Albany Law Journal

mortgagor having been falsely personated, and never having made or acknowledged the mortgage. The defendant, called by the plaintiff, testified that he was satisfied of the identity at the time, but he could not say what means he had taken to identify him. This was the only proof. Held, that there could be no recovery. The court said: "It is well settled that the certificate of a judge or a justice of the peace, of the acknowledgment of a deed or mortgage, is a judicial act. Withers v. Baird, 7 Watts, 227; Jamison v. Jamison, 3 Whart. 457; Heeter v. Glasgow, 29 P. F. Smith, 79; Singer Manufacturing Co. v. Rook, 3 Norris, 442. Conceding such to be the effect of a certificate of a judge or justice, yet it was contended on the argument that like effect should not be given to the certificate of a notary. Why not? He is a public officer commissioned by the governor. He is acting under oath, like other officials in the performance of judicial duties, to well and faithfully perform the duties of his office.' As a notary is authorized to take the acknowledgment as fully, to all intents and purposes, as a magistrate can do, it follows the same effect should be given to his certificate of acknowledgment. It was so held in Hornbeck v. Building Association, 7 Norris, 64. Whatever officer is authorized to take the acknowledgment, to him is given a judicial duty, and when he performs it, it becomes a judicial act, and has the effect of a record. This action then is to recover damages flowing from the incorrect manner in which the defendant performed a judicial act. The rule as to the liability of an officer performing a ministerial duty does not apply." "The legal presumption is, he acted on reasonable information and did his full duty. His absence of memory as to the details of what occurred does not destroy that presumption. The burden of proof is on the plaintiff to prove a clear and intentional dereliction of duty. This is neither proved nor averred. A mere mistaken conclusion imposes no legal liability on the defendant." But in his duties concerning protests, etc., a notary acts ministerially, and is liable for negligence. Shearm. & Redf. on Neg., § 423.

It seems that no presumption will be indulged that a woman is chaste. In Commonwealth v. Whittaker, Massachusetts Supreme Court, April, 1881, the defendant was indicted for fraudulently enticing to a house of ill-fame, for the purpose of prostitution, two unmarried women of chaste life and conversation. The government gave no evidence of their chastity, but the court instructed the jury that "in the absence of evidence to the contrary, it was a presumption of law that they were of chaste life and conversation." A verdict of guilty being rendered, the court on appeal said: "If these women were of unchaste life and conversation, no offense was committed within the meaning of the statute. Their chastity must therefore be established as laid in the indictment, by affirmative proof. The defendant is presumed to be innocent until every material allegation necessary to constitute the offense

is proved beyond a reasonable doubt. To allow the proof of such an allegation to rest merely on the legal presumption that the women were chaste, would be to permit the presumption in favor of the defendant's innocence of the offense charged, to be overborne by another legal presumption in favor of the innocence of other persons not parties to this proceeding. We are therefore of opinion that the ruling was erroneous; and that under this statute, the chastity of the women must be proved by the government in the same manner as any other material allegation in the indictment." Citing West v. State, 1 Wis. 209; People v. Roderigas, 49 Cal. 9; Kenyon v. People, 26 N. Y. 203; Safford v. People, 1 Parker, 474; Carpenter v. People, 8 Barb. 603; 1 Greenl. Ev., § 35; Whart. Crim. Law, § 1757; Bish. Crim. Proc., § 1106. The Roderigas case is exactly in point and sustains the ruling. The Kenyon case held that unchastity of a seduced woman cannot be proved by reputation. The Safford case held that it might be proved by reputation or specific acts. The West case held that on an indictment for seduction the woman's chastity must be proved. In Danner v. State, 54 Ala. 127; S. C., 25 Am. Rep. 662, it was held that while the law presumes every one innocent, it does not presume any one to have a good character.

The

In Louisville Transfer Co. v. Am. Dist. Telephone Co., Louisville Chancery Court, 1 Ky. L. Jour. 144, it was held that the employment of a telephone company is public, and such a company is bound to serve the public without discrimination. plaintiffs were proprietors of public omnibuses and carriages, and the defendants were a telephone company and also proprietors of public carriages. The defendants were restrained from removing their telephones from the plaintiffs' offices, and from refusing to transact the plaintiffs' telephone business, pursuant to a contract between the parties. The court, Edwards, chancellor, said: "The real contention between the plaintiff and defendant is confined to their carriage and coupe services; defendant insisting that as against plaintiff, a rival in that business, it has the right to a monopoly in the use of its own telephonic methods of communicating and receiving orders for coupes; that a mere rival in one branch of its business cannot force it to afford it the facilities which it has provided for another branch of its business. Upon the facts appearing upon the petition and affidavits of plaintiff, it is the opinion of the court that defendant is engaged in two distinct employments - one in operating a telephonic exchange, and the other in operating a carriage or coupe service. Plaintiff and defendant are not rivals in the former business, and as to that part of defendant's business, it occupies the same position toward plaintiff as it does toward the rest of the public; that defendant is a quasi public servant, and as such is bound to serve the general public, including plaintiff, on reasonable terms, with impartiality; that defendant is governed by the principles of the law of common carriers. See Bennett v. Dutton, 10 N. H. 581; New England Express

Co. v. Maine Central R. R. Co., 57 Me. 188; S. C., 2 Am. Rep. 31; Sanford v. Railroad Co., 24 Penn. St. 381; and McDuffie v. Railroad, 52 N. H. 447; S. C., 13 Am. Rep. 72; Munn v. Illinois, 4 Otto, 113. The principles announced in an opinion by Judge Thayer, in American Union Telegraph Co. v. Bell Telephone Co., should determine this controversy. The mere fact that defendant may possess dual powers, and is operating or carrying on two distinct kinds of business, cannot exempt it from the general rules governing such corporations, with reference to the general public; and to determine the rights of the plaintiff, defendant must be considered as a telephone company and as a transfer company. See Claxton's Admr. v. Lexington and Big Sandy R. R. Co., 13 Bush, 638. The law must adapt itself to the new subjects that are brought within the range of judicial action. And courts must reason by analogy from things that are settled, in order to establish principles to govern things that are unsettled. 4 Am. Law Reg. (N. S.) 193. The rule that defendant is bound to serve all the public alike, under like circumstances, is the one applied by the court in this case, and plaintiff is a part of the public, and defendant, as to its telephonic business, is a distinct person from itself as a transfer company, so far as the rights of others are to be determined. The rights of plaintiff do not depend upon contract, but the general principles before stated. Defendant had a right to terminate its contract with plaintiff, but as it holds out as the servant of the public, it must act with perfect impartiality toward its customers." See Am. Union Telegraph Co. v. Bell Telephone Co., 22 Alb. L. Jour. 363.

READING SCIENTIFIC

JURY.

& P. 362; Ripon v. Bittel, 30 Wis. 362. In the first of these cases the court went very near to holding in accordance with Mr. Moak's statement. The proposition was to read from Youatt's work on Veterinary Surgery. (This was the work excluded from evidence in Harris v. Panama R. Co., 3 Bosw. 7.) The reading was forbidden. The court on appeal aid: "It is not to be denied but that a pertinent quotation or extract from a work on science or art, as well as from a classical, historical, or other publication, may by way of argument or illustration, be not only admissible, but sometimes highly proper. And it would seem to make no difference whether it was repeated by counsel from recollection or read from a book. It would be an abuse of this privilege, however, to make it the pretense of getting improper matter before the jury as evidence in the cause. But it not appearing from the bill of exceptions that the passage proposed to be read had any relevancy to the cause, or came within the appropriate and legitimate scope of argument, it did not appear that the party was injured by its exclusion, and the court refused to reverse on this ground. So what was said on this point was

obiter.

But

In Reg. v. Courvoisier counsel proposed to read to the jury on the argument some observations of a judge in another case, upon the nature and effect of circumstantial evidence. This was allowed on the ground that counsel might adopt and utter them as his own sentiments and a part of his speech. reading such matter is very different from reading scientific opinions. Every man has a right to form opinions on such matters. It is mere philosophy. They are not matter of expert knowledge. But matters of expert knowledge ought to be brought BOOKS TO THE within the sanctions of evidence. In People v. Anderson, 44 Cal. 70, however, even the reading of reported cases to the jury in argument, as a general rule, was pronounced "objectionable," and it was said it "ought not to be tolerated. Its usual effect is to confuse rather than to enlighten the jury." Still the court in that case deemed the matter discretionary in the court, and reversed the judgment because the judge had told the jury that the reading was improper and was calculated to mislead them!

N his interesting paper on Experts and Expert Testimony, ante, p. 266, Mr. Moak says: "As a rule scientific works cannot be read in evidence to the jury." "In summing up to the jury, counsel are entitled to read approved scientific works as a part of their argument." The former statement is unquestionably correct. But does not Mr. Moak state the latter point a little too unreservedly? The contrary has been distinctly held in Massachusetts. See authorities cited, 22 Alb. L. Jour. 82. In State v. Hoyt, 46 Conn. 330, the doctrine as laid down by Mr. Moak was held, but two judges of the five dissented. In Wisconsin and Texas the matter is said to be within the discretion of the court.

It seems a wrong rule that counsel may read to the jury as part of his argument, on scientific facts, books which cannot be put in evidence for the same purpose. Whether the scientific opinion is read to the jury as evidence or as part of an argument seems to work out the same result, namely, to get before the jury an opinion of an expert, at second hand, and with no opportunity for cross-examination.

Mr. Moak cites three cases to his statement, Legg v. Drake, 1 Ohio St. 286; Reg. v. Courvoisier, 9 C.

In City of Ripon v. Bittel the question was on the admission of surgical treatises in evidence. The court said it was urged that they were improperly admitted, and should only have been allowed to be read in argument, and that "such perhaps may be the general rule." But their admission was approved. This therefore is not an authority upon the point in question.

In Commonwealth v. Wilson, 1 Gray, 337, Shaw, C. J., held that scientific books cannnot be read in argument to the jury. He said: "Facts or opinions on the subject of insanity, as on any other subject, cannot be laid before the jury except by the testimony under oath of persons skilled in such matters. Whether stated in the language of the court, or of the counsel in a former case, or cited from the works of legal or medical writers, they

are still statements of fact, and must be proved on oath. The opinion of a lawyer on such a question of fact is entitled to no more weight than that of any other person."

This was reiterated by the same great judge, in Ashworth v. Kittridge, 12 Cush. 193. He there said: "Where books are thus offered, they are in effect used as evidence, and the substantial objection is that they are statements wanting the sanction of an oath; and the statement thus proposed is made by one not present and not liable to cross-examination. If the same author were cross-examined, and called to state the grounds of his opinion, he might himself alter or modify it, and it would be tested by a comparison with the opinions of others. Medical authors, like writers in other departments of science, have their various and conflicting theories, and often defend and sustain them with ingenuity. But as the whole range of medical literature is not open to persons of common experience, a passage may be found in one book favorable to a particular opinion, when perhaps the same opinion may have been vigorously contested, and perhaps triumphantly overthrown, by other medical authors, but authors whose works would not be likely to be known to counsel or client, or to court or jury. Besides, medical science has its own nomenclature, its technical terms and words of art, and also common words used in a peculiar manner, distinct from their received meaning, in the general use of the language. From these and other causes, persons not versed in medical literature, though having a good knowledge of the general use of the English language, would be in danger, without an interpreter, of misapprehending the true meaning of the author. Whereas a medical witness would not only give the fact of his opinion, and the grounds on which it is formed, with the sanction of his oath, but would also state and explain it in language intelligible to men of common experience." (This proves a violent presumption, in practice, we think.) "If it be said that no books should be read, except works of good and established authority, the difficulty at once arises as to the question, what constitutes 'good authority?' more especially whether it is a question of competency to be decided by the court, whether any particular book shall be received or rejected; or a question of weight of testimony, so that any books may be read, leaving its weight, force and effect to the jury. Either of the alternatives would be attended with obvious if not insuperable objections." This is certainly very strong reasoning against the admission of such books in evidence as well as against the reading of them as part of an argument.

In State v. Hoyt, 46 Conn. 330, a murder case, it was held that standard medical works on insanity may be read to the jury by the counsel for the accused, on the question of his insanity. The court said: "The plea of insanity interposed in behalf of persons indicted is supported by the testimony of persons who by study of books and men have entitled themselves to speak as experts in that science. By way of vindication of their right to be

heard as instructors of the jury, they usually preface their testimony by a statement of the extent of their experience in the treatment of persons afflicted with disease of the mind and the time given to the reading of treatises upon insanity written by men of wide experience and acknowledged ability in the treatment of such diseases; their opinion is the result of observation of men and reading of books. And in this jurisdiction for a long series of years counsel have been permitted to read to the jury, as a part of their argument upon this part of their case, extracts from such treatises as by the testimony of experts have been accepted by the profession as authority upon that subject; such treatises as have helped to form the opinion expressed by the expert. The practice by repetition has hardened into a rule; a rule, upon the continued existence of which counsel for the accused in the case before us had a right to rely; the abrogation of which by the ruling complained of may have been a surprise. The question is not, shall such reading be now for the first time permitted? it is, shall it now for the first time be forbidden without notice? We think that privileges hitherto granted to persons in like circumstances with the accused should not be denied to him, to his possible prejudice."

This

This, it will be seen, is based on the idea of fixed and ancient custom, and not upon principle. Loomis, J., dissenting (Park, C. J., concurring with him), said: The exclusion of the book at the trial was correct in principle, because the subject-matter belonged exclusively to the realm of fact and not of law. It was a matter of evidence to be given to the jury under the sanction of an oath, and subject also to that other most important test of truth, the right of cross-examination. wholesome principle ought not to be sacrificed except for most cogent reasons. And what reason is given in this instance? Only that a different practice has for some years prevailed. Not a practice ever sanctioned, directly or indirectly, by this court, nor one which has generally been considered by the judges on the Circuit as of binding force in law, but rather as subject to the discretion, which, it is true, has been usually exercised in favor of the accused in capital trials. But as I understand it, the practice has been under important limitations not existing, or at least not stated, in this case. It has been usual first to inquire of some witness on the stand as an expert, whether the book to be afterward read from was recognized by experts as a standard authority on the subject. Were this foundation laid, the practice of reading would be shorn of most of its mischief. And so it would if it was subject to the discretion of the court. But the majority opinion unfortunately recognizes no discretion in the court." "It is easy to see what mischief may result from an unrestricted license to counsel to read such books as counsel choose to read, if only they relate to the case. Books may be crazy as well as men, and all sorts of theories relative to responsibility for crime are advocated in books." "It may be suggested that there was in the present case no need of having any expert testify as to the

authority of 'Ray's Medical Jurisprudence of InBut the sanity,' because it was so well known. principle required it, because courts do not take judicial notice of standard medical or scientific works, and the standard works of to-day may not long continue such, owing to new discoveries and advancing knowledge." The judge then reviews the authorities, and concludes that the ruling below was correct. He cites Luning v. State, 1 Chandler (Wis.), 178, and Wade v. De Witt, 20 Tex. 398, holding that the matter is discretionary in the court. The reasoning of this opinion would tend to make such books competent evidence, but it is strong in opposition to the idea that what is not evidence can be read to the jury.

THE

PRESIDENTIAL INABILITY.*

fifth clause of the first section of the second article of the Constitution of the United States is in the words: "No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States."

This provision excludes from the presidential office all persons of foreign birth, all persons under thirtyfive years of age, and all persons who have not resided fourteen years within the United States. It is well to remember this disqualifying clause when we come to consider the means of providing a president otherwise than by the ordinary one of a quadrennial election.

The sixth clause of the same section provides as follows: "In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly until the disability be removed, or a president shall be elected."

This language is as concise and comprehensive as it is terse and explicit. Let us consider a moment its aim and method. In all cases where the president is removed, dies, resigns, or is disabled, the Constitution itself designates the officer who is to exercise the powers and discharge the duties of the presidential office. They devolve upon the vice-president. How the fact shall be ascertained, upon the existence alone of which the vice-president can act, is not stated in the Constitution. To have descended to such detail in the fundamental law would have been going beyond its purpose; and it was properly left for the Legislature to provide. So far no such provision has been made, but in view of our present circumstances, and contingencies that are not only apparent, but apparently near, it seems unwise to delay further action any longer. Up to the present moment every vacancy in the presidential office has been caused by death, and no question of fact, or right of succession, has arisen. There have been *This article was written before President Garfield's death.

no removals, no resignations, and no inabilities. Even death has laid but a sparing hand upon us. Our comparative exemption from the vicissitudes that are common to nations and to individuals should be a matter of thankfulness and hope, as exhibiting the smooth and efficient working of our constitutional machinery.

But other contingencies, reaching beyond the life even of the vice-president, though remote and unlikely, were possible. For them no direct and immediate constitutional provision is made, but a power to make it is properly lodged in that department of the government that is nearest to the people and the States

the Congress of the United States. There is no constitutional mandate that this great and important power shall be exercised, but the language is that of suggestive admonition, a caution and a warning, assumed to be addressed to men of superior wisdom, experience and patriotism, competent and qualified to judge when it should be called into activity. It is a qualified and limited power to be exercised in a special manner. "Congress may by law provide." Not by a vote, joint, concurrent, or separate; nor by a resolution; nor by a commission; nor by any agent whatsoever, but by law, introduced, considered, and passed in a regular, methodical manner. Must such provision be made in advance of the happening of the contingency upon which it is to apply? Not absolutely and necessarily. But it should be. Retrospective legislation is generally inexpedient and sometimes dangerous. It should be avoided; yet contingencies may arise in which it would be not only justifiable but imperative. The one we are now considering is of that character. As our law now stands, if the president and vice-president were both to die, or become disqualified, we would be without a chief magistrate, and without any one legally qualified to discharge his duties. In such a case, Congress would not only be justified in providing one for the time being, but a refusal to do so would be a political crime, amounting to moral treason. It may be asked, how, in such a case, can Congress make any such provision, or do any other legislative act, seeing there is no president to approve and sign the same? We are met in the Constitution by these emphatic and imperative mandates: 'Every bill which shall have passed the house of representatives and the senate, shall, before it becomes a law, be presented to the president of the United States; if he approve, he shall sign it; but if not, he shall return it to that house in which it shall have originated."

"Every order, resolution or vote to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment), shall be presented to the president of the United States, and before the same shall take effect shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill."

These provisions are as comprehensive and imperative as language can make them. Every legislative act of whatever kind must, in order to make it valid, go to the president for his approval. There is no mandate wider in its scope or more positive in its terms. But the case we are considering is clearly one of constitutional omission. These provisions assume that there is and always will be a president to whom the bills and resolutions may be sent; but here is a case in which there is none! What then are we to do? First of all provide for a president, without which they are a dead letter, and their requirements impossible. The imperative necessity of the case justifies the exer

cise of the extraordinary and abnormal power. There is no other escape from anarchy or chaos. The maxim Salus populi est suprema lex should in such a case an

swer all objections and silence all cavil. But in addition to this, Congress has by the Constitution itself sole power to act on the subject-matter; on Congress is conferred the power, and upon Congress is imposed the duty, of making suitable provision, so that the view here advanced is strengthened by the propriety of the course commended.

The propriety and duty of considering this matter, grave and delicate as it undoubtedly is, is fully justified in view of the unprecedented fact that there are but two lives between us and the actual emergency, and one of them at this moment, September 12, 1881, vibrating on the confines of time and eternity; and should it so happen that both the president and vicepresident should become incapacitated by any cause, we should present the extraordinary spectacle of the greatest nation on earth without a head, and without legal provision for filling the vacancy. It is true that we have a law on our statute books nearly a hundred years old which provides that when there is neither president nor vice-president qualified to act, the president pro tempore of the senate, first, and the speaker of the house, afterward, shall act; yet singularly enough, and as if to put human wisdom and foresight to the blush, we can derive no benefit from it, for we have neither president pro tempore of the senate nor speaker of the house of representatives. Such an anomaly, not to say danger, seems to necessitate, or at least to justify, an extra session of Congress; and we think Congress should be called together by the middle of October, or the first of November at the latest. To this no reasonable abjection could be made either on the score of power or convenience. The gravity of the occasion would warrant the exercise of the power, as well as the time of its use. On the score of convenience and economy the advantage would be found in this course. It would bring Congress together at a wholesome and pleasant season of the year, and enable them to transact the public business and adjourn next summer before the heated term,

especially where it was involuntary and without fault. In the absence of legislation or precedent we may reasonably assume that in case of any inability of the president, temporary in its nature, and the consequent exercise of the powers and duties of his office by the vice-president, the latter would exercise them only so long as the inability continued, and that immediately upon its cessation he would retire from their discharge. Cessante causa, cessat effectus. A question may be made, indeed has been started, what kind of inability is meant? Is it mental? Is it physical? Is it both? We answer, it is that inability, mental, physical, or mixed, that disables and disqualifies the president from exercising the powers and discharging the duties that pertain to his office. It may be altogether mental, as if the president should lose his reason. It may be altogether physical, as if he should become paralyzed so that he could neither use his tongue nor his hands. It may be mixed, as if his mind and body both should become so impaired as to render an intelligent use of his faculties impracticable. But this is too important and far-reaching a matter to be left in doubt, and should be settled by legislation.

Another pertinent inquiry in this connection is, what are the powers and duties devolved on the vice-president by the Constitution in consequence of any temporary inability of the president? In the case of removal, death, or resignation, all of which are absolute and permanent in their character, the vice-president succeeds to the office; but is this so in case of temporary inability? We have seen that it is not. In constitutional contemplation it may last but a day, a week or a month. In such a case reason says that the duties to be discharged are such as arise in the ordinary and regular working and progress of the governmental machinery, indicated by the technical word routine. It does not contemplate, for instance, a removal of the cabinet, or a change of administration, or any such radical and aggressive proceeding. Such an act by one clothed with merely temporary power, would violate official decency, outrage public senti

contemplation. But if a member of the cabinet should die or resign during the existence of the inability, it would be both legal and proper for the vice-president to appoint his successor, and in doing so he would act upon his own judgment and be held responsible for the propriety of his act. So of all other official acts. In other words, he would exercise every power and discharge every duty as it might arise in the ordinary administration of National affairs, but beyond this he would not and could not go without a violation of constitutional duty and official propriety.

Recurring to the constitutional provision for filling the presidential office in case of removal, death, resig-ment, and is not within the purview of constitutional nation, or inability to exercise the powers and discharge the duties of said office, we remark that there seems to be some ambiguity as to which antecedent same relates. Does it refer to the powers and duties or to the office itself? Are the powers and duties devolved, or is it the office? If the office, is it a final transfer in every case, without the possibility of return? To illustrate, suppose all the revenue and appropriation bills have passed both houses, and Congress is ready to adjourn, and the president, before signing them, is stricken down and disabled from doing so. Here then would be a plain case of temporary inability, and the vice-president would be justified in signing the bills. But suppose again the president should be restored the next day or the next week to his normal powers, would the inability of yesterday exclude him from office for the residue of his presidential term? If it is the powers and duties that are devolved it would not; but if it is the office, it would seem so, for there is no provision made for its restoration. Duties belong to a person capable of performing them; office to a person legally qualified and authorized to hold it. These considerations, with others that suggest themselves, lead us to the conclusion that it is the powers and duties that are meant; that they are to be exercised and discharged only so long as the necessity exists, and that when the inability is removed the president resumes them, and the vice-president is relieved. This seems the more reasonable construction, and the one that commends itself to the popular estimate, present and historic, in which the wisdom and patriotism of the framers of the Constitution are held. We can hardly believe that they could contemplate a total and final exclusion for a mere temporary inability;

It will be observed that the constitutional designation of a person to dischage presidential duties, in case of inability, does not go beyond the vice-president. All after that is left for Congress to provide. But the power of Congress itself is circumscribed within narrow limits, stated in a few comprehensive words. "The Congress may by law provide for the case of removal, death, resignation or inability both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly until the disability be removed or a president shall be elected."

Of the legislative manner of providing for the contemplated contingency, we have already spoken, and need not recur to it here. We will now consider briefly the classes from which Congress is permitted to select. The constitutional designation is officer-“declaring what officer shall act." No private citizen however eminent, even, and well qualified, can attain to this exalted position, even by the unanimous consent of both houses of Congress. Then it must not be an officer provided for the place, but one filling a place already provided. It is a declaration, not a creation.

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