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an offence, and had stopped there, I cannot conceive that a different result could be arrived at other than that the conspiracy to kill and murder contains within it the less aggravated offence to outrage and injure, for he who would kill and murder me would certainly outrage and injure me; the one would certainly be contained within the other, - both purposes being a misdemeanor at the common law, the offence is an agreement and conspiracy to do an unlawful act, no matter what may be the purpose, making it only the more or less aggravated. The offence, whether a conspiracy, an unlawful assembly, or an assault and battery, is a misdemeanor, and punishable by a fine not exceeding five hundred dollars, and confinement in the county jail not exceeding six months.

"I am satisfied that neither the military commission who imposed the penalty, or the commanding general who approved it, supposed they were exceeding their authority in so doing. I am equally satisfied that the punishment imposed was unanthorized by the Act of Congress, and that the petitioners' confinement in the penitentiary is an unlawful restraint upon their personal liberty.

" The next question is, Has this court the jurisdiction to order a release from that confinement? It is insisted by petitioners that it has, and by respondent that it has not.

“The power of this court, or its judges sitting at chambers, to grant the writ of habeas corpus, and through it to relieve from illegal restraint, is limited by the sev. eral acts of Congress to specified cases, one of which is to relieve those improperly restrained by the officers of the Federal Government, claiming to act in their official capacity. This is a necessary power to avoid conflict between the State and Federal jurisdictions, and is the proper remedy in this case. I will add, that the principles now announced are not in conflict, but in strict accordance, with the rulings heretofore made by me on these questions.

“ At this point, I am met by a perplexing question: the parties have been found guilty of an aggravated misdemeanor, one for which they should, if guilty, receive exemplary punishment; and, from the finding, I cannot presume them innocent. Their connections and position in society, instead of mitigating, aggravate their offence; its tendency is to encourage the less intelligent, and those whom we might suppose to be more inconsiderate, to commit acts of outrage and wrong. The law now knows no man on account of his race, color, birth, place, or pursuit in life; it affords, and should afford, equal protection to all, and when properly administered will secure this end; if any offend the law they should be punished by the law, and in no other way. Those who undertake to inflict punishment or wrong upon others without the sanction of the law to-day, should remember that, by so doing, they may become the victims of the lawless to

morrow. "Without malice or ill-will toward the petitioners, or toward any citizen of the State, but with a strong desire to see that security of person and property which every good citizen desires, I must be permitted to express regret that it is not within my power to remand the petitioners to the custody of the commanding general, and to declare him to cause that punishment to be inflicted which the law has annexed for the offence with which they stand convicted. When first considering this question, I thought this could be done, believing at that time that the military commander could fix the punishment after conviction, as the judge may do after the verdict of the jury. This I inferred from the provision in the Act of Congress requiring him to punish, or cause to be punished, offenders; but from the statement of the Judge Advocate, who represents the respondent, and whose knowledge of military law cannot be questioned, I am satisfied that the military commission is required to fix the punishment; that this was so intended by Congress, and that their powers in this case were exhausted, when their finding was approved by the commanding general. I am brought to the conclusion that the commanding general has no further power to punish upon the finding of the commission. I can, therefore, only say to the petitioners, that I hope they are convinced of the impropriety of the wrong they have committed ; that they will return to their homes and enter upon the duties of life with a fixed and determined purpose not again to violate the laws of the country in which they live, or the right of any one, no matter what his condition or pursuits may be. I sincerely hope that no one will be encouraged to violate the law, with the hope of escaping punishment from the judgment I feel constrained to pronounce; which is, that the petitioners be discharged and go hence without day.”


NEW HAMPSHIRE. SUPREME COURT.— Insanity. In the forthcoming volume of the New Hampshire Reports (Vol. 47) will be found an able dissenting opinion by Doe, J., in Bordman v. Woodman, taking the ground that it is error in the court to instruct the jury that delusion (or any thing else) is the test of insanity. Judge Doe's position is, that insanity is a disease, “and the tests and symptoms of this disease are no more matters of law than are the tests or symptoms of any other disease in animal or vegetable life. If a jury were instructed that certain manifestations were symptoms or tests of consumption, cholera, congestion, or poison, a verdict rendered in accordance with such instructions would be set aside, not because they were not correct, but because the question of their correctness was one of fact, to be determined by the jury upon the evidence."

In Dakin v. Graves, it is held, that a drawee's statement at the time of demand, “ that he had no funds for that purpose," cannot be proved by the notary's recital in the protest. The New Hampshire Statute, making the protest “evidence of the facts stated in such protest,” refers only to acts within the scope of a notary's official duty, and the notarial certificate is not evidence of collateral facts which the notary was not bound to certify. See Dumont v. Pope, 7 Blackf. 367; Maccoun v. Atchfalaya Bank, 13 La. o.s. 342.

In N. H. Savings Bank v. Webster, it was held a proper exercise of the discretionary power of the court to strike off a default to permit the defendant to plead a discharge in bankruptcy obtained since the default; the plea to be received on payment of plaintiff's costs up to the time when defendant moved for leave to plead.

In Goodall v. Batchelder, 17 N. H. 386, it was held, that a verdict would not be set aside to enable a defendant to plead a subsequent discharge in bankruptcy.

In Bartlett v. Hooksett, a decision has been made in direct opposition to Kingsbury v. Dedham, 13 Allen, 186, and Cook v. Charlestown, 13 Allen, 190, note.

In the latter cases the Massachusetts court held, th an object in a highway, with which a traveller does not come in contact, and which is not shown to have been an actual incumbrance or obstruction in the way of travel, is not to be deemed a defect (for which the town is liable), for the sole reason that it was of a nature to cause horses to take fright.

The New Hampshire court held, that objects suffered to remain resting upon one spot, or confined within one particular space, within the highway, if they are of such a shape or character as to be manifestly likely to frighten horses of




ordinary gentleness, constitute "obstructions,” or “ insufficiencies," for which the town is liable.

This view is supported by the reasoning in Dimock v. Suffield, 30 Conn. 129, and by a dictum in Howard v. North Bridgewater, 16 Pick. 189, 190.

In the case of Bartlett v. Hooksett, the " object " was a pigsty projecting into the highway, and occupied by five swine; the declaration alleging that the horse was frightened by the swine's “starting and running about," " and by certain loud noises which the said swine then and there uttered."

NEW JERSEY. SUPREME COURT. — William J. Lynd v. George Menzies et al. Case for forcibly preventing a minister from preaching in the church, and occupying the parochial schoolhouse. Verdict for the plaintiff, and a rule to show cause why the verdict should not be set aside.

Upon argument of the rule, the court decided as follows:

1. A minister of the Protestant Episcopal Church has either the possession of the church, or a right in the nature of an easement to enter therein, on all occasions set apart in the parish for divine services, and a substantial interference with such right will lay the ground of an action at law.

2. The English ecclesiastical law forms the basis of the law regulating the affairs of this denomination of Christians.

3. In order to vest the pastor with the ordinary rights in the temporalities pertaining to his office, it is not necessary for the congregation to be incorporated, nor that the title to the church should be lodged in such congregation.

4. A Protestant Episcopal minister was barred out of the church building on a Sunday, by the wardens and vestrymen. Held, that a verdict for substantial damages for such act in a suit by the minister should not be disturbed.

New trial refused.

Palmer v. New Jersey R.R. Co. - This was a motion to set aside a verdict of $2,500. Palmer was a passenger on defendants' steamboat ferry and railroad from New York to Newark, by the ten o'clock P.m. boat. The boat had come up close to the bridge on the Jersey City side, and had been fastened by the chains to the bridge, and the front chains to the boat had been let down. The plaintiff was in the act of stepping from the boat to the shore, in the immediate rear of the other passengers, when his foot was caught between the boat and the bridge, and badly crushed.

The court held, that the plaintiff was not guilty of want of ordinary care, although at the very instant of stepping from the boat to the bridge he did not examine particularly to see if there was a vacant space between the boat and the bridge. Also, that the verdict of $2,500 damages was not so excessive that the court would set aside the verdict. Rule to show cause was discharged.

NEW YORK. UNITED STATES CIRCUIT Court, SOUTHERN DISTRICT. — In re William Mullee. In this case, it was decided that the court had no power to discharge & party committed by it for contempt.

BlatchFORD, J. In this case, this court heretofore, on a motion for attachment against William Mullee, as a defendant in a suit in equity, pending against him and another in this court, adjudged him to have been guilty of a contempt in violation of an injunction issued by this court; and on the 27th of June, 1868, the court imposed upon him, as a punishment therefor, a fine of $2,500, and ordered that he should stand committed until such fine should be paid. He now presents a petition to the court, setting forth that he has been imprisoned under such sentence, ever since it was imposed, and that he is still in confinement under it, and that he is wholly unable to pay the fine, and praying that he may be discharged by the court from his imprisonment.


I am satisfied that the court has no jurisdiction, or power to grant the prayer of this petition; and that relief must be sought by an application to the President of the United States. By the Constitution (Art. 2, sec. 2, subd. 1), the President is invested with power“ to grant reprieves or pardons, for offences against the United States, except in cases of impeachment.” No such power is conferred upon any other officer, or upon any court: a contempt of court is an offence against the United States. In the present case, there is a judgment judicially declaring the contempt and offence. In Ex parte Kearney, 7 Wheat. 38, 43, the Supreme Court says, “When a court commits a party for a con tempt, their adjudication is a conviction, and their commitment in consequence is execution.

After a conviction and a commitment for a contempt, the court has no more power to discharge or remit the sentence than it has in the case of a conviction and commitment for any other crime or offence against the United States. And such has been the practical construction of the provision of the Constitution in regard to pardons. In the case of one Dixon, a fine was imposed upon him, by the Circuit Court of the United States for the District of Mississippi, for a contempt of court: he applied to the President for pardon ; the Attorney General (3 Opin, of Att. Gen. 622) decided that the pardoning power extended to such a case; and that the contempt was an offence within the language of the provision of the Constitution. I fully concur in this view; and it necessarily follows, that if the power of relieving from the sentence imposed on Mullee falls within the pardoning power of the President, it is exclusive in the President, and cannot be exercised by this court. For these reasons the prayer of the petition is refused. For complainant, Abbett & Fuller.

- 8 Int. Rev. Rec. 89.

PENNSYLVANIA. UNITED STATES DISTRICT Court. — Case of the District Attorney. The consideration of the Tenure of Office Act, which was so largely discussed at the trial of the President, has now come before the ordinary courts of the country in the following manner :

Charles Gilpin, Esq., was commissioned District Attorney for the Eastern District of Pennsylvania for a term of four years, which expired on the 15th of March, 1868. The Senate was then in session ; on the 20th of April, 1868, the Senate still sitting, the President nominated John P. O'Neill, Esq., as District Attorney ; but, on the 27th of July, 1868, the Senate adjourned without having confirmed Mr. O'Neill, and on the 22d of August the President issued a commission to him to hold the office, to expire at the end of the next session of the Senate. The Senate adjourned on the 27th of July under a joint resolution of the two Houses of Congress, that they should adjourn on that day until the 21st of September following, and on that day, unless it should be then otherwise ordered by the two houses, that the President of the Senate and the Speaker of the House of Representatives should further adjourn their respective houses until the first Monday of December. All that Congress did on the 21st of September was to adjourn under a joint resolution, that the presiding officers should adjourn their houses till the 16th day of October, and then, unless otherwise ordered by the two houses, should further adjourn their respective houses till the 10th day of November, and then, unless otherwise ordered by the two houses, should adjourn their respective houses till the first Monday of December, 1868.

On the 25th of September, Mr. Justice Cadwalader, the District Judge, heard an argument on the respective claims of Mr. Gilpin and Mr. O'Neill to be regarded as the incumbent in fact of the office, the learned judge expressly declaring that such an informal proceeding could not conclude the question of right.

On Oct. 8, Judge Cadwalader delivered an opinion, that neither Mr. Gilpin nor Mr. O'Neill could be regarded as an incumbent by right, and that Mr. Gilpin, having been ordered by the Attorney General of the United States to turn over his papers to Mr. O'Neill, he could not, independently of the right, be considered an incumbent in fact, and that any business Mr. O'Neill might transact for the United States, he would transact under the authority of the Attorney General, and not as local law officer.

Mr. Gilpin contended, that he was still incumbent of the office (notwithstanding the term for which he had been appointed had expired) by virtue of the first section of the Tenure of Office Act passed March 2, 1867, which provides that “ Every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, ... is and shall be entitled to hold such office until a successor shall have been appointed and duly qualified." But Judge Cadwalader held that this consequence was prevented by the fourth section of the Act which provides “ that nothing in this Act contained shall be construed 'to extend the term of any office, the duration of which is limited by law."

The case of Mr. O'Neill presented more difficult questions. These questions were three:

1. Whether the President could, during a recess of the Senate, make a temporary appointment to fill a vacancy in office in a case in which the Senate had been in session either when or since the vacancy first occurred.

2. Whether there was a recess of the Senate upon the adjournment of Congress on the 27th of July, 1868.

3. Whether the subsequent meeting of the Senate, on the 21st of September, was such a session that their adjournment on the same day terminated a coñmission granted in the recess, to expire at the end of their next session.

On the second and third questions the learned judge said,

“The second question is one upon which opinions have, I believe, differed. It may depend perhaps, in part, upon congressional usages of which my knowledge is imperfect. In the present case, there cannot have been a recess of the Senate, unless there was a recess of Congress. On every adjournment of Congress, except such an

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