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, 37 id. 477; Hart v. Gumpach, L. R., 4 P. C. 439; 4 Moak Eng. 138, 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. McGovern, 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 effectual either to sustain or disqualify the latter to continue 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 condemn 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 communication, and their duties, are those before mentioned, 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 impugn 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 v. 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."

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

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.

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

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 investigation, can such property be acquired by the administrator 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 conflict with this doctrine nor have we been able ourselves 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. Because 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 interment 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 dissolving and returning to the dust from which they were created? Can it be that there is no legal guardianship 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 system, 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 intestate 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 assumption to conclude on that account that he becomes the legal custodian of the remains; or even if he should, it could only be so as to the funeral and burial, because the expenses extend no further; they stop at the grave. The question would then arise, who could legally protect beyond that point, and in whose behalf could the law be invoked to redress an invasion of the tomb? We have looked

diligently through the common law reports of England, 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 observed, 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 appellant'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 property over which the relatives of the deceased have rights which the courts will protect. In Re Widening Beekman Street, 4 Bradf. 503, it was held that 'the right to bury the corpse and to preserve its remains 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 authority 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 absence of all authority, and looking at the act which authorizes administration and defines the duties and powers of administrators, and describes the property 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 deceased by the defendant company, whether accidental, willful, or negligent, it cannot be sustained by the plaintiff, and that his honor, the circuit judge, was correct in so holding. This however does not apply to the clothes in which the body was clad, and the silver watch upon the person; as to these the administrator was the legal owner, and his appointment, though made after the occurrence, reached to the death, his title commencing at that time. As to these, then, the action was maintainable, and we think that his honor was in error in not

foreign country, or a child born to him during such temporary residence, to the municipal laws of such foreign country, so as to divest him of his home status, and to impose on him the status of the country in which he is temporarily resident.

The consequences of the latter doctrine are so disastrous that it is hard to believe that it was deliberately intended to have been advanced. Were a person domiciled in one of our States (whether an adult or a minor), subjected to the municipal laws of a foreign country, in which he is temporarily resident, and clothed with its status, he might be placed permanently under the control of a guardian appointed by the authorities of such country; his legitimacy would be subject to its laws; his marriage would be invalid if made such by its laws; by its laws would the succession to his property be determined; by its laws, as one of its subjects, would his property be distributed in case of his death.

For this department, in its consular regulations and diplomatic instructions, to declare otherwise, would not only contravene the rulings of our courts and the opinions of the great body of modern international jurists, but would interpose a serious difficulty in the way of the obtaining, by persons domiciled in one of the United States, the rights abroad to which they are entitled by the law of nations and by the rulings of domestic courts. We will suppose, for instance, that a person domiciled in the United States, but temporarily resident abroad, is subjected to personal taxation, or to other laws determining status in the place of his temporary residence; or that an effort is made to subject his legitimacy, or the legality of his marriage, to the laws of such temporary residence; or to limit his business capacity by such laws, or, on his death, to declare that his estate by such laws is to be distributed. This is contested; and to support this adverse contention, we will suppose that it is said by the authorities of such place of temporary residence; "undoubtedly by the law of nations personal status is determined by the place of domicile, but by your consular regulations and diplomatic instructions you preclude yourselves from claiming for persons domiciled in your States this right." But that such a concession should not be made by this department, I maintain for the following

reasons:

1. Even supposing the question were one of doubt, it ought not to be decided in this summary way against persons domiciled under our flag.

2. The case is one belonging to the States, as domicil is incident to residence in a State (or territory, as the case may be), and not to residence in the United States as a whole. A person, for instance, may be domiciled in the State of New York, and thus become enveloped in the municipal law of New York; but except as domiciled in New York, he cannot be domiciled in the United States. Domicil by the law of nations, it must be remembered, is residence within a particular State, with the intention to make it a final abode. It may or may not be coupled with domestic political privileges. Domicil however, and not the possession of political privileges, internationally determines status.

But while intention to permanently remain is an essential incident of domicile, this is not inconsistent with tomporary absence. It is in relation to persons temporarily absent, and to their children born during such temporary absence, that the rules I have cited bear harshly in denying to them rights to which they are entitled by the law of nations.

The suggestion I now make is to substitute for the sections in question the following:

"118. Passports are to be issued only to citizens of the United States, and are to be numbered, commencing with No. 1, and so. continuing consecutively until

the end of the incumbent's term of office. For a diplomatic or consular officer to issue a passport to a person not a citizen of the United States is a peual offense, punishable on 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 in the full sense citizens of the United States within the meaning of the law. Provided that nothing herein contained is to be construed as in any way abridging the right of persons domiciled in the United States, but not naturalized therein, to maintain internationally their status of domicile and to claim protection from this government in the maintenance of such status.

"131. 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 the right of citizenship shall not descend to persons whose fathers never resided in the United States. That in such cases the citizenship of the father descends to the children born to him when abroad, is a generally acknowledged principle of international law."

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 England between civil and political domicil may be hereafter internationally accepted, and that it may consequently be held that while domicile without natu. ralization imposes a civil status, determining municipal 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.

DEAR SIR: Your letter of the 16th instant, inclosing a report from the Law Bureau of your department in reference to "Regulations for the use of the Consular Service of the United States," has been received, aud the report has been very carefully examined by me with a great deal of interest.

You do not say in your letter that you desire any expression of opinion from me in reference to the matter discussed, or that you wish I should review it in any way, but owing to the importance of the subject, and its very interesting character, I deem it proper to express some views to you in reference to it, hoping that they may be of some service in your future investigatious.

I very heartily concur in the changes suggested by Dr. Wharton in the regulations referred to, and think that they of themselves are very important; more especially so in view of the fact that the opinion of one of my predecessors, referred to by Dr. W. in his report, may possible mislead upon this subject; and the further fact that in the beginning now of a new administration it is highly essential that the true doctrine be laid down, recognized and enforced.

In reference to the first point of change, distinctly set forth in page 4 of Dr. Wharton's report, and in further support of it you will find that Vattel, in his Law of Nations, book 1, ch. 19, p. 101, fully sustains it; and further, in book 2, ch. 8, p. 173. Our own Supreme

Court has of late years announced the same doctrine, with a clearness and force that cannot be misunderstood. Carlisle v. United States, 16 Wall. 147; and still more recently in the case of Radich v. Hutchins, 95 U. S. 210.

The other change suggested by Dr. Wharton in these regulations as stated in his report, p. 7, touching "the domicile of children of citizens of the United States born abroad," is based upon principles that are as universally recognized and established as the first change already discussed; and I call your attention to Savigny ou Private International Law, pp. 56-7. Our Supreme Court at a very early date, before the case in 3 Peters referred to by Dr. Wharton recognized this principle, and quoted all the leading authorities then known to the profession in the case of McIlvaine v. Coxe's Lessee, 4 Cranch, 209 (1808). Again, in the year 1817, in the case of The Dos Hermanos, 2 Wheat. 76; and in 1852, in Ennis v. Smith, 14 How. 400; in Jones v. McMaster, 20 id. 8; in White v. Burnley, id. 235; in Mitchell v. United States, 21 Wall. 350; and in Desmare v. United States, 93 U. S. 605; but more recently, and yet with more emphasis if possible, in the case of Lamar v. Micou, 112 id. 452.

I do not think it necessary to go further in adducing authorities upon this proposition. Indeed it is possible that none were needed in addition to those in the report of Dr. Wharton, but for the reasons already given I deemed it advisable to furnish these. If I had been called upon to give an opinion upon these propositions, directly, I should have answered them as the changes in these regulations indicate and propose. According to the request contained in your letter, I return the report to you.

Very truly and sincerely yours,

Mr. Marcy, in the Koszta case (Cong. Doc. 33d Cong., 1 sess., H. R., Ex. Doc. 91), said:

"The right to protect persons having a domicile, though not native born, or naturalized citizens, rests on the firm foundation of justice; and the claim to be protected is earned by considerations which the protecting power is not at liberty to disregard."

This is adopted without qualification by Mr. Lawrence (Lawrence's Wheaton [2d Am. ed.], 176) and may be accepted as true, at least as far as concerns the civil as distinguished from the political rights of domicil. Koszta's case may be explained as follows:

Koszta, by establishing his domicil in the United States, and declaring his intention to become a citizen, severed his relation with his native country, Austria, for all purposes of private international law; but his political allegiance to Austria was not thereby completely annulled, and could not be, under public international law, until he had renounced his Austrian allegiance and become fully clothed with American political citizenship, by the act of naturalization. No renunciation of alien subjection is required by our laws at the time of declaring intention.

But while domiciled in the United States, and after declaration of intention, Koszta had acquired an incomplete nascent status of citizenship, and had certainly a right to be protected by the United States in the completion of his purpose to become a full citizen, as against any violent act on the part of Austria.

Had he then voluntarily placed himself again within Austrian jurisdiction, his act in doing so might have been held to extinguish the nascent right to our protection as against Austrian claim to his civil allegiance. But on the high seas, or in the dominions of a third power, the nascent right to protect him in the comple

tion of his United States citizenship, would remain unimpaired.

Under these circumstances, Koszta, while retaining his American domicil, went on a temporary visit to Smyrna, Turkey. This temporary absence from the United States could neither affect his domicil nor interrupt his continuous five years' residence in the United States as a condition precedent to naturalization. His right to perfect his citizenship by such naturalization was not impaired by that absence.

While in Smyrna, in the dominions of a third sovereign power, Koszta was kidnapped by the commander of an Austrian war ship.

The right to protect him by all the power of the United States was as complete in that case as though Koszta had been kidnapped on the high seas, or in the United States. This right was successfully asserted, and the question thus decided once for all.

A subsidiary question arose in Koszta's case, through the violation of Turkish sovereignty by the Austrian commander; but this need not be discussed in examining the question of American right to protect him. The status of Koszta is stated by President Woolsey as follows (Int. Law, 981):

"2. Was he an Austrian subject? Austrian nationality ceases, according to what is said in section 66, on the authority of Mr. Fœlix, when a subject emigrates with the consent of the government. He had more than the consent of his government to his abandonment of his country; he was forced into exile. But to this it might be replied that he had agreed in writing never to return to Turkey, and that the Austrian claim on him would revive on his failing to fulfill this condition. It is indeed questioned by Mr. Marcy whether he engaged never to return; and it might perhaps be said that if such an engagement existed, it related only to return for political purposes.

"But to this Austria might reply, that she could not know what his purposes were, and that the promise must be absolute, in order to prevent his doing politi. ical mischief in the neighborhood of Hungary. This however is a point on which our diplomatist preserves silence.

"3. What were his relations to the United States? Not those of a citizen, but of a domiciled stranger. His oath declaring his purpose to become a citizen,and his long stay here, put this out of the question, and his temporary absence could not shake this character off. Moreover he had a passport, certifying to his American nationality. He would therefore be entitled by the laws of nations to the protection of the Turkish authorities against his Austrian captors. Had he even been a fugitive prisoner of war, he could not lawfully have been seized on shore, unless treaty had so provided. He would equally be entitled to all that protection which officials of the United States were authorized to extend to him within Turkish territory.

This is dissented from so far as concerns the position that the passport gave additional strength to Koszta's claim to citizenship, in Hall's Int. Law, p. 200.

EXHIBIT B.

Authorities as to domicile of children born abroad to Americans.

Mr. Dicey, an authoritative English cotemporary writer and a member of the Institute of International Law, in a treatise on the Law of Domicil, published in London in 1879, thus speaks:

"Every person received at (or as from) birth a domicil of origin. (1) In the case of a legitimate infant born during his father's life-time, the domicil of origin of the infant is the domicil of the father at the time of his birth. * *The domicil of every de

*