
power and charged with the duty to act upon
charges made against the moral character of the
teacher, and make the result of his examination ef-
fectual either to sustain or disqualify the latter to con-
tinue as such in the district. The welfare of district
schools and of school districts requires that the
honest and fair exercise of this privilege should
have protection; and the law, as it should, will con-
demn the act and afford redress when under the
guise of the privilege the opportunity is taken to
vilify and defame a teacher for purposes selfish and
malicious. Harwood v. Keech, 4 Hun, 389. But when
the relation to the district of the parties to the com-
munication, and their duties, are those before men-
tioned, the presumption arises that the charges are
made in good faith and with a sense of duty unless
circumstances attendant or extrinsic tend to the
contrary, and the burden is on the plaintiff to im-
pugn by evidence the motives of the party making
them. Shurtleff v. Stevens, 51 Vt. 501; S. C., 31 Am.
Rep. 698; Brow v. Hathaway, 13 Allen, 239; Thorn
Moser, 1 Denio, 493; Taylor v. Hawkins, 16 Ad.
& Ell. (N. S.) 308, 321; Fowles v. Bowen, 30 N. Y. 20;
Somerville v. Hawkins, 10 C. B. 583, 590; Harris v.
Thompson, 13 id. 333."

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proof on part of the defense was, inter alia, that the ash was below 48 per cent strength; that it was not marketable, but valueless and useless, not being in fact the article it was sold for. The court below refused to entertain the offer, and ordered judgment on the ground that the defendant had shown neither an express warranty nor fraudulent representation, and that nothing short of this could prevent the plaintiff's recovery. In this case, like that in hand, there was neither inspection of the goods nor opportunity for such inspection, so that they are in all particulars similar. A like case is that of Warren v. Philadelphia Coal Company, 2 Nor. 437, in which Mr. Justice Woodward affirms that there is no rule more firmly imbedded in our jurisprudence than that which governs the rights of vendors and purchasers in an ordinary contract of sale of personal property. 'In such a contract the vendor is subject to no implication of a warranty of the quality of the article sold.' He also adds: "The doctrine of the common law, as it was settled in Chandelor v. Lopus, Cro. Jac. 4, has been constantly and uniformly applied.' The same doctrine is held by Mr. Justice Mercur, in Whitaker v. Eastwick, 25 P. F. S. 229, and also in Eagan v. Call, 10 Casey, 236. As has been said, this is the common law doctrine and is found in the case of Chandelor v. Lopus, in which case the declaration set forth that the defendant, a goldsmith, having skill in precious stones, 'had a stone which he affirmed to Lopus to be a bezoar stone, and sold it to him for a hundred pounds; ubi reverâ, it was not a bezoar stone.' Under the pleadings judgment was given for the plaintiff in the King's Bench, but was reversed in the Exchequer Chamber on the ground that the bare affirmation that the stone was a bezoar, without warranty, was no cause of action. This is perhaps an extreme case, for here the article was not even in specie what it was sold for, nevertheless, as we have seen, it was literally followed in Wetherill v. Neilson, supra, as it was in Seixas v. Woods, 2 Caines, 48, and the latter was followed in New York in Holden v. Dakin, 4 Johns. 421. We understand, indeed, that both in England and New York there has been to some extent a departure from the rulings of the above cited cases, but in Pennsylvania there has been a steady adherence to the common law doctrine without any greater qualification than that found in Borrekins v. Bevan, 3 Rawle, 37, where it was held that the goods sold must be the same in kind as those mentioned in the contract of sale.' Turnkey and Sterrett, JJ., dissenting.

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In Ryan v. Ulmer, Pennsylvania Supreme Court, January, 1885, 16 Week. Notes Cas. 121, it was held that where there is no knowledge on the part of the vendor of goods of their defective quality, although no opportunity of inspecting them is given the vendee, the sale itself raises no implied warranty of quality or even of merchantability on which the vendee can sue if the goods prove worthless. This was on a sale of pork. The court said: "The case of Wetherill v. Neilson, 8 Har. 448, is directly in point, and would have to be overruled were we to sustain the court below. There the bill of sale was of '35 casks of soda ash, 48 per cent.' The offer of

In Griffith v. Charlotte, C. & A. R. R. Co., Supreme Court of South Carolina, April 22, 1885, 19 Rep. 697, where an administrator sued a railroad company for running its trains over the corpse of the intestate, which had been placed on its track, thereby mutilating the remains and destroying the apparel, and a silver watch on the body,— held, that the administrator had no property in the corpse, and therefore could not maintain the action as to

Be

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the body, but that he could as to the apparel and
the watch. The court said: "Can property, either
absolute or qualified, be acquired in a corpse; and
especially as involved in the case under investiga-
tion, can such property be acquired by the admin-
istrator of the deceased?" Citing 2 Bl. Com. 429; 4
id. 235; Jacob's Fisher's Dig.; Bish. Crim. L.
§ 792; East P. C. 652; Whart. L. Max. 228. "We
have been referred to no case by appellant in con-
flict with this doctrine nor have we been able our-
selves to find a case or a single expression in any
text-book which affects it in the slightest degree.
And that this should be so is not surprising.
cause while it is natural that we should all feel
that the remains of ancestors and of loved ones
should be tenderly watched, and their decent inter-
ment carefully guarded, and the mutilation of their
dead bodies and the disturbance of their sepulchres
severely punished, and while all laws necessary to
that end should be passed, and strictly and sternly
enforced, yet even for this purpose, to make such
venerated remains the absolute property of any one,
in the sense of objective appropriation, would be
abhorrent to every impulse and feeling of our
natures. But can there not be a qualified property
in the dead, one which gives control to some one
with the view to protection, to decent interment,
and to undisturbed repose, while they are dissolv-
ing and returning to the dust from which they were
created? Can it be that there is no legal guardian-
ship of the dead? And that when the life escapes
the body is left, so far as the law is concerned,
without protection, even from wanton and malicious
depredations, and that those to whom it was bound
in life by the tenderest of ties can invoke the aid of
no court in preventing its mutilation, and must they
resort to violence and force for this purpose? If
such be the fact, it is a reproach to our judicial sys-
tem, and one which calls earnestly for legislative
interposition. And yet such seems to be the fact;
at least, the matter is left in great doubt, so far as
our limited examination of the cases, both in this
country and in England, amid the press of our
duties, has enabled us to ascertain. Certainly the
administrator has no legal control or authority over
the dead body of the person upon whose estate he
has administered. His entire authority is derived
from the act by virtue of which his letters have
been granted to him, and that gives him charge
only of the goods and chattels, rights and credits
which were of the deceased. The body of the in-
testate belongs to neither of these classes, and there
is therefore no law for him to take it in charge.
True, he is required to pay as the first of debts the
funeral expenses, but it would be a violent assump-by the plaintiff, and that his honor, the circuit
tion to conclude on that account that he becomes judge, was correct in so holding. This however
the legal custodian of the remains; or even if he does not apply to the clothes in which the body was
should, it could only be so as to the funeral and clad, and the silver watch upon the person; as to
burial, because the expenses extend no further; these the administrator was the legal owner, and his
they stop at the grave. The question would then appointment, though made after the occurrence,
arise, who could legally protect beyond that point, reached to the death, his title commencing at that
and in whose behalf could the law be invoked to time. As to these, then, the action was maintain-
redress an invasion of the tomb? We have looked able, and we think that his honor was in error in not

diligently through the common law reports of Eng-
land, and have found no case in which the circuit
courts have been appealed to in matters connected
with the bodies of the dead; on the contrary, their
burial, the grave-yards and cemeteries in which
they are interred, and the religious ceremonies ob-
served, have been left exclusively to ecclesiastical
congnizance, the civil courts universally holding,
in the language of Lord Coke, that the 'burial of
the cadaver is nullius in bonis.' In some of the
States upon this continent, especially in Rhode
Island, in Indiana, in Pennsylvania, and New York,
the courts endeavoring to escape from this reproach,
have held in general terms that the corpse belongs,
not to the administrator, but to the next of kin,
and that is as far as the cases referred to by appel-
lant's counsel seem to go. In Pierce v. Cemetery
Co., 10 R. I. 227; S. C., 14 Am. Rep. 667, it was
held that while a dead body was not property in
the strict sense of the common law, it is quasi prop-
erty over which the relatives of the deceased have
rights which the courts will protect. In Re Widen-
ing Beekman Street, 4 Bradf. 503, it was held that
'the right to bury the corpse and to preserve its re-
mains is a legal right which the courts will protect.
That such right, in the absence of any testamentary
disposition, belongs exclusively to the next of kin.'
In Bogert v. Indianapolis, 13 Ind. 135, it was held
that the bodies of the dead belong to the surviving
relatives in the order of inheritance as property.
In Wynkoop v. Wynkoop, 42 Penn. St. 293, it was
held that a wife has no right or control over the
body of her husband deceased after burial. The
disposition of the remains of the deceased belongs
therefore exclusively to his next of kin. That
though it was her duty to bury the body, as widow,
after interment her right ended.' Upon what au-
thority or established principle of the common law
these decisions were founded, even to the extent of
legalizing the right of the next of kin, does not
fully appear; but they afford no support to the
position that the administrator has any control
whatever, which is the question here. We have no
case in our own reports upon the subject; certainly
no case bearing upon the precise point before us,
i. e., the rights of the administrator. In the ab-
sence of all authority, and looking at the act which
authorizes administration and defines the duties and
powers of administrators, and describes the prop-
erty which by operation of law becomes theirs, we
are constrained to the conclusion, that so far as this
action is founded upon the mutilation of the de-
ceased by the defendant company, whether acci-
dental, willful, or negligent, it cannot be sustained

C

❘

so holding. McLane v. Elder, Brev. MSS. Rep., 2
Mill, 184; Dealy v. Lance, 2 Speer, 487. But the
majority of this court having, in Meet v. R. Co.,
determined that the circuit judge had the power to
review and reverse the findings of fact of the referee,
and he having exercised that power in this case, the
judgment of this court, therefore, is that the judg-the

ment of the Circuit Court be affirmed." See Weld
v. Walker, 130 Mass. 422; S. C., 39 Am. Rep. 465, and
note, 467.

MARRIAGE.

IMPORTANT INSTRUCTIONS IN RELATION TO try within its own territorial jurisdiction, and may con-
CITIZENSHIP, DOMICILE and
fer the rights of American citizens everywhere upon per-
sons who are not rightfully subject to the authority of
any foreign country or government, it ought not, by un-
dertaking to confer the rights of citizenship upon the
subject of a foreign nation who had not come within our
territory, to interfere with the just rights of such nation
to the government and control of its own subjects. If
by the laws of the country of their birth children of
American citizens born in such a country are subjects of
its government, the legislation of the United States will
not be construed so as to interfere with the allegiance
which they owe to the country of their birth while they
continue within its territory. If therefore such a person,
who remained a resident in the country of his or her
birth, applies for a passport as a citizen of the United
States, such passport will be issued in the qualified
form, shown in form No. 11.”

The correct rule I apprehend to be that the children born abroad of parents domiciled in the United States partake of their father's domicil, and children born abroad of citizens of the United States partake of their father's citizenship. The possession of these rights continues until the infant arrives at the age of twenty-one, at which age he is entitled to make election as to what nationality and domicile he will accept, which election must be regarded as final. It is true that such children, like all other citizens of the United States

residing in a foreigu land, may be regarded as bound to render the duty of local obedience. But with the above limitation as to election they are no more subject to the domiciliary municipal laws of such foreign land, or clothed with its nationality, than are any other citizens of the United States temporarily residing abroad. As will be seen by authorities in an

exhibit attached hereto, these views are sustained not only by rulings of our own and English courts, but by the opinions of leading jurists who are experts in this branch of law.

The following correspondence will explain the reason of the changes recently made by the Secretary of State in the diplomatic instructions in reference to the law of citizenship, domicile and marriage:

LAW BUREAU, May 4, 1885.
To the Honorable the Secretary of State:

SIR: I beg to call your attention to two sections in
our Consular Regulations aud in our Diplomatic In-
structions, which call for grave consideration. In our
Consular Regulations we have the following:

"158. Passports are to be issued only to citizens of the United States, and are to be numbered, commenc

ing with number 1, and so continuing consecutively

until the end of the incumbent's term of office. To
issue a passport to a person not a citizen is a penal of-
fense, punishable ou conviction by imprisonment not
exceeding one year, or by a fine not exceeding $500, or
both. Persons who have merely declared their intention
to become citizens are not citizens of the United States
within the meaning of the law."

The same position is taken in our Diplomatic In-
structions.

The lines italicised in the above section do not, I think, state the law with sufficient accuracy. It may be conceded that a mere declaration of intention does not create citizenship of the United States.*

On the other hand, such a declaration, coupled with domicil (i. e., residence accepted as a final abode), may give the declarant, as was held by Mr. Marcy in the Koszta case, a claim on our government for protection, when the declarant, on the high seas, or on the territory of a neutral power, is seized by the sovereign of his original allegiance in such a way as to prevent him from perfecting his allegiance to his sovereign of election. And a person merely domiciled in the United States, even without declaration of intention, is, as will be shown by the Exhibits hereto attached, entitled to protection from our government in all matters concerning his civil as distinguished from his political rights.

The other section to which I desire to call attention

is the following:

66

173. It is provided by law that persons born out of the limits and jurisdiction of the United States, whose fathers were, or shall be at the time of their birth, citizens of the United States, shall be deemed and considered to be citizens of the United States, provided that

right of citizenship shall not descend to persons

whose fathers never resided in the United States. Within the sovereignty and jurisdiction of the United States such persons are entitled to all the privileges of citizens; but while the United States may by law fix or declare the conditions constituting citizens of the coun

*NOTE. That the question of the effectiveness of a declaration is still open to doubt may be seen by the following section from the Revised Statutes:

"SEO. 2168. When any alien who has complied with the first condition specified in section twenty-one hundred and sixty-five, dies before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such upon taking the oaths prescribed (sic) by law."

This section has been applied, as stated by Mr. Everett,in Germany, in granting passports for the protection of widows and children of persons who have declared their intention to become citizens of the United States, but whose naturalization has not been perfected.

It is true that in a letter of Mr. Hoar, when attorney-general, dated June 12, 1869, we have the following statement:

"If therefore by the laws of the country of their birth children of American citizens, born in that country, are subjects of its government, I do not think that it is competent to the United States by any legislation to interfere with that relation, or by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist." 13 Op. Atty.-Genl., 89. See to same effect letter of Mr. Fish, Aug. 25, 1873. (For. Rel. U. S., 1873-4, vol. 2, p. 1192.

So far as this statement bears on the question of passport, in reference to which it was made, I do not propose to discuss it, though even in this limited relation I doubt its accuracy. But I do unreservedly maintain that by the law of nations no legislation of a foreign State can subject either a person domiciled in one of the United States, temporarily residing in such

This leaves the question of status in such cases to the courts, unprejudiced by any utterances from this department. It may be that a distinction now taken in resi-England between civil and political domicil may be hereafter internationally accepted, and that it may consequently be held that while domicile without naturalization imposes a civil status, determining munici pal rights, it does not impose political status conferring political immunities, e. g., relief from military or po. lice duties. But be this as it may, no statement should be permitted to remain in the records of this department sanctioning the view that a person domiciled in the United States is by our action precluded from claiming the municipal rights he is entitled to by the rules of private international law. All of which is respectfully submitted. FRANCIS WHARTON.