Page images
PDF
EPUB

66

Mr. Mason so well and vigorously ex- with feigned words make merchandise of you presses our own ideas on the subject that we whose judgment now of a long time lingereth have given his remarks thus prominently in not and their damnation slumbereth not.'” our editorial columns. These fanatics are so Mr. Purrington puts the following, among steeped in ignorance and impervious to argu- other pertinent questions: ment that it is useless waste of time and gray

1. Would a Scientist, and I include Mrs. Eddy matter to enter into discussion with them, in the term, is called to attend a child bleeding but it remains to be seen whether, when they from the severed femoral artery, attend the case are made to suffer in their “mortal pocket- by Christian Science methods only, excluding surbooks," as Mr. Mason says, they may not be gical aid?

2. If a child at table was strangling with a crumb made to see the error of their ways. A test

or fishbone in its throat, would a Scientist assume case on the lines indicated by our corre- the strangulation to be an error of mortal mind spondent seems to be very much needed just and argue with it like a congressman," using no at this time. While on this subject, we can

material aid? not refrain from saying a word or two further

3. Would a Scientist presume were a child in a

populous neighborhood ill with small-pox, scarlet about the very peculiar tenets of these people. fever or yellow fever, this last being the “insidious Among those writers and thinkers who have disease that carried off Col. Glover,” Mrs. Eddy's thrust the rapier of common sense into their first husband, to put aside medical aid and all sanibubbles, Mr. Wm. A. Purrington, of New tary precautions and simply reason with disease? York, occupies a leading place. In a recent

In May last he wrote in the New York communication he points out that the fundamental distinction between the apostles of Sun these additional questions, which still

remain unanswered: Christ and Christian Science is that the former never offered to sell divine power in

1. If there is no pain, why did Mrs. Eddy ask the market, while the Christian Scientists

Dr. Fletcher to use an anæsthetic in extracting a

tooth? constantly do so. “The apostles opened no

2. If the study of anatomy and physiology is the offices and charged no fees. Mrs. Eddy husbandman of disease, why does the Church boasts that her followers make handsome Manual require the teachers of obstetrics to have incomes, and that she, who was poor prior the medical degree? to her · discovery,' now gives away $88,987 published so long after his death?

3. Why was that certificate of General Bates annually, which is interesting if true. It is

4. Will any Christian Scientist submit to the evident, therefore, that Scientists are not to test of actual experiment the immunity to poison be compared with the apostles but with those that Mrs. Eddy says she and her disciples possess? false prophets of whom Simon Magus is the

The test can be made without danger with a hypotype. When that worthy wished St. Peter

dermic syringe. to teach him how to lay on hands, just as

5. If the divine principle cures all infirmities,

why does it not cure Judge Ewing's defect of Mrs. Eddy teaches her alleged divine vision? Why does he wear glasses? method, the apostle in scorn and wrath cried There is a very simple test of this alleged power out: 'Thy money perish with thee, because to heal. Can Christian Scientists who boast their thou wouldst purchase the gift of God for

cures of cancer, give the relief that the chiropodist

always affords? money;' and, in the second epistle, Peter

But why ask questions of those who will not aptly fortells the Scientists who demand fees

answer, or argue with adversaries who shift premand enrich themselves while suffering pa-ises, evade issues, call assertion proof and, even tients to die for lack of medical care: “There vanquished, argue still? Mr. Jefferson aptly said shall be false teachers among you, who priv- 1 of the quibbling congress of Annapolis. “To reily bring in damnable heresies, even denying

fute was easy but to silence impossible.” the Lord that bought them, and bring upon themselves swift destruction.

Announcement is made by the new State shall follow their pernicious ways; by reason reporter, Mr. Edwin A. Bedell, of the apof whom the way of truth shall be evil spoken pointment of Mr. Alvah S. Newcomb, of of. And through covetousness shall they | Kingston, N. Y., as his assistant. Mr. New

And many

[merged small][ocr errors]

comb was born at Prattsville, Greene county, that the prisoner had become infatuated with and graduated from Dartmouth college in a young woman of the village and that he 1878. He read law in the office of the Hon. wanted his wife out of the way in order that J. Newton Fiero, of this city, then residing he might enjoy the society of that woman at and having an office at Kingston, and was and appropriate to his own uses the fortune admitted to the bar in 1879. Mr. Newcomb of some $40,000 which his wife possessed. was clerk of the Surrogate's Court of Ulster The conviction was affirmed by the Court of county for some time, and for several years Appeals, only one judge dissenting, and it subsequent to his relinquishment of that looked as if no earthly power could save the office was the senior member of the law firm convicted man from the death penalty. of Newcomb & Metzger, in that city. Re- However, one chance remained, and the cently he was appointed one of the lecturers prisoner's counsel and friends determined to at the Albany Law School. The Albany take advantage of it, although to the ordiArgus says of the new assistant reporter: nary observer it looked like a forlorn hope. * Mr. Newcomb is a gentleman of scholarly On the usually weak claim of newly discovattainments, and withal a thorough lawyer, ered evidence, the prisoner's counsel made well versed both in the theory and practice application to Justice Hooker, one of the of the law, and possessed of a very high newly appointed members of the judiciary of degree of literary skill. These are all im- western New York, and in February last that portant elements in the work of reporting jurist granted the application for a new trial decisions of the highest court of the State, and a change of venue. It was, we believe, and the bar is to be congratulated on the the first decision of the kind in the judicial selection made by the State Reporter." history of the State, for never before had a

new trial been granted in a capital case after Judge William H. Holt, of Frankfort, Ky., the judgment of death had been affirmed by who has been appointed chief justice of Porto the highest court.

the highest court. It is to be noted that the Rico by President McKinley, is one of the prosecution on the second trial was neither best known members of the judiciary of the as energetic nor as able as on the first, while Blue Grass State. He is a native of Ken- the defense was far stronger and abler, led tucky and has lived the greater portion of by Mr. Wade, of Jamestown. According to his life at Frankfort, in which town he was the newspaper reports, there was an extraborn. Judge Holt is fifty-six years old. As ordinary scene in the court room when the a member of the legislature of Kentucky he verdict of acquittal was rendered. took a prominent part in the legislation dur- porter said: “ The solid court-house was ing the term of his service as a law-maker, shaken to its foundation and for blocks and those who know him best declare unhesi- around the earth trembled from the cheers tatingly, that he possesses all the necessary which went up following the verdict.” Anqualifications for the important post to which other says: “ Cheer after cheer reverberated the president has assigned him.

through the old court-house, hats were

waved and Aung to the ceiling, and every The acquittal of Howard C. Benham, on man, woman and child in the room were on his second trial for the murder of his wife, their feet, embracing one another and strug which was concluded recently at Canandai-gling to reach the side of Benham, to shake gua, V. Y., seems to have been generally ex- him by the hand. The officers were compected, at least by those who had taken the pelled to form a barricade to protect him trouble to follow the testimony in the case. from the overwhelming congratulations of The result of the first trial, it will be remem- the impulsive throng.” Commenting on this bered, which took place at Batavia, was the the Rochester Post-Express well says: “It prisoner's conviction and subsequent sen- was but natural that Benham, escaping the tence to be electrocuted. The theory of the electric chair by a miracle, should give way prosecution, which the jury accepted, was to emotion, and that the father, mother, and

sisters that have been devoted to him, should (2) The defendants are not liable to the plainmanifest their joy; but why a court-house full

tiff for the value of such grain, nor the damages

resulting to plaintiff from its destruction." (3) of people should lose all control of them

"I further conclude that the law is with the deselves and scramble about to offer their con- fendants, and that the plaintiff should take nothgratulations to a man of Benham's character, ing by his suit.” is more than we can understand. If they Appellees have suggested some technical objecwere rejoicing over what they considered in tions to the exceptions of appellant to the conclua general way a triumph of justice, the joy fairly presented by the record, we are inclined to

sions of law, but, as the questions for decision are might have been more soberly expressed, waive any such technicalities, and decide the considering all the circumstances of the case. questions upon their merits. This young man has led a fast life; if not The main question for decision is, do the facts immoral, he certainly misused the young specially found show a contract of bailment or a

contract of sale? If the former, then the concluwife that he had promised to love and cher

sions of law are correct. It is earnestly argued ish, and from first to last there has not been

by appellant that the facts show a sale and not a one single solitary thing in his career that bailment. This argument is based on that clause appealed to the finer instincts of humanity in the receipts which reads: For which we agree or would be expected to evoke the sympathy to pay the market price per bushel at any time up of the public. He is acquitted of a horrible

to July 1, 1895." In connection with other pro

visions of the receipt, it is not difficult to put a charge; he is a free man once more; he is at

construction upon this one. By this provision a liberty to make a fight in the courts for the time limit was given appellant by which he could, fortune left by the young wife, but he is not at any time within the limit (July 1, 1895), demand yet respected by the sensible men and women of appellees payment for the grain at the market of Western New York. He says he is going price at the time of the demand. Up to that time

appellees could not have compelled appellant to to lead a new life.' We hope so.

The best

accept from them the market price without his thing that he can do is to keep out of the consent. In other words, the appellees had no public view; to make himself as inconspicu- right to purchase the grain at the market price ous as possible."

without the assent of the appellant, and the special findings fail to show any such sale was ever made.

or any market price ever agreed upon. The Notes of Cases.

special findings failing to show this, and this fact

being essential to appellant's right to recover, the Warehousemen Bailment — Storage of Grain fact must be regarded as having been found against

Loss of Grain - Liability of Warehousemen. him. The rule is firmly established in this State In McGrew v. Thayer, decided by the Appellate that, when a special finding is silent upon a mateCourt of Indiana in May, 1900, it appeared that rial fact to be found, it is taken as a finding the owner of grain delivered it to a warehouseman against the party having the burden of proving under a written agreement reciting the receipt of such fact (Insurance Co. v. Bowser, 20 Ind. App. the grain and the warehouseman's agreement 557, 50 N. E. 86; Relander v. State, 149 Ind. 243, to pay the market price per bushel at any time up 49 N. E. 30; Levi v. Allen, 15 Ind. App. 38, 43 to a designated date, and that it was held subject to N. E. 571; Wysong v. Nealis, 13 Ind. App. 165, the owner's risk of loss by fire. The grain was 41 N. E. 388; Insurance Co. v. Rundell, 7 Ind. placed in bins, and mixed with grain of like quality | App. 426, 34 N. E. 538; Heiney v. Lontz, 147 Ind. belonging to other persons. The warehouseman 417, 46 N. E. 665; Archibald v. Long, 144 Ind. 451, sold grain from such bins, but at all times had on 43 N. E. 439; City of New Albany v. Endres, 143 hand a sufficient quantity of grain of like quality Ind. 192, 42 N. E. 683; Belshaw v. Chitwood, 141 to redeliver to the depositors the quantity de- Ind. 377, 40 N. E. 908; Bell v. Corbin, 136 Ind. 209, posited by them. It was held that the transaction 36 N. E. 23). constituted a bailment, and not a sale, and that From this we have no doubt but what the rethe warehouseman was not liable for the market ceipts show a contract of bailment, subject only price when not demanded until after loss by fire. to appellant's right at any time up to July 1, 1895. The court said in part:

to demand of and receive from appellees the marAs conclusions of law, the court stated: (1) ket price of the grain at the time of the demand The title to the grain leít by the plaintiff in store The title to the grain remained in appellant, and it with the defendants remained in the plaintiff up is shown that it was stored in regular storage bins. to and including the time of the fire, and that the mixed with other grain of like quality, and that defendants held it as bailees for the plaintiff." | appellant knew this. It is also shown that from the time the grain was stored up to the time of the nant to our Constitution, different entirely from fire appellees kept on hand and in store grain of that under which we live, or we could have a like character and quality to have delivered to despotism in such territory, giving the people no appellant the full amounts so stored by him, and voice whatever in their form of government or in to have done the same with all other persons who the election of their rulers. Certainly this is in had grain stored with them. This brings the case the nature of an alarming proposition, and it can within the rule declared in the case of Drudge v. hardly be possible that it is true. If it be true, Leiter (18 Ind. App. 694, 39 N. E. 34). If there then our Aag would certainly mean one thing was any doubt about the construction which we when unfurled in Porto Rico and the Philippine have thus given the receipts in question, such Islands, and quite a different thing when floating doubt is made to disappear in the last clause of in any of the States of our nation. It could be the receipts, which is as follows: “Subject to made to protect slavery, polygamy, or any form owner's risk of loss by fire or heating." This of oppression that the officers in power in those clause specially fixes the ownership of the grain | territories might wish to resort to. In support of as in appellant, and, in case of loss by fire, the his position, he cites numerous instances of what loss should be that of the owner. The rule is that Mr. Webster has said with reference to the power when property in the custody of a bailee is de- of the government in ruling territories. If he has stroyed accidentally, without any fault on his part, stated what Judge Day quotes him as saying, it is the bailee is not liable (Drudge v. Leiter, supra, very evident that Mr. Webster has been on both and authorities there cited). It is the law of this sides of the question. jurisdiction, as well as of many others, that where Referring to Mr. Webster's argument in a case a warehouseman receives grain on deposit for the relating to the territory of Florida, he says that owner, to be mingled with other grain in a com- Mr. Webster used this language: What is Flormon receptacle, from which sales are made, the ida? It is no part of the United States. How warehouseman keeping constantly on hand grain can it be? How is it represented? Do the laws of like kind and quality for the depositor and of the United States reach Florida ? Not unless ready for delivery to him on call, the contract is by particular provisions. The territory and all once of bailment and not of sale (Woodward v. within it are to be governed by the acquiring power, Seamans, 125 Ind. 330, 25 N. E. 444; Rice v.

except where there are

reservations by treaty. Nixon, 97 Ind. 97; Bottenberg v. Nixon, 97 Ind. What has congress done? She might have done 106; Schindler v. Westover, 99 Ind. 395; Lyon v. anything. She might have refused the trial by Lenor, 106 Ind. 567, 7 N. E. 311; Preston v. jury and refused a legislature.” That this was Mr. Witherspoon, 109 Ind. 457, 9 N. E. 585; Morning-Webster's view when not influenced, as Judge star v. Cunningham, 110 Ind. 328, 11 N. E. 593; Day says, by the impulse of a retainer, he quotes Baker v. Born, 17 Ind. App. 422, 46 N. E. 930). Mr. Webster's language in an argument relating The facts specially found bring this case squarely to the acquisition of territory from Mexico. The within the above rule. Upon the facts found, the speech which Mr. Webster made upon that occaconclusions of law are correct.

sion was made in the senate, evidently without careful preparation and in opposition to a motion

made, which was claimed by Mr. Benton to be an ARE INHABITANTS OF TERRITORIES unparliamentary and disorderly proposition. It

ENTITLED TO CONSTITUTIONAL PRIV- was a motion to amend the appropriation bill for ILEGES?

the current expenses of the government by tack

ing to it a provision or section providing a temBy LEMUEL CLUTE.

porary government for the ceded territories and

extending an enumerated list of acts of congress (UDGE DAY, in his address before the State to them. The idea of the amendment was to have

Bar Association at Ann Arbor, takes the posi- slavery recognized in the territories. It was an tion, in substance, that the power of congress over amendment unexpected, and Mr. Webster's reply the public territory is clearly exclusive and uni- in opposition to it, as I have stated, was evidently versal, is subject to no control, unless so far as it on the spur of the moment. without careful is affected by stipulations in the cession or by the thought. I say this more readily because it apordinance of 1787, under which any of it has been pears from other statements of Mr. Webster to be settled. If he is right in this conclusion, then the ini opposition to what he contended at other times. inhabitants of the Philippine Islands and Porto “What is the Constitution of the United States? Rico have no constitutional rights which they can Is not its very first principle that all within its claim under the Constitution of the United States, influence and comprehension shall be represented although they may, according to his theory, be ter- in the legislature which it establishes, with not ritory belonging to this government. We could / only a right to debate and a right to vote in both hold the Philippine Islands for an indefinite time houses of congress, but a right to partake in the and rule them under a form of government repug. I choice of the president and vice-president, and can

[ocr errors]

we by law extend these rights or any of them to guage: · The power within to lay and collect
a territory of the United States? They will see duties, imposts and excises may be exercised and
that it is altogether impracticable. It comes to must be exercised throughout the United States.
this, then: that the Constitution is to be extended Does this term designate the whole or any par-
as iar as practicable, but how far that is, is to be ticular portion of the American Empire? Cer-
decided by the president of the United States, and tainly this question can admit oi but one answer:
thereiore he is to have absolute and despotic it is the name given to our great republie which
power. He is the judge of what is suitable and is composed of States and territories. The Dis-
what is unsuitable, and what he thinks is suitable trict of Columbia or the territory west of the
is suitable, and what he thinks is unsuitable is un- Missouri is not less within the United States than
suitable. And what is this but to say in general Maryland or Pennsylvania, and it is not less neces-
terms that the president of the United States shall sary under the principles of our Constitution that
govern this territory as he sees fit until congress uniformity in the imposition of imposts, duties and
makes further provision. Now, if the gentleman I excises should be observed in one than in the
will be kind enough to tell me what principle of other.
the Constitution he supposes suitable; what dis- Mr. Justice Matthews, in the City of Panama
crimination he can draw between suitable and un- (101 U. S. 400), said: The personal and civil
suitable which he proposes to follow, I shall be rights of the inhabitants of the territories are se-
instructed. Let me say that in this general sense cured to them as to other citizens by the prin-
there is no such thing as extending the Constitu- ciples of constitutional lierty, which restrain all
tion. The Constitution is extended over the the agencies of government, state and national:
United States, and nothing else. It cannot be their political rights are franchises which they hold
extended over anything except over the old States as privileges in the legislative discretion of the
and the new States that shall come in hereafter, United States."
when they do come in. There is a want of accu- Mr. Justice Curtis, reierring to this question of
racy of ideas in this respect it is quite re- the rights of citizens in territories, said: · To this
markable among eminent gentlemen and especially I answer, that in common with all the other legis-
among professional and judicial gentlemen. It lative powers of congress, it finds limitations in
seems to be taken for granted that the right of the expressed prohibitions on congress not to do
trial by jury, the habeas corpus, and every principle certain things; that in the exercise of the legisla:
designed to protect personal liberty is extended by tive power congress cannot pass an ex post fucto
force of the Constitution itself over every new law or bill of attainer, and sq in respect to each
territory. That proposition cannot be maintained of the other prohibitions contained in the Consti-
at all.”

tution." Judge Day bases his argument largely on this

We note here that this language from the bench doctrine from Webster, but in the light of our

oi the United States Supreme Court is entirely in United States Supreme Court decisions it is not opposition to the doctrine of Mr. Webster. as and never was law.

Judge Day quotes him, and it affirms the thought Mr. Calhoun, at the same time, in reply, took that every principle of law designed to protect exactly the opposite view from Mr. Webster's, in-personal liberty is extended, by force of the Consisting that the Constitution interpreted itself in stitution itself, over every new territory. Conthis, that it pronounced itself to be the supreme gress can no more pass a bill of attainer or er post law of the land, and that any territory belonging facto law for a territory than it can for a State. to the United States became a part of the land. It can pass no law impairing the obligation of a In the sense which Mr. Calhoun argued, our contract which shall prevail in a territory; it canSupreme Court has since that time fully sustained not suspend the writ of habeas corpus in a territory him.

except in those cases where it can in a State. In And this agrees with President McKinley's oft- other words, congress, in legislating ior territories, repeated statement that the flag shall mean the is bound by all the limitations upon legislation same thing in the Philippine Islands that it does that are found in our Federal Constitution. It in the States, or that it shall not mean one thing takes the place of a State government for the time in one place and another thing in another place. being, and cannot violate the provisions of our

It will be noted that Mr. Webster said that the Constitution any more than a State can by acts of
Constitution cannot be extended over new ter-

its legislature.
ritory, and his idea was, as we get it from the In another case United States Supreme
argument, that a territory belonging to the Court has said: “ But the power of congress over
United States does not come within the provis- the person or property of a citizen can never be a
ions of our Constitution.

mere discretionary power under our Constitution Chief Justice Marshall, in the case of Lough- and form of government. The powers of the gorborough v. Blake (5 Wheaton, 319), uses this lan- / ernment and the rights and privileges of the citi

Our

« PreviousContinue »