with whatever additional power is included in the "power to dispose of and make all needful rules and regulations" respecting these lands. This clause properly construed should give Congress control over the public lands while they are public lands, but should confer no power over land which has ceased to be a part of the public domain.18

THREATS TO TAKE THE LIFE OF THE PRESIDENT. The meaning of the word "threat," as used in the federal legislation of February 14, 1917,1 obviously differs from the usual legal meaning. In the cases of the statutory offense of threatening a private individual, extortion, robbery by threat, or the avoidance of instruments or acts as induced by threats," the menace must be communicated to the threatened person and must be such as at least to influence the mind of a reasonable man. In the case of an assault the words must in addition import to the reasonable hearer an intention to execute it almost immediately; and hence a threat of harm conditioned upon a future event cannot constitute an assault." But to interpret the word "threat" as used in this law of Congress to mean a "menace of such a nature as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action which alone constitutes consent,' "8 would de

41 Fed. 70, 72 (1889); Minnesota v. Bachelder, 5 Minn. 223, 235 (1861). Cf. Van Brocklin v. Tennessee, 117 U. S. 151 (1885); Kansas v. Colorado, 206 U. S. 46 (1906).

18 The power "to dispose of" includes the power to lease. United States v. Gratiot, 14 Pet. (U. S.) 526 (1840).

"[Congress] had no power whatever to enlarge the rights of the vendees of the United States as against rights already vested in prior purchasers. It could in no way authorize any encroachment by the grantees of the United States upon, or injury to, the property of other private parties." Per Sawyer, J., in Woodruff v. North Bloomfield Min. Co., 18 Fed. 753, 771 (1884). Cf. Wilcox v. Jackson, 13 Pet. (U. S.) 498, 517 (1839).

1 The Act provides: "That any person who knowingly and willfully deposits or causes to be deposited for conveyance in the mail or for delivery from any postoffice or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, or who knowingly and willfully otherwise makes any such threat against the President, shall upon conviction be fined not exceeding $1,000 or imprisoned not exceeding five years, or both." 39 STAT. 919, c. 64.

Constitutionally the Act may be supported on the broad ground of a right in the federal government to punish offenses aimed at its integrity, but certainly on the narrower ground of a right to protect its officers. In re Neagle, 135 U. S. 1 (1889). See Biklé, "The Jurisdiction of the United States over Seditious Libel," 41 Am. L. Reg. (N. S.) I. In United States v. Metzdorf, 252 Fed. 933 (Dist. Ct., Mon., 1918), the indictment failed on the strange ground that it did not state that the alleged threat was uttered of the President in his official character. The court held that Congress had no power to protect its officers in their private capacities. Thus jurisdiction for the murder of a federal official would be made to turn on the motive of the killing.

2 State v. McGee, 80 Conn. 614, 69 Atl. 1059 (1908).

3 People v. Williams, 127 Cal. 212, 59 Pac. 581 (1899).

4 Rex v. Fuller, Russ. & Ryan's Crown Cases, 408 (1820).

5 Robinson v. Gould, 11 Cush. (Mass.) 55 (1853).

Stephens v. Myers, 4 Carr. & Payne 349 (1830); Townsdin v. Nutt, 19 Kan. 282 (1877).

Tuberville v. Savage, 1 Mod. 3 (1669). Cf. Commonwealth v. Eyre, 1 Serg. & R. (Pa.) 347 (1815).

8 In United States v. French this definition was applied, erroneously, it is believed, to the Act of Feb. 14, 1917. 243 Fed. 785 (So. Dist. Fla., 1917).

prive the Act of serious meaning." In making it a crime to "threaten to take the life of or inflict bodily harm upon the President," Congress can hardly have intended only to protect the President's peace of mind from a threat personally communicated to him. One court relies on the rule of construction that where a word has had a legal definition the legislature must be taken to have used the word in the sense of that definition, unless a different meaning appears to have been intended.10 It is submitted that a different meaning is implicit in the words of the Act. Why make it criminal to "deposit . . . in any post office" any writing containing such a threat, if communication to the President were necessary?

The federal statute doubtless finds its ancestry in the Statute of Treason," which made it criminal "to compass and imagine the death of the King." Under this statute in the fifteenth century two interesting indictments were brought, one against Walter Walker 12 and the other against Sir Thomas Burdet.13 Regarding the former, Lord Campbell relates 14 that Walter Walker kept an inn called the "Crown," and was suspected of taking part in a plot for the restoration of the imprisoned King, Henry VI; but that "there was no witness to speak to any such treasonable conduct, and that the only evidence to support the charge was that the accused had once, in a merry mood, said to his son, then a boy: 'Tom, if thou behavest thyself well, I will make thee heir to the Crown."" We are told that the prisoner urged that he had never formed any evil design upon the King's life; that he spoke only to amuse his little boy, meaning by his statement that his son should succeed him as master of Crown Tavern. But, according to Lord Campbell, "Mr. Justice Billing ruled: 'That the words proved were inconsistent with the reverence for the hereditary descent of the Crown which was due from every subject under the oath of allegiance; therefore if the jury believed the witness, about which there could be no doubt as the prisoner did not venture to deny the treasonable language he had used, they were bound to find him guilty.' A verdict was accordingly returned, and the poor publican was hanged, drawn, and quartered."

As to Sir Thomas Burdet, Lord Campbell narrates 15 that he had been out of favor at court; and the King, making a progress in his parts, had rather wantonly entered his park, and hunted and killed a white buck of which Burdet was particularly fond; that "when the fiery knight heard. of the affair - he exclaimed: 'I wish that the buck, horns, and all, were in the belly of the man who advised the King to kill it,' or, as some reported, 'were in the King's own belly""; that on trial for treason Sir Thomas "proved, by most respectable witnesses, that the wish he had rashly expressed applied only to the man who advised the King to kill the deer." But, continues Lord Campbell, "The Lord Chief Justice left

? See a collection of definitions of the word "threat" in United States v. Jasick, 252 Fed. 931 (East. Dist. Mich., 1918).

10 United States v. French, note 8, supra.

11

25 EDW. III.

12

I HALE, PLEAS OF THE CROWN, 115; SIR RICHARD BAKER, CHRON. (ed. 1606) 215. 13 Ibid.; 3 HOLInshed, Chron. (London, 1808) 345.

14 I CAMPBELL, LIVES OF THE CHIEF JUSTICES (ed. 1874), 151.

15 Ibid., 153.

it to a jury to consider what the words were [telling them that] 'however, the story as told by the witnesses for the Crown was much more probable, for Sovereigns were not usually advised on such affairs, and it had been shown that on this occasion the King had acted entirely out of his own head. Here the King's death had certainly been in the contemplation of the prisoner; in wishing a violence to be done which must inevitably have caused his death, he imagined and compassed it.' The jury immediately returned a verdict of guilty; and the frightful sentence of high treason, being pronounced, was carried into execution with all its horrors."

Fortunately these two cases have been shown to be incorrectly set forth by Lord Campbell, and do not even form precedents to be overruled. 16 Although the federal courts have been none too lenient in construing the war legislation,17 coming sometimes perilously near to the standard which was long erroneously attributed to Chief Justice Billing, no fault can, on the whole, be found with their interpretation of the statute here under discussion. In a recent case 18 the requisites for a threat under the Act are well set forth. (1) The words must import to reasonable hearers an intent to harm the President. (2) If oral, they must have been uttered in the hearing of some one.19 But (3) they need not have been addressed to any one; nor (4) need they have been communicated to the President or have been intended to be communicated to the President. Moreover, under the Act a threat may be conditional. Juries have been permitted to find, or it has been held that they could properly find, the following words to constitute threats: "The President ought to be shot, and I would like to be the one to do it." 20 "President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself." 21 "If I got a chance, I would shoot President Wilson." 22 "I wish the President were in Hell, and if I had the power I would put him there." 23 The first of these cases presents, as the court intimates, a close question, to be decided in the light of the circumstances and the manner of uttering the words. The other cases are clear.

16 Edward Foss in "The Judges of England" (London, 1851, pp. 414-16) sharply criticizes Lord Campbell's sharp strictures on Chief Justice Billing, and shows that the flimsy facts of the above cases were not the real support of the charge of treason, and that Lord Campbell's apparent quotations from the court's charges to the jury are pure fiction. He shows that the true facts are these: Walter Walker was charged with "words spoken of the title of Edward when he was proclaimed"; the story of the buck was a figment, and the charge against Burdet was for conspiracy to kill the King and Prince "by casting their nativity, foretelling the speedy death of both, and scattering papers containing the prophecy among the people."

17 See note, "The Espionage Cases," 32 HARV. L. REV. 417. See also Zechariah Chafee, Jr., "Freedom of Speech," 17 NEW REPUBLIC, No. 211, 66.

18 United States v. Stobo, 251 Fed. 689 (Dist. Ct., Del., 1918).

19 It was for omitting to allege that the words were uttered in the hearing of any one that the indictment in United States v. Stobo failed.

20 United States v. Stobo, note 18, supra.

21 United States v. Stickrath, 242 Fed. 151 (So. Dist. Ohio, 1917).

22 United States v. Jasick, 252 Fed. 931 (East. Dist. Mich., 1918).

23 Clark v. United States, 250 Fed. 449 (Circ. Ct. App., Fifth Circ., 1918).

ADMIRALTY

RECENT CASES

CONFLICT OF LAWS REMEDIES

RECOVERY FOR DEATH BY WRONGFUL ACT IN COLLISION AT SEA. - In a collision on the high sea between two ships from different states, in which one ship was negligent, persons aboard the innocent ship were killed. The statutes of each state provided for recovery for death by wrongful act, but differed as to the measure of damages. The owner of the offending ship was sued by the representatives of the deceased. Held, that they could not recover. The Middlesex, 253 Fed. 142 (Dist. Ct.).

For a discussion of this case, see NOTES, page 713.

ADMIRALTY JURISDICTION IMMUNITY OF GOVERNMENT VESSELS FROM LIBEL. - For damage to a cargo carried upon the Maipo the owners sought to libel the ship. The Maipo was a transport in the Chilean navy, owned and manned by that government. It was chartered for hire by a private person contracting to carry freight, but by the charter-party the Chilean government reserved freight space, agreed to pay all port duties, and to manage the ship. Held, that the court had not jurisdiction. The Maipo, 252 Fed. 627.

Ships of war everywhere receive exemption from local jurisdiction. 2 MOORE, DIG. INT. LAW, 1906, § 254. Whether all public vessels should be so exempted was long a moot question. LAWRENCE, INT. LAW, 3 ed., 224; HALL, INT. LAW, 6 ed., 188. The sovereign cannot be sued, and in so far as jurisdiction is concerned the courts recognize no difference between a suit against the sovereign and a suit against his property. Vavasseur v. Krupp, L. R. 9 Ch. Div. 351; The Siren, 7 Wall. (U. S.) 152. While the existence of a right to a lien or to an action for salvage or damage from collision is recognized the strict application of the doctrine of extraterritoriality forbids its enforcement. United States v. Peters, 3 Dall. (U. S.) 121; The Exchange, 7 Cranch (U. S.) 116; Briggs v. Light Boats, 11 Allen (Mass.) 157; Pizarro v. Matthais, 10 N. Y. Leg. Obs. 97; The Parlement Belge, 5 P. D. 197; The Constitution, 4 P. D. 39; Young v. Scotia, [1903] A. C. 501; The Pampa, 245 Fed. 137. Nor will a writ issue against a person upon a public vessel. 7 OPIN. ATT'Y GEN'L, 122; HALL, INT. LAW, 6 ed., 191. The English court has decided that immunity from local jurisdiction is not lost though the public vessel carry for hire merchandise and passengers. The Parlement Belge, supra. However, an ambassador's property which he has engaged in commerce has been attached. Emperor of Brazil v. Robinson, 5 Dowl. 522; 2 PHILLIMORE, INT. LAW, 3 ed., 222. There has been American opinion that because the owner could not be sued the action against the ship might be allowed. Pizarro v. Matthais, supra. See United States v. Wilder, 3 Šumn. (C. C. A.) 308, 316. A lien is enforced, therefore, upon property of the sovereign when not in his possession nor in public use, but in the possession of a bailee. The Davis, 10 Wall. (U. S.) 15. The rule would seem to extend to public vessels. Long v. Tampico, 16 Fed. 491. The Attualita, 238 Fed. 909. WESTLAKE, PVT. INT. LAW, 5 ed., 271. The courts recognize the hardship endured by a libellant forced to seek relief in distant foreign jurisdictions, especially where the merchant marine is becoming government controlled.

BANKS AND BANKING NATIONAL BANKS VALIDITY OF STATE TAX ON SHARES WITHOUT DEDUCTION FOR TAXABLE STOCK HELD BY BANK IN ANOTHER NATIONAL BANK. - The National Bank Act, as amended, provides (REV. STAT. § 5219) that "Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the

state within which the association is located." Plaintiff, a national bank, held stock in another national bank and was taxed as owner thereof. Taxes were also assessed against the shareholders of the plaintiff based on a valuation which included the stock ownership as an asset of the association. Plaintiff, on behalf of its shareholders, seeks to recover from the state a part of the taxes so levied upon them corresponding to assets of the value of this stock. Held, that such sum be refunded. Pitney, Brandeis, and Clarke, JJ., dissenting. Bank of California, National Association v. Richardson, U. S. Sup. Ct. Off., October Term, 1918, No. 262.

As instrumentalities of the federal government, national banks are exempt from state taxation, except as permitted by Congress. M'Culloch v. Maryland, 4 Wheat. (U. S.) 316; City of Pittsburg v. First National Bank, 55 Pa. Št. 45. And section 5219 does not permit a state to tax such a bank upon its capital or upon its property, but only upon the shares as personal property of the holder. Owensboro National Bank v. Owensboro, 173 U. S. 664, 19 Sup. Ct. Rep. 537. An exception in this section authorizes taxation of realty. Second National Bank v. Caldwell, 13 Fed. 429; see M'Culloch v. Maryland, supra, 436. Also it is settled that a bank may be taxed as owner of stock in another national bank. Bank of Redemption v. Boston, 125 U. S. 60. Now the principal case holds that when the association pays such a tax, a corresponding deduction must be made in assessing its shareholders. This result can be reached only on the ground that the statute treated the bank and the shareholders as one, for purposes of state taxation. The proposition is fundamental, however, that a corporation is an entity distinct from its members, for taxation as in other respects. See I COOLEY, TAXATION, 3 ed., 687. Accordingly the Supreme Court has repeatedly held that a tax on a corporation or its property is not the legal equivalent of a tax on the stockholders, but that the two are distinct and different subjects-matter of taxation. See Owensboro National Bank v. Owensboro, supra, 677-81; T. R. Powell, "Indirect Encroachment on Federal Authority by the Taxing Powers of the States," 31 HARV. L. REV. 321, 33944. Thus stockholders of a state bank can be taxed without deduction for its ownership of tax-exempt United States securities. Cleveland Trust Co. v. Lander, 184 U. S. 111, 22 Sup. Ct. Rep. 394. And under section 5219 stockholders of a national bank can be taxed, although its capital was wholly invested in such securities. Van Allen v. The Assessors, 3 Wall. (U. S.) 573. Moreover, where the realty of a bank has been directly taxed, the state is not required to make deduction in assessing the stockholders. Commercial Bank v. Chambers, 182 U. S. 556, 21 Sup. Ct. Rep. 863; St. Louis National Bank v. Papin, 21 Fed. Cas. No. 12,239; People's National Bank v. Marye, 107 Fed. 570, 579. It is difficult to see why the same principle should not apply to assets in the form of stock in another national bank.

BANKRUPTCY - PREFERENCES - TRANSFER PURSUANT TO PRIOR AGREEMENT LIQUIDATING THE DAMAGES. - The bankrupt had contracted to cut timber for a lumber company on the latter's lands, the funds by which the operations were to be carried on being furnished also by the lumber company. It was provided, in a clause which was construed to be an agreed ascertainment of damages, that in case of a default a nearby sawmill with its logging equipment belonging to the bankrupt should forthwith become the property of the lumber company. The agreement was entered into more than four months before bankruptcy proceedings were instituted, but the transfer of the property took place within the period. The trustee in bankruptcy sought to avoid as a preference the transfer of that part of the equipment which was composed of personalty. Held, that no preference was effected. Stennick v. Jones, 252 Fed. 345 (Circ. Ct. App.).

The court asserted that the company had a right to act not as a general