The Albany Law Journal.

ALBANY, AUGUST 31, 1889.

CURRENT TOPICS.

would seem that although California is pre

I eminent for huge trees and fruits, abundant gold,

death in the attempt. She can well be incarcerated as a party to the conspiracy to kill Mr. Justice Field. Her threats, and her going for and return with her pistol, and her subsequent conduct and words, are evident enough proof of her complicity. We hope the authorities will take care of her, and let the land be relieved of this nightmare of horror. The State is bound to protect its magistrates at all hazards, and being forewarned should be forearmed.

A correspondent of the Sun, writing from Richfield Springs and signing "G. T. C.," in which signature we recognize Mr. George Ticknor Curtis, says: "There may be no principle of law which will enable Nagle, as a matter of strict law, to claim a verdict of not guilty, when he is tried under an indictment for the murder of Terry, or under one for some lesser offense. But there will be a public sentiment which will prevent Nagle from being punished." Watering-place law is apt to be rather conjectural, but at the risk of differing from so eminent an authority we will venture an opinion to the contrary. According to Mr. Curtis, if a man of well-known violent temper and desperate antecedents makes an open and violent assault upon a peaceable citizen, in pursuance of notorious

and the adoption of a civil code, she lacks something of the gentler civilization of the sterile and common-law east, at least if we may judge from two tragical assaults by disappointed suitors on their judges in the same day. Mr. Justice Field has fortunately escaped from the unrelenting and unscrupulous enemy who has long been pursuing him. The country is to be congratulated that his long, honorable and useful career has not been cut short by a man who was never any thing but a curse to his State and his country. To have seen this venerable magistrate fall by the hand of Terry would have recalled the emotions which thrilled the land when Custer was massacred by Sitting Bull. A man of blood always, Terry has fitly perished by the hand of justice. A desperado and a murderer, the halter would have been more appro-threats, and in circumstances indicating a deadly priate, and have given him the opportunity of re- purpose, the bystanders may not interfere to arrest pentance which he so sadly needed but probably him or prevent the act, but must wait until he has would have despised. His life has been a singular grievously injured or killed the victim, and leave example of misspent talents, unscrupulous ambi- him to the action of the courts. Thus if on Sunday tions, mad and reckless passions, cool and unspar- an armed and drunken cow-boy rushes up the pulpit ing vengeance. There is no reason to regard his stairs and strikes the minister, the audience must career with any feeling but abhorrence, mingled all sit decorously still until he has killed him. This with astonishment that he should have lived so is not the common law. The commission of an aslong, been so patiently tolerated, and had a survivorsault with apparent intent to do great bodily harm to petition a court of justice to adjourn out of reconstitutes every witness an officer to arrest the ofspect to one who always scorned and defied justice, fender, to prevent a breach of the peace, and every honor and mercy. His ending was terrible, but citizen may, in our opinion, use sufficient force to deserved. We are glad that there was forethought prevent the consummation of the offender's purpose, enough to devise and courage and presence of mind even to the taking of his life. We recollect that enough to execute this signal punishment. It is this doctrine has been applied in the case of one idle to talk to lawyers about any doubt of Mr. interfering to prevent an attack on his brother. Nagle's authority to execute this offender. He was Any citizen may if necessary, without special aulawfully set to protect a high magistrate, on his way thority, use such force in the arrest of one who has to court, against a notorious and unconcealed en- murdered another, and we have no doubt he may emy, and as an officer of the law had just as comdo it beforehand. He is not called on to justify plete a right to kill Terry as he would have to slay a the act, but only the degree of force employed. foot-pad. Even without this special authority, it But it is not necessary to go so far in the case of may be that he would have been justified in going Nagle. He was an officer of the law, regularly apso far to prevent an evident and impending murder. pointed, and lawfully detailed to attend and guard Terry may have been unarmed, but that was part the person of a magistrate on his way to, in and of the conspiracy by which the man was to make from court. In old times it was the custom in Engthe attack, and the woman to do the killing, and land, when the judge went on circuit in his carthus have the superior chance of her sex in escap- riage, for the sheriff to meet him on the verge of ing the due punishment. There is now one more the court town, with attendants, all in uniform and thing which the law must do, and that is, guard armed, and accompany the magistrate in solemn the lives of Mr. Justice Field and Judge Sawyer procession to the court-house. Now according to from the threatened vengeance of the uncaged Mr. Curtis, the sheriff, in case of an attack on the tigress, the Hill woman, who is at the bottom of judge by one of Robin Hood's outlaw band, must this tragedy. We predict that if she is left at large have stood still until the judge was well killed, and she will kill one of these magistrates or meet her then to be sure he might have arrested him. This will VOL. 40 No. 9.

never do. All that Mr. Nagle has to do is to show to the examining magistrate that he acted in the reasonable and well-founded belief that Terry designed to kill Mr. Justice Field, and he must be discharged. People, who like Mr. Curtis, scoff at codes, and think that law exists only in the breasts of the people and the magistrates, must not try to make us believe that the unofficial citizen is bound to stand by and see a murder committed, and trust to luck and favor for acquittal or pardon if he interferes. Such a citizen may never be detained and put on trial. He has done the community a favor. He has done a sacred act of justice. He has killed one who has put himself in the attitude of an enemy to society. But when like Nagle he is a police officer he is not only justified but would have been unjustifiable had he acted otherwise.

time enough for pistol practice to become a crack shot. He is also a law-maker. And yet he accepts a challenge and fights a duel, and because he spares the life of his antagonist, apparently at his mercy, he seems to get applause and admiration instead of the term in prison which he richly deserves. We do not know whether duelling is against the law of his State; we dare say not, but that only emphasizes the brutality and indifference of the people. South Carolina has done herself great honor in making duelling unlawful, and several States have done right and discreetly in rendering duellists incapable of holding office. They ought also to be disfranchised.

It is very inconsistent to make prize-fighting unlawful and not to condemn duelling. And it is amusing to see the prize-fighters, or one of them, It is not wonderful, when people read such views duellists. Sullivan was challenged and would have trying to put themselves on the noble footing of of law laid down by eminent lawyers, that they been disgraced if he had not fought! Even now should feel indignation toward courts and lawyers there is a strong effort to have him pardoned, and in criminal proceedings, grow impatient with their it is said that the governor would not have prosetardy and slow movements and their obstructive cuted him if he had not feared that the omission and trivial technicalities, and seek to take the law would have been urged against him politically. into their own hands. Mid-summer usually brings And it is amusing to see how afraid these huge its madness, and sometimes it lasts until weary aubullies are lest they should be set at honest, hard tumn. Thus 'somebody writes to the St. Louis Rework. They worked hard and long enough in public suggesting that lynching be legalized, argu- training and fighting, but shrink from stone-sawing, ing that a summary punishment act "would give because it is not gentlemanly. No danger of them the criminal classes a wholesome fear of the law, having to do any thing degrading. The owner of mete out swift and just punishment, and the law the "battle-ground" is the owner by contract of would be a protection to good citizens in fact, the services of the convicts in that county, and bewhich it is now only in theory, while criminals going himself under indictment has the feelings of a unpunished." It is not worth while gravely to combat such a ridiculous view. It would be as

reasonable, prudent and consistent with the constitution of our society to pass an act enabling every citizen to make his own laws to suit himself. It is

gentleman toward other unfortunate gentlemen, and
fishing apparatus to supply the other gentlemen
so will furnish the mercenary ruffians with guns and
with game and fish! Perhaps he will even indulge
noble rules of the Marquis of Queensbury.
them in a friendly contest with gloves under the

only pardonable in a resident of Missouri, whose criminal jurisprudence for years has been unprecedented in its slothfulness and inefficiency. There is no country in the world where there is less criminal violence, and where human life is safer, than in Lord Justice Stephen has always had the reputaEngland, and the reason is the promptness, certion, we believe, of being merciless toward crimitainty and severity of punishment. If a woman nals. If his charge in the recent case of Mrs. poisons her husband there she is not looked upon Maybrick is a fair example of his conduct on such as an innocent, wide-eyed martyr, nor indulged in occasions, that reputation would seem deserved. technical appeal after appeal, but is dealt with in a His expressions of opinion against the woman are a manner which to us in this country seems summary. survival of the unfittest from the time when prisonHuman life is held too cheap here. An assassinaers were allowed no counsel, could not testify for tion of a judge in England by a disappointed suitor themselves, and the judge under pretense of sumwould fill us with much more horror than it does in ming up for them usually fastened the halter around this country because it is so much less likely to octheir necks. By reason of such expressions conBut here, where a great number of the citi-victed persons have sometimes been awarded new zens go armed, the opportunity seconds the impulse to quick revenges. Among us the resolve and practice of courts of justice seems too often to get the accused person off than to punish crime.

cur.

The carelessness of our people in this matter is illustrated in the recent duel in the South. Mr. Calhoun is a lawyer, and yet somehow has found

trials in this country-not very often, it is true, for seldom does a judge here take it upon himself to proffer adverse opinions which "have nothing to do with the case." Mrs. Maybrick's statement about the way in which her husband came by the arsenic sounds rather improbable, and it would seem that she was not very careful about keeping the poison out of his reach, but after all the jury is the proper tribunal to determine such questions,

and ought not to be subjected to the influence of the judge. How much better it would have been if the prisoner could have testified and been crossexamined! This course would probably have gone far toward demonstrating her innocence or her guilt. The theory of the "statement" on criminal

trials is absurd.

NOTES OF CASES.

N re Kanaka Nian, Utah Supreme Court, June 7, 1889, an application for naturalization, the court said: "It appeared from the statement of the applicant under oath that he was a native of the Hawaiian Islands, that his ancestors were Kanakas. In appearance he was of Malayan or Mongolian complexion, a shade lighter than the average of his

race.

** * *

He could not read or write the English language, but stated that he has lived in Utah Territory six years, and that he had read the Constitution of the United States in his own language; that the Hawaiians have a king, and the United States have a president. He was unable to mention the name of the president of the United States, but spoke of George Washington as president. He said that he would obey all the laws of the United States, and presented his first papers. On his statements, assuming residence proven by witnesses, ought the court admit him to citizenship? The law limits naturalization to persons of the white or African races. The first question is, do the native inhabitants of the Hawaiian Islands belong to the white or African race? Blumenbach classifies the human family into five varieties, viz., the Caucasian, Mongolian, Ethiopian, Malay and American. Cuvier reduced the five classes of Blumenbach to three, viz., the Caucasian, Mongolian and Ethiopian, treating the Malay and American as subdivisions of the Mongolian. Jacquinot does the same. Prof. E. B. Tyler, in his article on Anthropology' in the Encyclopædia Britannica (9th ed.), after noticing the divisions made by Blumenbach and Cuvier, approves as the best the classification of Prof. Huxley into Australians, Negroes, Mongols and whites, dividing the whites into the fair whites and the dark whites. Among the Mongols he includes the Chinese, the Dyak-Malays and the Polynesians. Prof. Van Rhyn, in American Cyclopedia, article Malayo-Polynesian Races and Languages,' includes among those races the inhabitants of the Hawaiian Islands. Rev. J. F. Whitmee in a learned article, 'Polynesia,' in Encyclopædia Britannica (9th ed.), classifies the Polynesians into Neguto-Polynesians and Malayo-Polynesians, and among the latter places the Sandwich Islanders. The highest authorities therefore class the Hawaiians among the Malay tribes. No authority on such subjects classifies them with either the Caucasian or white races, or the Ethiopian or black races. Judge Sawyer says that he finds 'nothing in the history of the country, in common or scientific usage, or in legislative proceedings, to indicate that Congress intended to include in the term

* * *

white person' any other than an individual of the Caucasian race.' In re Ah Yup, 5 Sawy. 155. Reference is made in 22 U. S. St. at Large, p. 61, § 14, 'that hereafter no State court or court of the United States shall admit Chinese to citizenship, and all laws in conflict with this act are hereby repealed.' In mentioning the Chinese as excluded it is claimed that Congress intended to include all other races. There is a general rule of construction of statutes that if a portion of a number of classes are included by name, such a rule of construction for this section would admit to citizenship the aliens of all other races — an effect that Congress unquestionably never intended. Some courts had admitted Chinese to citizenship, and this section was evidently made to prevent such naturalizations and to remove all doubt. We are of opinion that the law authorizes the naturalization of aliens of the Caucasian or white races and of the African races only, and all other races, among which are the Hawaiians, are excluded. The admission of the applicant to citizenship was opposed also on the ground that he did not appear to be possessed of sufficient intelligence to become a citizen; that his intellect and conscience were not sufficiently enlightened. This statute makes it the duty of the court to judge of the applicant's moral character from his conduct in evidence, as well as of his attachment to the Constitution and his disposition toward the good order, happiness and welfare of the people. The Constitution places on the citizen the direction of the government; that government which should protect human life, but may sacrifice it; that may guard our liberties, or may be used to overthrow them; that should secure our right to the pursuit of happiness and to property, but which may violate or destroy them. The will upon which the welfare of the millions who are now here, and who are to follow us, so largely depends, should be intelligent and virtuous. The man intrusted with the high, difficult and sacred duties of an American citizen should be informed and enlightened. He should have sufficient intelligence to discriminate right from wrong in political matters, and should possess a feeling of moral obligation sufficient to cause him to adopt the right. In the law quoted Congress expressed an intention to admit to citizenship aliens of good moral character, attached to the principles of liberty and justice contained in the Constitution, and desirous of the public good, and to exclude aliens who live immoral lives and disregard moral principles, who are in favor of despotism, and are indifferent to or opposed to those institutions upon which the welfare of all depends. They intended to exclude the immoral, those who are opposed to the principles of liberty and justice, or are in favor of anarchy and confusion. No alien who is not willing to support the Constitution, and all laws pursuant to it, should be admitted to citizenship. No one should be admit ted who has not sufficient intelligence to understand the principles of the government which may rest in part on his will. It does not ap

pear to the satisfaction of the court that the applicant understands the principles of the government of the United States or its institutions sufficiently to become a citizen."

of a building who negligently permits a private way leading to it, which is under his control, to be in an unsafe condition, by reason of an excavation or embankment so near to it as to make travelling on it dangerous, is liable for injuries received by any person who is lawfully using the way with due care. Mellen v. Morrill, 126 Mass. 545; Oliver v. Worcester, 102 id. 489. But abutters on a public way have not control of the way, nor do travellers use a pub

monwealth the obligation of a city or town to put up guards against pitfalls which are so near to a highway as to make it unsafe for travellers is similar to the obligation which it seems is imposed upon abutters by the English law. We are not aware that it has ever been decided here that exca

vations made by the owner of land outside the limits of a highway, but so near as to make it unsafe for travellers, constitute a public nuisance, for creating or maintaining which the land-owner may be punished, or that in assessing damages for land taken for a highway any allowance is made to the land-owner for the loss of any right to use the land not taken, in the same manner as if a highway had not been laid out."

In McIntire v. Roberts, Massachusetts Supreme Judicial Court, June 20, 1889, it was held that the occupant of a building in which is an opening to an elevator shaft facing on a public street, but sepa-lic way by invitation of the abutters. In this Comrated from the sidewalk by a lintel three inches high and eighteen inches wide, is not responsible for injuries received by a passer-by who is accidently pushed into the opening by third persons. The court said: "The contention is that the defendants were negligent in leaving this opening unguarded. It is said of the liability of the city in Alger v. Lowell, 3 Allen, 402, 405, that the place where the plaintiff fell was indeed outside the line of the street, but the defect in the street which occasioned the injury was the want of a railing, if one was necessary at that place to make the street safe and convenient for travellers in the use of ordinary care. And the city would have an undoubted right to erect such a railing, although it might obstruct the entrance to the passage-way of an abutter, because no person has a right to an open access to his In Village of Carterville v. Cook, Illinois Supreme land adjoining a street of such a character as to en- Court, June 17, 1889, it was held that a village is danger persons lawfully using the street for pur- liable for injuries caused to a person by falling off poses of travel.' In Franklin v. Fisk, 13 Allen, 211, from a sidewalk maintained at an unsafe height it is said that when highways are established they without guards, though the accident was directly are located by the public authorities with exactness, caused by the negligent act of a third person in and the easement of the public, which consists of pushing the person off the sidewalk. The court the right to make them safe and convenient for said: "The objection urged against the ruling travellers, and to use them for public travel, does in refusing and modifying instructions presents the not extend beyond the limits of the location. *** question whether, conceding the negligence of the The right of adjoining proprietors to erect struct- defendant in omitting to reasonably guard the sideures upon their land up to the line of the highway walk at the point where plaintiff was injured, by is exercised everywhere.' See Mayo v. Springfield, railing or otherwise, the concurring negligence of a 136 Mass. 10. If this elevator opening rendered the third party, over whom it had no control in producsidewalk permanently dangerous to travellers, it ing the injury, releases it from liability. The Suwas undoubtedly the duty of the city of Boston to preme Court of Massachusetts have held in Rowell put up a barrier, and if the defendants removed it v. City of Lowell, 7 Gray, 103; Kidder v. Dunstable, they might be liable to travellers who were injured id. 104, and Shepherd v. Inhabitants, 4 Allen, 113, in consequence of the removal of the barrier; but it that it does. These cases however seem to rest, to has not yet been decided in this Commonwealth some extent, upon the phraseology of the Massachuthat at common law abutters are liable to travellers setts statute, which is less comprehensive in this for injuries received in consequence of excavations class of cases than is the ruling in this court. made in their land outside the limits of a highway, cago v. Keefe, 111 Ill. 222. At all events, we are and Howland v. Vincent, 10 Metc. 371, is a stronger committed to a different line of ruling upon this case for the plaintiff than the case at bar. It is ar- question. In Joliet v. Verley, 35 Ill. 58; Bloomington gued that that case is opposed to the weight of au- v. Bay, 42 id. 503; City of Lacon v. Page, 48 id. 500, thority elsewhere, and that a hole outside the limits we held that if a person, while observing due care of a highway, yet so near to it as to make the high- for his personal safety, be injured by the combined way unsafe for travellers, constitutes a public nui- result of an accident and the negligence of a city or sance, and that if a person creates a public nuisance, village, and the injury would not have been sushe is liable to individuals for any special damages tained but for such negligence, yet although the acsuffered therefrom. See Barnes v. Ward, 9 C. B. cident be the primary cause of the injury, if it was 392; Fisher v. Prowse, 2 Best & S. 770; Hadley v. one which common prudence and sagacity could Taylor, L. R., 1 C. P. 53; Beck v. Carter, 68 N. Y. not have foreseen and provided against, the negli283; Bond v. Smith, 44 Hun, 219; Murray v. Me- gent city or village will be liable for the injury. It Shane, 52 Md. 217; State v. Society, 42 N. J. Law, is not perceived how, upon principle, the interven504; Haughey v. Hart, 62 Iowa, 96. The occupier | tion of the negligent act of a third person, over

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