Page images
[ocr errors]

and inferentially even in the early reports in New the reply, “ that lawyer Brougham be a wonderful York."

man; he can talk, he can; but I don't think nowt Thus it is very clear that lands in New York of lawyer Scarlett." * Indeed!” exclaimed Wightdescended after 1664 according to the general rule man; "you surprise me. Why, you have been of the common law to the eldest son until 1782, giving him all the verdicts.” “Oh, there's nothing and not according to the custom of Kent. ** in that,” said the juror. “He be so lucky, you Abundant evidence of this fact may be obtained see; he be always on the right side." if desired. But, as in the case mentioned at the Then how much strategy may be exercised by outset of this paper, the contrary is maintained, it the lawyer! One who had seen Erskine's briefs may be of use to the profession to publish the tells us that they had few notes and interlineations, documents procured from the office of Woods and but particular parts were doubled down and dashed Forests, through the kindness of its chief. They with peculiar emphasis, his plan being to throw all have never been published before, and they prove his strength upon the grand features of the cases the object of the tenendum clause of the early | instead of frittering it away on details. These were patents.

R. L. F. exactly Napoleon's tactics to concentrate all his New YORK, Feb. 2, 1900.

strength on one point. The born Nisi Prius lawyer, like the born general, is alert, ready, re

sourcesul; if he finds himself hemmed in or hard LAWYER AND SOLDIER.

pressed he pushes forward his trenches, makes a

counter demonstration or feint, and covers his R. TULLIVER, in the “Mill on the Floss," retreat; he can fight a losing battle, and has the

was of opinion that a lawsuit was a species presence of mind to utilize all chances that come of cockfight in which it was the business of in- in his way. What a lawyer was lost in the hero of jured honesty, if it wished to succeed, to get a

Mafeking! The late Lord Coleridge was once in game-bird with the best pluck and the sharpest carly days defending a prisoner on a capital spurs. Mr. Tulliver was not a student of Glan-charge. While he was addressing the jury the gas ville or Bracton or other sages of our early law, in court suddenly went out. The adroit advocate or he might have illustrated and justified his saw his chance, and when the light was restored, homely metaphor by a disquisition on the duellum “Gentlemen,” he said, "you have seen how the and the champions who played the part of the light in court has been extinguished and how gamecocks in the mediæval lawsuit. Disguise it easily restored. It is in your power to extinguish as we may, it is undeniable that the litis contestatio the light of the prisoner's life; but if you do, it can is a species of warfare - licensed private warfare never be renewed.” – conducted according to certain recognized rules, Like the general, the lawyer, too, knows that written and unwritten, and waged with tongues the paramount object is to win subject to the rules instead of weapons, verba non verbera. “War," as of the game, war game or law game, and that all Sir Henry Maine has said, is “the litigation of tactics are to be subordinated to this end. nations.” The converse is equally true, that liti- The old English justiciars are notable instances gation is war or the image of war. What is the of how arms and the toga may go together. Chief corollary from this? Surely it is that the same Justices Odo and Fitz Osborne, Geoffrey and qualities which make the successful lawyer make Fortescue, were all skilful campaigners, and as also the successful general. Take, for example, well able to lead a charge on the battlefield as to the power of inspiring courage and confidence. preside on the bench. Sir Matthew Hale trailed What wins battles? The devotion of soldiers to a pike in the Low Countries. Lord Erskine and their leader - implicit confidence in him and his Sir William Grant both did some soldiering before capacity. Napoleon's presence in an engagement they rose to the highest dignities of the law; and was valued at 20,000 men. What wins verdicts? very likely the experience helped them. Lord The faculty of persuading juries, as Scarlett did, Eldon would doubtless have made another Fabius that you are on the right side. The story is well Cunctator. And what of Washington and many known of how Wightman, then at the bar, found another fighting president of the United States? himself after a long Yorkshire Assize walking in

Lord Brougham and Lord Campbell were both the crowd by the side of a countryman who had men who would have made able generals. Conbeen serving day after day on the jury, and get-versely, the soldier Raleigh, as he showed at his ting into conversation with him, asked him what trial, would have made an admirable lawyer; so he thought of the leading counsel. “Well,” was

would Julius Cæsar, and Hannibal, and Cromwell,

and Napoleon. Napoleon may, indeed, be reck* Jackson v. Hendricks, 3 Johns. Cas. 214. oned among lawyers; did he not exclaim, “I shall

It will be remembered that the Dutch inhabit- go down to posterity with the code in my hand?" ants preserved for some time their peculiar rules It is in its presiding genius that the true greatness of descent. But this was a mere exception which of the general and of the advocate discovers itself; did not affect the general rule.

not in the wrangling of Nisi Prius \or in petty



[ocr errors]

skirmishes, marches, and counter-marches, but in the interests of one force or the other, it would be the calm survey of the whole field of action, in only proper and reasonable in such a case that the making everything co-operant to the main design. commander of that force should decline to agree This is the fine picture which Addison draws for to any cessation of hostilities except that arising us of the Duke of Marlborough on the field of from an unconditional surrender. Blenheim, and it has its counterpart in the genius The rules governing such partial armistices are of the consummate advocate. — London Law similar in principle to those governing absolute Journal.

armistices — i. e., that either force may proceed

only with those preparations and fortifications ARMISTICES.

which it would be beyond the power of the enemy

to prevent if the armistice did not exist. THE request of Commandant Cronjë for an There is one point in connection with armistices armistice, to extend over a period of twenty

on which considerable difference of opinion exfour hours, and its decided refusal by Lord Kitch-ists -- namely, as to whether or no either party ener, suggest an investigation of the principles of may obtain victuals during the armistice, irrespecinternational law applicable to such suspensions of tive of the fact that but for the armistice it would hostilities. Armistices are of two kinds, which be possible for the enemy to prevent their doing may be classified respectively as (1) absolute and (2) partial.

In Wheaton's International Law, p. 531, the rule An armistice of the former kind is made by is laid down, on the authority of Vattel, that promutual agreement between the governments of the visions may not be obtained during an armistice two belligerent powers, and binds every subject of by one belligerent over roads held by the other, such powers to abstain from hostilities until the or by means which the other could, but for the termination of the armistice. It does not, how-temporary cessation of hostilities, prevent. On ever, affect the internal affairs of either belliger-the other hand, in Hall's International Law, p. ent, the rule being that all preparations for war, 545, the opinion is expressed that provisions may marching and drilling of troops, etc., may proceed be obtained by either force, irrespective of the without interruption except in so far as the enemy question whether their opponents could or could would have power to prevent them but for the

not have hindered them, the reason given being existence of the armistice.

that, inasmuch as provisions are an exhaustible But it is under the second head that the armis- weapon of defense, the consumption of which contice asked for by Commandant Cronjë would fall tinues each day whether an armistice exists or no,

– namely, when the suspension of hostilities only a force unable to replenish its supplies would affects a certain portion of the fores engaged on therefore be in a worse position at the end of the either side. In such a case as this the armistice is armistice than it had been at the commencement; agreed upon by the commanders of the opposing and this is contrary to the principle that each force bodies of troops, and only binds those troops to shall be at the resumption of hostilities neither whom they are expressly stipulated as applying better nor worse off than at their temporary cesHence it would have been quite competent for sation. Lord Kitchener to agree to an armistice with the This view of the case would appear to be the Boer commandant had the circumstances of the correct one, since the governing principle of all case warranted his doing so, and, had he so agreed, armistices, which must above all be adhered to, is such armistice would have been binding on all the preservation of the statu quo. Law Times troops directly under his command at the time, (London). though not upon those engaged elsewhere, as, for instance, the relief column then on the way to RIGHTS OF A FINDER DEFINED. Ladysmith.

Partial armistices are usually agreed upon for THE suit at New Haven of the Fair Haven and some definite and temporary purpose, such as the holding of a parley or conference, or the burial of McNerney, to recover by a writ of replevin the dead and the removal of wounded, and are usually pocketbook of Arthur H. Day which was found granted by the commander holding the stronger by Mr. McNerney in one of the cars of the composition to his opponent whose position is less pany, and which was decided the other day in advantageous, always provided that the cause of favor of the defendant, is of much interest. The the former will sustain no prejudice owing to the case was heard in the New Haven County Court, delay thereby incurred. It must, however, be before Judge L. M. Hubbard, formerly secretary borne in mind that in no case is the commander of the State. occupying the inferior position justified in de- The loss of articles of value in public conveymanding as a right that an armistice should be ances and their finding is of common occurrence, granted him, and, since instances must necessarily but the right of the finder to the property is not occur in which any delay must act prejudicially to l generally understood. An epitome of Judge Hub

THE estivinte Rewroad Company against a Xendrew

bard's charge upon which the jury found for the length from a ponderous volume which he had defendant is:

brought into court with him. Meagher, J. P., “1. The property must have been legally lost. however, interrupted him with, 'And phwat is that “2. The finder must take legal possession. you're afther readin' from, Misther Stohle?'

“ 3. The finder must act innocently in the mat- | 'That, may it please your honor,' returned Wilter and with entire honesty and good faith toward | liam, with great dignity, that is a volume conthe owner.

taining the decisions of the Supreme Court of “In order to constitute legal losing the thing Idaho. Politely, but with ominous calmness, must have been actually lost by the owner, not Meagher then directed, 'Yez may sit down, merely mislaid; that is, he must not voluntarily Misther Stohle. At numerous and diverse times,' and purposely have laid it away for a time with continued the learned justice, 'the Shuprame the intention of retaking it, but it must have, in

Coort of Idayho has taken it upon itself to revoluntarily and accidentally, as respects the owner, varse a noomber of my decaysions, and in my got out of his possession.

toorn I now revarse this decaysion of the Shu“In order to make a man a finder of a lost prame Coort of Idayho.' And I'm blessed if he chattel he must have possession of it; and to con- didn't," concluded Mr. Young, with a reminiscent stitute this possession three things are necessary: sigh. – New York Tribune.

“ A. The fact that the thing found is in his possession must be consciously known to him.

THE FEMALE ADVOCATE. “B. He must have (at least at the time of finding) physical power and control over the thing

Have you met the female advocate, found.

(Now I don't mean just tête-à-tête), “ C. He must intend to be and remain the owner But when before a magistrate of the thing found, or at least to exclude others She pleads with manner passionate? from the object found. “ As against the owner of the premises, where

She has, it seems, a slight desire, the thing is found, the thing must have been actu

(Now I don't mean for male attire),

But that we should a bit admire ally lost and it must appear that the finder was on

The heights to which she would aspire. the premises by a rightful act, and not as a trespasser. Generally speaking, it doesn't matter Her mouth has just the right formation, where the thing is found. The place of finding (Now I don't mean for osculation), derives its chief importance from its bearing on But for continued exhortation, the question, whether the article was really lost.” Without the slightest dislocation. - Hartford Times.

She asks in voice disconsolate, –

(Now I don't mean, “My hat on straight? "), REVERSED THE SUPREME COURT.

But for a verdict adequate

To make her fee commensurate.
H. YOUNG, a prominent mining man of

She has the instinct to embrace,
Butte, Mont., who started in life as a civil

(Now I don't mean the populace), engineer, told the following story at the Gilsey

But every vantage in the case; house of experience he once had in his

She's bound to win just by her face. early days: “We were building the line of the

Otto M. STERNFELD. Northern Pacific Railroad," said Mr. Young,

N. Y. U. Law, 'oo. “and were running it through as rapidly as possible. Where we had the rights of way, well and good, and where for any reason we had them not. THE SALARIES OF FEDERAL JUDGES. well and good also, for we none the less went ahead with the line, trusting to our ability to set- THE ALBANY LAW JOURNAL approves of Attortle with the owners of the land afterward. I was ney-General Griggs' suggestion that the in charge of the advance guard, and at Mullen. salaries of the Federal judges be increased all Idaho, we ran across the ground of a funny little around -- the Supreme Court judges from $10,000 justice of the peace named Meagher. Meagher to $20,000, the Circuit Court judges to $10,000, and promptly arrested me, for the purpose, as he ex- the district judges to $7,500. The suggestion is plained, of holding me as a hostage until he could one in which The National Corporation Reporter get service on President Oakes. Being unable to heartily concurs, and we trust that the law journals accomplish this praiseworthy purpose, he set a generally will strengthen the hands of the atto date for my trial, and I engaged ‘Bill’ Stoll to ney-general in his effort to bring about this very defend me. The trial came off in due time. desirable reform. Meagher, J. P., presiding, and in the course of it We do not wish to be understood as assenting Stoll, to emphasize and back up his contentions in to the precise increases suggested, but to the broad my behalf, began reading impressively and at general principle. We would much rather see the




salaries of the Supreme Court judges made even we do. They do this, not from any spirit of lavlarger than $20,000, at the expense of a more mod- ishness, but simply to command the best talent for erate increase in the salaries of the district judges. the bench, instead of attempting to save a penny in The latter are underpaid, no doubt, but the worst the hundred dollars of taxation, with the risk of paid men in America are the judges of its Supreme a poorly manned bench to offset it. - National Court. This, however, is a matter of detail. The Corporation Reporter. essential thing is that the Federal judges generally are not paid the salaries which the dignity of the

Legal Notes. position and the learning and ability which it requires demand.

A contract made over the telephone is legal and The reason why this measure should be favored binding, according to a decision recently rendered by the entire bar is so well known that to repeat it in a Pennsylvania lawsuit, which arose over a deal seems a waste of words. We venture to say that in coke involving about $8,000. It was held that in three cases out of four that are argued before the telephone message was as binding as though the Supreme Court of the United States, the law- it had been followed by a formal letter. ver who makes the argument, a lawyer whose Hon. J. B. Cassoday, chief justice of the Sufame does not extendi, perhaps, beyond his State preme Court of Wisconsin, has accepted an inviboundaries, is earning in practice a larger income tation to deliver an address at the coming meeting than the judges who decide the case receive -- in of the Illinois State Bar Association on “ John some cases ten times as much. If the dispropor- Scott and John Marshall,” or “Chief Justice tion in abilities is not as great, it is because the Marshall contrasted with Lord Chancellor Eldon." honor of the office tempts lawyers to forego the The heirs at Central Village, Conn., of Philip more sordid rewards of practice. We doubt if a Bessom, a merchant of the revolutionary period, lawyer can be found anywhere to dispute the have received $24,000 from congress in full payproposition that the Supreme bench should be ment for a vessel their ancestor lost during the filled by the greatest lawyers the country produces. war for independence. The descendants of the Yet it is beyond doubt that many of our ablest merchant of 1776 live in and around that village. lawyers, who have earned the highest fame at the The sums they receive respectively vary from $21 bar, have felt unable to make the pecuniary sacri- to $639. Each one has received a check for his or fice which acceptance of a seat on the Supreme her share from the treasurer of the United States. bench would have entailed a fact that probably The case was known in congress as the Killingly has some connection with the occasional appoint- heirs' claim. ment of a judge who has not been able to meet Subharama Swarminadhin, of Madras, a Brahthe exacting requirements of the office.

min, will in a very short time be the first Harvard When we consider how very trilling a Ph. D. who claims India as his home and Brahwould correct this mistaken policy, as unjust to the minism as his religion. He has been at Harvard judges as it is discreditable to the country, it would only three months, but for eight years he has had seem that there should be no opposition whatever a life of study. The procuring of the doctor's deto at least this feature of the attorney-generals | gree requires the passing of a strict oral examinaprogramme.

tion and the writing of a thesis on an approved The argument in favor of the Supreme Court subject. Swarminadhin has passed his oral exapplies, though perhaps in a lesser degree, to the amination and it was commented upon as one of Circuit and District Courts. Indeed, as to the the brightest ever passed by a candidate. For his Circuit Courts, we do not know that any difference thesis he has written “Administration of Oriental of degree should be admitted, when we bear in Law by British Tribunals.” mind the vast interests so frequently involved in A California judge has rejected the application litigation before those courts. A Federal judge of an Englishman for naturalization papers beshould be paid such a salary that the appointment cause the applicant insisted that he thought a betwould be looked forward to as the crown of a suc- ter government than the one we have could be cessful career by the leaders of the bar.

established. On this ground every man who difIt is worth while to recall, in this connection, fered with a judge as to the fiscal policy of the the unpleasant contrast between our practice and nation should be denied the right of citizenship. that of England and her colonies. We speak sub- To Republican judges all Democrats should not be ject to correction, but our recollection is that the citizens -- to a Democratic judge all Republicans lord chancellor and the lord chief justice of Eng- would be put under the ban. That would stifle all land receive salaries which almost equal the entire convictions, such as did the Inquisition. Such amount paid to the Supreme Court of the United men as that judge would make excellent officials States, and even the nisi prius judges receive larger for his imperial majesty the czar. Exchange. salaries than our Supreme Court judges. Even the Speaking of the European judiciary, Judge Peter small and comparatively poor country of Canada S. Grosscup, of the United States Circuit Court of pays her appellate court judges larger salaries than Appeals, who returned recently from a trip


The pro

[ocr errors]

abroad, says: “During my trip abroad I visited recognition of her husband's value, her own abilthe courts of England, Germany and France. Iity, and her extraordinary labors. It also testifies found in England in the divorce courts, redolent to the capacity of the woman's mind for the reach with the memories of the aristocracy, that the of jurisprudence. And the principal name in law rooms were about the size of a court-room of the journalism in this country is also a woman's average Chicago justice of the peace.

that of Mrs. Myra Bradwell, of Chicago. — Springcessions of the judges I was expected to admire field Republican. much. I was told we had nothing of that kind in our country and naturally was obliged to admit it.

Legal Langhs.
However, I think perhaps we may take heart. In
Austria there are judges who have never been

Police Magistrate “What do you mean by lawyers. French lawyers told me their system was

saying the defendant's words carried weight with unsatisfactory. In all countries except Anglo

them?" Saxon ones it seemed as if the judiciary was only

Plaintiff I mean, your honor, that he swore an appendage of the government, not a co-ordi

at me and then hit me with a brick." - Ohio State nate branch of the government, and I felt proud of

Journal. my own Anglo-Saxon country, where the judiciary is the supreme arbiter of the destinies of man." The New York Court of Appeals, in Buffalo

New Books and New Editions. German Insurance Co. v. Third National Bank of Buffalo (opinion dated February 27, 1900, and pub- Birdseye's Analytical Index of the New York lished in full in the New York Law Journal of

Code of Civil Procedure, and the Statutory February 13, 1900), decided, Gray, J., writing the

Construction Law. By Clarence F. Birdseye, opinion, that a national bank cannot impair the

of the New York Bar. New York: Baker, transferability of its capital stock by printing upon

Voorhees & Co., 1900. the certificates a notice that, pursuant to the by- That there is a place for just such a work as laws of the bank, no sale or transfer of the stock this, no lawyer will deny. The author's references can be made, without the consent of the board of to the evils of the Code of Civil Procedure, while directors, by any stockholder who is liable as a bitterly antagonistic, probably are not more so debtor to the bank, and that such liability shall be than the facts of the case warrant.

That it pera lien upon the stock. Such a restriction is not plexes bench and bar, requires constant construonly unauthorized by the National Banking Act, ing, and is far-reaching in its injury to innocent but is contrary to the provisions of section 35 suitors and taxpayers cannot be denied. As the thereof, which forbids banking associations from author well says in his preface: “Its evident tenloaning money upon the security of their own dency is to distract the attention of the court from stock. Therefore, a purchaser and holder of the vital question of whether the defendant is innational bank stock is entitled to a transfer thereof debted to the plaintiff to the quite immaterial upon the books of the bank, notwithstanding the question as to whether the plaintiff is unerringly certificates contained the above notice at the time pursuing the devious, intricate and blind path that he took them and the former owner thereof is is somewhere laid down for him within the covers indebted to the bank. The bank, in such a case, of the Code of Civil Procedure." His assertion acquires no equitable lien upon the stock.

that there is no reason why the Practice Act of An extraordinary thing has happened; the por- New York should not be reduced to 1,000 or 1,200 trait of a woman now hangs among the two or sections, which shall be short, clear and complete, three hundreds of judges, barristers and law writ- and fully cover the scope of the 3,500 sections of ers that distinguish the walls of Harvard's Law the present Code, which are generally involved School. Its presence is the recognition of the and obscure, and often pages in length,” will find labors of the widow of John Austin, English law general concurrence. Mr. Birdseye has sought in writer. Mrs. Austin was unwilling to leave her this work to provide a clew to the labyrinths of husband's life work unappreciated, and made ef- the Code an index that would at least point out forts to secure

one to prepare the new every subject treated in the unwieldly mass, and edition of his lectures on jurisprudence, but there collect and collate all the provisions on each subwas no one; and her friends urged that she takeject. This index has the important merits of fullup the task herself, and at last she did so, spend- ress and intelligibility. It contains about 2,500 ing several years in the accomplishment of the references, including full cross-references, and with difficult work. Most of the lectures had been ex- over 1,500 headings, alphabetically arranged. All tempore, and the notes were meagre. At last, the references are to sections, so that the index however, the work was done, the book was pub- can be used with any edition of the Code or with lished, and now, after having gone through five the Session Laws. As a time-saver and profanityeditions, remains the authority on the subject. preventer, Mr. Birdseye's Index surely will justify The hanging of Mrs. Austin's portrait, then, is a its production and publication.



« PreviousContinue »