Amendment of Interstate Rendition Law. The decision of the Supreme Court of the United States in Pettibone v. Nichols (December, 1906, 27 Sup. Ct. R. 111), while it announces no new principle, is of interest because of its forcible restatement of rules already established and the necessity it discloses for Congressional action to amend the statute governing interstate rendition. The appeal was from an order of the Circuit Court of the United States for the District of Idaho refusing to discharge on habeas corpus a person held in custody by the sheriff of Canyon county, Idaho, to await a trial for murder in a State court. A requisition had been issued by the Governor of Idaho upon the Governor of Colorado for the surrender of the defendant, who was in the latter State. The gist of the application, which the Supreme Court says is too lengthy to be set forth, is summarized in the following language: "It is sufficient to say that its allegations present the case of a conspiracy between the Governors of Idaho and Colorado and the respective officers and agents of those States to have the accused taken from Colorado to Idaho under such circumstances and in such way as would deprive him, while in Colorado, of the privilege of invoking the jurisdiction of the courts there for his protection against wrongful deportation from the State, it being alleged that the Governor of Idaho, the prosecuting attorney of Canyon county, and the private counsel who advised them, well knew all the time that he was not in the State of Idaho on the 30th day of December, 1905, nor at any time near that date.' The application also alleged that the accused "is not and was not a fugitive from justice; that he was not present in the State of Idaho when the alleged crime was alleged to have been committed, nor for months prior thereto, nor thereafter, until brought into the State as aforesaid.'" Taking this alleged state of facts for granted, the Supreme Court of the United States nevertheless holds that the Circuit Court had no ground for interference with the proceedings in the Idaho court or for ordering the prisoner's discharge. The opinion of the court by HARLAN, J. (from which Justice McKENNA alone dissents), reviews the previous decisions touching the question and concludes, as in our judgment logically the court was compelled to conclude, that the present decision was controlled by Ker v. Illinois, 119 U. S. 436, and Mahon v. Justice, 127 U. S. 700. In the Ker case it was held that the forcible kidnapping of the defendant from Peru involved no violation of Federal rights of the individual entitling him to discharge from custody of officers of the State of Illinois, and in the Mahon case a similar decision was made as to a person who, after the issue of a requisition by the Governor of Kentucky upon the Governor of West Virginia, was forcibly abducted from West Virginia into Kentucky by persons acting without warrant of law. Summarizing the argument, the court says: "It is said that the present case is distinguishable from the Mahon case in the fact that the illegal abduction complained of in the latter was by persons who neither acted nor assumed to act under the authority of the State into the custody of whose authorities they delivered Mahon; whereas, in this case, it is alleged that Idaho secured the presence of Pettibone within its limits through a conspiracy on the part of its Governor and other officers. This difference in the cases is not, we think, of any consequence as to the principle involved, for the question now is, and such was the fundamental question in Mahon's case, whether a Circuit Court of the United States when asked, upon habeas corpus, to discharge a person held in actual custody by a State for trial in one of its courts under an indictment charging a crime against its laws, can properly take into account the methods whereby the State obtained such custody. That question was determined in the negative in the Ker and Mahon cases." This decision is consistent with the broad theory of interpretation which the Supreme Court has applied to section 5278 of the United States Revised Statutes. Such provision in its present form assumes to prescribe duties and by implication to grant rights only as far as the State in which the prisoner was found is concerned. It was determined in Lascelles v. Georgia, 148 U. S. 537, for example, that a person surrendered for one offense may be tried in the demanding State for a different offense. When an individual is once brought within the territory of the demanding State he is generally amenable to its laws, no matter how his custody was secured. Speaking for the court, Mr. Justice HARLAN pointedly remarks: "If, as suggested, the application of these principles may be attended by mischievous consequences involving the personal safety of individuals within the limits of the respective States, the remedy is with the lawmaking department of the government. Congress has long been informed by judicial decisions as to the state of the law upon this general subject.” It is shown that "in England, in the case of one arrested for the purpose of deporting him to another country, it is provided that there shall be no surrender of the accused to the demanding country until after the expiration of a specified time from arrest, during which period the prisoner has an opportunity to institute habeas corpus proceedings." Section 5278 of the Revised Statutes of the United States should be amended in the respect indicated, so that a person sought to be removed from another State shall be guaranteed reasonable opportunity to have it judicially determined before his removal whether or not he is a fugitive from justice from the demanding State, and providing for the return of a person to the State from which he was taken, unless he shall have been afforded such opportunity. The occasion of this amendment in favor of alleged fugitives from justice might also properly be availed of for changing the Federal Rendition Law, as we have often urged, in the interests of the public, so as to take away from the Governor of the State upon which a demand is made the sole power of determining that it shall be granted. There have been several cases in which, on political grounds or because of the apprehension that race prejudice in the demanding State would deprive a fugitive of a fair trial, Governors have declined to discharge their plain duty under section 5278. At present there is no remedy for that situation, and the law of the United States may be practically nullified. Chief Justice BEASLEY, in Re Voorhees, 32 N. J. L. 141, recommended the creation of a national office, or the designation of a national officer, to execute warrants of interstate rendition. This subject was discussed at length in an editorial in this journal for December 6, 1901.-N. Y. Law Journal. : 0: Washington. BY EDWIN HIGGINS. The world moves up to nobler life, It bids us consecrate this day Who can forget the hero-sage? His fame's not writ on shifting sands- Ne'er can his life's work lose control; : 0: to Passenger. Law Notes for November, 1906, contains the following note of a recent decision of the Texas Court of Civil Appeals: Washington, when Commander-in-Chief of the Liability of Automobile Owner for Injury Revolutionary Army, was absent from Mount Vernon eight years, less three days. He served in that position, and subsequently as President of the United States, for eight years, without salary; he was reimbursed his expenses. He was President of the Convention which framed the Constitution of the United States, and his commanding influence secured its adoption. In his address to his soldiers, before the battle of Long Island, 1776, he urged them to "Resolve to conquer or to die." The skies are dark as the angry sea; On through the storm, through years of night Out through the gloom the watchwords fly: "In Routledge v. Rambler Automobile Co., 95 S. W. Rep. 749, the Texas Court of Civil Appeals decided a new question in automobile law. The plaintiff was the guest of a party who had hired from the defendant an automobile, which was in charge of the defendant's chauffeur. The party, it seems, waxed convivial, and on the run in which the plaintiff was injured their potations produced the usual result of requests for higher speed, but the plaintiff did not himself join therein. The chauffeur testified that at the time the accident occurred he was running at a rate of speed which made it impossible for the machine to round a curve in the road, of the existence of which he was well aware, but that he did not know it was so near at hand. In consequence of the chauffeur's negligence the machine ran into a fence and the plaintiff was injured. The court, in reversing a judgment for the defendant, said: 'If it had appeared that appellant had urged the driver of the automobile to go at a high rate of speed, or if he had acquiesced in the demand of his comrades for a high rate of speed, and if the driver had thereby been induced to go at an unsafe rate of speed, and the accident occurred by reason of such high rate of speed, then his negligence would have contributed to the result and he could not recover. No such state of facts appears from the record, however, and upon the evidence appellant should have recovered for some amount. Evidently the chauffeur was not induced by fear of the men to run his machine at a higher rate of speed than he desired, and if some of the men were drunk, as claimed by appellee, there was the more reason that the driver should not have heeded any unsafe or foolish suggestion made by them, but should have been careful to protect them from any harm. Appellant would not be bound by the acts and language of the other persons in the automobile unless there was evidence to show that he acquiesced in them and thereby made them his own. He was a guest on that occasion, and was not in a position to give orders as to the movements of the automobile, nor was it shown that he did so. Even if he had heard the request for a higher rate of speed, he was not in a position to demur to the acts and language of those who were entertaining him.' No authorities are cited, but the ruling seems to be sound in principle and in line with the weight of authority. (See 7 Am. & Eng. Encyc. of Law, 2d ed., 448, notes 1, 2.)" We concur with our contemporary's view as to the correctness of this decision. The reference to the American and English Eycyclopedia of Law brings out merely cases disapproving of the old doctrine of Thorogood v. Bryan, 8 C. B. 115, which case held that the contributory negligence of the driver of an omnibus might be imputed to a passenger and has been universally repudiated in the American courts. The present Texas case is a little different because the plaintiff was the guest of other passengers at whose instance the dangerous rate of speed was maintained. Nevertheless, on the facts, it seems not improper that the plaintiff should be permitted to recover. This decision recalls a discussion had in this place on May 24, 1905, on Liability of Livery Stable Keeper for Negligence of Driver." In the American and English Encyclopedia of Law (2d ed., vol. 19, p. 431), it is laid down as follows: A livery stable keeper who lets a horse or team and vehicle and furnishes his own driver is bound to exercise ordinary care and skill to provide a careful and competent driver. If an accident occurs as a result of the way in which the driver performs his duties the liveryman will be liable for damages when, and only when, he has failed to exercise ordinary care and skill in the selection of the driver." We said at the time that the two cases cited in support of this paragraph of the Encyclopedia did not necessarily bear out the abstract rule so formulated, and it would seem that such rule is incon sistent with the doctrine laid down in this recent Texas case. In our former editorial we referred to the then recent decisions of the Supreme Court of Tennessee in McGregor v. Gill, 86 S. W. 318, and of the Supreme Court of Errors of Connecticut in Stanley v. Steele, 60 Atl. 640, in which a livery stable keeper was exonerated from liability. In both opinions the element of the selection of the particular carriage and horses or the particular driver by the patron was emphasized. Some of the other cases which have been cited in support of the freedom from liability merely emphasize the proposition that a livery stable keeper is not a common carrier. Summing up the situation we said: "In cases where the patron does exercise the right of selection there is some ground for exonerating the owner of the vehicle and horses from liability for the driver's negligence. In case, however, where the hirer takes the driver, as he does the horses and vehicle, without inquiry or selection, relying entirely on the proprietor, there does not seem to be any reason why the rule respondeat superior should not apply if injury result from lack of ordinary care on the driver's part." We can see no difference in principle between an automobile hired with its chauffeur and a carriage and horses hired with a driver, and in the one case as in the other it would seem that the master should be liable for the servant's negligence.-N. Y. Law Journal. : 0: Heresy Trials in England. The condemnation of the Rev. Rr. Algernon S. Crapsey for heresy suggests a comparison with the very different fortune which would probably have befallen him if he had been a clergyman of the Established Church in England. There his recent utterances, which have led to his dismission here, would have caused little comment, and probably no attempt would have been made to discipline him. This comes from the important difference between an established and an independent church. In this country any church which has a creed can discipline its clergy for heresy, with no fear of any superior authority which can overrule its action. But in England every clergyman of the Established Church has the right of appeal from the judgment of an ecclesiastical tribunal to the courts of law, especially to the Judicial Committee of the Privy Council, which is the highest court of appeal in the kingdom. This body has, in several important cases, reversed the judgment of the ecclesiastical courts, and thus established precedents which give the clergy of the English Church a liberty of expressing opinions on matters of doctrine which would be impossible or dangerous in any orthodox church in this country. ing assertions, must not, as of course, be taken to bear an absolute and unconditional sense." The first case of this nature which came before the Judicial Committee on appeal is that of Gorham v. the Bishop of Exeter. The Rev. George Gorham, A much more important case was the process some time fellow of Queen's College, Cambridge, who against two of the writers of the celebrated "Essays had been ordained as priest in 1812, was in 1846 and Reviews," published in 1860 by seven Oxford offered a living in the gift of the crown by the Lord theologians, among whom were the late Archbishop Chancellor. The Bishop of Exeter, to whose dio- Temple (the editor of the volume), Benjamin cese the living belonged, refused his assent to the ap- Jowett and Mark Pattison. This volume roused a pointment, on the ground that Mr. Gorham was "of tempest in Oxford and in a great part of the church, unsound doctrine concerning that great and funda- which it is hard to understand now. The views on mental point, the efficacy of the Sacrament of Bap- various religious questions therein expressed, tism, contrary to the plain teachings of the though they would not cause much excitement now Church of England in her Articles and Liturgy." in England, were bold and radical at that day. The The case came before the Court of Arches, in which book was severely handled, even by some of the more the bishop was sustained. Mr. Gorham at once ap- conservative Unitarians in this country. The North pealed to the Judicial Committee, which heard the American review, then edited by Dr. Andrew P. Peacase at a meeting at which Lord Campbell was pres- body, published a review of it under the title, “The ent, while the Archbishops of Canterbury and York Oxford Clergymen's Attack on Christianity," written and the Bishop of London assisted "by special com- by Professor Bowen of Harvard College. In this armand of her Majesty the Queen." The judgment, ticle the essays of Dr. Temple and Professor Jowett from which one of the council dissented, declared were selected for the severest criticism. It was felt that "the Lord Bishop of Exeter has not shown suf- in ecclesiastical circles in England that some serificient cause why he did not institute Mr. Gorham ous action must be taken at once to suppress this to the vicarage." This judgment was approved and rebellious spirit in the very heart of the church, in ordered to be "duly and punctually observed, com- Oxford itself. Two of the seven writers, Professor plied with, and carried into execution" by an Order Rowland Williams and the Rev. H. B. Wilson, were in Council passed by the Queen, Prince Albert, the at once summoned before the Court of Arches, and Lord Chamberlain, Lord John Russell, Lord Palmer-long passages were quoted from their essays which ston and others. The case was afterwards brought were believed to contain heretical and forbidden docbefore the Court of Queen's Bench by the bishop, who trines. Of the articles of charge several were reundertook to question the authority of the Queen injected wholly or partially, and only three in each Council, and again in the Couris of Exchequer and Common Pleas, but without success. The judgment of the Judicial Committee contains an elaborate historical account of the doctrines held by the church on the subject of baptism, leading to the conclusion that great latitude has here always prevailed and been permitted. It says: "It appears that opinions, which we cannot in any important particular distinguish from those entertained by Mr. Gorham, have been propounded and maintained, without censure or reproach, by many eminent prelates and divines. . We do not affirm that the doctrines and opinions of Jewel, Hooker, Usher, Jeremy Taylor. Whitgift, Pearson, Carlton, Prideaux and many others, can be received as evidence of the doctrine of the Church of England; but their conduct, unblamed and unquestioned as it was, proves, at least, the liberty which has been allowed of maintaining such doctrine." The judgment also contains this passage, with reference to the burial service of the church: "In this service there are absolute expressions implying positive assertions; yet it is admitted that they cannot be literally true in all cases, but must be construed in a qualified or charitable sense. It seems manifest that devotional expressions, involv case were included in the judgment. Dr. Williams was charged with quoting with approval a passage from Chevalier Bunsen's "Gott in der Geschichte " (which he was reviewing), referring to the Bible as "an expression of devout reason, and therefore to be read with freedom.” Dr. Williams was further changed with using the following language: "Why may not justification by faith have meant the peace of mind or sense of Divine approval which comes of trust in a righteous God, rather than a fiction of merit by transfer?" The prosecution held that all this was inconsistent with the articles of religion, which “ impose the obligation of acknowledging that the Bible, in matters essential to salvation, is the written Word of God; that it was written by the interposition of the Almighty, supernaturally brought to operate." Mr. Wilson was charged with declaring and affirming in effect that "the Scriptures of the Old and New Testament were not written under the inspiration of the Holy Spirit." He was also accused of declaring that "after this life and at the end of the existing order of things on this earth there will be no judgment of God, awarding to those men whom he shall then approve everlasting life or eternal happiness, and to "And those men whom he shall then condemn everlasting death or eternal misery," whereas the Creed of St. Athanasius contains the following words: they that have done good shall go into life everlasting, and they that have done evil into everlasting fire." The Court of Arches condemned both of the accused clergymen, and the Dean of Arches sentenced each of them to suspension for one year. Both appealed without delay to the Queen in Council. The Judicial Committee revised the cases with great care, and after more than a year, the Lord Chancellor gave judgment in February, 1864, rejecting the articles of charge and reversing the sentences imposed by the Court of Arches, and adding the comforting words: Inasmuch as the Appellants have been obliged to come to this court, their Lordships think it right that they should have the costs of this Appeal." Besides the Lord Chancellor and three other learned lords, there were present at the hearing the Archbishops of Canterbury and York and the Bishop of London. The two archbishops dissented from the judgment on two of the six articles of charge. In the official report of this case, the following points are mentioned (among others) as decided or affirmed by the judgment: cellor had given his judgment, the church was again convulsed by the prosecution of Bishop Colenso at the Cape of Good Hope. Colenso had published a book on the Epistle to the Romans, and another on the pentateuch and the Book of Joshua, both of which were thought by many to contain heretical and dangerous doctrines. Colenso was Bishop of Natal, and he had been, by letters patent of the crown, made subject and subordinate to the Metropolitan Bishop of Cape Town, Dr. Gray. In July, 1863, when Colenso was in England, he was summoned to appear before the Bishop of Cape Town "to answer certain charges of false, strange and er roneous doctrine and teaching," based on the two books above mentioned. In October, after consult ing counsel in London, Colenso wrote a formal letter to Dr. Gray, denying the latter's jurisdiction over him, protesting against the proceedings against him, and declaring his intention of resisting the execu tion of any adverse judgment which might be delivered in his case. He positively refused to appear in person before the bishop's court, but authorized his attorney to represent him, "not to argue, but simply to protest." To avoid delay, he admitted that he published the passages in question, but denied that this act constituted any offence against the laws of the church. Dr. Gray, with two other "(1) It is not penal in a clergyman to speak of bishops, then held a court and listened to the charges 'merit by transfer' as a fiction. "(2) It is not penal in a clergyman to deny the proposition that every part of every book of Holy Scripture was written under the inspiration of the Holy Spirit, and is the Word of God, that proposi- | tion not being found in the Articles of Formularies of the church. (3) There is not found in the three Creeds, the Absolution and the Burial and Commination Services, any such distinct declaration as to require the court to condemn as penal the expression of hope by a clergyman that even the ultimate pardon of the wicked who are condemned on the day of judgment may be consistent with the will of Almighty God." These decisions are now a part of the law of England. They naturally put a stop to the plan of next prosecuting Professor Jowett for the heretical doctrines of his essay on the Interpretation of Scripture, which our Unitarian reviewer found so dangerous. His enemies persecuted him for a time by curtailing the emoluments at Oxford, which did him little harm. He was soon made Master of Balliol, and afterwards Vice-Chancellor of the University. He always remained a friend of the most distinguished men in England, in both church and state, and when he died, the Archbishop of Canterbury, his former companion in heresy, officiated at his funeral. In 1863, while the case against the "Essays and Reviews" was in court, but before the Lord Chan against Colenso, for whom no defence was made. He had probably learned more about the law of the case in London than was suspected at Cape Town. The published proceedings of the trial fill 405 pages. Judgment was given against Colenso; and he was sentenced to be deposed from his office as bishop, and prohibited from the exercise of any divine office in the province of Cape Town. His attorney then protested against the legality of the proceedings and the validity of the judgment, and at the same time gave formal notice that "the Bishop of Natal" would appeal from the judgment and resist its execution by all lawful means. The final result of the proceedings was a decision by the Judicial Committee of the Council that the Bishop of Cape Town had not jurisdiction, and that his judgment against Colenso was Inull and void in law." Colenso returned from England to Natal in 1865, and was warmly welcomed there by his friends. He remained there as bishop until his death in 1883, molested by petty annoyances from Dr. Gray until the death of the latter in 1872. In 1874 he revisited England, where he was warmly welcomed, though some of the unreconciled authorities of the church still treated him as a proscribed beretic. The Bishop of London ordered that he should not be allowed to preach in his diocese, whereupon the Dean of Westminster invited him to preach in the Abbey whenever he pleased. This invitation was, however, de |