The Albany Law Journal.

ALBANY, JANUARY 6, 1883.

CURRENT TOPICS.

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 fundamental

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. We regard 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.

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.

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 entertain- 25] ments; 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 he 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 openi 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.

"I am

Mr. Appleton Morgan sends us a pamphlet enti tled "Some Shakespearian Commentators," de-s signed 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: 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. being so we should prefer Mr. Morgan out of his

This

head. Such criticism is like Mr. Howell's recent

announcement, in his essay on James, in The Cen tury, 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 i 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 woul not be read when all the small fry whom he repre sents and praises are forgotten. We are also doubt ful of Mr. Morgan's ability to judge of literary evi dence when he treats (p. 22) James Freeman Clark

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 "unfortu ste" and 64 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.

A

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 hereinbefore contained." He died possessed, inter alia, of a cellar of wines, and two carriage horses and three carriages and har

ness.

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 o 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 musement." The court observed: "Why it should be called a garden at all does not appear, since it ontains neither trees, flowers, plants, grass nor otanical specimens of any kind, nor in fact any hing whatever suggestive of horticulture. It must

therefore by some figure of speech that it is alled a garden, just as one speaks of any place of reat enjoyment as a paradise. Perhaps this is a aradise to those accustomed to resort there." "It not difficult to understand the object which the Tegislature had in view in enacting this law. The Trical representations and all exhibitions of a cogate character, whatever they may be, have peculiar tractions for the young. It is of great importance erefore that from such places all temptations to renk should be excluded. They therefore prohibthe sale of liquors in all such places; that is in places where amusements are furnished which take in any way of a theatrical character, and he ich supply the attractions for the young which odh places afford. The word 'amusement' is not be interpreted in its broadest and most compreCasive sense, nor is the act to be applied to every ce where entertainment, diversion, recreation or

an

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