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Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right, in every State or territory of the United States, to make and enforce contracts; to sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property; and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens; and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding."

The Court held, that the Act of Congress was constitutional, and that under it the defendant had the right of not having the evidence of Chinamen born in the Chinese Empire admitted against him, and judgment was affirmed. Crockett and Sprague, JJ., dissented, on the ground that the act was unconstitutional.


UNITED STATES DISTRICT COURT. The Brig Candace. In the American Law Review, Vol. 3, p. 372, is reported an opinion in the case of The Ethan Allen, given by Judge Hoffman in the United States District Court for the District of California, on the construction of the Act of Congress of March 3, 1855, regulating the carriage of passengers in vessels. Judge Lowell has, in the case of The Brig Candace, delivered a similar opinion, and his judgment has been affirmed by Judge Clifford in the Circuit Court. As there is a lack of authority on the point, which is novel and important, we give Judge Lowell's opinion in full.

LOWELL, J. Libel of information against the brig Candace, alleging that the master took on board at a port in the Cape de Verd Islands and brought to Boston, eleven passengers, without providing them with the space required by Act of 1855, ch. 213, § 1 (10 St. 715). The allegations are, that the height from the deck or platform on which these passengers were carried to the deck above, was less than six feet, whereby the master became liable to a penalty of fifty dollars for each passenger so carried, amounting in all to five hundred and fifty dollars, and that the amount of this penalty is a lien on the vessel. The owners of the brig have filed their claim and answer, in which, after requiring the Government to make out the facts alleged, they deny, as matter of law, the liability of the vessel. The fact has been proved to my satisfaction, that the passengers had only the right of five feet and one-tenth allotted to them, instead of six feet, as required by the statute. The objections taken are, that the penalty imposed by the first section of the Act, does not apply to the height between decks, but only to the superficial area of deck; and secondly, that before any penalty under that section can be recovered by libel against the vessel, the master must first be convicted and fined, which is not the case here, the master not having been arrested.

The fifteenth section of the Act provides, " That the amount of the several penalties imposed by the foregoing provisions, regulating the carriage of passengers in merchant vessels, shall be a lien on the vessel or vessels violating these provisions, and such vessel or vessels shall be libelled therefor in any Circuit or District Court of the United States, where such vessel or vessels shall arrive."

Upon a careful consideration of the statute, I am satisfied that the penalties here referred to are the numerous pecuniary penalties imposed by sections 2 & 8, and not the fines imposed by sections 1 & 6. By section 2, if the berths are not sufficient and suitable, the owners and master shall severally forfeit five dollars for each passenger, to be recovered by the United States, in any port where the vessel may arrive or depart. By section 8, the owners and master shall severally forfeit and pay to the United States two hundred dollars for each violation of any one of these preceding sections, and fifty dollars for each violation of any other section, to be recovered in any Circuit or District Court within the jurisdiction of which the vessel may arrive or from which she may be about to depart, or where the owners or master may be found. It is clear that the fifteenth section gives a right of action against the vessel itself, as well as against the master and owners personally, to recover these sums, or any of them; and this is alluded to in the sections imposing these penalties, for, although they do not, in terms, give an action against the vessel, they do give jurisdiction to the courts of the district in which she may be found.

But to apply the fifteenth section to the fines which may be imposed upon the master, when convicted of a misdemeanor under the first or sixth section, is more difficult. In the first place, the penalty is, or may be, partly imprisonment. By the sixth section, for wilful failure to supply and distribute provisions, the master must be both fined and imprisoned, and both are discretionary with the court, within certain limits, and both together are spoken of as a penalty. Now it is obvious that this penalty in this case cannot be a lien on the vessel. The case, as applied to the first section, is not so free from doubts; here the fine is a fixed amount and so could be ascertained before conviction, and is called a penalty, and whether there shall be imprisonment for a violation of this section, is discretionary with the judge, but if imprisonment is imposed, it is certain that both that and the fine are but one penalty for one misde meanor, and no doubt they would have been so termed in the act if the context had required them to be mentioned together, as it does in the sixth section. It seems, therefore, that the penalty imposed by this section, is not of a nature to be recovered against the vessel. But even if we could separate the punishment and consider the fine by itself, as the "amount of the penalty” referred to in the fifteenth section, there would be great difficulties and objections remaining. Suppose this fine to be recovered against the vessel in the first instance, how could the master, on his trial for the misdemeanor, avail himself of the facts ? Not in law, certainly, for it is neither an acquittal nor a conviction, nor does it go to the whole of his punishment. Or, suppose the master tried and acquitted; how could this judgment avail the owners of the ressel in a civil suit for the penalty ?

Again, a lien is usually, if not always, a security for a civil debt or responsibility including civil forfeitures under the revenue laws. To hold a lien on the property of a wrongdoer as security for a fine which may be imposed upon him after con viction of the offence, is unusual, and would not often be useful, because the defendant always stands convicted until his fine is paid, and this is the highest security known to the law for any pecuniary liability ; but that such a fine should be sued before it is imposed, and against the goods of a third person, is surely without precedent. Again, it is to be observed, that what I have called the civil penalties of sections 2 & 8, may be recovered by a personal action, as well as by proceeding against the ship, and are imposed upon the owners in terms, as well as the master; but the fines of the 1st & 6th sections are imposed upon the master only, and are to be recovered only by indictment, and no allusion is made in these two sections to any other remedy, nor to any proceeding in the district where the vessel may be found.

When, therefore, I consider the kind of penalty mentioned in the first section, which may be partly imprisonment, the person upon whom it is imposed, being the master only, the mode of its enforcement by a criminal trial and sentence, the absence of allusion to any responsibility of the owner or vessel, in all which respects it differs


from the more pecuniary civil penalties imposed by other sections of the Act, that the ordinary office of a lien is as security for a debt or civil liability, and the great difficulty of applying it, in fact, in aid of a criminal responsibility of a third person, and find that there are in the statute many civil pecuniary forfeitures or penalties to which the fifteenth section, giving these views, is properly exactly applicable, and that to the only other criminal penalty mentioned in the Act, it cannot possibly be applied before conviction of the master, because the amount is not fixed until then. I am constrained to conclude that it does not, at least before conviction of the master, give a lien upon the vessel for the fines which may be imposed upon him for a violation of the first section of the Act.

W. A. Field, Assistant District Attorney, for United States.
T. H. Russell, for claimants.

SUPREME JUDICIAL COURT. Divorce. — Condonation. The Implied Condition; and Revivor of the Condoned Offence. Elizabeth A. Duffy v. Bernard C. Duffy. This was a libel for divorce from the bonds of matrimony on the ground of adultery; and was tried before Mr. Justice Colt. The answer denied the charge in the libel and also set up condonation.

At the trial, the alleged adultery was fully proved, and the birth of three illegitimate children, of which the libellee was the father ; but the libellant continued to cohabit with the libellee for months afterward, and the children were brought by the libellee to his home, and the libellant assisted in the care of them.

The libellant testified in explanation of this continued cohabitation, that as to the first child the libellee made a confession to her with professions of repentance and promises of amendment, which induced her to consent to forgive him on condition that the offence should never be repeated. When the offence was repeated, she testified that she made up her mind to leave him, and sought for means to support herself, but continued cohabitation because she had no other home or means of livelihood.

There was evidence that the libellee struck her a blow in the face, causing blood to flow, by reason of some trifle in connection with the illegitimate children; but she afterward cohabited with him. Subsequently, he compelled her to give up a bank book containing the account of some money belonging to her mother, and compelling her to sign an order to draw it out, offering to strike her and threatening with his fist. After this she did not cohabit with him.

The libellant had been previously married to a former husband named William F. Tucker, who had died at Havana of yellow fever, thirteen months before her marriage with the libellee. His death was fully proved. The libellee, however, pretended to the libellant that this former husband was alive, and that he had had an interview with him in Boston, and produced a letter and photographic likeness, said to be recently received from the former husband, and these the libellee exhibited to the libellant and told her she was not his wife and he would not recognize her as such, because she was the wife of another man. She replied that there was no resemblance between the photograph and Tucker, her former husband, and referred him to those well acquainted with Tucker, to whom the libellee also exhibited the photograph, and was informed that it bore no resemblance to Tucker; also she showed him a genuine letter written by Tucker in his lifetime, and very unlike that produced by him. Yet the libellee did not retract the charge, but insisted that he would not recognize her as his wife, and he afterwards stated to various persons that she was not his wife but the wife of another man. There was no cohabitation after the charge by the libellee that the libellant had another husband living.

The court held, that if the original offences must be regarded as forgiven by the subsequent cohabitation, yet the conduct of the husband in reference to the claim that the former husband was still living, and the offer to strike her, amounted in law to conjugal unkindness, and although the evidence might be consistent with the theory that the husband was at first deceived and imposed upon by the story in regard to the former husband, yet that his indifference to the truth of the matter, his willingness to believe it, his failure to retract the charge after he had good reason to believe it false, as well as the assault testified to, were sufficient in law to revive the original cause of divorce, and do away with the effect of the condonation. A divorce was accordingly decreed, with leave to the libellant to take the name of the former husband, and an allowance of alimony out of his estate.

R, F. Fuller, for the libellant.
E. W. Morton, for the libellee.

child, upon

SUPREME JUDICIAL Court. In the matter of Jeremiah O'Neal, petitioner for a writ of habeas corpus. This petition by a father for the custody of his

which there was a previous hearing, came up again, Jan. 5, before the court, when the hearing was concluded. We give quite a full report of the case, as being one of unusual interest. The material facts are in substance these: The petitioner was married in New York in 1857, the wife having at the time one child by a former marriage. The child whose custody is now sought by the petitioner, was born in 1859, and is now a little more than nine years of age. In the latter part of 1861, the petitioner, who is a seaman, sailed for Liverpool, and, afterwards returning to New York, went on a voyage to China. He remained abroad in the prosecution of his business until the spring of 1866. Before leaving for Liverpool, in 1861, he directed his wife to go with the children to Salem, where he had a sister residing. During the time he was abroad and separated from his wife, he, on several occasions, sent money or drafts to her, some of which she did not receive. The wife died in Salem in April or May, 1864, in a state of destitution, having, with the two children, depended largely upon charity for a considerable period for subsistence. Upon her decease, the child was placed in the Asylum for Orphans in Salem. In August, 1864, the child, with the approval of the managers and the city missionary, who supposed that she had no father living, was taken by the respondents, Samuel S. Lee and his wife, who had no children, to provide for and educate as their own. Since that time, the respondents have furnished the child with a home every way suitsble, and have paid every attention to her comfort and education.

The petitioner in 1866, returned to New York, when he proceeded to Salem and made inquiries for his wife and child, but being unable to find them there, returned to New York. He then directed his sister to make further inquiries, and sailed to California. A few months since, he learned from his sister the place of residence of his child, and came on to take her. There was some evidence concerning the character and habits of the father and his ability to support the child. It also appeared that he intends to reside in California, and proposes to place the child in the care of a married sister in California.


Upon these facts, it was contended in behalf of the petitioner, that, being father, he had a right to the custody of the child, that in determining such right the discretion of the court might be exercised, but it must be a judicial discretion. There are only two cases in which the right of the father is limited, which are when he is manifestly unfit to take charge of the child, and when he has abandoned by his acts his right to the custody of the child. Upon the facts of the case, the father was a fit person to care for the child, and had not abandoned his right.

Judge Hoar, after consulting with other members of the court, said that he was prepared, after conference, to state the result he had reached, in which all the members of the court concurred. The decision would depend upon the application of a legal proposition to the facts of the case. He need not say that he had hardly ever had occasion to pass upon a more painful case, one in which he was more moved by sympathy for both the parties. The father has prima facie the right to the custody of the child. This right cannot be taken from him by the mere consideration of any supposed benefit which would accrue to the child, unless something has occurred to interfere with that right. Suppose that a child in humble circumstances is found in the street going to school, and a very wcalthy person undertakes to adopt it; although the court might be of opinion that it would be for the best interests of the child, yet the court has no power to allow it. It is a question of natural, legal right. The court has in such cases only a judicial discretion.

He would next look at the facts of the case to see if any thing was proved to qualify the rights of the parties. Although there was some evidence to show that the petitioner did, in one or two instances, strike his wife, yet he did not think, considering their station in life and habits, that there was any thing to show that he was an unfit person to have the custody of the child. The affectionate terms in which his wife afterwards wrote him, showed also that their domestic harmony was not interrupted.

He did not think that the absence of the petitioner on a voyage to China, and in remaining abroad, showed any failure of duty on his part, or any intention to abandon his wife and family. On his return, although he did not stay long, he made what he supposed to be sufficient inquiries for them. No conclusion is to be drawn against him for any misconduct on his part. As between the father and the respondent and his wife, the case is to be decided on the ground of superior right, and the right of the father is first to be considered. If he has done nothing to forfeit his right, as between the two, his right is the stronger. The learned judge then continued:

There remains the question as to the condition of the child itself. In a decision of the case, it must be considered how the father's right is affected by the condition of the child. Suppose by a pure misfortune, as insanity, or being cast away and being compelled to live among savages, a father has left his child destitute and dependent upon charity ; does that give the child the right to form such new relations as to take from the father the right to the custody of the child? Upon the best reflection, I am satisfied that it does. When the

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