in which he was the leading actor would, inclared that a trading stamp concern had come his opinion, serve to deter others from spill- to Utica and held up the retail merchants. ing human blood, as he had done. Michod made no complaint as to the severity of the punishment in fact, immediately after his arrest for the crime, he expressed his wish and desire to be speedily executed. Doubtless, we shall be told by some reformers that it would have been better to have sent this murderer to prison for life and have supported him there in idleness, than to have complied with his own wish and removed him from the world in which he had done far more evil than good. While, of course, his words on the scaffold have no bearing whatever upon the moral question involved in the infliction of capital punishment, they are impressive as being the dying declaration of one of its victims, as to its efficacy as a deterrent. In case a merchant did not want the stamps, he was told that his competitor would take them and his business would suffer. A bill which prevents blackmailing ought to be signed. The days of the present Commission of Statutory Revision evidently are numbered. The repeal bill having passed both houses, and having been earnestly advocated by the governor in advance of that passage, it is to be taken for granted that it will soon be placed on the statute book. This result is one long urged and hoped for by the legal profession, which has been greatly dissatisfied with the manner in which the commission's work has been performed. It is perhaps not too much to say that the profession would have been better suited had the comThe legislature of New York has passed, mission never undertaken the work of reviand Governor Roosevelt now has under con- sion, but the discussion of that phase of the sideration the O'Connell bill to prohibit the subject would now be profitless and we do use of trading stamps. We don't desire to not intend to enter upon it. Evidently, the prejudice the court, but presume no harm legislature proposes to view the matter philowill be done by the expression of the hope sophically and get all it can for the money that the governor will see his way clear to expended by the State, by having a joint give the bill force and effect by signing it. committee of the two houses, during the reThe trading stamp business is one of those cess, examine the unenacted bills and "ecommodern innovations which, in our opinion, mend what action shall be taken up on them would better have been left in innocuous de- by the next legislature. We have every consuetude. Legitimate trade ought not to need fidence that this joint committee will give the any such artificial stimulus as this, nor do we matter careful attention and that whatever believe it does. It is merely a novel form of they report will probably be accepted as the the old erroneous notion entertained by many best to be done under the circumstances. consumers that they are thereby enabled to We cannot dismiss the subject at this time, get something for nothing. One of the per- without saying a word about the chairman of nicious effects is to practically place a sort of the commission, the Hon. Charles Z. Linboycott upon those traders who prefer to rely coln. Whatever criticisms we have passed upon their established reputations and the upon the work done do not apply to Mr. merits of their goods to advertising that "we Lincoln, whose high legal ability, painstakgive trading stamps." At the recent hearing ing care and conscientiousness are univerbefore the governor, Mr. F. G. Fink, of sally recognized. There could be no better Utica, in urging the repeal, on behalf of the proof of this than the action of the legislaGrocers' Protective Association of Utica, ture in providing, while abolishing the commade the declaration that the trading stamp mission and its ambitious attaches, that the men were practically blackmailers, that they governor should have a legal adviser, and in had no merchandise - nothing to sell but recommending, as so many of them have stamps. For these stamps they demand five done, the appointment to that importanţ per cent of the proceeds from sales. He de-office of Mr. Lincoln. Although Mr. Lin coln's duties as a member of the revision commission will end with the present year, it is fortunate for the State, which he has so faithfully served for a number of years, that the executive department will, in all probability, continue to have the benefit of his services. It would appear that one of the crying needs of the hour is a decision by the United States Supreme Court on the subject of the status of our newly acquired possessions. Are the people of Porto Rico, for example, citizens of the United States, or are they not? If not, what are they? That an authoritative answer to this question is imperatively demanded at this time is evident when we remember that all that is now being done in the way of establishing the forms of government there and elsewhere in the territory recently taken from Spain, will have to be undone in case the Supreme Court does not agree with the present administration in its latest interpretation of the Constitution. That it would be a very great misfortune to have the newly established government set aside after all the trouble of getting it into operation, after the people had begun to adjust thenselves to the new conditions, and after capital had begun to be invested, is too self-evident to need argument. There is food for thought in the following from the Boston Herald: "The new government that has been authorized for Porto Rico, without serious consideration by Congress of its provisions, declares the people of Porto Rico to be citizens of the island, but not citizens of the United States; yet they are subject to the jurisdiction of the United States, else Congress could not enact laws for their government. Now, it is a question which will have to be determined some time whether this peculiar relation comports with that provision of article 14 of the Constitution, which declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the they do not reside in any State? As to the native Porto Ricans, although they were not born in the United States, it may with some show of reason be maintained that they have been naturalized, inasmuch as they have renounced allegiance to the government and the flag under which they were born, and accepted the government and flag of the United States as their own. Either they are citizens of the United States or they are citizens of no nation. Porto Rico is not a State and is not a nation. Congress has passed a law which, in some of its provisions-the tariff provision, for example - considers them quasi-foreigners, or, as one may say, partly foreigners. They appear to have been designated citizens of Porto Rico in order to give them a certain foreign quality, in order that their products sent to this country may be liable to import duties. At the same time they are considered as being in a condition that is quasi a part of the United States, so that we are under obligation to arrange duties on a basis different from that established in respect of people who are really foreigners." Notes of Cases. Water Supply - Fire Protection - Contracts. In Knappman Whiting Co. v. Middlesex Water Co., decided by the Court of Errors and Appeals of New Jersey, in March, 1900, it was held that a water company which unconditionally contracts to supply to a consumer water with pressure sufficient for fire purposes is liable for damages sustained by the consumer from fire in consequence of a failure in the water pressure, though the failcompany's fault. The court said in part: ure is due to a break in its pipes without the water The principle underlying all these cases is that where the contract is express, as it is in this case to furnish water with a pressure sufficient for fire purposes to do a thing not unlawful, the contractor must perform it; and if, by some unforeseen accident, the performance is prevented, he must pay damages for not doing it. No distinction is made between accidents that could be fore seen when the contract was entered into and those that could not have been foreseen. Where, from the result of such an accident, one of two innocent persons must sustain a loss, the law, as was said State wherein they reside." Are the people by Mr. Justice Whelpley, casts it upon him who of the territories, of New Mexico, for example, citizens of the United States, although has agreed to sustain it, or, rather, leaves it where the agreement of the parties has put it, and will not contract (Robinson v. Davison, L. R. 6 Exch. 269). Cases in the first and third classes have no relevancy to this litigation. Cases in the second class, of which Taylor v. Caldwell is the leading case, were decided upon executory contracts, and proceed on the ground that the existence of the subject-matter of the contract at the time of performance was a condition upon which the contract itself took effect. In Taylor v. Caldwell, the music hall was destroyed by a cause ab extra before the time for the performance of the contract, and, performance having become impossible, the contract was entirely put at an end as to both parties. In this case the interruption of the delivery of water by the breaking of the pipe was a temporary interference with the performance of the plaintiff's contract. The failure to deliver water for the period required to repair the break did not justify either party in rescinding the contract as for a breach of condition. The case cited from the Massachusetts courts establishes that fact conclusively (Foundry Co. v. Hovey, 21 Pick. 417). The defendant's fac insert, for the benefit of one of the parties, by construction, an exception which the parties have, either by design or neglect, omitted to insert in their agreement. To this general rule there are three exceptions. I know of no other. They are stated in the English notes (6 Eng. Ruling Cas. 611) as follows: First, where the subsequent impossibility is imposed by law; secondly, where the continued existence of something essential to the performance is an implied condition of the contract; thirdly, in contracts for personal services, in which there is generally the implied condition that the person who is to render the service is alive and not incapacitated by illness. The first of these exceptions exists where there is a declaration of war between two countries, of which the parties severally were inhabitants, which made the performance of the contract illegal (Esposito v. Bowden, 7 El. & Bl. 763; Hillyard v. Insurance Co., 35 N. J. Law, 415-422; id. 37 N. J. Law, 444). The second exception is illustrated in the case of Taylor v. Caldwell. The defendant in that case agreed to let certain gardens and a music hall to the plain-tory was, at the time of the breach of this contract tiffs for four specified days to come for the purpose of giving a series of concerts. After the agreement was entered into, and before the day arrived for the first concert, the music hall was accidentally destroyed by fire. It was held that, as the existence of the hall was necessary for the performance of the contract, the defendants were excused from liability in respect to its performance, and that no action would lie against them. In that case the agreement was wholly executory, and the result is placed by Mr. Justice Blackburn on the principle that "where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless, when the time for the fulfillment of the contract arrived, some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continued existence as the foundation of what was to be done" (3 Best & S. 826; 6 Ruling Cas. 603). This doctrine was applied in the Supreme Court of New York to an executory contract for the sale and delivery of specified articles of personal property which were accidentally destroyed by fire before the time for delivery (Dexter v. Norton, 47 N. Y. 62). In a subsequent case in the same court, in an opinion delivered by the same judge, it was held that, under a contract to deliver a certain manufactured article within a specified time, the destruction by fire of the defendant's rolling mill, which prevented the defendant from completing its contract by the time fixed in the agreement, did not excuse the defendant's failure to perform the contract, even though the accident prevented performance (Booth v. Mill Co., 60 N. Y. 487). The third class comprises contracts for purely personal services, where the life or health of the contracting party is essential to the execution of the | standing, in a condition to receive and use water. Its destruction is alleged to have been due to the failure of the plaintiff to supply water. It was not due to any antecedent cause ab extra, and the plaintiff cannot set up the destruction of the premises, imputable to its own breach of contract, to discharge it from the consequences of its failure to perform one of its terms. If the plaintiff's waterworks had been accidentally destroyed, in an action by the defendant for not continuing to supply water under the contract, or in a suit against the defendant for the payments reserved for the use of water after the destruction of its factory, under the ruling in Taylor v. Caldwell, a different question might have arisen. Decisions in this aspect cannot be permitted to have application to the circumstances of this case, unless Paradine v. Jane (Alleyn, 26), Trustees v. Bennett (27 N. J. Law, 513), and the long line of cases, English and American, holding the principles adjudged in those cases, are set aside. A LIBEL AND CONTEMPT. N unusually interesting case of contempt of court by a newspaper editor has been closed recently in England by a decision of the lord chief justice. A justice sitting at Birmingham had taken occasion to read the press of the city a lecture on the subject of publishing indecent or offensive matter in their news columns. He was about to begin the trial of a man indicted for publishing obscene books, when he delayed the proceedings for a few minutes for the purpose, one of his critics declared, of "blowing a loud trumpet and proclaiming to the world that he had a disgusting case to try." In the course of his remarks he as sumed that the newspapers of the city would be eager to publish full details of the trial, and reminded them if they did so they would be liable to the penalties of the law. This was especially offensive to the editors, because at the preliminary trial of the indicted man before the magistrate of a lower court the newspapers had refrained entirely from publishing the evidence. All the editors save one succeeded in keeping their comments upon the justice's observations within respectful bounds, but this one allowed his indignation to overcome his prudence so far as to compare the justice to Little Tich and describe him as the impudent little man in horse-hair, a microcosm of conceit and empty-headedness." That would be considered violent language to use about a judge even in this country. The editor realized that he had "gone too far " as soon as he saw his comment in print, and he did his utmost to pacify the justice on the following day by saying that his language had been "intemperate, improper, ungentlemanly and void of respect due to his lordship's person and office." But his lordship was smarting too severely under the original epithets to be placated by any apology, and insisted that the editor should be held in contempt of court. In passing upon this point the lord chief justice held that any act done or writing published which was calculated to bring a court or a judge into contempt or to lower his authority was contempt of court, that personal scurrilous abuse of a judge must be dealt with brevi manu, coming under the offense known as scandalizing a judge, and within a jurisdiction as old as the common law. If the editor had not apologized and expressed regret, the lord chief justice said the court would have found it their duty to send him to prison for a not inconsiderable period, but in view of his frank confession of error he would be let off with a fine of £100. One statement by the lord chief justice excites dissent in the London journals which comment on the case. He said that the "liberty of the press is no greater and no less than the liberty of the individual," but it is pointed out that the individual is not subject to the newspaper libel laws. Thus the London Daily News says: "It is the position of the judges, not the position of the press, which seems to us under this ruling anomalous. They are to be exempt from what Lord Russell calls 'personal scurrilous abuse.' But they are not left to the ordinary remedy of an action for libel. They can ask their brother judges to fine or imprison anyone who abuses them. We deprecate, as much as the lord chief justice can, personal scurrilous abuse of any one. But by such proceedings as these the customary safeguards of liberty are suspended. The law of England says that no man shall be convicted or cast in damages for libel without a jury. There was no jury in this case. 'Libel or no House of Representatives of the United States, on February 27, 1900, on the bill levying a discriminating duty on imports and exports from the territory of Puerto Rico: The present bill providing a rate and system of taxation for Puerto Rico different from that imposed upon the people of the rest of the United States, presents a question so far-reaching in its consequences as to make this occasion a real crisis in our history; and upon a correct solution of the problem will depend whether we shall continue our government upon the plan and scope designed by the fathers or whether we shall embark upon the colonial system - a new and untried experiment, totally in conflict with the spirit of our Constitution, and which may seriously imperil the safety of the republic. This government can no more exist permanently half republic and half empire than it could exist half slave and half free. That the fathers sought to establish on this continent a government different from the monarchies of Europe is a trite but a true saying, and the basis of the Constitution which they adopted and on which it rests are the fundamental principles of eternal justice, which were inherent in the hearts and minds of those sturdy settlers who had fled here to escape the oppressions and exactions of the government of the Old World. Even though there were not a clause or word in the Constitution requiring uniformity in the levy of duties, to assess upon the inhabitants of one portion or one section of our American territory a tax different in amount and burden from that levied upon another is so discriminative and unfair and repugnant to natural justice that it conflicts with the fundamental principles of society and government, which of themselves prescribe a limit to legislate power. That there are principles of right and justice underlying the Constitution and on which it stands that are higher than the Constitution itself, but in harmony with it, is well established. Justice Field, in the Legal-Tender cases, uses the following forcible language in reference thereto: "For acts of flagrant injustice there is no authority in any legislative body, even though not restrained by any constitutional prohibition. For as there are unchangeable principles of right and morality, without which society would be impossible and men would be but wild beasts preying upon each other, so there are fundamental principles of eternal justice upon the existence of which all constitutional government is founded and without which government would be an intolerable and hateful tyrranny." And in Fletcher v. Peck, Chief Justice Marshall says that Many of the advocates of this measure contend that Congress is confined in its power in this respect to such territories only as were owned by the government at the time of the adoption of the Constitution, or such other territory as was then "Justice is a fundamental principle of society in contemplation. Others contend that the reand government." Conceding, therefore, that the right to tax is the right to destroy, then, upon principle, if Congress can discriminate between different sections of the republic, it can in the course of time impose the whole burden of the administration of the national government on Puerto Rico and other similarly acquired territory, or, as for that, even upon the old territories of the Union not yet States, and thereby incorporate into our system a new policy, which surely will involve us in ceaseless strife and rebellion, which must eventually end in the dissolution of the Republic. We care not, therefore, in the discussion of the question of this discriminating tariff against the people of Puerto Rico, whether or not the Constitution, in giving the power to tax, in express terms prescribed that it should be uniform. We contend that uniformity is a principle of constitutional law, whether declared or not, which inheres in the power to tax. So learned an authority as Judge Cooley tells us that "Whatever may be the basis of taxation, the requirement that it shall be uniform is universal." And that- It is the very essence of taxation that it must be levied with equality and uniformity." (Cooley on Taxation, 607, 608, 615.) In discussing the constitutional power of Congress to legislate in the manner proposed, it becomes necessary to consider from what source does Congress derive its power. In the republican form of government under which we live, Congress, the legislative body of the nation, as created by the Constitution, exists by virtue of it and derives all of its powers from that chart, and from a construction of whatever is reasonably necessary to carry into effect the powers granted. Unless Congress has the power conferred upon it by that instrument, we have no right whatever to legislate; but, fortunately for the American people, the fathers were endowed with great foresight and wisdom. They builded not for themselves alone, but for posterity, and constructed the organic law of this Union that by its terms it might adapt itself to changed conditions as they arose and to the growth of the great nation which they had formed. It becomes our duty to ascertain, then, what powers are conferred on Congress to legislate on this subject. Congress shall have power "to dispose of and make all needful rules and regulations respecting the territory or other property of the United States." strictions embodied in the Constitution limiting Congress to just and uniform legislation apply only to the thirteen original States composing the Union and such other territories only as have been admitted as States. Certainly these gentlemen have not imbibed the true spirit of the Constitution; they are not imbued with the American idea. The purpose of the founders was to found a constitutional nation strong enough at all times to provide for the common defense and general welfare. They had already acquired territory not embraced as States, and North Carolina and Georgia were even then about to cede to the Union other large territories, which they thereafter yielded. So they contemplated expansion of their domain from the outset, and their Constitution was written with that end in view; and if the Constitution is construed in the light of its history, inevitably you must conclude that its provisions extend to all territories, whenever acquired, as well as to the States. It provides further in Article 1, section 8, that "All duties, imposts and excises shall be uniform throughout the United States." Uniformity is but an element or constituent of justice. Construing this language of the Constitution, Chief Justice Marshall, the greatest of all the interpreters, who seems to have breathed the soul of that instrument, said in Loughborough v. Blake, which has been so frequently quoted, that This grant is general without limitation as to place. It consequently extends to all places over which the government extends. * * * The power, then, to lay and collect duties, imposts, and excises may be exercised and must be exercised throughout the United States. Does this term designate the whole or any particular portion of the American empire? Certainly the question can admit of but one answer. It is the name given to our great Republic, which is composed of States and territories." In the Dred Scott case, which has been so frequently affirmed, Judge Taney uses the following language: "The words 'territory belonging to the United States' were not used in the Constitution to describe an abstraction, but to identify and apply to those actual subjects-matter then existing and belonging to the United States, and other similar |