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also, Brinkmeyer v. Evansville, 29 Ind. 187; Western be contrary to equity for the subsequent incumbranCollege of Medicine v. Cleveland, 12 Ohio St. 375; Hill cer to take advantage of the mistake. In such a v. Boston, 122 Mass. 344.

case the action of the court in restoring the lien can

not be called depriving the other lienor of his rights. In Attorney-General ex rel. Haight v. Love, 10 | All the court does, or assumes to do, is to adjust beVroom, 476, the Court of Errors and Appeals of New tween the parties their respective equities, and this Jersey holds that when no term is fixed by law for it can do in the exercise of an undoubted jurisdicthe commencement of an official term, it begins to tion, and without in the least venturing upon doubtrun from the date of the appointment. In State v.

ful ground. See Columbia Bank v. Jacobs, 10 Mich. Constable, 7 Ohio, 7, it was held in reference to an

349; Bennett v. Nichols, 12 id. 22. elective office that when no time is mentioned in the law from which the term shall commence it must

In Hardman's Appeal, 5 W. N. Cas. 347, the Subegin to run from the day of election. In Marbury


Court of Pennsylvania passes upon the quesv. Madison, 1 Cranch, 137, it is said that when a per- tion of domicile. The definition of Vattel that son appointed to any office refuses to accept, the

a domicile is a fixed place of residence with an insuccessor is appointed in the place of the one who tention of always remaining there is said to be too lim declined to accept, and not in the place of the per-ited to apply to the migratory habits of the people son who had previously been in office, which indi- of this country. So narrow a construction would cates that the term of office in such case begins to deprive a large proportion of our people of a run from the appointment even before acceptance. domicile. The definition best adapted to our habits And the general rule that the term of an officer be- is that it is that place in which a person has fixed his gins to run from the date of bis election is recog- habitation without any present intention of removing nized in Marshall v. Harwood, 5 Md. 423, and in therefrom. In this case a decedent, a bachelor who Hughes v. Buckingham, 5 S. & M. 632. In the case of

was born in another State and lived there until 1871, Jump v. Spence, 38 Md. 1, which may be claimed to sold all his land there, and taking his movable be contrary to this rule, it is held simply that the property with him, went to live with his brother-inperson elected could not perform the duties of his law in Pennsylvania, where he remained until the office until he had complied with the provision of time of his death in June, 1872. When he went to the State Constitution requiring him to take an Pennsylvania he told his brother-in-law that he inofficial oath. See, however, Brodie v. Campbell, 17 | tended to buy another farm in the State he came Cal. 11, which appears to be in conflict with the from, and that he wished to remain with the brothdoctrine of the principal case.

er-in-law until he could suit himself. He refused to

be assessed for taxation in Pennsylvania, saying that In French v. Stone, 6 Cent. L. J. 405, the Supreme he did not wish to become a citizen of that State. Court of Michigan holds that where a mortgagee He, however, made no purchase of land in the has discharged his mortgages of record, receiving in other State. The court held, however, that the desatisfaction a conveyance of part of the mortgaged cedent had a domicile in Pennsylvania, and that his lands, he is entitled in equity to have his mortgages property must be distributed according to the laws reinstated as against a lien acquired on all the lands of that State. The court says that a mere intention subsequent to the mortgages, and of which he, when to remove permanently without an actual removal giving the discharge, had neither actual nor con- works no change of domicile, nor does a mere structive notice. The questions were raised whether removal from the State, without an intention to the subsequent incumbrancer acquired by the dis- reside elsewhere. But when a person sells all his charge & vested right which was entitled to constitu- land, gives up all his business in the State in which tional protection, and whether equity could create a he has lived, takes his movable property with him, lien upon lands. The court answered the first question and establishes his home in another State, such acts in the negative, holding that the subsequent incum- prima facie prove a change of domicile. Vague and brancer had no vested right that was entitled to uncertain evidence cannot remove the legal preprotection. As to the power to create a lien it says sumption thus created. The case follows Abington that a lien discharged by mistake is in contemplation v. North Bridgewater, 23 Pick. 170 where it is said of equity still in existence, and the decree only de- that "it depends not upon proving particular facts, clares and enforces it. It has been said that "courts but whether all the facts and circumstances taken do not regard rights as vested contrary to the justice together, tending to show that a man has his home and equity of the case.” See State v. Newark, 25 or domicile in one place, overbalance all the like N. J. 197. Although the Legislature cannot take proofs tending to establish it in another.” See, also, away a statutory lien (Gunn v. Barry, 15 Wall. Wilbraham v. Ludlow, 99 Mass. 587; Harris v. Firth, 610), where through a mistake of fact a party hold- 4 Cranch, 710; North Yarmouth v. West Gardiner, ing a prior lien divests himself of such lien, it would | 58 Me. 207; 4 Am. Rep. 279.


perpetrators of the crime is not an accomplice. EVIDENCE OF ACCOMPLICES.

State v. McKean, 36 Iowa, 343. So likewise a T has been observed in many of the celebrated person who has no knowledge of a larceny until

after its commission, and who buys the stolen goods country during the last few years, that the testi- by direction of an officer with funds supplied by an mony of an accomplice has played an important officer in order to detect the thief, is not an acpart, and some of the most hardened criminals complice whose testimony needs corroboration. charged with high crimes could not have been con- People v. Barrie, 49 Cal. 342. victed but for such testimony. But we cannot say In Alabama a partner of one of the players in his that all convictions by the aid of such testimony winnings or losses in the game in which the defendant are just, or that by its assistance the innocent may played and who advanced money to the defendant, not sometimes suffer. Yet it is thought the stern which was used by him in betting on the game, is necessities of good government demand the policy an accomplice within the Statute (Code, § 3600) in the administration of Criminal Law, for without which forbids a conviction on the uncorroborated such testimony it is sometimes impossible to detect testimony of an accomplice. English v. State, 35 many crimes the most detrimental to society, and Ala. 428. therefore the evidence of accomplices has at all Å bystander does not become an accomplice by times been admitted either from a principle of public mere approval of a murder committed in his policy, or from judicial necessity, or from both.

presence, and the charging of the jury that if the They are no doubt requisite as witnesses in particu- defendant was present aiding, or abetting, or lar cases; but it has been well observed that in a

counseling, or inciting, or encouraging, or approvregular system of administrative justice they are ing" the act; he was an accomplice is an error, and liable to great objections. “ The law,” says one of the court must reverse and order a new trial. State the ablest and most useful modern writers (Chitty) v. Cox, 65 Mo. It is for the jury to determine upon criminal jurisprudence, “confesses its weak

whether or not a witness jointly indicted with the ness by calling in the assistance of those by whom | defendant is an accomplice. State v. Schlagel, 19 it has been broken. It offers a premium to treach

Iowa, 169. ery and destroys the last virtue which clings to the

The practice now adopted in England is for the degraded transgressor. On the other hand it tends magistrate before whom the accomplice is examined, to prevent any extensive agreement among atrocious

or the court before which the trial is had, to direct criminals, makes them perpetually suspicious of

that he shall be examined, upon an understanding each other, and prevents the hopelessness of mercy

that if he gives his evidence in an unexceptionable from rendering them desperate.” People v. Whipple, manner, he shall be recommended for a pardon. 9 Cowen, 709.

Roscoe's Cr. Ev. 124. In Scotland the course purWho are accomplices : The definition of the term sued with regard to an accomplice who has been "accomplice" in legal phraseology has not been the admitted against his confederate, differs from that same in different cases.

adopted by the English law, and seems better calIn Lindsey v. People, 63 N. Y. 143, an accomplice culated to further the ends of justice. There by the is defined as one of many equally concerned, or a very act of calling the accomplice and putting him copartner in the commission of a crime. The term on the witness stand the prosecutor debars himself includes all the particeps criminis whether considered from all right to molest him for the future with in strict legal phraseology as principals or acces

relation to the offense charged. sories.” Bishop gives the following definition: “ “A

“This privilege is absolute and altogether indeperson to be technically an accomplice must, it ap- pendent of the prevarication or unwillingness with pears, sustain a relation to the criminal act that he which the witness may give his testimony. Justice, could be indicted jointly with the others for the indeed, may often be defeated by a witness retractoffense." 1 Bishop on Cr. Pro., 1084; Drum v. ing his previous disclosures, or refusing to make People, 29 N. Y. 523–527. To constitute an accom- any confession after he is on the witness stand; but plice, the person charged as such must have an in

it would be much more put in hazard if the wittention of committing the crime, mere apparent ness was sensible that his future safety depended on concurrence is not enough. United States v. Henry, the extent to which he spoke out against his asso4 Wash. C. C. Rep. 428. One who purchases intox- ciates at the bar." Alison's Prac. Cr. Law of Scot. icating liquor sold contrary to law, for the purpose 453. But in the United States an accomplice, by of prosecuting the seller for an unlawful sale, is not turning informer and testifying for the prosecution, an accomplice. Commonwealth v. Douning, 4 Gray, acts under the implied condition that he earns an 29. A detective who acts without any felonious exemption from punishment by declaring the whole intent but solely with the view of discovering the truth; but how are we always to know he tells the truth, especially when it is not an absolute require rested upon judicial discretion and is not at the ment that he must be corroborated ?

pleasure of the public prosecutor. An accomplice If testifying to an untruth would, in the opinion under an indictment for another offense, as a genof the accomplice, be more likely to bring him ex- eral rule, will not be admitted as a witness when emption from punishment — which is generally the such fact is known to the court, although he testify question of greatest importance with persons of such in good faith against his accomplice on the trial character — would it not be a most powerful incent- upon one indictment, he may be tried upon the ive for him to do so ? But is he not more likely to other, and upon conviction punished. It would be tell the truth than otherwise, even though he is con- a fraud upon the court and an obstruction of public scious there is no evidence to corroborate him ? justice if the public prosecutor should enter into an These are speculative questions, but under the cau- agreement unsanctioned by the court (if such sanction exercised by a prudent court, in its instructions tion could be given in such a case) offering immuto the jury, no great harm need be feared. Still, we nity or clemency to several defendants in several believe that if, after having made his confession to indictments upon the condition that one of them the prosecuting attorney, he should be sworn on became a witness for the prosecution upon still behalf of the prosecution, with the full understand other indictments. Wright v. Rindskoff, 13 Wis. ing that in any event he could never be punished The court would also undoubtedly interfere by for the offense charged, it would be much the safer refusing to try a prisoner who had testified as State's rule.

evidence against another if it should appear that the In England the court usually considers not only prosecuting officer was pursuing him in violation of whether the prisoners can be convicted without the the express or implied understanding. Bishop's Cr. evidence of the accomplice, but also whether they Pro., § 1076, note. can be convicted with his evidence. If therefore " There is no practice in this State requiring a there be sufficient evidence to convict without previous application or a formal order of the court his testimony the court will refuse to allow him to permit an accomplice to become a witness for the to be admitted as a witness. Roscoe's Cr. Ev. 120. State.” 63 N. Y. 143; 12 Hun, 215. It is not to be Accomplices may in all cases by permission of the understood, however, that in all conceivable situacourt be used by the government as witnesses in tions of an accomplice before the court that it is in bringing their associates to punishment. Lindsay v. the discretion of the court to allow him to testify People, 63 N. Y. 143. And although it is in the dis- for the People. The true rule as to competency cretion of the court to admit or refuse, yet in prac- seems to be, When the persons indicted are all put tice this matter is left almost entirely to the on trial together, neither can be a witness for or discretion of the prosecuting attorney. This at against the others; but when they are tried separleast is the practice in the State of New York, and ately, though jointly indicted, the People may call the court is not likely to interfere except in a case those not on trial, though not convicted or acquitwhere under all the surrounding circumstances it seems ted or otherwise discharged, with the permission of to be necessary, as in the case of People v. Whipple, the court; but they cannot be called as witnesses 9 Cowen, 708 (1827). In that case the district at- for each other though separately tried, while the intorney moved the court that Jesse Strang, who had dictment is pending against them. If acquitted just been convicted by the verdict of a jury, as a they may be examined, and even if convicted, unless principal, in the murder of which Mrs. Whipple it be for a crime which disqualifies, and then senstood charged as accessory before the fact, should be tence must have followed the conviction. When all brought up and examined as a witness on the part are tried together if the People desire to swear an acof the prosecution. This was objected to by the complice, he must in some way be first discharged prisoner's counsel, and the court, in a very elaborate from the record. Wiron v. The People, 5 Park. Cr. opinion discussing the circumstances fully, denied 126; Taylor v. People, 12 Hun, 213-214. the motion. The main ground for the denial of When the accomplice is indicted separately from the motion seems to have been that Strang was the the rest he is of course a competent witness for the greater criminal of the two, even conceding Mrs. prosecution, though no disposition has been made Whipple to be guilty of the charge brought against against him. her, and that by allowing him to testify there would In fact, with reference to his competency, an acbe an implied condition of recommendation of par-complice jointly indicted and separately tried is in don if he told the truth. The court propounded the the same condition as one separately indicted or one following significant question: “Why then should not indicted at all. 1 Bish. on Cr. Pro., $$ 1079, we select her for punishment in preference to him?" 1080. One of several persons indicted, although So in a later case where it was sought to make an

he have pleaded and defended separately, is not a accomplice a witness for the government upon an competent witness for his co-defendants unless imimplied promise of pardon, the court held “that it mediately acquitted by a jury, or a nolle prosequi en

tered, or convicted and sentenced for an offense der the French law, in full enjoyment and possession which would not disqualify. McIntyre v. People, 9

of all public rights. Political rights are so wholly difN. Y. 39.

ferent in their nature that not only do aliens have no

part in them, but French citizens themselves enjoy If a witness who has become State's evidence

them only upon certain conditions. As with us, cititestifies corruptly, or makes only partial disclosures, zenship alone does not entitle any one to the exercise he may then, having failed to perform the condition of political functions, although citizenship is the funon which he was admitted, be proceeded against damental prerequisite. In the enjoyment of civil for his own crime; but he is not thus liable simply rights, nationality is the controlling element, and who

soever is French is entitled to the exercise of them because of a failure by the jury to convict bis

all. Thus, as to public rights we find absolute equality associates. “It rests,” said Lord Mansfield, " on between native and alien, and as to political rights iuusage, and on the offender's own good behavior, superable inequality. In considering how far civil whether he shall be prosecuted or not.” And where rights may be availed of by aliens, we have to distinan accomplice, after making a confession on the guish between the several classes of aliens. First,

those who reside in France without special authority usual understanding, refuses to testify, this confes

of the French government, ordinary aliens, and secsion may be given in evidence against him on his

ond, those who have acquired the benefits of a special trial. Commonwealth v. Knapp, 10 Pick. 477. authorization, privileged aliens.

As the accomplice is entitled to no protection Let us consider first the case of the ordinary alien, in respect to other offenses, he is not bound to and we may now turn to that article in the Civil Code answer questions relative to such offenses on bis by which the codifiers hoped to remedy the errors of cross-examination. It is not usual to admit accom

the revolutionary system. Article 11, the one referred

to, permits aliens to enjoy the same civil rights in plices who are charged with other felonies. In the

France as are accorded to the French by the treaties earlier State trials of England, the protection and with the nation to which the alien belongs. We find, countenance afforded by the courts to accomplices, in two articles of the Code, an application of this sysspies and informers, was often carried to great tem as its authors intended it. By the provisions of lengths; but in modern times a closer scrutiny of Article 726, in default of a treaty, an alien would be the evidence from such a source is required, and

incapable of acquiring, by succession, the law not per

mitting him to become the heir even of a Freuchman. more safeguards for the protection of the innocent

But he was not prohibited from transmitting his propestablished, so that the conviction of a prisoner byerty, although only his kinsmen, who were Freuch, the aid of an accomplice at the present time, upon would be called to the succession, for according to the such weak and insufficient evidence as brought article aliens could not succeed. By the terms of Algeron Sidney to the block, is almost an impossi- Article 912, an alien, in the absence of a treaty, might bility.

acquire neither by testament nor by donation, but this did not prevent his disposing of his property so long

as he did so only in favor of Frenchmen. Thus, acDROIT D'AUBAINE AND THE CONDITION OF cording to the Code, aliens could acquire neither by ALIENS IN FRANCE.

succession, by testament, or by donation, except where it was made possible by treaty reciprocity.

However, this triple incapacity no longer exists. It MOURLON, whose Repétitions du Code Civil, was finally removed by the law of 1819, which is still

in force. This law is as liberal as was that of the Conreate is based, points out, at the opening of his chapter stitutional Assembly, but proceeded from wholly difon the enjoyment of civil rights, that these rights are ferent motives on the part of its authors. France was of three kinds: civil properly so called, political, and in need of capital to supply its financial and industrial public. Civil rights, as contra-distinguished from po- wants, and the rigor of the Code being considered as litical rights, flow out of private law, and may be working a serious disadvantage to the nation, Articles defined as those “faculties which persons are called 726 and 912 were formally repealed. Since then aliens upon to exercise in their relations with other persons."

have been able to succeed and take, the same as Such are the rights of property, and the rights spring- Frenchmen, and independent of all treaties. But, ing out of domestic relations. Political rights, on the says Mourlon, by the abrogation of Articles 726 and other hand, are such as flow necessarily from the con- 912, the law of 1819 did not wholly do away with the stitutional law, or the law regulating the relations be- system of reciprocity established by Article 11. Artitween the government and the governor. Of these cles 726 and 912, in effect, did not alone constitute the the elective franchise is the best example. But there entire system. They were only applications of it. are rights which, properly speaking, are neither civil The principle remains then so far as all other civil nor political, such as the right to freedom of speech rights are concerned." and liberty of conscience. They are not civil because Passing for the present certain incapacities of aliens they do not go to constitute relations between indi- expressly mentioned in the Code, we are called upon viduals. No more are they political, for they are exer- to consider shortly a controversy of long standing cised outside of all relations to the government. among French lawyers. It is held by one school that Mourlon, with other civilians, classes these as public aliens enjoy only those civil rights which are conceded rights.

to them either by treaty between France and their Now, to somewhat forestall the sequel, every one own governments or by the express or implicit prowithout distinction of age, sex or nationality, is, un- vision of the French law; incapacity being the rule,



capacity the exception. It is claimed that if this pear to require an examination of the treaty of 1853, theory were true, in default of a treaty, an alien not by which it was undertaken to regulate this matter so authorized to reside in France could be neither pro- far as the relations between citizens of France and the prietor nor creditor; could neither marry nor sue; United States were concerned, but such examination but the advocates of the theory meet this objection by would disclose the existence of no exceptional right or the introduction of the element of natural law. They privilege in favor of Americans, and not existing unclaim that the rights of property, family, and actiou, der the general law. being naturul rights, it is not requisite that they should Allusion has been already made to a second or privbe expressly conceded, since it is civil rights only ileged class of aliens, those authorized by government which require such explicit concession. The second to fix their domicile in France. So far as the enjoytheory is that aliens enjoy the same civil rights as ment of civil rights is concerned, this class of aliens French citizens, except such as are exclusively ac- are on an equality, to all intents and purposes, with corded to the latter, and certain exceptional rights French citizens, but the equality is not quite perfect. not appertaining to ordinary aliens, except where Thus their legal status is still governed by the law of accorded by treaty conformably with the reciprocity their own country, if they have any, otherwise by principle of Article 11; capacity thus being the rule,

French law. And again, French citizens, deriving and incapacity the exception. Without discussing their rights from the law, can only be deprived of them the merits of this controversy, it may be said that the by process of law; but all such exceptional rights as latter theory is the prevailing one. The practical re

accrue to aliens because of a special authority to ensults of the two theories are almost indistinguishable,

tablish a residence in France may be withdrawn by and it is a condemnable feature of the first, that to the governmental power which has granted them. justify its practical value it has to have recourse to the Further, French citizens enjoy their civil rights alvague and unscientific dogma of the law of nature. ways, in or out of France; aliens only upon condition Mourlon thus sums up the rights of ordinary (not

of residence in France. especially privileged) aliens in France:

Authority to become domiciled in France may be so1st. They enjoy all public rights; but,

licited by any alien, even by those who without desir

ing to be naturalized wish to settle in the country for 2d. They are excluded from all political rights. a longer or shorter time, and it is for the government

to determine whether such privilege shall be granted. 3d. They are possessed of all civil rights which the

In this respect the French law is more liberal than our law has not withheld from them. It prohibits to them

own under which all special privileges look toward ulneither the right of property nor the right of mar

timate naturalization. As for the rules and principles riage; the right of creditorship; the right of action,

of naturalization in France, they are not within the either as defendant or as plaintiff-except that in the

scope of this essay. Suflice it to say that aliens may latter case they are under an obligation to furnish an undertaking for costs, etc. (judicatum solvi) the right

acquire citizenship by benefit of law, as by birth, mar

riage, etc.; by naturalization, as after a residence of of standing in loco parentis (droit de tutelle); uor, finally,

three years after authorization; or by the annexation the right of adoption. Consequently they may marry;

of territory to France. sue in their own name and without the intermediation

Such, then, is the spirit of the French law. The of a special curator; acquire and dispose of property

alien may never participate directly in those rights by the modes of acquisition and disposition provided

which flow out of the personal law, by which law perby French law and not expressly omitted from them;

sonal capacity, the peculiar constitution of the family, be either obligors or obligees in contracts with French

minority and majority, the legitimacy of children, citizens; be guardians (tuteurs), or have guardians ap

marital authority and parental power, are regulated poiuted over them; and adopt or be adopted.

and controlled; but in this respect continues to be The result of this is that the law stands practically governed by the particular laws of his own nation. where it did after the reforms of the constituent as- “But," in the words of M. Laferriere, “the right to sembly, and is essentially as liberal. But by summa- contract, to sell, to acquire property, movable and rizing the rights, other than political, which aliens are immovable, to succeed to his next of to transmit not permitted to enjoy, and remembering that they by way of succession, donation, testament, and generevjoy all civil rights save these, we may get a more ally all the rights which are inclosed in the vast circle adequate and exact notion of the state of the law. of commerce and of prosperity," are placed at the dis

posal of “foreigners aud of the great humau family," First. They have no benefit of the privilege actor se

but to be exercised by them conformably to the terriquitur forum rei.

torial laws of France. Second. They can appear as plaintiffs in an action In respect to liberality toward strangers, France, toonly upon condition of giving the judicatum solvi. day, stands in advance of the rest of Europe. But Third. They cannot take advantage of a general as

throughout christendom the principle of isolation,

which dominated in ancient societies, has given way signment to their creditors.

to that of intercommunion and interdependency. If Fourth. Their status and capacity are governed not there are in our laws, and in those of the great Euroby the French law but by that of their own country. pean States, survivals of principles inherited from the

Prior to 1867, they were subject to arrest in civil ac- old time when all beyond the borders were enemies, tions where in like circumstances citizens were ex- we may still rest confident that being opposed to the empt; but this is no longer the case.

fundamental laws of social progress as defined by Article 11 being still operative to the extent already our legists and sociologists, these lingering relics of pointed out, and requiring treaty reciprocity for cer- barbarism will be outgrown, and laws of alienage be tain purposes, to acquire knowledge of the measure of

practically regarded as mere legal archaisms. the civil rights of an American in France, it would ap


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