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the State court instead of the federal tribunal, can congress divest the jurisdiction already attached, by giving the plaintiff the right to remove the same into the federal court? It seems to me that, in principle and reason, it should be held that the plaintiff, by bringing his suit in the State court, when he might have brought it in the federal court, has clearly waived his right to appeal to the latter tribunal, and that this waiver binds him through the litigation. As plaintiff, he has voluntarily elected the jurisdiction of the State court, and there is no hardship in requiring him to abide its decision. I know of no provision in the constitution of the United States which gives congress the power to intervene and authorize the plaintiff to divest a jurisdiction which he has himself invoked. Upon these grounds, I hold the clause in the act of March 2, 1867, which gives the plaintiff the right to remove the cause from the State to the federal court, not in pursuance of the constitution of the United States, and therefore void.

BONDING TOWNS IN AID OF RAILWAYS.

In the case of People ex rel. White v. Merrill, an abstract of which will be found in our Court of Appeals Abstracts, the court adopts, with increased emphasis, the doctrine previously laid down by it in the case of People ex rel. Harris v. Smith, ante, p. 64, that the statutory requirements (under chapter 907, Laws of 1869, etc.) necessary to confer jurisdiction upon a county judge so as to authorize him to appoint commissioners to issue town bonds in aid of railways must be strictly complied with, that the petition of the tax payers necessary must be signed either by the tax payer himself or in his presence, by his authority, or that the authority to sign must be in writing. It has, as appears from the cases that have arisen, been the habit of persons interested in the construction of proposed railways to canvass a town from which aid was desired, to visit each tax payer whom it was believed could in any way be influenced, and, having obtained from him some kind of acquiescence in the proposed measure, thereupon to place his name upon the petition. Sometimes the consent was given conditionally, which conditions did not appear in the petition; sometimes obtained by promises and statements which were known to the one making them to be hypothetical and perhaps false, and, not unfrequently, not given at all, the person whose name was used having merely failed to express a dissent. When it is considered that those individuals, by whom, in many instances, the names of tax payers were signed, for the most part had no property located in the towns where such aid was sought, and could in no manner be injuriously affected by the issue of bonds, but, on the other hand, having the handling of the money to be received therefor, would, in all probability, be largely benefited, the propriety of relying upon their statements as to authority to sign tax

payers' names is clearly apparent. But, even were those claiming to act under verbal authority disinterested persons, it would be contrary to public policy, and an outrage upon the rights of property owners, to permit an incumbrance to be laid upon their property except in strict pursuance of the law of the land, and with a full and fair opportunity afforded them to determine concerning the matter. We rejoice, therefore, that the court of appeals have emphatically avowed their disapprobation of the loose, not to say dishonest, manner in which the matter of town bonding has been carried on.

The court has determined that the law shall be carried out as it stands. But we trust that the time is not far distant when by constitutional amendment the subject of town, county and municipal action, with relation to incurring public liability and making public appropriations, will be brought within very narrow limits. The main object of a government is to protect 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. But this minor duty should never be exercised in derogation of the higher one. It is the duty of the United States to furnish an efficient mail service.

This duty, however, it may not perform at the sacrifice of the rights of its citizens. So, the State government, while it should aid in providing means of inter-communication, ought to accomplish this end without injury to the property owners. Bonding towns and cities may be the most feasible method of raising means for building railways, but it seems to us that the ultimate injurious effects to be apprehended from this course more than counter-balance its present benefits. As the law stands to-day the consent of the owners of a majority of the taxable property in each locality is required to authorize the bonding of the whole. The necessity of obtaining this consent furnishes a sufficient check, perhaps, against very disastrous results. But who can say that an act may not sometime be passed, removing even this safeguard, and vesting the authority to create local obligations of this character in the hands of the people generally. What will happen then we can know from the experience of other portions of the country. Says Mr. Justice Dillon, of Iowa, in speaking of a decision of the supreme court of that State, made in 1853, upholding the right to levy local taxes in aid of railroads:

"A most unfortunate mistake it was; counties and cities throughout the State, acting under the sanction of that decision, incurred debts amounting to several millions of dollars, and, in many cases, exceeding their ability to pay. Disaster, the child of extravagance and dishonor, the unbidden companion of bankruptcy, are the bitter but legitimate consequences of that decision; and the end is not yet. In every other State in which a similar decision has been made similar consequences have ensued."

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In the constitution of 1846 is contained this provision: "The credit of the State shall not, in any manner, be given or loaned to, or in aid of, any individual association or corporation" (art. 7, § 9); and, in another portion of that instrument, it is made "the duty of the legislature" to restrict the power of cities and villages in "loaning their credit." Art. 8, $9.

The men who drew up the State constitution, and the people who adopted it, knew by experience the danger and the inexpediency of assisting private enterprises with public credit, and provided, in unequivocal language, that the State should do nothing in that direction. At that time, local credit had not to any extent been used to aid individuals or corpora- | tions: consequently, the same care was not taken in reference to it; yet it was made the duty of the legislature to restrict municipalities in loaning their credit. This duty, as it has always appeared to us, would have been best performed by adopting the same rule as had been laid down for the State, and totally forbidding local authorities giving local public credit to further any private end. By taking such a course, some important works might be a little delayed, but it would be better for the people to undergo a temporary inconvenience than to run the not improbable risk of public insolvency and its attendant evils. The court of last resort have restricted the matter of binding towns by requiring a full, absolute and technical compliance with the statute, and we trust that the legislature, if they make any change, will so amend the statute as to secure to the full extent of the common law the rights of the citizen to the free and absolute control of his own property.

THE TRIAL OF ALGERNON SIDNEY. A recent visit to Penshurst Place has led us to collect some information respecting the life of Algernon Sidney, and to read once more the report in the State trials of the memorable proceedings against him for high treason which ended in his conviction and execution. It was much more natural and more easy to associate the stately old mansion, the picturesque church and churchyard, and the beautiful park and ancestral trees with the Arcadia, the court of Queen Elizabeth, and the battle of Zutphen than with the discourses concerning government, the trial in the king's bench at Westminster, and the scaffold on Tower Hill. But if the noble life of Sir Philip Sidney was the prevading thought in such a spot, it was impossible not to dwell also on the career and fate of his great-nephew, the illustrious martyr of English liberty, whose youth was passed in that interesting place, whose portraits still adorn the walls of Queen Elizabeth's room and of the spacious gallery, and whose remains repose in the neighboring church along with those of others of the Sidneys. The quiet beauty and thoroughly English character of the scen

ery could not fail, if only by the force of contrast, to connect themselves with the trial of one, who, of whatever imprudence he may have been guilty, has been acknowledged by all generous minds, since that darkest period of our national history, as a patriot and a hero. They could not fail also to suggest some speculation as to the causes of the aristocratic tinge of Sidney's republicanism.

Penshurst park and manor had been bestowed by Edward VI on Sir William Sidney, the representative of a family of French extraction, whose ancestor had settled in England in the reign of Henry II, having come with the latter monarch from Anjou as his chamberlain. To Sir William succeeded his son Sir Henry, who married Mary, sister of Robert Dudley, earl of Leicester, and was appointed lord justice of Ireland; his sons were Sir Philip and Sir Robert, the latter of whom succeeded to the estate, and was created by James I Viscount Lisle and afterward earl of Leicester. Algernon was the second son of Robert, second earl of Leicester, the son of the first of that creation. He is supposed to have been born in 1621, and is known to have been carefully educated by his father, although it does not appear that he was sent to any public school or to a university. His first entrance on public life was in 1641, when he went to Ireland, of which kingdom his father was then lordlieutenant, on the breaking out of the rebellion, and commanded a troop of horse. In the campaign of that and the following year both he and his elder brother, Lord Lisle, distinguished themselves by their gallantry. The two brothers returned to England, in 1643, and joined the parliamentary party. Algernon 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 colonel, and placed in command of a regiment. He held various appointments of importance, and was returned for Cardiff as a member of the long parliament. Although Sidney acted as one of the judges at the trial of the king, he was not present when the sentence was passed and did not sign the warrant for the execution. On the establishment of the protectorate, he retired from public life, refusing to acknowledge the authority of Cromwell. On the restoration of the long parliament, in 1659, Sidney again came forward, and was appointed a member of the council of State. In the following year he was sent to Denmark to negotiate a peace between that country and Sweden, and was absent on this mission when Charles II returned to England.

During the next seventeen years Sidney remained abroad, staying for a time at Hamburg, at Frankfort, at Rome, at the Hague, and at Paris. It was during his visit to the last place, in 1666, that he unwisely endeavored to impress on Louis XIV the advantage France would derive from the establishment of a republic in England, and offered to procure a rising if he were furnished with a sufficient sum of money.

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Although this offer was not accepted, there is little reason to doubt, that, at a later period, Sidney and some of his associates accepted the gold of Louis to aid them in their opposition to the arbitrary government of Charles II. After this he appears to have resided in the south of France, occupied in study and watching the state of affairs in England. It is probable that during this period he was engaged in completing his work on government, which he had begun several years before, and which he left behind him to appear in happier times. At last, in 1677, a permission for his return home was obtained from Charles II, on the plea that he anxiously desired to see his aged father before he died. When Sidney returned to England a great reaction in favor of liberal principles was beginning, but though he was a candidate for the representation of Guildford in 1678, and for Bamber in 1679, he was defeated on both occasions. Whether it was possible for the whigs at that time, by any amount of prudence, to have taken advantage of the popular feeling and restored the liberties of England may be doubted; but at all events the excitement produced by the popish plot soon exhausted itself, and, after the exclusion bill was rejected by the house of lords, when the Oxford parliament was dissolved, the court party were again in the ascendant, and the king was master of the situation. No fresh parliament was summoned, the charters of the corporations were threatened, the penal laws against Protestant Nonconformists were again rigidly enforced, and the cause of constitutional liberty seemed to be entirely at an end.

In this state of matters it was only natural that the leaders of the opposition should meet together for the purpose of determining on some definite line of conduct. Shaftesbury, with characteristic impetuosity, at once counseled an insurrection in favor of the duke of Monmouth, but was unable to bring the others over to his plan, and almost immediately left England. A council, however, was formed, consisting of the duke of Monmouth, Lords Essex, Howard and Russel, Algernon Sidney, and Hampden, the son of the illustrious patriot. It is impossible to ascertain the exact purport of the meetings which took place, since the evidence of Lord Howard, on which the charge of treasonable designs mainly rested, is, by no means, to be relied on, and the narrative of Lord Grey of Wark can scarcely be considered more satisfactory. There can be no doubt that the subject of an insurrection was debated, but whether there was any fixed determination to carry it into effect may be questioned. Lady Russell said, "It was no more than what her lord confessed- talk;" and there is really no trustworthy evidence to show that any thing more violent than a political agitation was contemplated, although various projects may have been proposed. The truth is, that the leaders of the whigs were at their wits' ends. They saw that something must be done in favor of liberal government, without

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seeing clearly what to do. But the discovery of the Rye House plot, the work of the subordinate friends of Shaftesbury, and wholly unconnected with the design of the council of six, whatever this might be, led to the detection of the consultations of the latter. Rumsey, who had been engaged in the Rye House plot, related what Shaftesbury or Lord Howard, who was accustomed to frequent his house, had told him about Russell, Essex, Sidney and Hampden. Russell, who having been at once warned of his danger, refused to escape, was arrested and committed to the tower. Sidney was next arrested on the 25th June, 1683, and the papers found in his house were taken possession of by the agents of the gov

ernment.

The trial of Lord Russell, which took place at the Old Bailey on July 13, is a "memorable scene" in English history, and it is unnecessary for us at present to allude to it further. Pemberton, chief justice of the common pleas, had presided at the trial, but, as the case against Sidney was weaker, it was resolved to have a stronger and surer judge to try him. The office of chief justice of the king's bench had been for some time vacant. There seemed to be no man more likely to further the designs of the government than Jeffreys, who, as counsel for the prosecution, had secured the conviction of Russell. Accordingly he was sworn in as chief justice on the 29th September, and took his seat in the king's bench on the first day of Michaelmas term. Lord Campbell, in his life of Jeffreys, says, that the indictment against Sidney had been removed by certiorari from the Old Bailey, but there can be no doubt that the bill was found by the grand jury of Middlesex on November 7, at Westminster. Sidney had been brought by habeas corpus from the tower early in the day, and had been detained in a public house near the hall until the bill was found. He was called up to plead as soon as the grand jury had presented the bill. The indictment in substance charged the prisoner with compassing the death of the king, and the overt acts laid were a conspiracy to levy war against the king, and composing and writing a traitorous libel to persuade the subjects of this land that it is lawful to stir up a rebellion against the king. Sidney desired to take some exceptions to the indictment, and to be allowed to plead over if these were disallowed, but the court told him that this could not be done, and that he must either plead or demur. Sidney then presented a plea which had been drawn by Sergeant Rotheram, but he was informed by Withins, J., that if the attorney-general demurred to the plea, and judgment were given for the crown, his "life was gone." The plea seems to have been prepared before the indictment had been seen, and there can be no doubt how it would have fared on demurrer. The prisoner at length pleaded not guilty, and the trial was fixed for that day fortnight. The court refused to assign him counsel, on the ground that the issue was only one of guilty or

not guilty. It is impossible to discuss here the nice
points of law that arise on the indictment, or to make
any observations on the ruling of the court as to the
finality of a judgment on demurrer against the pris-
oner, and the refusal to assign counsel.
It was
obvious that the court had no intention to grant any
thing to the prisoner in favorem vitæ.

In the interval between the arraignment and the trial, Sidney was diligently occupied in preparing for his defense. By an order of the earl of Sunderland on the 29th October, Sergeants Rotheram, Williams and others had been appointed his counsel, and, although the court had refused to assign him counsel to assist him on his trial, he had thus the advice of several able men at the bar in supplying him with suggestions and arguments for exposing the injustice of the prosecution. He was provided with a paper of instructions and reference, drawn up by Williams for the conduct of his defense. In this paper every point which was likely to arise is carefully noted. The illustrations used by Sidney at the trial in supporting the objections which he raised were probably the fruit of his own powerful intellect and great experience of affairs.

On the 21st November, Sidney was again brought to the bar of the court of king's bench before Jeffreys, C. J., and Withins, Holloway and Walcot, J.J. Acting on the instructions of Williams, Sidney challenged several of the jurors as not possessing freeholds, and on various other grounds. These objections being overruled, he challenged peremptorily the legal number; and then a full jury having been obtained, Jeffreys addressed them as follows:

"Gentlemen of the jury, there are some gentlemen at the bar, as we are informed, apt to whisper to the jury; it is no part of their duty; nay, it is against their duty. And therefore, gentlemen, if you have any of them by you that offer to whisper, or make comments in the cause, as you are upon your oaths, and I doubt not but will do your duty between the king and the prisoner, so I expect if you hear the counsel say any thing, you will inform the court. Let us have no remarks, but a fair trial in God's name.” According to modern notions and practice, this was no doubt an extraordinary observation for a judge to make at the beginning of an important trial; but, on the whole, Jeffreys conducted himself with more decorum on this occasion than he is generally supposed to have been capable of showing. This was the first trial at which he had presided at Westminster Hall; he knew that the king had, with difficulty, agreed to his appointment as chief justice; it is probable, therefore, that for once he felt under some restraint, and, although he did not conceal his anxiety to convict the prisoner, used less bluster and browbeating than he had been accustomed to do at the Old Bailey, or afterward indulged in, during the Bloody Assize.

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Robert Sawyer, who confined himself to a general statement of the evidence which he proposed to adduce, as proving the design of raising a rebellion within the Kingdom, the presence of the prisoner, at consultations, with this object in view, held at Mr. Hampden's house, and at that of Lord Russell, the sending an emissary by the prisoner to Scotland, to invite certain persons in that Kingdom to come to London to treat with the conspirators respecting the rebellion, and the preparation by him of a traitorous and rebellious libel, for the purpose of persuading the people of England that it was lawful to resist the sovereign, if he had broken the trust laid upon him by the people.

The witnesses for the crown were then examined. The evidence of West, Rumsey and Keiling, who had all been connected with the Rye House Plot, was entirely hearsay evidence. It was intended to show that the counsel of six entertained the design of a general insurrection, but none of these witnesses pretended to have any knowledge of such design except from report. Any thing more outrageous than this general evidence of a conspiracy can scarcely be imagined. West vouched Rumsey as his authority, and Rumsey did the same with respect to West. Sidney objected that this evidence did not affect him, and the chief justice said that he would tell the jury so, but, when he came to sum up, he treated the evidence as brought home to the prisoner by Lord Howard, and passed over entirely its hearsay character. Sidney was peremptorily stopped by Jeffreys, when he wished to interrupt West, who was giving an account of what some one had told him that the prisoner had said, and does not seem to have made any further attempt to object to the evidence as mere hearsay. It is rather singular that Sidney did not press this objection, as Williams had furnished him with clear instructions on the matter. There is every reason to believe, however, that the printed report of the trial was altered by Jeffreys, and it is scarcely possible to conceive that so obvious a point could have been abandoned without a struggle by a man of so resolute a character as Sidney.

Lord Howard, who was the most important witness for the crown in proof of the alleged conspiracy, made a long statement to the effect that he was present at a meeting of the council, in January, at the house of Hampden, Sidney being one of them, when the subject of a rising was discussed, and it was resolved, before any thing was done, to consider how they could coalesce with those in Scotland who might be willing to join them; and that, subsequently, at a meeting at Lord Russell's house, in the middle of February, at which Sidney and the others were present, it was decided to send a messenger to Scotland to settle an understanding with Argyle and others who were mentioned. The witness then went 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 out sixty guineas, and said they were to be given to Aaron Smith, and that, on a subsequent occasion, Sidney informed witness that Aaron Smith had been sent into Scotland. The evidence of Lord Howard was that of an accomplice, and the only thing resembling confirmation was the evidence of Sir Andrew Foster and Atterbury, who swore that they afterward saw, in London, some of the Scottish gentlemen who had been named at the meeting at Lord Russell's. It is quite clear, however, that this was not a confirmation which affected Sidney, and would not, in our day, be considered sufficient to support the testimony of such a witness as Lord Howard. The rule of practice, however, which has prevailed in modern times, of requiring confirmation of the evidence of an accomplice, did not exist in the seventeenth century, although the untrustworthiness of such evidence as that of Lord Howard must always have been obvious. At the subsequent trial of Hampden, who was indicted for a misdemeanor, instead of for treason, Lord Howard was, also, the principal witness for the crown, and Williams, who was counsel for the defendant, showed, in a very powerful manner, how little the evidence of such a witness was to be relied on.

(To be continued.)

CURRENT TOPICS

The State of California has taken the right course in respect to statute revision in determining to prepare a civil code "after the style of the Civil Code of New York, in the main to copy that code." The commissioners have experienced some difficulty in adapting the law of real property, marriage, and husband and wife, to the general framework of the proposed code; resulting, we presume, from the local Spanish law which has found its way into the jurisprudence of California. It is somewhat remarkable that our own State government, which entered into the code-making business so early, and under whose auspices has been produced a system of codes that are rapidly being adopted by other commonwealths, should continue to reject in toto the results which seem to be so well appreciated elsewhere.

Although the court of a justice of the peace is considered par excellence, a tribunal of the people, into whose precincts the suitor may enter without the aid of an attorney, its practice is intricate and technical to the last degree. The ameliorating influence of the code has affected its procedure but to a limited extent, and were it not for the mutual forbearance of litigants, comparatively few causes before it would ever be tried on their merits. While it takes cognizance of small claims only, it is in this State, so far as official fees and expenses are concerned, an extremely expensive

court, so expensive, indeed, that attorneys almost uniformly, where there is an option, choose a higher court on the score of economy. A lawsuit must, we know, involve somewhat of technicality and a little expense, but there is at the present time too much of both in our inferior courts.

The matter of trades unions, whatever may be its position in English politics, seems to produce abundant fruit in English legislation. The latest enactment upon the subject is entitled "An act to amend the criminal law relating to violence, threats and molestation," and provides, among other things, that it shall be a criminal act, of such a character as that three months' imprisonment are needed to atone for it, to hide the clothes owned or used by any person with a view to coerce him, being a master, to alter the mode of carrying on his business, or to watch the house where a person happens to be, with a view to coerce him to belong or not to belong to any temporary or permanent association. That there are oftentimes petty annoyances attendant upon the operation of workingmen's associations, which are, perhaps, more keenly felt abroad than here, we do not doubt, but the offenses of hiding clothes and watching houses, even with the intent of influencing a person's action, seem hardly worthy of such severe punishment as is now meted out to them under English law.

The necessity of extending the official term of the commission of appeals is indicative of the amount of litigation before our State courts. The new court of appeals started with a calendar containing cases filed during only six months previous to its organization; yet it has been found impossible to clear this calendar, though the court dispose of cases far more rapidly than any court of last resort in this country. It is a question whether the proposed movement will give any more than temporary relief, or if it may not be found expedient to provide for the permanent continuance of the commission. Of course, the existence of two courts of last resort involves the possibility of a conflict in the exposition of the law. Yet we cannot see how one body can get through with the work that is to be done. We had better risk the contingency of inharmonious decisions than to block up and delay the final determination of suits by requiring them all to be submitted to the same tribunal.

We are glad to see that the State reporter has not concluded to adhere to his intention announced in 42 N. Y., and commence another series of reports, with the decisions of the new court of appeals. Although, for reasons best known to themselves, reporters and publishers have heretofore been hostile to high numbers, preferring to increase series, the more sensible plan of counting the reports of the same court consecutively has lately come into vogue, and has been adopted in many of the States by law.

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