The Albany Law Journal. good offices of one or more of the friendly A Weekly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, NY. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest, are solicited from members of the bar and those interested in legal proceedings. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters should be addressed to THE ALBANY LAW JOURNAL COMPANY.] powers. It is also provided, by an article which provoked much opposition, but was finally adopted, that: In case of a serious difference endangering the peace, the States at variance shall each choose a power, to whom they intrust the mission of entering into direct communication with the power chosen on the other side, with the object of preventing the rupture of pacific relations. During the period of this mandate, the term of which, unless otherwise stipulated, cannot exceed thirty days, the States in conflict shall cease from Subscription price, Five Dollars per annum, in advance. Single all direct communication on the subject of the disnumber, Twenty-five Cents. ALBANY, N. Y., DECEMBER 15, 1900. THE Current Topics. HE recent Peace Conference at The Hague, notwithstanding that, at the time of its assembling and subsequently, it was regarded throughout the civilized world with skepticism if not derision, was not wholly barren of results. That such a view of the Conference would be a superficial one, the unprejudiced reader will, we think, freely concede after a careful perusal of the admirable work on the subject which Mr. Frederick W. Holls, a member of the Conference, has written, and the Macmillan Company has just published. In this work, the author tells, in graceful and forceful style, just what the Conference succeeded in doing, and indicates clearly what an important influence its labors are likely to have in the future. None but the foolishly optimistic could have entertained the hope that this Conference, though composed of one hundred eminent, representative men from all the great nations of the earth, and inspired as it was by the most powerful autocrat in the world, the czar of Russia, could at one stroke abolish wars from the earth. But though, in this particular, the Conference was not eminently successful, it did not finally adjourn without adopting several treaties, among which the most important and significant undoubtedly was that whereby disputes between nations can be settled peaceably and honorably. This, known as the arbitration treaty, makes it the duty of the signatory powers, in case of serious disagreements or conflicts, to have recourse to the VOL. 62.-No. 24. pute, which is regarded as having been referred exclusively to the mediating powers, who shall use their best efforts to settle the controversy. In case of a definite rupture of pacific relations, these powers remain charged with the joint duty of taking advantage of every opportunity to restore peace. In cases of dispute involving neither honor nor vital interests and arising from a difference of opinion on matters of fact, the treaty also recommends and provides for the constitution of international commissions of inquiry, "to facilitate a solution of the differences by elucidating the facts by means of an impartial and conscientious investigation." Finally, the treaty creates a permanent Court of Arbitration for the determination of questions of a judicial character, and especially of "questions regarding the interpretation or application of international treaties or conventions," and formulates a system of procedure for such tribunal. Among the other matters accomplished, may be mentioned the treaties extending the Geneva or Red Cross rules to naval warfare, and the treaty on the laws and customs of war, through which "the peaceful, unarmed nations inhabitants of the territory of belligerents will have the right to demand that their lives, their religious convictions and their private property shall be respected. Through it prisoners of war will be treated, not as enemies, but as disarmed and honorable adversaries, worthy of respect. Through it, social institutions, beneficiary establishments, religious, scientific and otherwise, which find themselves on disputed territory, shall have the right to demand and to exact of the enemy respect for the inviolability of their property and their interests. Though, as to the limitation | seen that the proposed court for our Pacific possessions differs radically from the usual territorial courts in this country, the members of the Supreme Court of a territory, in accordance with the provisions of the Revised Statutes, being appointed by the president for terms of four years. In case Mr. Stewart's bill becomes law, the members of the Philippine Supreme Court will hold office practically for life. The author of the bill referred to pointed out the fact that the territorial system of judges in this country, while a success in the agricultural portions of the United States, has proven a failure in the mining regions, where often very great interests are involved. It would be idle, he added, to send a man out! to our new possessions on a salary of $3.000 a year where he must spend $10,000 a year to live, and he urged that the salary be sufficient to attract to the positions men from the upper ranks of the profession. Discussing this matter of judicial salaries, the New York Sun well says: home record of the judges sent out to represent this country should be so excellent as to inspire confidence and command respect from the very first, for the important insular tribunal whose work is bound to have such a powerful influence, one way or the other, upon the good name of America in the east. But congress is not going to pay these gentlemen twice as much as is received by the justices of the asked to deal fairly with the judiciary at home in Supreme Court of the United States, without being the matter of salaries. In England, the judicial members of the house of lords receive £6,000, and the ordinary judges of the High Court of Justice, £5,000 per annum. Our Supreme Court justices at Washington ought to be paid at least $15,000 a year. The very peculiar ceremony which preceded the induction into office of Mr. Shea, Q. C., as presiding judge at the trial of the officials of the Dumbell Bank, in the Isle of Man (he was required to swear that he would administer justice as impartially "as the herring's backbone doth lie in the middle of the fish"), reminds the London Law Journal of the equally quaint and peculiar ceremony through which Norwegian witnesses are compelled to pass. The witness, before being permitted to testify, is obliged to raise the thumb, the forefinger and the middle finger of his right hand; these signify the Trinity, while the larger of the uplifted fingers is supposed to represent the soul of the witness and the smaller to indicate his body. "If I swear falsely," he exclaims, " may all I have and own be cursed; cursed be my land, field and meadow, so that I may never enjoy any fruit or yield from them; cursed be my cattle, my beasts, my sheep, so that after this day they may never thrive or benefit me; yea, cursed may I be and everything I possess." "This," says the Law Journal, " is certainly a 'good mouth-filling oath,' but its comprehensiveness does not exceed that of the oath taken by the Burmese witness. He is not content that the consequences of his perThe proposition to pay judicial salaries of $20,000 jury should fall upon himself; he is even ready a year to the members of a Supreme Court at that his relations should suffer with him. Manila will hardly be adopted without a discussion in congress as to the inadequacy of the compensa- 'Let us be subject,' he prays, 'to all the calamition now received by the federal judiciary. We do ties that are within the body and all that are not say that Senator Stewart is wrong in his idea without the body. May we be seized with that the Philippine judges should be so generously madness, dumbness, deafness, leprosy and hypaid. Indeed, we are quite clear that his plan is the only way to attract lawyers of the distinction drophobia. May we be struck with thunderand ability desirable in our new colony, where the bolts and lightning and come to sudden death!' Even more conscientious, perhaps, was the Irish witness in the days of the Brehons, who took three separate oaths before he gave his evidence, the first standing, the second sitting, the third lying, as these were the positions in which his life was spent. The nation that has shown itself to be most ingenious in the making of oaths is the Chinese. Slicing off a fowl's head, breaking a saucer and extinguishing a lighted candle are among the picturesque ceremonies that precede the giving of evidence in a Chinese court of justice. The beheading of the fowl is supposed to indicate the fate of the liar, and the cracking of the saucer and the extinguishing of the candle flame are intended to indicate what will happen to the soul of the witness who does not tell the truth." Notes of Cases. Liability of Physicians - Issue of Certificate for Committal to Hospital of Dipsomaniacs and Inebriates.-- In Niven V. Boland, decided by the Supreme Judicial Court of Massachusetts in October, 1900 (58 N. E. 282), it was held that under the provisions of the statutes of 1889 of Massachusetts, chapter 414, section 7, and Public Statutes of that State, chapter 87, sections 12, 13, wherein it is provided that a person cannot be committed to the hospital for dipsomaniacs and inebriates without an order therefor by a judge, which shall state that the judge finds him a fit person for treatment therein, and without, in addition to the oral testimony, a certificate of two physicians being filed with the judge that they consider him a proper subject for treatment, a privilege of witnesses attaches to the physician, so that, though they negligently issue a certificate in case of a person who does not need treatment in the hospital, they cannot, in the absence of malice, be liable to him on account of his commitment. The action was against certain physicians, and a demurrer to the declaration was sustained in the court below. The Supreme Court holds that such judgment should be affirmed, saying, in part: There is no allegation of malice or of wilful negligence or falsification, and, on recurring to the statutes referred to in the declaration as those under which the examination and commitment were made, it is difficult to see how the commitment can be said to have taken place in consequence of the defendant's negligence in examining the plaintiff and in making the certificate. The statute establishing the hospital for dipsomaniacs and inebriates provides that "all laws relative to commitment of an insane person to a lunatic hospital shall be appli cable and govern the commitment of any person under this act," except that it shall be alleged that they are dipsomaniacs or inebriates, as the case may be, instead of insane (St. 1889, chap. 414, sec. 7). The statute in regard to the commitment. of insane persons provides that: "Except where otherwise. specifically provided, no person shall be * * public committed to a lunatic hospital * or private, without an order or certificate therefor signed by one of the judges named;" that "the order or certificate shall state that the judge finds that the person committed is insane, and is a fit person for treatment in an insane asylum; and that the judge shall see and examine the person alleged to be insane, or state in his final order the reason why it was not deemed necessary or advisable to do so." It is further provided that: "No person shall be so committed, unless in addition to the oral testimony there has been filed with the judge a certificate signed by two physicians, each of whom is a graduate of some legally-organized medical college and has practiced three years in the State, and neither of whom is connected with any hospital or other establishment for the treatment of the insane. Each must have personally examined the person alleged to be insane within five days of signing the certificate, and each shall certify that, in his opinion, said person is insane and a proper subject for treatment in an insane hospital, and shall specify the facts on which his opinion is founded" (Pub. St. chap. 87, secs. 12, 13). There are other provisions relating to the issuing of a warrant by the judge for the arrest of an alleged lunatic, and his care and custody pending an examination and hearing, and to other matters. But it is manifest from the provisions to which we have referred that, although the certificate of the examining physicians is intended to have great weight, and, no doubt, does in practice, a commitment cannot take place without an order from the judge and a finding by him that the person committed is insane, and without the judge seeing and examining the person alleged to be insane, or stating the reason for not doing so. In this case there is no averment in the declaration that there was no oral testimony, or that, if there was, the judge did not base his finding upon it, but upon the certificate furnished by the defendants. It is difficult to see, therefore, how, assuming that there was negligence in the examination, and that the certificate was false, it can be said that that was the proximate cause of the commitment (see Force v. Probasco, 43 N. J. Law, 539). But, further, the examining physicians are called upon to perform an important duty. In discharging it they are not engaged in the ordinary practice of their profession. If they do not occupy a quasi official or judicial position, they, at least, occupy the position of persons whose testimony is expressly required by statute in aid of judicial proceedings having for their object to ascertain whether the condition, in regard to dipso In its preventive policy and police, the government, says Burke, "ought to be sparing of its efforts and to employ means rather few, infrequent and strong, than many and frequent;" for it always happens, he adds, "in this kind of officious universal interference what begins in odious power, ends always in contemptible imbecility." mania or inebriety of the person to whom they and a restless desire of governing too much, would relate, is such that he should be restrained. It is have the hand of authority seen in everything and important that the judges who are charged with in every place; assuming universal competency the duty of investigating cases of dipsomania or and unnecessarily and oppressively restraining indiinebriety and insanity should have the assistance, vidual freedom. In the conduct of life the right of in forming their conclusions, of persons whose pro- others to step in and hinder is only one portion of fession is such as to give to their opinions peculiar a wider and deeper argument. There are a thouvalue in such matters. The statute recognizes this sand things which you ought not to do, though by requiring the certificate. And we think that the other persons may have no right to hinder you privilege which attaches to parties and witnesses from doing them. The laws reach but a very little in other judicial proceedings, to parties instituting way. Constitute government as you please, and yet criminal proceedings, and to cases of privileged infinitely the greater part of it must depend upon communications should attach to examining physi- the exercise of the powers, which are left at large cians in cases like the present, and that, so long as to the prudence, discretion and uprightness of they act in good faith and without malice, they those invested with official authority. should be exempt from liability (see Hoar v. Wood, 3 Metc. 193; Barker v. Stetson, 7 Gray, 53; Rice v. Coolidge, 121 Mass. 393; Tasker v. Stanly, 153 Mass. 148; 26 N. E. 417; 10 L. R. A. 468; Gifford v. Wiggins, 50 Minn. 401; 52 N. W. 904; 18 L. R. A. 356). It is more important that the administration of the law in the manner provided should not be obstructed by the fears of physicians that they may render themselves liable to suit than it is that the person certified by them to be insane or a dipsomaniac, or inebriate should have a right of action in case it turns out that the certificate ought not to have been given. The statute provides a penalty for a physician who conspires with any person unlawfully or improperly to commit to any lunatic hospital or asylum a person who is not insane; but goes no further. In Pennell v. Cummings (75 Me. 163), and William v. LeBar (141 Pa St. 149; 21 Atl. 525), relied on by the plaintiff, the question here presented was not passed upon by the court. Ayres v. Russell (50 Hun, 282; 3 N. Y. Supp. 338) there was a dissenting opinion, which seems to us to lay down the better doctrine. Moreover, the judgment was not that of a court of last resort. In Hall v. Semple (3 Fost. & F. 337) the statute under which the defendant proceeded seems to have been quite different from ours. In Perhaps, one of the greatest delusions of this age, as of all past ages, is the fallacious idea that arbitrary, coercive, proscriptive laws will reform individuals; and many of our best and most intelligent people find a ready recourse in more stringent legislation against anything which displeases them, and especially if it offends their sense of morality. Force never yet made a man moral, temperate or religious. Laws passed to enforce the right rule of conduct, to establish the correct moral principle, have produced much of the misery and tyranny, bloodshed and suffering in the history of the world. The psalm-singing covenanter drew his sword to slay the unbeliever; the fires of Smithfield were lighted to save men's souls, and the ax has fallen that truth might prevail. Herbert Spenser holds that legislation is one of class of moral reforms, and that in the attempt to the weakest possible instruments for the deeper deal with them, legislation frequently commits the most serious blunders. It is not the object of the THE RESTLESS DESIRE OF GOVERNING State to educate its citizens morally by the employ IT TOO MUCH. T STILL remains a fine problem what the State ought to take upon itself to direct by the public wisdom, and what it ought to leave, with as little interference as possible, to individual discretion. ment of coercive means, or to direct those things which belong to the inner psychic of man; but to promote his moral education by aiding the whole economic and intellectual culture of the people. Unquestionably the deepest reforms needed in society are moral reforms, but religious influences, It may be observed generally that the progress so much depreciated and forgotten nowadays, and of civilization, in its natural and healthy career, is not legislation, are the great moving powers in this the progress of limitation and the curtailment in question. There are acts wrong in themselves, such various ways of that freedom which originally be- as the theologians call mala in se. There is no longed to every member of the community. The question that the law must bend its energies against tanned savage of the backwoods is the freest man them, prevent them by every agency within its in existence; least free is the civilized citizen control, and punish without pity those convicted of hemmed in on all sides by police officers and the them. Then there is another class of misdeeds that whole fraternity of dignified, but unpopular officials are not naturally wrong; they are known as mala of various kinds, whose business it is to the general quia prohibita; they are wrong because forbidden by public to say, No! A good intention ill-directed | some proper authority. In a free government this class of crimes should be kept as small as possible. They are law-made crimes as distinguished from natural or moral crimes. Whatever of religious restraint is imposed by our government upon its citizens, is done for its own sake and not for the sake of the church; its own health and prosperity being conditioned upon its adherence to the principles of the Decalogue promulgated from Sinai. Prof. James Bryce, referring to the fact that, in his American Commonwealth," he never once had occasion to advert to any ecclesiastical body or question, because with such matters the government has in the United States absolutely nothing to do, says, "of all the differences between the old world and the new, this is perhaps the most salient." Within the first fifty-seven years after the Declaration of Independence, the alliance between church and State, which was then universal, was successively dissolved in every State in the Union; the work was begun in Virginia and finished in Massachusetts. The spirit of christianity and the spirit of our institutions agree in recognizing a complete separation in their functions. To the one God has handed the sword with the instruction that the magistrate shall not bear it in vain; while to the other He has said: “Put up again thy sword into its place, for all they that take the sword shall perish by the sword." The one compels, while the other persuades; the one applies its force out wardly while the other sets up its kingdom in the heart, and thus purifies the very fountain of moral action. While recognizing to its fullest extent the importance of cultivating Christian virtues in a republican community, it is an error to maintain that our republicanism is predicated on Christian elements, whether one looks to the dogmas or the ethics of Christianity, its theory or its practice. The sacred things about which our government is concerned and undertakes to legislate, are not churches and preaching or singing hymns, but justice, truth, right. The State, statutes, prohibiting common labor on the Sabbath, are to be regarded as a municipal or police regulation. The State, looking at the physical and intellectual and moral facts of human nature, comes to the conclusion that as a mere civil institution it is well to have one day in seven set apart as a day of rest, and for the purpose of conformity, it selects the day which the community recognizes as a day of religious rest. It is to the theory that the State is the creator, not the creature of society, that we must ascribe the origin of the prejudice, still so inveterate, that the State is of necessity the artificial founder and producer of everything-of industry and material prosperity, no less than of morality, religion and intelligence. The true office of the State is to secure justice and peace; to guard against excess and disorder. The more the individual can be left to govern himself, the safer and better for the community. Educate the public mind, instruct the public conscience, direct the public thought and moral sense aright- these are the stronger and more efficacious instrumentalities to promote morality and preserve the public welfare. Legislation cannot furnish the panacea for all sorrow and the relief for all misfortune. When the efficacy of the law is exhausted, a large field of human conduct still remains, over which sound policy, enlightened morality, and the precepts of Christianity exercise the only control that is possible. The safe course is the rigid restriction of government to the legitimate domain of political power, and by excluding therefrom all executive and legislative intermeddling with the affairs of society. It is important that people should cease to think that legislation is the sovereign remedy for all ills. The reverse has been demonstrated over and over. another. But it is very difficult to enforce laws that are intended to make one class of citizens order their lives in the way that another class thinks would be best for them. Some may deplore this, while COMMON CARRIER · AGENT — TELEGRAM - SHIPPING MAINE SUPREME COURT. OSCAR C. S. DAVIES v. EASTERN STEAMBOAT Kennebec. Opinion November 22, 1900. The court will not infer, as matter of law, the authority of the captain of a passenger steamer, to charge the owner with the duty of delivering telegrams addressed to its passengers. Such authority is a question of fact, to be established by evidence. In the absence of any evidence tending to prove that it is a part of the business habit or custom of the defendant, a common carrier of passengers by |