tion of law; his duties were occasional and temporary, prescribed by his superior, the President of the United States. As was said by Chief Justice MARSHALL in Little et al. v. Barrieme et al., the instructions to Mr. Blount cannot change the nature of the transaction or legalize any act which, without those instructions, would have been a plain trespass. Mr. Blount acted at his peril. As well might Strafford have pleaded the King's writ as Mr. Blount might plead the President's commission. Neither Charles Stuart nor Grover Cleveland can be above the law.

From the language of the Constitution of the United States, from the language of the Acts of Congress, from the language of the Supreme Court, from precedents, from the nature of American institutions, it can only be concluded that the President of the United States has no power to appoint a paramount diplomatic agent except by and with the advice and consent of the Senate.

THE TESTIMONY TAKEN BEFORE A CORONER CONSIDERED AS EVIDENCE.

By WM. A. MCNEILL, Esq.

The decision of the coroner, excluding Col. Ainsworth and his counsel from the deliberations of the jury, impanelled to inquire into the causes of the late disaster at Ford's Theatre, has been the occasion of comment and discussion, not only within legal circles, but also among those who have viewed the situation from the standpoint of a layman. With all due deference to the magistrate who has made this ruling, we beg leave to enter our respectful protest against his decision, and in so doing, may unintentionally, though not unwillingly, accede a greater importance to the coroner's office than the Washington official has ever claimed. Upon a thorough investigation of the subject of the coroner's office, we have concluded:

1st. That a coroner holding an inquisition super visum corporis is a court of record.

2d. His inquest is in the nature of a proceeding in rem, and is prima facie evidence of all facts found therein, and in a civil case throws the burden of proof on the party alleging the contrary.

38. All depositons or testimony taken before the coroner's inquisition, whether reduced to writing or not-is evidence for or against any one who may be thereby affected.

I. THE CORONER'S COURT IS A COURT OF RECORD. We are impressed with the importance of this office whenever it is mentioned by the old common law writers. Coke (Institutes 81) calls him the vita republice pax. The same authority (2 Institutes and 4 Institutes) informs us that: "He was so called because he hath to do principally with the pleas of the crown, or such wherein the king is more immediately concerned." In this light the Lord Chief Justice of the King's Bench is the principal coroner of the kingdom."

"He (the coroner) must have a sufficient landed estate to uphold the dignity of the position:" The “Mirror” Chap. 1, Sec. 2. Under the old common law he (the coroner) could hold pleas of the crown:" The "Mirror" Chap. 1, Sec. 3.

The right to hold pleas of the crown was taken from the coroner by the Magna Charta, but was restored by the statute de officio coronatis IV, Edward I. Among other things the statute directs: "If any man be slain, and the culpable man be found, he shall be amerced, all his goods and corn within his grange, and if a freeman, his land shall be valued and this escheat to the crown. Coroners shall take the testimony of the witnesses in writing. If any coroner may find any nuisance by which the death of a man happened, that the township shall be amerced on such finding." Statute III, Henry VII directs: "That after the felony found the coroner shall deliver therein inquisitions afore the justices of the next gaol delivery in the shire where the inquisition is taken, . . . and if any coroner do not in such manner certify his inquisition, he shall be fined one hundred shillings."

Statute II and III, Phillip and Mary, Secs. 4 and 5: "Every coroner upon inquisition before him found where any person or persons shall be indicted for murder or manslaughter committed, shall put in writing the effect of the evidence given by the jury before him, being material," etc., "and return the same to the Justices of Eyre."

Coke tells us that the substance of all the foregoing statutes is to be found in the "Mirror," which was written before the Conquest of England by the Normans, but was edited and enlarged by a most discreet man by the name of Horne in the reign of Edward I: Preface to Coke's Reports, 9th and 10th Vol.

Viner's "Abridgment of the Common Law," informs us that the substance of all these statutes are to be found in the common law writers, and was the common law in the time of Glanville, Fleta Britton and Bracton. Hawkins Pleas of the Crown, and Bacon's Abridgment state that the statute de officio coronatis is wholly directory and in affirmance of the common law, that the coroner is not excused from any of his duties, under the common law, which were incident to his office before the enactment of that statute: 2 Hawkins, P. C., Chap. 9, Sec. 28; Bacon's Abridgment-Coroner. "The offices of the coroner," says Hale, are judicial and ministerial; and his office did not determine with the death of the king. He could hold no inquest save in death. Under the common law, he should take down the evidence of the witnesses in writing, and return the same and the finding of the jury to the Court of Eyre or Nisi Prius:" Hale's Pleas of the Crown.

The Secretary of Edward VI and Elizabeth, Sir Thomas Smith, in his history of the commonwealth tell us that: "The impannelling of this inquest (the coroner's) and the view of the body is commonly in the streets, in an open place and in coroni populi."

His duties are described by COKE: "A coroner may and ought to inquire of all the circumstances of the party's death, and also of all things which occasioned it; and, therefore, it is said, if it be found by his inquest that the person deceased, was

killed by a tall from a bridge into a river, and that the bridge was out of repair by the default of the inhabitants of such town, and those inhabitants are bound to repair it, the township shall be amerced:" Coke's Lyttleton, 277-83.

It was also his

duty to admit the evidence on both sides. Thus, we read: "The coroner must admit the evidence on both sides of the question, and if not admitted the inquest will be quashed:" Leving 180. "Coroners ought to hear evidence and counsel on both sides:" 2 Siderfin Reports 90-91. "In the court of King's Bench a rule was granted for a coroner to show cause why a criminal information should not be filed against him for refusing on taking an inquisition super visum corporis to receive evidence on the part of the party accused: " 1 Leach Crown Cases 43. "An inquest of office by the coroner or escheator is public and every one has right to be heard; and it is conclusive against the world:" Starkie on Evidence.

"Inquest of office is of such notoriety that the law presumes every one to be present; it is an inquest of office and is open to every one and is against the world.

Statutes 34, Edward III, C. 13, 36 Edward III, C. 13, 1 Henry VIII, C. 8, 2 and 3, Edward VI, C. 8, 3 Term Reports, 707-12-21. See also Lord Kenyon's Opinion. Phillip on Evidence citing: 3 Kible, 489; 6 Best and Cress, 611-27; 2 Burrows, 43; I Saunders, 362; 9 Dowling and Ryland, 247. Also Boisliniere v. County Commissioners, 32 Mo. 375.

"Again, the coroner's inquest is a court of record of which the coroner is judge:" 6 Best and Cress, 611-25.

II. THE CORONER'S INQUEST IS AN ACTION IN REM. We will now consider whether a coroner's inquest is an action in personam or an action in rem. A coroner's inquest super visum corporis is a proceeding on behalf of the people to determine how and by what means the person before whom the coroner's jury was impannelled, came to his death. If then, a judgment in rem (12 A. and E. Ency. p. 62), is: "A judgment against some person or thing upon the status of the person or the nature and condition of the thing, and is equally

binding on all persons," will not an inquest by a coroner come within this definition? The more technical definition of a coroner's inquisitions, to wit: "A proceeding instituted on behalf of the public for or against no one in particular, but against or upon the thing or subject, whose state or condition is to be determined," agrees with the definition of an action in rem as defined by the Supreme Court of Vermont (20 Vermont Reports, 65), where the distinction between actions in personam and in rem is fully discussed. “A judgment in rem I understand to be an adjudication pronounced upon the status of some particular subject matter, by a tribunal having competent authority for that purpose. It differs from a judgment in personam in this, that the latter judgment is, in form as well as substance, between the parties claiming the right; and that it is so inter partes appears by the record itself. It is binding only upon the parties appearing to be such by the record, and those claiming by them. A judgment in rem is founded on a procceding instituted not against the person as such, but against or upon the subject matter itself, whose state or condition is to be determined. It is to determine the state or condition of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and ipso facto renders what it declares it to be, etc., no process issues against any one, but all persons interested in determining the state or condition of the instrument are constructively notified:" 20 Vermont Reports, 65.

Such inquests are of a public nature, and taken under competent authority, to ascertain a matter of public interest, are upon principles already announced admissable in evidence against the world. They are analagous to adjudications in rem, being made on behalf of the public; no one is properly a stranger to them; and all who can be affected by them have the power of contesting them:" I Starkic on Ev., 307-8, 7

Am. Ed.

That a coroner's inquest is in the nature of a procceding in rem is admitted by Starkie: 2 Starkie on Ev., 384–5, 7 Am. Ed. Saunders' Pleadings and Practice, page 219, admits that a roner's inquest is in the nature of a proceeding in rem.