If they had sent this bill to the Governor early in the session, his veto could and probably would have been nullified. Nothing could be more pitiful than the sop which the Senate thus threw to the Cerberus of metaphysical and conceited young law students seeking their fortunes, lazy old lawyers who have made theirs, and pedantic doctrinaires who would never make anybody's fortunes, which is trying to keep the people out of the "hell" of written and certain laws, and back in the "paradise" of the uncertainty, contrariety, confusion, and absurdity of the common-law system. It is like the recommendation to mercy by a jury. But that is no reason why the Governor should surrender his inclination and his judgment to these demands. At this very session he has signed bills parts of which he has pronounced unconstitutional, officially declaring his trust that the next Legislature would amend them. Just so he did in respect to the Penal Code, and at this session he has approved a mass of amendments to it. Why has he lost faith that "future Legislatures will correct mistakes and supply needed amendments"? It is to be feared that he does not consult the temper and judgment of the people on this subject, expressed in two Legislatures by overwhelming majorities once lacking only one vote to pass the measure over the Governor's veto — but constitutes himself the sole judge of legislative wisdom, deriving his impressions from dull and biassed advisers, and being unconsciously warped by ambitious and selfish favorites who have rival schemes. He would find it difficult to explain why amendments, if needed, cannot be made in two succeeding as well as in two preceding years; to reconcile his present action with that of last year in respect to the Penal Code; and to assign any plausible ground for his sudden and peculiar loss of faith in the law-making power in this particular instance. We give the Governor credit for the best of motives, and feel bound to say that generally his vetoes have been discreet (we have not had time to examine his veto of the Receivership bill) - but we feel equally constrained to say that he has lost the greatest opportunity of his administration. He has delayed but he cannot defeat the establishment of a rational system of law. Governors may come and go, the Code goes on forever. — In this connection, we call attention to a communication in another column on the Georgia code. The Georgia reports present a striking contrast to those of our State. The volumes are few-only 25 all told in 12 years the opinions short and decisive.

F

NOTES OF CASES.

Tompkins v. Halleck, Massachusetts Supreme Court, May, 1882, 13 Rep. 783, it was held that one may not, by listening to the public representation of an unprinted and uncopyrighted play, and committing it to memory, and afterward writing it out from memory, acquire a right to publish or perform it for his own profit. Devens, J., said: "The case falls within the principles decided in Keene v. Kimball, 16 Gray, 545, and it is frankly admitted by

The

the counsel for the plaintiffs that unless that decision can be reconsidered and reversed no injunction can issue according to the prayer of the bill. question decided in Keene v. Kimball had never until that time been determined in any reported case. The court adopted the views of Judge Cadwalader as expressed in Keene v. Wheatley, 9 Am. Law Reg. 33, and held that the literary proprietor of an unprinted play cannot, after making or sanctioning its representation before an indiscriminate audience, maintain an objection to any such literary or dramatic republication by others as they may be enabled either directly or secondarily to make from its being retained in the memory of any of the audience.' The case of Keene v. Kimball has not been since reaffirmed here, nor that we are aware of, elsewhere; nor has it been distinctly denied by the decision of any adjudicated case except that of French v. Conelly, decided by the Superior Court of New York, which is not the final tribunal in that State. 1 N. Y. Week. Dig. 197, Sept. 17, 1875. An examination will show various and conflicting opinions expressed by jurists as well as by text-writers of high respectability upon the question involved. Keene v. Clark, 2 Abb. Pr. (N. S.) 341; Palmer v. De Witt, 2 Sweeny, 530; S. C., 47 N. Y. 532; S. C., 7 Am. Rep. 480; Crane v. Aiken, 2 Biss. 215; Shook v. Rankin, 3 Cent. L. J. 210, 569; Boucicault v. Fox, 5 Blatchf. 98; Drone on Copyright. The Stat. of 8 Anne (ch. 19), which is the foundation of the English copyright law, while it included plays and dramatic compositions, protected the author in his exclusive right to publish in print, but not in that of public representation of his work. It has since been modified by Stat. 3 and 4 Will. 4, and subsesequently by that of 5 and 6 Vict. (ch. 45). The Stat. U. S. 1831 (ch. 16), was similar in this respect to the original English law, and like it has been so changed by Stat. 1856 (ch. 169), that protection in the exclusive representation is now afforded where the play is published in print. * * That the right of property which an author has in his works continues until by publication a right to their use has been conferred upon or dedicated to the public, has never been disputed. If such publication be made in print of an uncopyrighted work, it is a complete dedication thereof for all purposes to the public. Wheaton v. Peters, 8 Pet. 591; Stevens v. Gladding, 17 How. 454. If of a copyrighted work, it is so subject to the protection afforded by the laws of copyright, the author accepting the statutory rights thereby given in place of his common-law rights. But the representation of an unprinted and uncopyrighted work upon the stage is not a publication that will deprive the author or his assignee of his rights of property therein. Roberts v. Myers, 23 Law Reporter, 397. It will not interfere with his claim to obtain a copyright therefor. Keene v. Kimball, ubi supra. Nor will it deprive him of his power to prevent a publication thereof in print by another. Macklin v. Richardson, Amb. 694. Nor can we perceive why it should deprive him of his right to restrain the public representa

*

tion thereof by another. It is said indeed in Keene v. Kimball that the court is not aware of any case, then existing, either in England or America, 'in which the representation of a play has been restrained by injunction, where no copyright had been accquired, and where the proprietor had permitted its public representation for money, except the case of Morris v. Kelly, 1 Jac. & Walk. 481,' the authority of which is doubted, it being deemed impossible to reconcile it with the earlier case of Coleman v. Wathen, 5 T. R. 245, or with the subsequent decis ion in Murray v. Elliston, 5 B. & Ald. 657. This statement, taken in connection with the general terms in which the conclusion of the court is expressed at the end of their opinion, 'that the representation by the defendant of a dramatic work, of which the proprietor has no copyright, and which she had previously caused to be publicly represented and exhibited for money, is no violation of any right of property, although done without license from such proprietor, and as it does not appear to have been done in violation of any contract or trust, cannot be restrained by injunction,' would indicate that in the view of the court, even if a copy were obtained in the case then adjudicated by means of memory of spectators, there might properly be a subsequent public representation by the possessor of such a copy. In this view public representation is treated as a complete dedication of such a work for that purpose to all who can obtain in any way from the representation itself a copy thereof.

* * *

In Keene v. Kimball it is said that it is not intended 'to intimate that there is any right to report, phonographically or otherwise, a lecture or other written discourse, which its author delivers before a public audience, and which he desires to use again in like manner for his own profit, and to publish it without his consent, or to make any use of the copy so obtained.' But no distinction, we think, can be made between works cast in the dramatic form and other literary productions intended for public delivery to those who pay a suitable compensation for the amusement or instruction they expect to obtain. The right to be protected against the unauthorized representation of a dramatic work is in principle the same as the right to be protected against the unauthorized oral delivery of a public lecture. An ingenious argument was indeed made in Keene v. Kimball, derived from the principles and ideas of the Puritan founders of the Commonwealth, that a dramatic composition was not equally under the protection of the law with other literary works, but it was held by the court quite clearly otherwise. The late Mr. Charles Dickens was an accomplished public reader of selections from his own works. If he had selected a story which had never been published or copyrighted, according to the suggestion above quoted from Keene v. Kimball, there would have been no right on the part of an auditor to have reported it phonographically, or otherwise, so as to have availed himself of the copy, by a subsequent oral delivery by himself or another, to whom he transferred it, The genius of Mr. Dickens was

Nor

essentially dramatic: if he had seen fit to prepare and read, as he well might have done, a drama, representing himself its various characters, such a literary production would not have been less protected than a written discourse or lecture. can it be perceived that if instead of reading such a drama himself he had permitted it to be represented on the stage, which is but a reading by several persons instead of one, accompanied by music, scenery, and the usual accessories of the stage, his rights as an author to protection would be in any way diminished. Boucicault v. Fox, 5 Blatchf. 98. The decision in Keene v. Kimball must be sustained, if at all, upon the ground that there is a distinction between the use of a copy of a manuscript play obtained by means of the memory, or combined memories of those who may attend the play as spectators, it having been publicly represented for money, and of one obtained by notes, stenography, or similar means by persons attending the representation. That in the former case the representation of the play, the copy of which was thus obtained, would be legal, while in the latter it would not be. In the case of Keene v. Wheatley the opinion of the Circuit Court, as delivered by Judge Cadwalader, is a very elaborate discussion of the whole subject of literary property, and embraces many subjects not involved in the judgment of the case. Among these is involved the question whether a public representation will authorize another, who may obtain a copy by memory, afterward to represent the play so performed. The theory advanced by him, which so far as we are informed was original, and in support of which he certainly cites no adjudicated case, is that the act of public performance of a play is a general publication, and that 'when a literary proprietor has made a general publication by any of the modes described, other persons acquire unlimited rights of republishing in any modes in which his publications may directly or secondarily enable them to republish.' If this be correct to the full extent of the proposition, the manner in which a copy is obtained for other representations must be unimportant as the right to represent subsequently is made to rest upon the fact, that there has been a public representation. But in order that the play shall be thus represented, he contends that a copy must be obtained by 'fair means.' Those which he defines as 'fair means' are the impressions on the memory of some persons, whose constant attendance at the performance of the play may enable them to write or repeat elsewhere that which they have heard, but he holds that no one may lawfully make use for this purpose of stenography, writing or notes. According to the facts as they were proved in Keene v. Kimball, by the allegations of the bill and the admissions of the demurrer, the copy there used for representation was obtained solely by memory. Judge Cadwalader further remarks, 'that the manager of a theater may prevent a reporter from noting the words of such a play phonographically, stenographically, or otherwise. As one of the audience he would in so doing transgress

RELINQUISHMENT OF PARENT'S RIGHT OF CUSTODY OF CHILD TO THIRD PERSON.

I.

THE courts in recent times have gone to great lengths in relaxing the rule recognizing the father's paramount right of custody of his infant child. Especially has the mother's equal natural right grown in regard, and the best interests of the child have become the decisive test. As to the right of custody, as between the disagreeing parents, we call attention to the recent cases of Matter of Bort, 25 Kans. 308; S. C., 37 Am. Rep. 255; McKim v. McKim, 12 R. I. 462; S. C., 34 Am. Rep. 694.

But the courts have of late gone to great lengths in implying a consent, by the father, to a relinquishment of a more or less permanent character, in favor of others than the mother. We do not of course speak of an express relinquishment by agreement, nor of emancipation, nor of cases where the parent is morally unfit to have charge of the offspring, or unable properly to support them; but of course where the claimants stand practically equal in merit and ability.

The most recent case on this subject is Verser v. Ford, 37 Ark. 27. An infant daughter, whose mother had died at its birth, was then by the father's assent taken by the mother's parents, and was properly cared for and supported by them until she was nearly three years of age, when the father demanded her. She was in delicate health. The father was of good character and sufficient means, but was remarried. It was held that the chancellor's decree denying his application should be affirmed. The court said: "It is one of the cardinal principles of nature and of law, that as against strangers, the father, however poor and humble, if able to support the child in his own style of life, and of good moral character, cannot without the most shocking injustice be deprived of the privilege by any one whatever, however brilliant the advantage he may offer. It is not enough to consider the interests of the child alone. As between the father, too, and the mother, or any other near relation of the infant, where sympathies on either side of the tenderest nature may be relied on with confidence, the father is generally to be preferred. In the great majority of cases, his greater ability and knowledge of the world renders him the fittest protector, although that is not the test. The preference is conceded to the ties of duty and affection, and attends the primary obligation of the father to maintain, educate, and promote the happiness of the child, according to his own best judgment and the means within his power. Any system of jurispru-| dence which would enable the courts, in their discretion and with a view solely to the child's best

with those duties, would be intolerably tyrannical, as well as Utopian." But the court further said there are exceptional cases, "of such urgency as to overcome all considerations based upon the natural affections and moral obligations of the father," and although they concede that this child, if found with the father, might not be given to the grandmother, yet considering its sex, tender age, delicate health, and the "step-mother," they concluded to leave her where she was, subject to the father's right to apply for her when she becomes older, and to direct her education and have access to her; but they intimate that he ought to be more respectful to the grandfather.

In Lyons v. Blenkin, Jacobs, 245, three infant motherless children, of tender age, had been placed by their father with their grandmother, who having supported and educated them for several years, and having provided amply for them by will, died, and the children continued for several years longer with their maiden aunt, who was their trustee, and continued to educate and support them. The father was a Unitarian minister, with an income of about £400 a year, and had remarried. The aunt had also married. The children were 19, 14, and 12 years of age, respectively, had been brought up Baptists by the aunt, and preferred to remain with her. The court refused to change their custody on the father's demand. The chancellor, Lord Eldon, disclaimed any bias on account of the dissenting tenets of the father, thinking probably that a Unitarian is only a shade more depraved than a Baptist, but put his decision on the ground of the father's long consent and acquiescence and his inferior means.

In The King v. Isley, 5 Ad. & Ell. 441, the father, on his wife's death, induced her parents to come from America, at considerable expense, and take charge of the children, promising never to remove them, but providing for them himself. They were six and nine, respectively, delicate in health, and one of them was weak in intellect. The father died, leaving a provision for them by will, and appointing guardians. On habeas corpus, the guardians were awarded the custody.

In Reg. v. Smith, 16 Eng. L. & Eq. 221, the father of a daughter five years of age, anticipating the mother's death, agreed to let the mother's brother have it until it was able to support itself, and agreed not to take it away, and to pay a monthly sum for its support. It was held that the father might recover the child after some months. The court merely said that the father "is at liberty to revoke that consent."

In Mayne v. Baldwin, 1 Halst. 454, the father had orally intrusted his infant daughter, aged between five and six years, to a stranger until she should become of age, but in two years the court ordered her restoration. The court said: "The care and custody of minor children is a personal trust in the father, and he has no general power to dispose of them to another."

In United States v. Green, 3 Mas. 482, the father

being embarrassed had allowed his wife and child to remain with the wife's father for some three years, and the mother then having died, but having requested her father to adopt the child, the child's father had allowed it to remain with him four years longer. Elisha Williams moved for its restoration to the father, but Story, J., said, "it is an entire mistake to suppose the court is bound to deliver over the infant to his father, or that the latter has an absolute vested right in the custody," and said that the interests of the infant, and its wishes, if it is of sufficient discretion, will be consented. No decision however was pronounced, for the parties settled their differences in court.

In People v. Mercein, 3 Hill, 399, the Supreme Court of New York held that an agreement by a father relinquishing to his wife their infant child, was void. "Our own law has never allowed the exercise of such power except for some specific and temporary purpose," such as apprenticeship or guardianship. In Matter of Murphy, 12 How. Pr. 513, the Supreme Court, at Special Term, where the parents gave the child at birth to his uncle and aunt, and allowed it to remain with them for nine years, awarded it to the uncle and aunt. "Having (under the verbal gift) performed a parent's duties for nine years, the uncle and aunt, especially when in accordance with the child's interests and inclinations, are entitled to a parent's rights. Those who have borne the cares of the child's earlier infancy should enjoy the comfort of his mature years." On the other hand, in Wilcox v. Wilcox, 14 N. Y. 575, the child, when less than a year old, the mother being feeble and the father poor, was placed with the father's father, and remained there until she was nine years old. Then the father having died, and the mother having acquired ample means, the child was awarded to the mother. The court said: "The fact that the child prefers her grandfather to her own mother and her own sister, is an argument for changing her home, that her affections may be restored to their natural channel," etc. In Walden v. Sherburne, 13 Johns. 417, the child was born at the house of the mother's father, and the mother dying, continued to live there for some two or three years; the father having occasionally visited the wife, but never having visited the child; the grandfather supporting it, and being affluent, while the father was poor, and the child being the only grandchild and prospective heir of the grandfather. The Supreme Court refused to deliver the child to the father on habeas corpus, entertaining little doubt that it would be more beneficial for the child to remain with the grandfather, and "leaving the father to pursue his remedy, if any he has, in the Court of Chancery, where questions of this kind more properly belong; there being no actual improper restraint of the infant."

In Pool v. Gott, 14 Law Reporter, 269, a case before Chief Justice Shaw, the circumstances were quite similar to those in Verser v. Ford, except that the father delayed applying for thirteen years, having been of pecuniary ability for eight years, and

* *

the child preferred to remain with the grandparents. The father's delay, the chief justice said, "furnishes reason for supposing that he surrendered his rights over the child, by a tacit understanding, if not by an express agreement. *By his own acquiescence, he has allowed the affections on both sides to become engaged in a manner he could not but have anticipated, and permitted a state of things to arise which cannot be altered without risking the happiness and interest of his child. He has allowed the parties to go on for years in the belief that his rights were waived," etc. (Here he applied too late; in Verser v. Ford, he applied too soon. He would be troubled to tell exactly when to apply, it seems.) In Dumain v. Gwynne, 10 Allen, 270, a wife having separated from her husband on account of his intemperance and imprisonment for felony, being unable to provide for her children, gave her daughter, aged two years, to a charitable institution, to be placed in some good family, for support and education, and agreed to give her up unreservedly. The husband having been discharged, and having acquired some property, and his character and conduct having since been good, he and his wife applied for restoration of the child. The application was denied. The court said: "Without holding that the rights of either parent in respect to the children are absolutely lost, we must nevertheless hold that they are subject to the rights of the other party to the contract above mentioned, it having been freely and fairly made, and being a suitable contract for the wife to make." The court would not even allow a disclosure of the whereabouts of the child, lest "if the former character of the father were made known among the present schoolmates and associates of the child, it might cause annoyance and injury." (Much better to let the child and his associates think him a bastard !)

In State v. Smith, 6 Greenl. 462, the father and mother having separated, he stipulated that she should keep the children, and conveyed half his real estate to her for their support. The children were all of tender age, and one a daughter. court said, "it is in the sound discretion of the court to alter the custody of these minor children or not, and the father cannot claim them as matter of right," and refused to restore them to the father.

The

In State v. Richardson, 40 N. H. 272, the infant daughter had been suffered by her father without objection to reside with and be supported by her uncle for nearly ten years, the mother having died, and the father having remarried. There having been no agreement of transfer, the court held that the father had not waived his parental rights by this acquiescence, and awarded him the child on habeas corpus. The court declined to pass on the question whether a bare parol agreement wauld transfer the custody, but in State v. Libbey, 44 id. 321, they held this in the negative, observing however: "It is quite apparent that there may be cases where the father's conduct is such, as by permitting, tacitly or by express agreement, another to assume and discharge for many years the duties of parent