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the State court instead of the federal tribunal, can payers' names is clearly apparent. But, even were congress divest the jurisdiction already attached, by those claiming to act under verbal authority disingiving the plaintiff the right to remove the same into terested persons, it would be contrary to public policy, the federal court? It seems to me that, in principle and an outrage upon the rights of property owners, and reason, it should be held that the plaintiff, by to permit an incumbrance to be laid upon their propbringing his suit in the State court, when he might erty except in strict pursuance of the law of the land, have brought it in the federal court, has clearly waived and with a full and fair opportunity afforded them to his right to appeal to the latter tribunal, and that this determine concerning the matter. We rejoice, therewaiver binds him through the litigation. As plaintiff, fore, that the court of appeals have emphatically he has voluntarily elected the jurisdiction of the State avowed their disapprobation of the loose, not to say court, and there is no hardship in requiring him to dishonest, manner in which the matter of town bondabide its decision. I know of no provision in the ing has been carried on. constitution of the United States which gives congress The court has determined that the law shall be carthe power to intervene and authorize the plaintiff to ried out as it stands. But we trust that the time is divest a jurisdiction which he has himself invoked. not far distant when by constitutional amendment the Upon these grounds, I hold the clause in the act of subject of town, county and municipal action, with March 2, 1867, which gives the plaintiff the right to relation to incurring public liability and making public remove the cause from the State to the federal court, appropriations, will be brought within very narrow not in pursuance of the constitution of the United limits. The main object of a government is to protect States, and therefore void.
life, liberty, character and property. It may, as a secondary matter, foster business enterprise and assist
in the development of the resources of the country. BONDING TOWNS IN AID OF RAILWAYS.
But this minor duty should never be exercised in In the case of People ex rel. White v. Merrill, an derogation of the higher one. It is the duty of the abstract of which will be found in our Court of United States to furnish an efficient mail service. Appeals Abstracts, the court adopts, with increased
This duty, however, it may not perform at the emphasis, the doctrine previously laid down by it in sacrifice of the rights of its citizens. So, the State the case of People ex rel. Ilarris v. Smith, ante, p. 64, government, while it should aid in providing means that the statutory requirements under chapter 907, of inter-communication, ought to accomplish this end Laws of 1869, etc.) necessary to confer jurisdiction without injury to the property owners. Bonding upon a county judge so as to authorize him to appoint towns and cities may be the most feasible method of commissioners to issue town bonds in aid of railways raising means for building railways, but it seems to must be strictly complied with, that the petition of us that the ultimate injurious effects to be apprehended the tax payers necessary must be signed either by the from this course more than counter-balance its present tax payer himself or in his presence, by his authority, benefits. As the law stands to-day the consent of or that the authority to sign must be in writing. It the owners of a majority of the taxable property in has, as appears from the cases that have arisen, been each locality is required to authorize the bonding of the habit of persons interested in the construction of the whole. The necessity of obtaining this consent proposed railways to canvass a town from which aid furnishes a sufficient check, perhaps, against very was desired, to visit each tax payer whom it was disastrous results. But who can say that an act may believed could in any way be influenced, and, having not sometime be passed, removing even this safeobtained from him some kind of acquiescence in the guard, and vesting the authority to create local obliproposed measure, thereupon to place his name upon gations of this character in the hands of the people the petition. Sometimes the consent was given con generally. What will happen then we can know ditionally, which conditions did not appear in the from the experience of other portions of the country. petition; sometimes obtained by promises and state Says Mr. Justice Dillon, of Iowa, in speaking of a ments which were known to the one making them to decision of the supreme court of that State, made in be hypothetical and perhaps false, and, not unfre- 1853, upholding the right to levy local taxes in aid of quently, not given at all, the person whose name was railroads : used having merely failed to express a dissent. When “A most unfortunate mistake it was; counties and it is considered that those individuals, by whom, in cities throughout the State, acting under the sanction many instances, the names of tax payers were signed, of that decision, incurred debts amounting to several for the most part had no property located in the millions of dollars, and, in many cases, exceeding towns where such aid was sought, and could in no their ability to pay. Disaster, the child of extravamanner be injuriously assected by the issue of bonds, gance and dishonor, the unbidden companion of but, on the other hand, having the handling of the bankruptcy, are the bitter but legitimate consemoney to be received therefor, would, in all proba quences of that decision; and the end is not yet. bility, be largely benefited, the propriety of relying In every other State in which a similar decision has upon their statements as to authority to sign tax been made similar consequences have ensued."
In the constitution of 1846 is contained this pro ery could not fail, if only by the force of contrast, to vision: "The credit of the State shall not, in any connect themselves with the trial of one, who, of manner, be given or loaned to, or in aid of, any indi- whatever imprudence he may have been guilty, has vidual association or corporation ” (art. 7, § 9); and, been acknowledged by all generous minds, since that in another portion of that instrument, it is made darkest period of our national history, as a patriot "the duty of the legislature" to restrict the power and a hero. They could not fail also to suggest some of cities and villages in "loaning their credit.” Art. speculation as to the causes of the aristocratic tinge 8, 89.
of Sidney's republicanism. The men who drew up the State constitution, and Penshurst park and manor had been bestowed by the people who adopted it, knew by experience the Edward VI on Sir William Sidney, the representative danger and the inexpediency of assisting private of a family of French extraction, whose ancestor had enterprises with public credit, and provided, in un settled in England in the reign of Henry II, having equivocal language, that the State should do nothing come with the latter monarch from Anjou as his in that direction. At that time, local credit had not chamberlain. To Sir William succeeded his son Sir to any extent been used to aid individuals or corpora- Henry, who married Mary, sister of Robert Dudley, tions: consequently, the same care was not taken in earl of Leicester, and was appointed lord justice of reference to it; yet it was made the duty of the legis- Ireland; his sons were Si: Philip and Sir Robert, the lature to restrict municipalities in loaning their credit. | latter of whom succeeded to the estate, and was This duty, as it has always appeared to us, would created by James I Viscount Lisle and afterward have been best performed by adopting the same rule earl of Leicester. Algernon was the second son of as had been laid down for the State, and totally forbid- Robert, second earl of Leicester, the son of the first ding local authorities giving local public credit to of that creation. He is supposed to have been born further any private end. By taking such a course, in 1621, and is known to have been carefully educated some important works might be a little delayed, but by his father, although it does not appear that he was it would be better for the people to undergo a tem sent to any public school or to a university. His first porary inconvenience than to run the not improbable entrance on public life was in 16+1, when he went to risk of public insolvency and its attendant evils. The Ireland, of which kingdom his father was then lordcourt of last resort have restricted the matter of bind- lieutenant, on the breaking out of the rebellion, and ing towns by requiring a full, absolute and technical commanded a troop of horse. In the campaign of compliance with the statute, and we trust that the that and the following year both he and his elder legislature, if they make any change, will so amend brother, Lord Lisle, distinguished themselves by their the statute as to secure to the full extent of the com gallantry. The two brothers returned to England, mon law the rights of the citizen to the free and in 1643, and joined the parliamentary party. Algerabsolute control of his own property.
non received a commission as captain of a troop of horse in the regiment of the earl of Manchester, and
was subsequently raised by Fairfax to the rank of THE TRIAL OF ALGERNON SIDNEY.
colonel, and placed in command of a regiment. He A recent visit to Penshurst Place has led us to col held various appointments of importance, and was lect some information respecting the life of Algernon returned for Cardiff as a member of the long parliaSidney, and to read once more the report in the State ment. Although Sidney acted as one of the judges trials of the memorable proceedings against him for at the trial of the king, he was not present when the high treason which ended in his conviction and exe sentence was passed and did not sign the warrant for cution. It was much more natural and more easy to the execution. On the establishment of the protecassociate the stately old mansion, the picturesque torate, he retired from public life, refusing to acknowlchurch and churchyard, and the beautiful park and edge the authority of Cromwell. On the restoration ancestral trees with the Arcadia, the court of Queen of the long parliament, in 1659, Sidney again came Elizabeth, and the battle of Zutphen than with the forward, and was appointed a member of the council discourses concerning government, the trial in the of State. In the following year he was sent to Denking's bench at Westminster, and the scaffold on mark to negotiate a peace between that country and Tower Hill. But if the noble life of Sir Philip Sid- Sweden, and was absent on this mission when ney was the prevading thought in such a spot, it was Charles II returned to England. impossible not to dwell also on the career and fate of During the next seventeen years Sidney remained his great-nephew, the illustrious martyr of English abroad, staying for a time at Hamburg, at Frankfort, liberty, whose youth was passed in that interesting at Rome, at the Hague, and at Paris. It was during place, whose portraits still adorn the walls of Queen his visit to the last place, in 1666, that he unwisely Elizabeth's room and of the spacious gallery, and endeavored to impress on Louis XIV the advanwhose remains repose in the neighboring church tage France would derive from the establishment of a along with those of others of the Sidneys. The quiet republic in England, and offered to procure a rising beauty and thoroughly English character of the scen if he were furnished with a sufficient sum of money.
Although this offer was not accepted, there is little seeing clearly what to do. But the discovery of the reason to doubt, that, at a later period, Sidney and Rye House plot, the work of the subordinate friends some of his associates accepted the gold of Louis to of Shaftesbury, and wholly unconnected with the aid them in their opposition to the arbitrary govern- design of the council of six, whatever this might be, ment of Charles II. After this he appears to have led to the detection of the consultations of the latresided in the south of France, occupied in study and ter. Rumsey, who had been engaged in the Rye watching the state of affairs in England. It is proba- | House plot, related what Shaftesbury or Lord Howble that during this period he was engaged in com ard, who was accustomed to frequent his house, had pleting his work on government, which he had told him about Russell, Essex, Sidney and Hampden. begun several years before, and which he left behind Russell, who having been at once warned of his him to appear in happier times. At last, in 1677, a danger, refused to escape, was arrested and commitpermission for his return home was obtained from ted to the tower. Sidney was next arrested on the Charles II, on the plea that he anxiously desired to 25th June, 1683, and the papers found in his house see his aged father before he died. When Sidney were taken possession of by the agents of the govreturned to England a great reaction in favor of libe ernment. ral principles was beginning, but though he was a The trial of Lord Russell, which took place at the candidate for the representation of Guildford in 1678, Old Bailey on July 13, is a “memorable scene and for Bamber in 1679, he was defeated on both English history, and it is unnecessary for us at present occasions. Whether it was possible for the whigs at to allude to it further. Pemberton, chief justice of that time, by any amount of prudence, to have taken the common pleas, had presided at the trial, but, as advantage of the popular seeling and restored the liber the case against Sidney was weaker, it was resolved ties of England may be doubted; but at all events the to have a stronger and surer judge to try him. The excitement produced by the popish plot soon exhausted office of chief justice of the king's bench had been for itself, and, aster the exclusion bill was rejected by the
some time vacant. There seemed to be no man more house of lords, when the Oxford parliament was dis- likely to further the designs of the government than solved, the court party were again in the ascendant, Jeffreys, who, as counsel for the prosecution, had and the king was master of the situation. No fresh secured the conviction of Russell. Accordingly he parliament was summoned, the charters of the corpo was sworn in as chief justice on the 29th September, rations were threatened, the penal laws against Pro and took his seat in the king's bench on the first day testant Nonconformists were again rigidly enforced, of Michaelmas term. Lord Campbell, in his life of and the cause of constitutional liberty seemed to be Jeffreys, says, that the indictment against Sidney had entirely at an end.
been removed by certiorari from the Old Bailey, but In this state of matters it was only natural that the there can be no doubt that the bill was found by the leaders of the opposition should meet together for the grand jury of Middlesex on November 7, at Westpurpose of determining on some definite line of con minster. Sidney had been brought by habeas corpus duct. Shaftesbury, with characteristic impetuosity, from the tower early in the day, and had been at once counseled an insurrection in favor of the duke detained in a public house near the hall until the bill of Monmouth, but was unable to bring the others was found. He was called up to plead as soon as the over to his plan, and almost immediately left England. grand jury had presented the bill. The indictment in A council, however, was formed, consisting of the substance charged the prisoner with compassing the duke of Monmouth, Lords Essex, IIoward and Rus death of the king, and the overt acts laid were a consel, Algernon Sidney, and IIampden, the son of the spiracy to levy war against the king, and composing illustrious patriot. It is impossible to ascertain the and writing a traitorous libel to persuade the subjects exact purport of the meetings which took place, since of this land that it is lawful to stir up a rebellion the evidence of Lord Howard, on which the charge against the king. Sidney desired to take some excepof treasonable designs mainly rested, is, by no means, tions to the indictment, and to be allowed to plead to be relied on, and the narrative of Lord Grey of over if these were disallowed, but the court told him Wark can scarcely be considered more satisfactory. that this could not be done, and that he must either There can be no doubt that the subject of an insur- plead or demur. Sidney then presented a plea which rection was debated, but whether there was any had been drawn by Sergeant Rotheram, but he was fixed determination to carry it into effect may be informed by Withins, J., that if the attorney-general questioned. Lady Russell said, “It was no more demurred to the plea, and judgment were given for than what her lord confessed — talk;" and there is the crown, his “lise was gone." The plea seems to really no trustworthy evidence to show that any thing have been prepared before the indictment had been more violent than a political agitation was contem seen, and there can be no doubt how it would have plated, although various projects may have been pro- fared on demurrer. The prisoner at length pleaded posed. The truth is, that the leaders of the whigs | not guilty, and the trial was fixed for that day fortwere at their wits' ends. They saw that something night. The court refused to assign him counsel, on must be done in favor of liberal government, without the ground that the issue was only one of guilty or
not guilty. It is impossible to discuss here the nice Robert Sawyer, who confined himself to a general points of law that arise on the indictment, or to make statement of the evidence which he proposed to any observations on the ruling of the court as to the adduce, as proving the design of raising a rebellion finality of a judgment on demurrer against the pris within the Kingdom, the presence of the prisoner, at oner, and the refusal to assign counsel.
consultations, with this object in view, held at Mr. obvious that the court had no intention to grant any Hampden's house, and at that of Lord Russell, the thing to the prisoner in favorem vitae.
sending an emissary by the prisoner to Scotland, to In the interval between the arraignment and the invite certain persons in that Kingdom to come to trial, Sidney was diligently occupied in preparing for London to treat with the conspirators respecting the his defense. By an order of the earl of Sunderland rebellion, and the preparation by him of a traitorous on the 29th October, Sergeants Rotheram, Williams and rebellious libel, for the purpose of persuading the and others had been appointed his counsel, and, people of England that it was lawful to resist the although the court had refused to assign him counsel sovereign, if he had broken the trust laid upon him to assist him on his trial, he had thus the advice of by the people. several able men at the bar in supplying him with The witnesses for the crown were then examined. suggestions and arguments for exposing the injustice The evidence of West, Rumsey and Keiling, who had of the prosecution. He was provided with a paper all been connected with the Rye House Plot, was of instructions and reference, drawn up by Williams entirely hearsay evidence. It was intended to show for the conduct of his defense. In this paper every
that the counsel of six entertained the design of a point which was likely to arise is carefully noted. general insurrection, but none of these witnesses preThe illustrations used by Sidney at the trial in sup tended to have any knowledge of such design except porting the objections which he raised were probably from report. Any thing more outrageous than this the fruit of his own powerful intellect and great general evidence of a conspiracy can scarcely be experience of affairs.
imagined. West vouched Rumsey as his authority, On the 21st November, Sidney was again brought and Rumsey did the same with respect to West. Sidto the bar of the court of king's bench before Jef ney objected that this evidence did not affect him, freys, C. J., and Withins, Holloway and Walcot, J.J. and the chief justice said that he would tell the jury Acting on the instructions of Williams, Sidney chal so, hut, when he came to sum up, he treated the evilenged several of the jurors as not possessing free dence as brought home to the prisoner by Lord holds, and on various other grounds. These objections Howard, and passed over entirely its hearsay charbeing overruled, he challenged peremptorily the legal acter. Sidney was peremptorily stopped by Jeffreys, number; and then a full jury having been obtained, when he wished to interrupt West, who was giving Jeffreys addressed them as follows:
an account of what some one had told him that the nen of the jury, th are some gentlemen prisoner had said, and does not seem to have made at the bar, as we are informed, apt to whisper to the any further attempt to object to the evidence as mere jury; it is no part of their duty; nay, it is against hearsay. It is rather singular that Sidney did not their duty. And therefore, gentlemen, if you have press this objection, as Williams had furnished him any of them by you that offer to whisper, or make with clear instructions on the matter. There is every comments in the cause, as you are upon your oaths, reason to beliere, however, that the printed report and I doubt not but will do your duty between the of the trial was altered by Jeffreys, and it is scarcely king and the prisoner, so I expect if you hear the possible to conceive that so obvious a point could counsel say any thing, you will inform the court. Let have been abandoned without a struggle by a man us have no remarks, but a fair trial in God's name.” of so resolute a character as Sidney.
According to modern notions and practice, this was Lord Howard, who was the most important witno doubt an extraordinary observation for a judge to ness for the crown in proof of the alleged conspiracy, make at the beginning of an important trial; but, on made a long statement to the essect that he was presthe whole, Jeffreys conducted himself with more ent at a meeting of the council, in January, at the decorum on this occasion than he is generally sup house of Hampden, Sidney being one of them, when posed to have been capable of showing. This was the subject of a rising was discussed, and it was the first trial at which he had presided at Westminster resolved, before any thing was done, to consider how Hall; he knew that the king had, with difficulty, they could coalesce with those in Scotland who agreed to his appointment as chief justice; it is proba- might be willing to join them; and that, subseble, therefore, that for once he felt under some quently, at a meeting at Lord Russell's house, in the restraint, and, although he did not conceal his anxiety middle of February, at which Sidney and the others to convict the prisoner, used less bluster and brow were present, it was decided to send a messenger to beating than he had been accustomed to do at the Scotland to settle an understanding with Argyle and Old Bailey, or afterward indulged in, during the others who were mentioned. The witness then went Bloody Assize.
on to say, that Sidney named Aaron Smith as a proper The case was opened by the attorney-general, Sir | person to be sent to Scotland. Lord Howard stated
that afterward, being with Sidney, the latter took court, so expensive, indeed, that attorneys almost uniout sixty guineas, and said they were to be given to formly, where there is an option, choose a higher court Aaron Smith, and that, on a subsequent occasion, on the score of economy. A lawsuit must, we know, Sidney informed witness that Aaron Smith had been involve somewhat of technicality and a little expense, sent into Scotland. The evidence of Lord Howard but there is at the present time too much of both in was that of an accomplice, and the only thing re our inferior courts. sembling confirmation was the evidence of Sir Andrew Foster and Atterbury, who swore that they position in English politics, seems to produce abund
The matter of trades unions, whatever may be its afterward saw, in London, some of the Scottish gen
ant fruit in English legislation. The latest enacttlemen who had been named at the meeting at Lord
ment upon the subject is entitled "An act to amend Russell's. It is quite clear, however, that this was not a confirmation which affected Sidney, and would
the criminal law relating to violence, threats and
molestation,” and provides, among other things, that not, in our day, be considered sufficient to support the
it shall be a criminal act, of such a character as that testimony of such a witness as Lord Howard. The
three months' imprisonment are needed to atone for rule of practice, however, which has prevailed in modern times, of requiring confirmation of the evi-it, to hide the clothes owned or used by any person
with a view to coerce him, being a master, to alter dence of an accomplice, did not exist in the seven
the mode of carrying on his business, or to watch the teenth century, although the untrustworthiness of such evidence as that of Lord FIoward must always
house where a person happens to be, with a view to
coerce him to belong or not to belong to any tempohave been obvious. At the subsequent trial of
rary or permanent association. That there are oftenHampden, who was indicted for a misdemeanor, instead of for treason, Lord Howard was, also, the
times petty annoyances attendant upon the operation
of workingmen's associations, which are, perhaps, principal witness for the crown, and Williams, who was counsel for the defendant, showed, in a very
more keenly selt abroad than here, we do not doubt,
but the offenses of hiding clothes and watching powerful manner, how little the evidence of such a witness was to be relied on.
houses, even with the intent of influencing a person's
action, seem hardly worthy of such severe punish(To be continued.)
ment as is now meted out to them under English
law. CURRENT TOPICS
The necessity of extending the official term of the The State of California has taken the right course commission of appeals is indicative of the amount of in respect to statute revision in determining to
litigation before our State courts. The new court of prepare a civil code "aster the style of the Civil | appeals started with a calendar containing cases filed Code of New York, in the main to copy that during only six months previous to its organization; code.” The commissioners have experienced some yet it has been found impossible to clear this calendar, difficulty in adapting the law of real property, mar
though the court dispose of cases far more rapidly riage, and husband and wise, to the general frame
than any court of last resort in this country. It is a work of the proposed code; resulting, we presume, question whether the proposed movement will give from the local Spanish law which has found its way any more than temporary relief, or if it may not be into the jurisprudence of California. It is somewhat found expedient to provide for the permanent conremarkable that our own State government, which tinuance of the commission. Of course, the existence entered into the code-making business so early, and of two courts of last resort involves the possibility under whose auspices has been produced a system of of a conflict in the exposition of the law. Yet we codes that are rapidly being adopted by other com
cannot see how one body can get through with the monwealths, should continue to reject in toto the work that is to be done. We had better risk the results which seem to be so well appreciated else- contingency of inharmonious decisions than to block where.
up and delay the final determination of suits by re
quiring them all to be submitted to the same tribunal. Although the court of a justice of the peace is considered par excellence, a tribunal of the people, into We are glad to see that the State reporter has not whose precincts the suitor may enter without the aid concluded to adhere to his intention announced in 42 of an attorney, its practice is intricate and technical to N. Y., and commence another series of reports, with the last degree. The ameliorating influence of the code the decisions of the new court of appeals. Although, has affected its procedure but to a limited extent, and for reasons best known to themselves, reporters and were it not for the mutual forbearance of litigants, publishers have heretofore been hostile to high numcomparatively few causes before it would ever be tried bers, preferring to increase series, the more sensible on their merits.
While it takes cognizance of small plan of counting the reports of the same court conclaims only, it is in this state, so far as official fees and secutively has lately come into vogue, and has been expenses are concerned, an extremely expensive | adopted in many of the States by law.