Varnum v. Leek 118 Winchell v. Winchell 451 Von Wein v. Scottish Union and Nat. Ins. Co.... 488 Wing v. Neabody. 138 Witters v. Sowles... 494 THE ALBANY LAW JOURNAL: A WEEKLY RECORD OF THE LAW AND THE LAWYERS. The Albany Law Journal. ALBANY, JULY 4, 1885. CURRENT TOPICS. T is gratifying to learn that the Adams-Coleridge libel suits have been amicably settled. The only matter of interest to the public which has been adjudged is, as the Law Times says, that "Mr. Justice Manisty's 'practice point' has been summarily decided against him. A judge has no right to enter judgment in the teeth of the finding of a jury." That is what we said at the time. But then on the other hand the Law Journal says: "The course taken by Mr. Justice Manisty at the trial is justified in point of law. As the master of the the rolls stated, it is based on a practice in use for a couple of centuries before the Judicature Act.' Mr. Justice Manisty would however in a case involving character have done better if he had left either party to move for judgment." So our readers can take their choice. As we have not yet received the text of the opinions, and perhaps never shall get it, because no judgment is to be entered, we cannot say which of our editorial brethren is right. The amount of compensation, if any, to be made to Mr. Adams, is to be decided by " some person of eminence, to be agreed upon." Dr. Francis Wharton delivered an address at the commencement exercises of Columbian College, on the Relation of Legal Practitoners to the Progressive Development of the Declaratory Laws of the Country. He reviewed the development of municipal, constitutional, and international law, closing as follows: "That which is truly beneficial is merely declaratory, and emanates from the genius and conscience of the people to whom it relates. Of the futility of laws which are not so declaratory we have illustrations in laws fixing prices of goods, whose only effect is to adapt the currency to the price; and in laws prohibiting uses and trusts which can never, as long as there are daughters to protect or charities to endow, prevent a new form of fiduciary relationship coming in to take the place of the old form VOL. 32 - No. 1. which was prescribed. As illustrating the instinctive and organic way in which a community throws off laws which have ceased to be declaratory of existing conditions, and puts on laws which are declaratory, I might call attention to the fact that the English colonies in this country, when they went into colonial seclusion, had on them the garb of feudalism and chivalry; when they emerged from this seclusion this gorgeous but superannuated attire was dropped, and they reappeared in the sober simplicity suited to the time and place. They went in decked with the statute quia emptores, with the statutes of Edward and Elizabeth proscribing charitable and superstitious usages, with equity assigned a distinct supervisory power, with primogeniture and tenancy in tail and non-liability of real estate for debt, and with livery of seisin. They stepped out of this era of seclusion, as to the proceedings of which we have in this relation no historical details; they stepped out denuded of the statutes quia emptores and those proscribing charitable and superstitious usages denuded also most of them, of courts of chancery, and of primogeniture, of tenancy in tail and of livery of seisin; and in their place clothed in a system which worked equity into common law, which reserved no fealty to a lord paramount, which distributed land as well as goods equally among children; which subjected land to debt, and which in place of livery of seisin established recording officers. Now by whom was this done? Certainly not by either British parliament or by sovereign in council, for there is no record of such changes, and such changes they would have abhorred. It was not done, except in a very few instances, by colonial legislation. It was not done by the judges, since judges do not usually take points not pressed on them by counsel, and the colonial judges, appointed by crown or proprietor, would not have been likely on their own motion to revolutionize the system they were sent to support. But this work of stripping off the old law, which had ceased to be applicable, and putting on the new law, which the conscience and conditions of the people required, was done in the main by the lawyers. The lawyers who led the colonial bar, and who did this work, were, as leaders of the bar usually are, men of integrity, good sense, and intelligence. Even when appearing before royal or proprietary judges, lawyers of this class were not inclined to take points which conflicted with the popular sense of what was right and necessary. It seemed as if counsel, when presenting cases, tacitly assumed that the principles of the old law, which were incompatible with the then condition of things, should be regarded as giving way to principles which were the spontaneous outgrowth of such condition. The transformation, it is true, was the emanation of the community; but the intermediate agents in the work were not imperial or colonial legislatures or royal or colonial judges, but the lawyers of the local bars." was the assertion that the philosophers of England had told him that the English workingmen received him with so much warmth because he was the countryman of Emerson, who had spoken there before him. Nobility of mind and modesty of nature could scarcely have found a neater vehicle for a tribute to the Concord philosopher than these few words." This surprised us, and gave us an exalted momentary idea of the English workingman, and lowered our opinion of the English philosopher. But on reading the report of the speech, in another column of the same issue, we found that what our accomplished countryman really said was: "The workingmen received me with the greatest warmth, simply because I was an American, and their philosophers told me that they received me with such warmth because I was the countryman of Emerson, who had spoken there before me," which is quite another thing and far more reasonable. Miss Helen Taylor is trying to break into Parliament. She says there is no law to prevent a woman from sitting and voting there, and she proposes to test her right by legal proceedings. The Law Times says: We are inclined to think that when this interesting constitutional question is threshed out, the conclusion will be that by the original constitution of Parliament men only were qualified to sit; that this rule has been confirmed by the unvaried practice of six centuries, and that it can only be modified by express enactment. Miss Taylor appears to rely on the fact that no legal authority can be cited against her, and to this extent she is right; for direct legal authority there is none. But neither is there any direct legal authority to the effect that women cannot be jurors, or that they cannot be drawn for the militia. The famous case of Chorlton v. Lings, 17 L. T. Rep. (N. S.) 634 however, in which it was held that a woman could not vote, is a very strong indirect authority against Miss Taylor's legal position. Take the case, a peeress in her own right,' says Mr. Justice Willes in delivering judgment, 'can she appear and take her seat in the House of Lords? No; it is unquestionable that she can neither sit herself nor vote by proxy.' The absence of such a right is referable to the fact that in this country in modern times, chiefly out of respect for women and a sense of decorum, and not from their want of intellect, or their being for any other reason unfit to take part in the There are two kinds of eccentric medical persons; one who believe that if a man is so nervous that he cannot refrain from killing people, although he knows what he is about, and that it is wrong, and regrets his weakness as much as his victim does, he should not be punished; the other who believe in hanging insane homicides any way. To the latter class belong Mr. Justice Stephen, Dr. Hammond the novelist, and Dr. Clark Bell, and on this point we regard them all as cranky." We have said so before about Mr. Justice Stephen, and Dr. Bell affords us the opportunity of saying so about him, by sending us a paper written by himself, entitled "shall we hang the insane who commit homicides?" | a question which he unanimously answers in the affirmative. Dr. Bell says: "There is much to be. said in favor of the public execution of the insane for capital offenses, and there can be little doubt, that society has the same right to execute insane criminals (if such a term is admissible), if it can be felt that it would tend to the prevention of offenses by others, or could be regarded in any broad and strong sense as protecting society from the danger of assaults that threatened seriously its peace or permanent good," This is precisely equivalent to saying that if a person delirious from fever commits an assault and battery, it would be right to consign him to a State prison in order to warn others not to become delirious and beat people. Dr. Bell also says: "Up to the present hour no State or country has deliberately provided for the execution or punishment of the insane. Thus far Christendom has, with one accord, when speaking by statutes, ordained that insanity was a complete defense to a charge of crime." This, thank God! is true, and we hope will always be true. In our humble judg-government of the country, they have been excused ment, Dr. Bell is inhuman if he believes in such murderous sentiments. No wild beast theory for us, if you please! So long as there are stone walls and chains to restrain the murderous insane, so long should men await the will of God to take them out of the world. It is difficult for a daily newspaper, even the Tribune, to keep consistent with itself even in the same number. One day last week the Tribune told us editorially in speaking of Mr. Lowell's speech at Harvard commencement, that "its happiest touch from taking any share in this department of public affairs.' There appears however to be no doubt that the legal question is to be fought, and that another solemn judicial decision will be necessary, in order, as was said by Mr. Justice Byles in Chorlton v. Lings, forever to exorcise and lay this ghost of a doubt which ought never to have arisen.'" |