The Albany Law Journal.

OUR

ALBANY, JANUARY 6, 1883.

CURRENT TOPICS.

UR Court of Appeals, overruling the decisions of the Supreme Court, have directly held that a marriage outside of this State by a party prohibited by a divorce decree of this State from remarrying, even though the intention was to evade the prohibition of the decree, is valid in this State. This holding was inevitable after the decision of Van Voorhis v. Brintnall, 86 N. Y. 18; S. C., 40 Am. Rep. 505; 24 Alb. Law Jour. 348. Of course Marshall v. Marshall, 2 Hun, 238, is overruled.

Another gentleman, a Jew, writes us finding fault with our calling him a "heathen." We did not use that expression with exclusive or particular reference to Jews. We used it in the general sense of "irreligious, unthinking persons." (See Webster's Dictionary.) In the sense in which we used it, and in our opinion, there are more "heathen" among so-called Christians than among the Jews. gard most of continental Europe as "heathen" in respect to Sunday observance. According to our observation, the better class of men among the Jews, as well as among the Christians, are content to observe the Christian Sunday.

We re

Mr. Justice Bradley, dissenting in the Curtis case, says, among other things: This in effect makes "it a condition of accepting any employment under the government, that a man shall not, even voluntarily and of his own free will, contribute in any way through or by the hands of any other employee of the government to the political cause which he desires to aid and promote. I do not believe that Congress has any right to impose such a condition upon any citizen of the United States. The offices of the government do not belong to the legislative department to dispose of on any conditions it may choose to impose. The Legislature creates most of the offices, it is true, and provides compensation for VOL. 27-No. 1.

the discharge of their duties; but that is its duty to do in order to establish a complete organization of the functions of government. When established the offices are or ought to be open to all. They belong to the United States, and not to Congress, and every citizen having the proper qualifications has the right to accept office, and to be a candidate therefor. This is a fundamental right of which the Legislature cannot deprive the citizen, nor clog its exercise with conditions that are repugnant to his other fundamental rights. * * * Amongst the

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necessary and proper means for promoting political views, or any other views, are association and contribution of money for that purpose, both to aid discussion and to disseminate information and sound doctrine. To deny to a man the privilege of associating and making joint-contributions with such other citizens as he may choose, is an unjust restraint of his right to propagate and promote his views on public affairs. * Congress might just as well, so far as the power is concerned, impose as a condition of taking any employment under the government entire silence on political subjects, and a prohibition of all conversation thereon between government employees. Nay, it might as well prohibit the discussion of religious questions, or the mutual contribution of funds for missionary or other religious purposes. In former times, when the slavery question was agitated, this would have been a very convenient law to repress all discussion of the subject on either side of Mason and Dixon's line. At the present time any efficient connection with an association in favor of a prohibitory liquor law, or of a protective tariff, or of greenback currency, or even for the repression of political assessments, would render any government official obnoxious to the penalties of the law under consideration. For all these questions have become political in their character, and any contributions in aid of the cause would be contributions for political purposes. The whole thing seems to me absurd. Neither men's mouths nor their purses can be constitutionally tied up in that way. The truth is that public opinion is oftentimes like a pendulum, swinging backward and forward to extreme lengths. We are not unfrequently in danger of becoming purists, instead of wise reformers, in particular directions; and

hastily pass inconsiderate laws which overreach the mark they are aimed at, or conflict with rights and privileges that a sober mind would regard as indisputable. It seems to me that the present law, taken in all its breadth, is one of this kind." This reasoning shows that there are two sides to the question, but it does not change our opinion of the constitutionality of the law. There is a great difference between free discussion and enforced contribution, and it is the evil of the latter that the law is aimed at.

It is easy to suggest the repeal of the Penal Code, but it is not so easy to foresee all that it would involve. The repeal of any considerable portion of it would throw our whole criminal law into confusion. The old common law of crimes, with all its enormities and absurdities, would be revived. The old statutes would be revived also. All offenses between the first of December and the day of repeal would have to be tried by the Code, notwithstanding the repeal. We have very little apprehension of repeal in whole or any considerable part, but it is well enough to look these facts in the face.

A very distinguished lawyer and statesman writes us: "I like your notions of Sunday. We can never permit it that one day of the seven shall not be a day of rest and quiet, of freedom from the noise of business and the display of traffic. Innocent and harmless pleasure, that flares not in the eye nor bursts upon the ear of neighbors, may be allowed, and needful occupations may go on." One One of the most interesting reviews of the Sunday laws is to be found in the opinion of Reed, J., in Sparhawk v. Uuion Pass. R. Co., 54 Penn. 432, holding that the general operation of a railroad on Sunday is illegal; and Johnston v. Commonwealth, 22 Penn. St. 102, holds that driving an omnibus daily as a public conveyance is a worldly employment, and not a work of necessity or charity, and therefore unlawful on Sunday, and the driver is indictable, although the omnibus was used by persons attending church. We have outgrown the doctrine of the latter case, probably, but the cases suffice to show that the Sunday laws are not confined to puritan communities.

We give this week the long-promised opinion of our Court of Appeals in Everson v. Powers. Also the long but very important opinion of the United States Supreme Court in the case of the Arlington estate. The latter crowds out our usual abstract, but we have had so many calls for it that we have supposed ourselves justified in publishing it in full.

Judge Arnoux has decided the Sunday cases. In regard to the express companies he holds that as to inter-State commerce they may conduct it on Sunday, any interference therewith by a State being in violation of the Federal Constitution; but as to domestic business they may not, except to deliver perishable articles. He holds that iron blast-furnaces

may be operated on Sunday, from the intrinsic necessity of the case. As to Sunday concerts, pure and simple, he holds that they are not forbidden by the Code, but that the police may not be enjoined from interfering with them, because such an injunction would prohibit interference with the numerous and usual improper accompaniments of such entertainments; in short, that such concerts, to be within the law, must be theatrical or "variety" performances, and that these may be suppressed. As to the ice-cream people, he holds that the manufacture of ice-cream on Sunday is forbidden, but that it is "food," and as such may be eaten on the premises where sold, but that it may not be delivered to customers outside on Sunday, and that confectionery may not be sold on Sunday. As we construe this, it would permit ice-cream saloons to be kept open on Sunday. This is undoubtedly right if ice-cream is "food," but we doubt that it is "food" within the intent of the law any more than confectionery is "food." Is frozen cream "food" any more than candied sugar, within the legislative intent ?

Mr. Henry C. Stryker, the clerk of our State Bar Association, desires us to say that he is to be found exclusively at the room of the association, No. 1, in the new capitol, and that all communications concerning the association should be addressed to him there.

Mr. Appleton Morgan sends us a pamphlet enti tled "Some Shakespearian Commentators," designed to demolish Shakespeare's pretensions to the authorship of the plays attributed to him. Why he should send such an essay to a lawyer we cannot conceive, unless he expects a lawyer to believe, without a particle of evidence, a theory opposed to the most conclusive evidence and well-substantiated facts. Mr. Morgan has not even the merit of offering a substitute for Shakespeare. He says: "I am not a Baconian and never can be." The Baconian theory is absurd enough, but Mr. Morgan's seems to us still more absurd. We have some doubt of Mr. Morgan's qualifications to judge of any literary question when he admits (p. 5) that he had the Waverly novels on his shelves seventeen years without reading them, and (p. 6) that "nothing less than a mental aberration" would find him opening Pope, Addison, Crabbe or Young. This being so we should prefer Mr. Morgan out of his head. Such criticism is like Mr. Howell's recent

announcement, in his essay on James, in The Century, that Fielding, Thackeray and Dickens have had their day, that their "art is not fine" enough for this generation, and impliedly that Mr. James and himself are the novelists of the future; as if anybody ever did or ever will twice read anything that he or James has ever written or ever can write, and as if the great men whom he mentions would not be read when all the small fry whom he represents and praises are forgotten. We are also doubtful of Mr. Morgan's ability to judge of literary evidence when he treats (p. 22) James Freeman Clark's

tion of attempted suicide only, and whether that alone was evidence of insanity. It adopted the very language used by the court below in American Life Ins. Co. v. Isett's Adm'rs, and affirmed by this court in 24 P. F. Smith, 176. In Laros v. Commonwealth, 3 Norris, 200, the defense was insanity. It was objected that the court below said to the jury, 'you cannot however infer insanity from the heinous and atrocious character of the crime or to constitute it as an element in the proof of actual insanity.' The answer here was, 'the court did not mean to say that when proof of insanity is given the horrid and unnatural character of the crime will lend no weight to the proof; but meant only that the terrible nature of the crime will not stand as the proof itself, or an element in the proof of the fact of insanity. There is a manifest difference between that which is actual evidence of a fact, and that which merely lends weight to the evidence which constitutes the proof. This is all the court meant.' So we understand the language used in the present case to mean that the attempt to commit suicide of itself is not evidence of the fact of the insanity of the prisoner, and raises no legal presumption thereof; but may be considered by the jury with all the other facts and circumstances bearing on the question of insanity. Sometimes it may be evidence of a wicked and depraved heart, familiar with crime. At others of despondency and discouragement; but perhaps more frequently of cowardice, of a lack of courage to face ignominy and public disgrace, or to submit to the punishment likely to be imposed on him."

him;

In Conant v. Burnham, Supreme Court of Massachusetts, November, 1882, it was held that the services of an attorney in prosecuting the husband upon a charge of assault and battery preferred by the wife are not necessaries for which she can charge for it is the duty of magistrates to prosecute such charges upon complaint made to them, and it is presumed they will do that duty. The court said: "There may be occasions when such services are absolutely essential for the relief of a wife's physical or mental distress. Suing out a writ of habeas corpus to deliver herself from unjust or illegal imprisonment, or to regain possession of her child, might under peculiar circumstances furnish illustrations of a strong necessity. Another illustration may be found in the circumstances of the present The husband had committed an assault and battery upon his wife, and had instituted against her a criminal prosecution, which, from her final acquittal, may now be assumed to have been perhaps without just foundation. What was she to do? Is it to be held that the woman, ignorant of legal rules and methods of proceeding, without money or friends, not only deprived of the protection and aid of her husband, but encountering his active hostility, was competent to defend herself properly on her trial before a jury? This would be equivalent to saying that the law considers the assistance of attorneys of no value. This would not be consistent with the provision of the Declaration of

case.

Rights and of the statutes giving to every person accused of crime the right to be heard in his defense by counsel. Decl. of Rights, art. 12; Pub. St., ch. 200, § 4. In an indictment for murder, counsel are assigned to the prisoner by the court, under the provisions of Pub. St., ch. 150, § 19, and are expected to serve without pay, if the prisoner cannot furnish compensation; and no such prisoner has gone unde fended on this ground. There is no provision of statute for assigning counsel to one indicted for a less offense. But if such assistance was of value to the defendant's wife and was necessary to her, no artificial rule of law should be interposed to prevent her from obtaining it, in the same manner as the law allows her to obtain whatever else may be absolutely necessary under such circumstances as may exist at the time. There is no hardship upon the husband in this case from the application of this rule; for by his own act he created the necessity which she was under, and he made no provision for supplying it. The defendant's counsel concedes that the plaintiff's services were as a matter of fact necessary. Recent English decisions fully establish the doctrine for that country that legal services may fall within the class of necessaries. Ottaway v. Hamil ton, 3 C. P. Div. 401; Wilson v. Ford, L. R., 3 Ex. 63; Stocken v. Pattrick, 29 L. T. (N. S.) 507. This court has heretofore held that a husband is not liable for legal services rendered to his wife in successfully defending her against a libel for divorce filed by him. Coffin v. Dunham, 8 Cush. 404. There are reasons peculiarly applicable in this Commonwealth to services in such proceedings, which do not apply to cases like the present. Under the laws and customs of this State we do not think that legal assistance was necessary for this woman in prosecuting her husband for an assault and battery upon her. The complaint in such case may be made orally to the magistrate, who will himself reduce it to writing, issue a warrant, if it appears that an offense has been committed, and investigate the case. Pub. St., ch. 212, §§ 15, 29." To the same effect is Grindell v. Godman, 5 Ad. & Ell. 755. "To hold otherwise would be like compelling St. Lawrence's executors to pay for the gridiron on which he was roasted. I presume the true principle of this decision is that the indictment would be such a luxury to the wife's feelings as to take it out of the list of necessaries."--Humorous Phases of the Law.

UNCONSCIONABLE CONTRACTS.

'N Butler v. Duncan, 47 Mich. 94, a dissolute and inexperienced spendthrift, twenty-five years old, mortgaged all the real estate to which he was entitled under his father's will, for $5,000, as collateral to his note for that amount, made up as follows: $1,000 in cash; a due bill of $47 surrendered; $199 interest credited on a previous mortgage; $110.35 premiums paid on a life insurance policy assigned to the mortgagee; and $556.75 retained to pay subsequent annual premiums thereon; and $3,200 for a conveyance of 160 acres of land worth $1,000. The