DE FACTO

DE FACTO

    26.12.17  

DE FACTO, i. e. in deed. A term used to denote a thing actually done; a president of the United States de facto is one in the exercise of the executive power, and is distinguished from one, who being legally entitled to such power is ejected from it; the latter would be a president de jure. An officer de facto is frequently considered as an officer de jure, and his official acts are of equal validity. 10 S. & R. 250; 4 Binn. R. 371; 11 S. & R. 411, 414; Coxe, 318; 9 Mass. 231; 10 Mass. 290; 15 Mass. 180; 5 Pick. 487.

IMPEACHMENT

IMPEACHMENT

    23.6.16  

IMPEACHMENT, const. law, punishments. Under the constitution and laws of the United States, an impeachment may be described to be a written accusation, by the house of representatives of the United States, to the senate of the United States, against an officer. The presentment, written accusation, is called articles of impeachment.

2. The constitution declares that the house of representatives shall have the sole power of impeachment art. 1, s. 2, cl. 5 and that the senate shall have the sole power to try all impeachments. Art. 1, s. 3, cl. 6.

3. The persons liable to impeachment are the president, vice-president, and all civil officers of the United States. Art. 2, s. 4. A question arose upon an impeachment before the senate, in 1799, whether a senator was a civil officer of the United States, within the purview of this section of the constitution, and it was decided by the senate, by a vote of fourteen against eleven, that he was not. Senate Journ., January 10th, 1799; Story on Const. 791; Rawle on Const. 213, 214 Serg. Const. Law, 376.

4. The offences for which a guilty officer may be impeached are, treason, bribery, and other high crimes and misdemeanors. Art. 2, s. 4. The constitution defines the crime of treason. Art. 3, s. 3. Recourse must be had to the common law for a definition of bribery. Not having particularly mentioned what is to be understood by "other high crimes and misdemeanors," resort, it is presumed, must be had to parliamentary practice, and the common law, in order to ascertain what they are. Story, 795.

5. The mode of proceeding, in the institution and trial of impeachments, is as follows: When a person who may be legally impeached has been guilty, or is supposed to have been guilty, of some malversation in office, a resolution is generally brought forward by a member of the house of representatives, either to accuse the party, or for a committee of inquiry. If the committee report adversely to the party accused, they give a statement of the charges, and recommend that he be impeached; when the resolution is adopted by the house, a committee is appointed to impeach the party at the bar of the senate, and to state that the articles of impeachment against him will be exhibited in due time, and made good before the senate, and to demand that the senate take order for the appearance of the party to answer to the impeachment. The house then agree upon the articles of impeachment, and they are presented to the senate by a committee appointed by the house to prosecute the impeachment; the senate then issues process, summoning the party to appear at a given day before them, to answer to the articles. The process is served by the sergeant-at-arms of the senate, and a return is made of it to the senate, under oath. On the return-day of the process, the senate resolves itself into a court of impeacmment, and the senators are sworn to do justice, according to the constitution and laws. The person impeached is called to answer, and either appears or does not appear. If he does not appear, his default is recorded, and the senate may proceed ex parte. If he does appear, either by himself or attorney, the parties are required to form an issue, and a time is then assigned for the trial. The proceedings on the trial are conducted substantially as they are upon common judicial trials. If any debates arise among the senators, they are conducted in secret, and the final decision is given by yeas and nays; but no person can be convicted without the concurrence of two-thirds of the members present. Const. art. 1, s. 2, cl. 6.

6. When the president is tried, the chief justice shall preside. The judgment, in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. Proceedings on impeachments under the state constitutions are somewhat similar. Vide Courts of the United States.

IMPEACHMENT, evidence. An allegation, supported by proof, that a witness who has been examined is unworthy of credit.

2. Every witness is liable to be impeached as to his character for truth; and, if his general character is good, he is presumed, at all times, to be ready to support it. 3 Bouv. Inst. n. 3224, et seq.

IMPEACHMENT OF WASTE. It signifies a restraint from committing waste upon lands or tenements; or a demand of compensation for waste done by a tenant who has but a particular estate in the land granted, and, therefore, no right to commit waste.

2. All tenants for life, or any less estate, are liable to be impeached for waste, unless they hold without impeachment of waste; in the latter case, they may commit waste without being questioned, or any demand for compensation for the waste done. 11 Co. 82.

VARIANCE

VARIANCE

    23.6.16  

VARIANCE, pleading, evidence. A disagreement or difference between two parts of the same legal proceeding, which ought to agree together. Variances are between the writ and the declaration, and between the declaration and the evidence.

2. - 1. When the variance is a matter of substance, as if the writ sounds in contract, and the other in tort, and e converso, or if the writ demands one thing or subject, and the declaration another, advantage may be taken of it, even in arrest of judgment; for it is the writ which gives authority to the court to proceed in any given suit, and, therefore, the court can have no authority to hear and determine a cause substaatially different from that in the writ. Hob. 279; Cro. Eliz. 722. But if the variance is in matter of mere form, as in time or place, when that circumstance is immaterial, advantage can only be taken of it by plea in abatement. Yelv. 120; Latch. 173; Bac. Ab. Abatement, I; Gould, Pl. c. 5, §98 1 Chit. Pl. 438.

3. - 2. A variance by disagreement in some particular point or points only between the allegation and the evidence, when upon a material point, is as fatal to the party on whom the proof lies, as a total failure of evidence. For example; the plaintiff declared in covenant for not repairing, pursuant to the covenant in a lease, and stated the covenant, as a covenant to "repair when and as need should require;" and issue was joined on a traverse of the deed alleged. The plaintiff at the trial produced the deed in proof, and it appeared that the covenant was to "repair when and as need should require, and at farthest after notice:" the latter words having been omitted in the declaration. This was held to be a variance, because the additional words were material, and qualified the effect of the contract. 7 Taunt. 385. But a variance in mere form or in matter quite immaterial, will not be regarded. Str. 690. Vide 1 Vin. Ab. 41; 12 Vin. Ab. 63; 21 Vin. Ab. 538 Com. Dig. Abatement, G 8, H 7; Id.; Amendment, D 7, 8, V 3: Bail, R 7; Obligation, B 4; Pleader, C 14, 15, L 24, 30; Record, C, D, F; Phil. Ev. Index, 11. t. Stark. Ev. Index, h. t., Roscoe's Ev. Index, h. t.; 18 E. C. L. R. 139, 149, 153 1 Dougl. 194; 2 Salk. 659; Harr. Dig. h. t. Chit. Pl. Index, h. t.; United States Dig. Pleading II, d and e; Bouv. Inst. Index: h. t.

significant cases heard before the SCOTUS

significant cases heard before the SCOTUS

    23.6.16  

Mathis v. United States
Docket Number: 15-6092
Date Argued: 04/26/16

Issue: Whether a predicate prior conviction under the Armed Career Criminal Act must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense.

Dictionary, legal meaning of, CONSTITUTIONAL... CZAROWITZ.

Dictionary, legal meaning of, CONSTITUTIONAL... CZAROWITZ.

    22.2.12  

CONSTITUTIONAL. That which is consonant to, and agrees with the constitu- tion.

2. When laws are made in violation of the constitution, they are null and void: but the courts will not declare such a law void unless there appears to be a clear and unequivocal breach of the constitution. 4 Dall. R. 14; 3 Dall. R. 399; 1 Cranch, R. 137; 1 Binn. R. 415 6 Cranch, R. 87, 136; 2 Hall's Law Journ. 96, 255, 262; 3 Hall's Law Journ. 267; Wheat. Dig. tit. Constitutional Law; 2 Pet. R. 522; 2 Dall. 309; 12 Wheat. R. 270; Charlt. R. 175, .235; 1 Breese, R. 70, 209; 1 Blackf. R. 206 2 Porter, R. 303; 5 Binn. 355; 3 S. & R. 169; 2 Penn. R. 184; 19 John. R. 58; 1 Cowen, R. 550; 1 Marsb. R. 290 Pr. Dec. 64, 89 2 Litt. R. 90; 4 Monr R. 43; 1 South. R. 192; 7 Pick. R. 466; 13 Pick. R. 60 11 Mass. R. 396; 9 Greenl. R. 60; 5 Hayw. R. 271; 1 Harr. & J. 236; 1 Gill & J. 473; 7 Gill & J. 7; 9 Yerg. 490; 1 Rep. Const. Ct. 267; 3 Desaus. R. 476; 6 Rand. 245; 1 Chip. R. 237, 257; 1 Aik. R. 314; 3 N. H. Rep. 473; 4 N. H. Rep. 16; 7 N. H. Rep. 65; 1 Murph. R. 58. See 8 Law Intell. 65, for a list of decisions made by the supreme court of the United States, declaring laws to be unconstitutional.

Legal meaning of, DAM... DYVOUR

Legal meaning of, DAM... DYVOUR

    22.2.12  

DAM. A construction of wood, stone, or other materials, made across a stream of water for the purpose of confining it; a mole.

2. The owner of a stream not navigable, may erect a dam across it, and employ the water in any reasonable manner, either for his use or pleasure, so as not to destroy or render useless, materially diminish, or affect the application of the water by the proprietors below on the stream. He must not shut the gates of his dams and detain the water unreasonably, nor let it off in unusual quantities to the annoyance of his neighbors. 4 Dall. 211; 3 Caines, 207; 13 Mass. 420; 3 Pick, 268; 2 N. H. Rep. 532; 17 John. 306; 3 John. Ch. Rep. 282; 3 Rawle, 256; 2 Conn. Rep. 584; 5 Pick. 199; 20 John. 90; 1 Pick. 180; 4 Id. 460; 2 Binn. 475; 14 Srrg. & Rawle, 71; Id. 9; 13 John. 212; 1 McCord, 580; 3 N. H. Rep. 321; 1 Halst. R. 1; 3 Kents Com. 354.

3. When one side of the stream is owned by one person and the other by another, neither, without the eonsent of the other, can build a dam which extends beyond the filum aqua, thread of the river, without committing a trespass. Cro. Eliz. 269; 12 Mass. 211; Ang. on W. C. 14, 104, 141; vide Lois des Bat. P. 1, c. 3, s. 1, a. 3; Poth. Traite du Contrat de Societe, second app. 236; Hill. Ab. Index, h. t.; 7 Cowen, R. 266; 2 Watts, R. 327; 3 Rawle, R. 90; 17 Mass. R. 289; 5 Pick. R. 175; 4 Mass. R. 401. Vide Inundation.