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The Albany Law Journal. good offices of one or more of the friendly


powers. It is also provided, by an article A Weekly Record of the Law and the Lawyers.

which provoked much opposition, but was Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N Y.

finally adopted, that: Contributions, items of news about courts, jndges and lawyers'

In case of a serious difference endangering the queries or comments, criticisms on various law questions, addresses

peace, the States at variance shall each choose a on legal topics, or discussions on questions of timely interest, are solicited from members of the bar and those interested in legal power, to whom they intrust the mission of enterproceedings.

ing into direct communication with the power [All communications intended for the Editor should be addressed chosen on the other side, with the object of presimply to the Editor of The Albany Law Journal. All letters venting the rupture of pacific relations. relating to advertisements, subscriptions or other business matters During the period of this mandate, the term of shonld be addressed to THE ALBANT LAW JOURNAL COMPANY.) 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.

pute, which is regarded as having been referred ALBANY, N. Y., DECEMBER 15, 1900. exclusively to the mediating powers, who shall use

their best efforts to settle the controversy. Current Lopics.

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 HE recent Peace Conference at The

peace. Hague, notwithstanding that, at the In cases of dispute involving neither honor time of its assembling and subsequently, it nor vital interests and arising from a differwas regarded throughout the civilized world ence of opinion on matters of fact, the treaty with skepticism if not derision, was not wholly also recommends and provides for the constibarren of results. That such a view of the tution of international commissions of inquiry, Conference would be a superficial one, the “ to facilitate a solution of the differences by unprejudiced reader will, we think, freely con- elucidating the facts by means of an impartial cede after a careful perusal of the admirable and conscientious investigation.” Finally, work on the subject which Mr. Frederick W. the treaty creates a permanent Court of ArbiHolls, a member of the Conference, has writ- tration for the determination of questions of ten, and the Macmillan Company has just a judicial character, and especially of “quespublished. In this work, the author tells, in tions regarding the interpretation or applicagraceful and forceful style, just what the Con- tion of international treaties or conventions," ference succeeded in doing, and indicates and formulates a system of procedure for such clearly what an important influence its labors tribunal. are likely to have in the future. None but Among the other matters accomplished, the foolishly optimistic could have entertained may be mentioned the treaties extending the the hope that this Conference, though com- Geneva or Red Cross rules to naval warfare, posed of one hundred eminent, representa- and the treaty on the laws and customs of tive men from all the great nations of the war, through which “the peaceful, unarmed earth, and inspired as it was by the most pow- nations inhabitants of the territory of belligererful autocrat in the world, the czar of Rus-ents will have the right to demand that their sia, could at one stroke abolish wars from the lives, their religious convictions and their priearth. But though, in this particular, the vate property shall be respected. Through it Conference was not eminently successful, it prisoners of war will be treated, not as enedid not finally adjourn without adopting seve- mies, but as disarmed and honorable adverral treaties, among which the most important saries, worthy of respect. Through it, social and significant undoubtedly was that whereby institutions, beneficiary establishments, religidisputes between nations be settled ous, scientific and otherwise, which find thempeaceably and honorably. This, known as selves on disputed territory, shall have the the arbitration treaty, makes it the duty of the right to demand and to exact of the enemy signatory powers, in case of serious disagree- respect for the inviolability of their property ments or conflicts, to have recourse to the and their interests. Though, as to the limitation

Vol. 62.-No. 24.


of armaments, which was avowedly the prin- home record of the judges sent out to represent this cipal object of the Conference, no definite ac- country should be so excellent as to inspire confition was taken, it is not by any means outside dence and command respect from the very first, for

the important insular tribunal whose work is bound the bounds of probability that such limitation to have such a powerful influence, one way or the will, through future conferences or concert of other, upon the good name of America in the east. action brought about in some other way, be But congress is not going to pay these gentlemen undertaken gradually and tentatively, for twice as much as is received by the justices of the there can be no doubt that, under the pressure asked to deal fairly with the judiciary at home in

Supreme Court of the United States, without being of public opinion, international law and the matter of salaries. In England, the judicial policy will be powerfully influenced as a direct members of the house of lords receive £6,000, and result of this Conference.

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 A bill for the creation of a Supreme Court year. for the Philippine Islands has been introduced in the congress by Senator Stewart, of Nevada,

The very peculiar ceremony which preceded which provides for a tribunal of five judges, the induction into office of Mr. Shea, Q. C., to hold office during good behavior, and to as presiding judge at the trial of the officials of receive an annual salary of $20,000 each. So the Dumbell Bank, in the Isle of Man (he was far as tenure of office is concerned, it will be

required to swear that he would administer seen that the proposed court for our Pacific justice as impartially “as the herring's backpossessions differs radically from the usual bone doth lie in the middle of the fish”), reterritorial courts in this country, the members minds the London Law Journal of the equally of the Supreme Court of a territory, in accord

quaint and peculiar ceremony through which ance with the provisions of the Revised Stat- Norwegian witnesses are compelled to pass. utes, being appointed by the president for The witness, before being permitted to testify, terms of four years. In case Mr. Stewart's is obliged to raise the thumb, the forefinger bill becomes law, the members of the Philip- and the middle finger of his right hand; these pine Supreme Court will hold office practically signify the Trinity, while the larger of the upfor life. The author of the bill referred to lifted fingers is supposed to represent the soul pointed out the fact that the territorial system of the witness and the smaller to indicate his of judges in this country, while a success in body. “If I swear falsely,” he exclaims,“ may the agricultural portions of the United States,

all I have and own be cursed; cursed be my has proven a failure in the mining regions, land, field and meadow, so that I may never where often very great interests are involved.

enjoy any fruit or yield from them; cursed be It would be idle, he added, to send a man out to our new possessions on a salary of $3,000 this day they may never thrive or benefit me;

iny cattle, my beasts, my sheep, so that after a year where he must spend $10,000 a year to live, and he urged that the salary be sufficient yea, cursed may I be and everything I pos

sess.” "This," says the Law Journal, “ is certo attract to the positions men from the upper tainly a good mouth-filling oath,' but its comranks of the profession. Discussing this matter of judicial salaries, the New York Sun prehensiveness does not exceed that of the

oath taken by the Burmese witness.

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 Manila will hardly be adopted without a discussion that his relations should suffer with him. 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

well says:


o the


death!' Even more conscientious, perhaps, cable and govern the commitment of any person was the Irish witness in the days of the Bre- under this act,” except that it shall be alleged that

they are dipsomaniacs or inebriates, as the case hons, who took three separate oaths before

may be, instead of insane (St. 1889, chap. 414, he gave his evidence, the first standing, the sec. 7). The statute in regard to the commitment second sitting, the third lying, as these were of insane persons provides that: “Except where the positions in which his life was spent. The otherwise. specifically provided, no person shall be

* public nation that has shown itself to be most ingeni- committed to a lunatic hospital

or private, without an order or certificate therefor ous in the making of oaths is the Chinese.

signed by one of the judges named; " that Slicing off a fowl's head, breaking a saucer and order or certificate shall state that the judge finds extinguishing a lighted candle are among the that the person committed is insane, and is a fit picturesque ceremonies that precede the giving person for treatment in an insane asylum; and that of evidence in a Chinese court of justice. The the judge shall see and examine the person alleged

to be insane, or state in his final order the reason beheading of the fowl is supposed to indicate why it was not deemed necessary or advisable to do the fate of the liar, and the cracking of the so.” It is further provided that: “No person shall saucer and the extinguishing of the candle be so committed, unless in addition to the oral tesflame are intended to indicate what will hap- timony there has been filed with the judge a certifipen to the soul of the witness who does not cate signed by two physicians, each of whom is a tell the truth."

graduate of some legally-organized medical college and has practiced three years in the State, and

neither of whom is connected with any hospital Notes of Cases

or other establishment for the treatment of the

insane. Each must have personally examined the Liability of Physicians — Issue of Certificate for person alleged to be insane within five days of Committal to Hospital of Dipsomaniacs and Inebri- signing the certificate, and each shall certify that, ates.-- In Niven Boland, decided by the in his opinion, said person is insane and a proper Supreme Judicial Court of Massachusetts in Octo- i subject for treatment in an insane hospital, and ber, 1900 (58 N. E. 282), it was held that under the shall specify the facts on which his opinion is provisions of the statutes of 1889 of Massachusetts, founded” (Pub. St. chap. 87, secs. 12, 13). There chapter 414, section 7, and Public Statutes of that are other provisions relating to the issuing of a State, chapter 87, sections 12, 13, wherein it is pro- warrant by the judge for the arrest of an alleged vided that a person cannot be committed to the lunatic, and his care and custody pending an examihospital for dipsomaniacs and inebriates without an nation and hearing, and to other matters. But it order therefor by a judge, which shall state that the 'is manifest from the provisions to which we have judge finds him a fit person for treatment therein, referred that, although the certificate of the examinand without, in addition to the oral testimony, a ing physicians is intended to have great weight, certificate of two physicians being filed with the and, no doubt, does in practice, a commitment judge that they consider him a proper subject for cannot take place without an order from the judge treatment, a privilege of witnesses attaches to the' and a finding by him that the person committed physician, so that, though they negligently issue is insane, and without the judge seeing and examina certificate in case of a person who does not need ing the person alleged to be insane, or stating the treatment in the hospital, they cannot, in the reason for not doing so. In this case there is no absence of malice, be liable to him on account of averment in the declaration that there was no oral his commitment.

testimony, or that, if there was, the judge did not The action was against certain physicians, and a base his finding upon it, but upon the certificate furdemurrer to the declaration was sustained in the nished by the defendants. It is difficult to see, court below. The Supreme Court holds that such therefore, how, assuming that there was negligence judgment should be affirmed, saying, in part: in the examination, and that the certificate was

There is no allegation of malice or of wilíul negli- ! false, it can be said that that was the proximate gence or falsification, and, on recurring to the cause of the commitment (see Force v. Probasco, statutes referred to in the declaration as those ! 43 N. J. Law, 539). But, further, the examining under which the examination and commitment were physicians are called upon to perform an important made, it is difficult to see how the commitment can duty. In discharging it they are not engaged in be said to have taken place in consequence of the the ordinary practice of their profession. If they do defendant's negligence in examining the plaintiff' not occupy a quasi official or judicial position, they, and in making the certificate. The statute estab- ' at least, occupy the position of persons whose teslishing the hospital for dipsomaniacs and inebriates timony is expressly required by statute in aid of provides that all laws relative to commitment of judicial proceedings having for their object to asceran insane person to a lunatic hospital shall be appli-, tain whether the condition, in regard to dipsomania 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 I 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, In its preventive policy and police, the govern3 Metc. 193; Barker v. Stetson, 7 Gray, 53; Rice v. ment, says Burke, “ought to be sparing of its Coolidge, 121 Mass. 393; Tasker v. Stanly, 153 Mass. efforts and to employ means rather few, infrequent 148; 26 N. E. 417; 10 L. R. A. 468; Gifford v. Wig- and strong, than many and frequent;" for it always gins, 50 Minn. 401; 52 N. W. 904; 18 L. R. A. 356). happens, he adds, “in this kind of officious uniIt is more important that the administration of the versal interference what begins in odious power, law in the manner provided should not be ends always in contemptible imbecility.” obstructed by the fears of physicians that they may

Perhaps, one of the greatest delusions of this age, render themselves liable to suit than it is that the

as of all past ages, is the fallacious idea that arbiperson certified by them to be insane or a dipso-trary, coercive, proscriptive laws will reform indimaniac, or inebriate should have a right of action viduals; and many of our best and most intelligent in case it turns out that the certificate ought not to people find a ready recourse in more stringent have been given. The statute provides a penalty legislation against anything which displeases them, for a physician who conspires with any person and especially if it offends their sense of morality. unlawfully or improperly to commit to any lunatic Force never yet made a man moral, temperate or hospital or asylum a person who is not insane; but religious. Laws passed to enforce the right rule goes no further. In Pennell v. Cummings (75 Me. of conduct, to establish the correct moral principle, 163), and William v. LeBar (141 Pa St. 149; 21 Atl. have produced much of the misery and tyranny, 525), relied on by the plaintiff, the question here bloodshed and suffering in the history of the world. presented was not passed upon by the court.

In The psalm-singing covenanter drew his sword to Ayres v. Russell (50 Hun, 282; 3 N. Y. Supp. 338) slay the unbeliever; the fires of Smithfield were there was a dissenting opinion, which seems to us lighted to save men's souls, and the ax has fallen to lay down the better doctrine. Moreover, the that truth might prevail. judgment was not that of a court of last resort. In

Herbert Spenser holds that legislation is one of Hall v. Semple (3 Fost. & F. 337) the statute under which the defendant proceeded seems to have been class of moral reforms, and that in the attempt to

the weakest possible instruments for the deeper quite different from ours.

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 employTOO MUCH.

ment of coercive means, or to direct those things

which belong to the inner psychic of man; but to IT STILL remains a fine problem what the State promote his moral education by aiding the whole

ought to take upon itself to direct by the public, economic and intellectual culture of the people. wisdom, and what it ought to leave, with as little Unquestionably the deepest reforms needed in interference as possible, to individual discretion. 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. instruct the public conscience, direct the public They are law-made crimes as distinguished from thought and moçal sense aright — these are the natural or moral crimes. Whatever of religious stronger and more efficacious instrumentalities to restraint is imposed by our government upon its promote morality and preserve the public welfare. citizens, is done for its own sake and not for the Legislation cannot furnish the panacea for all sake of the church; its own health and prosperity sorrow and the relief for all misfortune. When being conditioned upon its adherence to the prin- the efficacy of the law is exhausted, a large field ciples of the Decalogue promulgated from Sinai. of human conduct still remains, over which sound

Prof. James Bryce, referring to the fact that, in policy, enlightened morality, and the precepts of his “American Commonwealth,” he never once had Christianity exercise the only control that is posoccasion to advert to any ecclesiastical body or sible. The safe course is the rigid restriction of question, because with such matters the govern- government to the legitimate domain of political ment has in the United States absolutely nothing power, and by excluding therefrom all executive to do, says, “of all the differences between the and legislative intermeddling with the affairs of old world and the new, this is perhaps the most society. salient."

It is important that people should cease to think Within the first fifty-seven years after the Declar- that legislation is the sovereign remedy for all ills. ation of Independence, the alliance between church. The reverse has been demonstrated over and over. and State, which was then universal, was succes

A large part of the evil of the world is due to the sively dissolved in every State in the Union: the depravity of human nature, which is only partially

It by no means work was begun in Virginia and finished in Massa- under the control of the laws. chusetts. The spirit of christianity and the spirit follows from this that the laws are of no avail. The of our institutions agree in recognizing a complete

masses of the people repose securely under the separation in their functions. To the one God has benign protection of the laws. It is the chief funchanded the sword with the instruction that the tion of the law to keep order, to protect the weak magistrate shall not bear it in vain; while to the against the strong, and generally to prevent the other He has said: “Put up again thy sword into interference of one citizen with the rights of

another. its place, for all they that take the sword shall perish by the sword.” The one compels, while

But it is very difficult to enforce laws that are

intended to make one class of citizens order their the other persuades; the one applies its force outwardly while the other sets up its kingdom in the lives in the way that another class thinks would heart, and thus purifies the very fountain of moral

be best for them. Some may deplore this, while action. While recognizing to its fullest extent the others rejoice at it, but all would be better to importance of cultivating Chtistian virtues in a

recognize the fact that the law has certain limitarepublican community, it is an

tions, beyond which it is of little avail.

error to maintain that our republicanism is predicated on Christian

The happiest, the most moral and the most proselements, whether one looks to the dogmas or the perous condition of the State is that in which the ethics of Christianity, its theory or its practice. individual liberty of the citizen; when labor, capital

law least interferes with the private activity and The sacred things about which our government is concerned and undertakes to legislate, are not

and the citizen experience the fewest artificial churches and preaching or singing hymns, but jus

obstacles; when individuality has the greatest sway tice, truth, right. The State, statutes, prohibiting

and public opinion the most influence.

BOYD WINCHESTER. common labor on the Sabbath, are to be regarded as a municipal or police regulation. The State,

Louisville, KY., Nov., 1900. looking at the physical and intellectual and moral facts of human nature, comes to the conclusion COMMON CARRIER AGENT - TELEGRAM that as a mere civil institution it is well to have - SHIPPING- MAINE SUPREME COURT. one day in seven set apart as a day of rest, and for the purpose of conformity, it selects the day which Oscar C. S. DAVIES V. EASTERN STEAMBOAT the community recognizes as a day of religious

COMPANY. rest. It is to the theory that the State is the creator, not the creature of society, that we must

Kennebec. Opinion November 22, 1900. ascribe the origin of the prejudice, still so invet- The court will not infer, as matter of law, the erate, that the State is of necessity the artificial authority of the captain of a passenger steamer, to founder and producer of everything — of industry charge the owner with the duty of delivering teleand material prosperity, no less than of morality, grams addressed to its passengers. religion and intelligence. The true office of the Such authority is a question of fact, to be estabState is to secure justice and peace; to guard lished by evidence. against excess and disorder. The more the indi- In the absence of any evidence tending to prove vidual can be left to govern himself, the safer and that it is a part of the business habit or custom of better for the community. Educate the public mind, I the defendant, a common carrier of passengers by

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