The Albany Law Journal.

ALBANY, JULY 7, 1894.

Current Topics.

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UDGE COXE of the United States District

Court for the northern district of New York has contributed to the Cornell Law Journal an article on "The Law's Delay," which merits the attention of the members of the Constitutional Convention and particularly of the judiciary committee of that body. Judge Coxe insists that ever since the State was founded there has been but one remedy for the crowded calendars of the courts and that is to make more courts and more judges. He believes however that the difficulty may be successfully met without increasing the judiciary force, which in New York with six millions of people is greater than in England with thirty millions. His plan is to send to the county courts a large part of the litigation which now encumbers the Supreme Court. He proposes to make the General Terms the courts of last resort for the review of orders and for appeals in all cases involving less than $3,000 except where some question of public or general interest is con

cerned or an issue under the Constitution. In all cases involving more than $3,000 an appeal would be made under this plan direct to the Court of Appeals from the judgment of the trial court. The county judges have as a rule comparatively little work to perform, and according to Judge Coxe their time might be employed in trying cases which in the rural counties are taken to the Supreme Court. The General Terms would then be practically the courts of last resort, and the time of the Court of Appeals would be devoted to the consideraVOL. 50- No. 1.

tion of the greater questions. In cases where the decision of the General Term as a court of last resort might differ from that of a court of another department, Judge Coxe proposes a provision for appeal to the Court of Appeals, where the question would be settled and a precedent established for future guidance.

The question of how to relieve the courts of the State will engage the serious attention of the judiciary committee and the Constitutional Convention. Chief Judge Andrews of the Court of Appeals is on record as declaring that we do not want the number of judges increased, but what is needed is a simplification and rearrangement of their duties. Unquestionably the Supreme Court calendars are lumbered up with petty cases involving insignificant amounts, the consideration of which fritters away the valuable time of the justices. Any plan which provides for the relief of the Supreme Court should receive careful consideration.

Shepard, one of the professors of law, in speaking of the ability of women as law students, said: "So far as my observation goes, women are remarkably good students, accurate and discriminating. The two members of the senior class, the Misses Foskette and Platt, especially attracted my attention, because of their ability, not alone to learn the letter of the law, but to understand its principles and their application, and I predict a successful career for them at the bar.'

The Chicago Legal News says: Miss Ida Platt is the first colored woman ever admitted to the bar in Illinois, but not the first colored person, for Lloyd G. Wheeler, a colored man, was admitted to the Illinois bar, April 20, 1869. The examiners failed to certify his color to the Supreme Court, and when questioned by the officer of the Supreme Court the examiners said they did not know that he was a negro, but supposed that he was a Spaniard. What changes twenty-five years have wrought for the colored race; now a colored person, and that colored person a woman, is allowed to study law in the same classes with white men and white women, graduate with them from the same law college with honor and upon an equality.

One of the judges of the Supreme Court, when he signed his name to the license admitting Miss Platt, said: "We have done to-day what we never did before — admitted a colored woman to the bar; and it may now truly be said that persons are admitted to the Illinois bar without regard to race, sex or color."

It was said recently by Professor Abbott, of the North Western University Law Department, that women were not a success as law students," an opinion from which we most decidely dissent. In order to pass in this institution a student's standing has to be as high as eighty-five. This year Miss Platt's standing was ninety-six, being eleven more than the number required. We should call this a decided success, but we suppose our good friend, Professor Abbott, would call it an exception to the rule. We are glad to welcome Miss Platt as the first colored woman ever admitted to the Illinois bar, and are pleased to be able to say that she is a woman of very decided ability, being an excellent shorthand reporter, proficient in German and French, and agreeable in man

ner. She will enter upon her professional career with talents possessed by few.

Miss Foskette was born in Palatine, Illinois, twenty-eight years ago. She received her education in the public schools of Chicago, and graduated from the Cook County Normal School in 1886. Has been a teacher seven years, five years in the public schools of Chicago. One would not think that the slender, delicatelooking young woman had such power of endurance. But the records show that, in the two years of her course at the Chicago College of Law, she has been present at every recitation of her class.

Miss Foskette is, so to speak, a womanly woman, polite and pleasing in manner, in earnest in whatever she undertakes. It seems incredible that she should have attended the public schools as a teacher in the day-time, and for two years in the evening attended every recitation of the Law College, got the legal tasks assigned her by the professors, and not only maintained her standing in the class, but graduated eleven ahead of the required number, being ninety-six, while only eighty-five was required to pass. Such continued application and perseverance certainly deserves success.

A

The judges of the Court of Appeals differ among themselves as to the effect of the constitutional provision against taking away the right of trial by jury. Two long opinions were written in the recent case of Steck against the Colorado Fuel and Iron Company, in which the constitutional provision was discussed. compulsory reference was ordered in that case when the existence of a long account between the parties to the suit was disclosed in an answer containing a counter-claim. The complaint did not show the necessity for any accounting, and an objection was made to the appointment of a referee. The Court of Appeals holds that a reference should not have been ordered. The State Constitutions since the year 1777 have provided that trial by jury in all cases in which it was used in the colony of New York shall be established and remain inviolate forever. Legislation previous to 1777 had provided for referring cases in which there were long accounts between the parties to the suit. There were also English and Colonial

laws allowing a set-off" or counter-claim, but the majority of the judges of the Court of Appeals, led by Judge Earl, declared that, under the laws, as they existed in the Colonial days, the counter-claim could only be joined with an admission of the plaintiff's claim. A counterclaim can now be joined with a general denial of the claim, but the Court of Appeals holds that in such cases the judge cannot compel the parties to go before a referee. Chief Justice Andrews and Judges Finch and O'Brien dissent from the opinion of the court, and criticise the majority opinion as "based on views so close and critical that they can be comprehended only with difficulty."

Several months ago a woman named Mrs. Halliday committed some horrible murders. She was tried at Monticello, N. Y., two weeks ago. The testimony showed that she had been three times confined in different asylums for insanity, and the superintendents testified that she is now insane. In fact all the evidence of any moment was to the effect that the woman is insane. Her physiognomy and past history show her to belong to the lowest type of the mentally degenerate class. Despite the evidence however the jury brought in a verdict of guilty of murder in the first degree. Unless some one interferes, the demented creature will be killed by electricity in the approved and legal method.

The assassin, Prendergast, who shot the mayor of Chicago, has also been practically pronounced sane and responsible by the marvellous intelligence of the modern jury.

The Record argues that "the histories of the cases cited show how crude and illogical is our modern system of rendering justice, and how little attention is paid to those higher abstract

principles about which one hears so much from our standard orators, and reads so much in our standard books. It is agreed, theoretically, that an insane person is irresponsible and should not be hanged or punished. This is also our law. Yet, when the crime is very outrageous, juries will promptly bring in a verdict of guilty against the evidence of experts, of experience, and even their own common sense. On the other hand, a murder which appeals somewhat to their sense of justice will easily enable a jury to believe in the most transient and accommodating forms of insanity. if the juries are right in these cases, then the law and the ethics of to-day are wrong. There is a direct conflict and antagonism which cannot be explained away. And we ought either to reform our law and admit that some lunatics are responsible, and some murders justifiable, or else reform our jury system into a condition of consistence with the theory of the schools and the practice of the courts."

Now,

Sir Charles Russell, as he used to be known, but now Lord Russell of Killowen, who has been appointed to succeed Lord Coleridge as Lord Chief Justice of England, is an Irishman and a Roman Catholic, and is the first man of that faith to hold the office since the days of the English Reformation. A Catholic cannot be king or queen of England, just as a foreign born person cannot be president of the United States, but, with the exception of four places, all offices in the British Kingdom are open to Catholics, and it may be said that with few restrictions all positions of trust or profit are open to Catholics and Protestants, Anglicans or Dissenters, Jews or Gentiles. When it is remembered that what was very properly called the Catholic Emancipation Act was passed in 1829, it will be seen how rapid has been the march of progress in the direction of religious toleration. The policy which would alienate any class of citizens from the government of their country by discrimination against them on account of their religion is worthy of the dark ages, which were made darker by the fires of martyrdom, and the light lies in the direction of the admitted freedom of all men to believe as they choose without any pains, penalties or restrictions as a consequence.

It is

least, this doctrine is coming to be generally understood.

Lord Morris, who is one of Lord Russell's colleagues, as lord of appeal in ordinary, was chief justice of Ireland from 1887 till 1889, and was the first Roman Catholic who filled that position for two hundred years. His successor as Irish chief justice - Sir Peter O'Brien is also a Roman Catholic.

Lord Russell will be the ninth lord chief justice in one hundred and thirty-eight years. The occupants of the office therefore are a longlived race. The average tenure of the office has been seventeen years. Of the eight who have passed away, Kenyon, Ellenborough, Tenterden, Cockburn, and Coleridge died in office, Mansfield and Denman resigned, and Campbell was promoted to the woolsack. Lord Campbell held the office for nine years. With this exception, Lord Coleridge's tenure of office was the shortest.

The new lord chief justice of England was born in Newry, Armagh county, Ireland, in 1833. His father was Arthur Russell, and his uncle was the Very Rev. William Russell, D. D., president of Maynooth College. A brother is the Rev. Matthew Russell, S. J., who has long been the editor of the Irish Monthly. Charles Russell was graduated from Trinity College, Dublin, and practised as a solicitor in Belfast. Soon afterward he went to England, and was called to the bar at Lincoln's Inn in 1859. He became Queen's counsel, and was elected bencher of Lincoln's Inn in 1872. His practice ranked, almost from the first, among the leaders of the bar. Several years later he returned to Ireland, and stood for a seat in Parliament for Dundalk. He was elected as a Liberal, and represented that district from 1880 to 1885. The following year he represented South Hackney.

Mr. Gladstone chose Sir Charles Russell as the attorney-general for England in 1866, and an Irishman thus became the first Catholic attorney-general of England since the days of Elizabeth. He was knighted while a member of the Cabinet.

As a lawyer Sir Charles is easily one of the foremost, if not the greatest now living in England. He has been engaged in most of the

years. In court he is rough. He takes liberties with witnesses and opposing counsel, and even with the court, if he thinks he can. But he is fluent, painstaking, exceedingly alert of mind, and most forcible of speech. He is very sentimental, and he can communicate his sentimentality to his hearers. In the conduct of cases that depend largely upon law, and upon lucid and ingenious argument he is exceedingly strong. He defended O'Donnell, the murderer of James Cary. He appeared for Lady Colin Campbell and Sir Charles Dilke, and in the second trial, known as the action of Crawford v. Crawford, he held a watching brief for his clients in the first trial.

His speech before the Parnell commission was generally regarded by English critics as one of the most masterly efforts of modern times. The London Times, in an article commenting upon Sir Charles Russell's career, published immediately after the hearing before the Parnell commission closed, said of him:

"If he is ever made a judge, he may be ex

pected-though there is nothing more difficult than to tell beforehand what sort of a judge a man will be to be an extremely bad one. He has no particular liking for fair play; he is incapable of taking an impersonal view of any thing, and he would never identify himself in his own mind with the established and permanent government of the country. He is vain and self-conscious, and his temper is irritable."

The Supreme Court of Nebraska has recently rendered a decision embodied in a peculiar opinion and arising on a peculiar state of facts. A law prohibits the practice of medicine without a certificate from the State Board of Health. One Ezra M. Buswell, who had never had a medical education, and had received no certificate, was accused of violating the law. He was a believer in "Christian science," and testimony was introduced to show that persons came to him afflicted with various infirmities. He would put his hands upon them and urge them to believe that they were cured, and after prayers and exhortations the afflicted persons would sometimes declare that they were cured, and depart satisfied with the treatment. The defendant did not deny that he had applied the