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THE ALBANY LAW JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
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
OUR Court of Appeals, overruling the decisions Legislature cannot deprive the citizen, which the
The Albany Law Journal.
ALBANY, JANUARY 6, 1883.
Another gentleman, a Jew, writes us finding fault
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.
exercise with conditions that are repugnant to his other fundamental rights. * * * Amongst the 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 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 con cerning 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
delicious jest in the North American Review for February, 1881, entitled, "Did William Shakespeare write Lord Bacon's Works?" as serious, calling him "unfortunate" and "poor," and his essay "unfortunate" and "a frightful example," and representing him as probably desirous to "accelerate its oblivion." We set little store on the opinion of a man who cannot see so broad a joke as that. As to the Shakespearian authorship, we believe there is as much evidence of its authenticity as there is of a future existence or the matters narrated in the Gospels.
NOTES OF CASES.
MUSING "definitions" are cropping out on every hand. In Moir's Estate, Eng. Ch. Div., Nov. 3, 1882, the testator directed that "all the household goods, furniture, pictures, prints, books, china, articles of vertu, and all my plate, jewels, and all other things in and about the said mansion house," should be "annexed to the same as heirlooms to be enjoyed by the person or persons for the time being beneficially entitled to the said mansion house under the limitations herein before contained." He died possessed, inter alia, of a cellar of wines, and two carriage horses and three carriages and harness. Kay, J., held that the property in question, being consumable, did not pass as "heirlooms." In the Matter of Hastings, Philadelphia Quarter Sessions, Nov. 27, 1882 (Leg. Int., Dec. 1, 1882), it was held that a "garden," where spirituous drinks were sold, and there was singing, dancing and boxing on a stage, "by the best artists," although no entrance fee was charged, and there was no drop-curtain, scenery, or foot-lights, was a "place of amusement," within the act exacting licenses for "any theater, circus, museum, or other place of amusement." The court observed: "Why it should be called a garden at all does not appear, since it contains neither trees, flowers, plants, grass nor botanical specimens of any kind, nor in fact any thing whatever suggestive of horticulture. It must be therefore by some figure of speech that it is called a garden, just as one speaks of any place of great enjoyment as a paradise. Perhaps this is a paradise to those accustomed to resort there." "It is not difficult to understand the object which the Legislature had in view in enacting this law. Theatrical representations and all exhibitions of a cognate character, whatever they may be, have peculiar attractions for the young. It is of great importance therefore that from such places all temptations to drink should be excluded. They therefore prohibited the sale of liquors in all such places; that is in all places where amusements are furnished which partake in any way of a theatrical character, and which supply the attractions for the young which such places afford. The word 'amusement' is not to be interpreted in its broadest and most comprehensive sense, nor is the act to be applied to every place where entertainment, diversion, recreation or
relaxation is had, but in obedience to the principles of interpretation already referred to, is to be confined to the particular kinds of amusement enumerated in the statute and those of a kindred char acter. It has no application, in my opinion, to club-houses or beer gardens as they usually exist, where the guests, in addition to refreshments, are regaled with music, or to any other place where mere music alone is furnished, but it was intended to embrace and clearly does embrace such places as that kept by the respondents, where representations in the nature of theatrical representations are exhibited upon a stage by persons dressed up in the costumes of actors and surrounded by many of the accompaniments and adjuncts which belong to theatrical exhibitions. It is not necessary that there should be either a drop-curtain or foot-lights, or a company of actors or regular plays, to bring it within the words and meaning of the act. If the general
features of the exhibition are of a theatrical character and the place is one where public amusement of that description is supplied and liquor sold, it is within the condemnation of the law, however wanting it may be in the more refined and artistic features of theatrical entertainments; and indeed is, for obvious reasons, much more obnoxious to the law and injurious to public morals than either a theater, a museum, or a circus, in which liquor might be sold. Nor does it make any difference whatever that no price was charged for admission. Gregory v. Tuffts, 6 C. & P. 281; Hall v. Green, 9 Ex. 247; Frailling v. Messenger, 16 L. T. (N. S.) 494. The evil intended to be restrained is the same whether an admission fee is charged or not. If any thing it is greater when admission is gratuitous, for the temptation to enter is so much the greater." Perhaps if only boxing had prevailed, the holding would have been different, for we understand there is more of "punishment" than of "amusement" about that. Playing billiards simply for the hire of the table is not "gambling." Brenniger v. Belvidere, 44 N. J. 350.
In Coyle v. Commonwealth, Pennsylvania Supreme Court, May, 1882, 12 W. N. C. 277, it was held that attempted suicide raises no presumption of insanity. The court said: "The second specification relates to the effect which shall be given to the attempt of the prisoner to take his own life. This attempt was made immediately after he had fired the shots which caused the death of his victim. The language objected to was not in answer to any point submitted, but appears in the general charge. The court said: 'It is perhaps proper to say to you, as matter of law, that even if you believe the prisoner really intended to take his own life, this would not be of itself evidence of insanity. It would only be a circumstance in the case to be considered by you in connection with other facts and circumstances for the purpose of enabling you to determine the mental condition of the prisoner. The fact of the attempted suicide raises no presumption of insanity.' The court was dealing with the ques
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."
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 him; 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 case. 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
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.
IN 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