and after that insult had taken place, the defendant announced that no man in uniform should have dinner at his house, being unable to discriminate between them, taking them all as parties coming there to create disturbance in his house; " which testimony the presiding judge excluded. The court said: "An inn-keeper's right to exclude from his inn all disorderly persons; all persons who come with an intent to make an assault, or to insult him or his customers, and the right to exclude such without waiting until the assault was made, or the affray begun, or the insult perpetrated, may be admitted. Markham v. Brown, 8 N. H. 523. The defendant further claims however that when he has reasonable cause to believe such conduct is intended, he may exclude though no such intent, may have, in fact, existed. No authority is cited for this last proposition, nor is its applicability clearly manifest. These actions are not for an exclusion from the inn. The exceptions do not show any attempt to exclude the plaintiffs from the house. They were admitted to, and allowed to remain in the house without objection. The only act complained of, was the refusal to furnish dinner. If however the proposition be correct and applicable, the offered testimony would not be admissible unless it logically tended to prove a reasonable cause for such belief. The bill of exceptions states, that some eighty or a hundred men, members of two militia companies, and clad in the uniform of the Maine militia arrived in town on the day named; that 'more or less' of them (how many is not stated) went to the defendant's inn, and there behaved in a disorderly and insulting manner. These plaintiffs, though members of the militia companies, were not of this disorderly party, nor with them. It is not claimed that the plaintiffs were otherwise than sober, orderly and respectable. The only connection shown between them and the disorderly ones was their membership of the same militia companies. It is not even shown they were of the same company. The only similarity in appearance was in the uniform. Such membership

was honorable, and there was not in that any reasonable cause to believe the plaintiffs intended insult. The uniform was honorable and the rightful wearing it by the plaintiffs was no reasonable cause for apprehension of insult. We do not know how many of the organization had misbehaved. We have no right to assume the number was large. We ought rather to assume the number was small. It would be illogical and unjust to say, there was reasonable cause to believe that every member of those companies meditated misconduct because a small number of them had already misconducted. Yet if there was reasonable cause to fear insult from the

plaintiffs, there was equal cause to fear it from every member. The defendant's claim that he could not distinguish between the plaintiffs and the others cannot be admitted against the plaintiffs' right to entertainment. The plaintiffs were not with the others. Their rights cannot be abridged by the similarity in appearance to other persons not present.

It was the defendant's duty to discriminate. We think the offered testimony, taken in connection with the facts shown by the exceptions, falls short of a logical tendency to prove a reasonable cause for the defendant's alleged apprehensions."

A rather curious case of libel is Zier v. Hoflin, Minnesota Supreme Court, Jan. 3, 1885, 21 N. W. Rep. 862. The defendant caused to be inserted in a newspaper an advertisement, "Wanted, E. B. Z., M. D., to pay a drug bill," and some third person cut it out, pasted it on a postal card, and sent it to a young lady to whom the plaintiff was affianced. Held, that a verdict for the plaintiff should be sustained. The court said: "We do not think the words published come under the third class in the classification given in Pratt v. Pioneer Press Co., 30 Minn. 41, i. e., of words already defamatory on their face. For the only facts suggested by them standing alone, to-wit, that the plaintiff owes a drug bill and that the creditor wishes him to pay, do not necessarily impute any thing wrong to plaintiff. But words which may be innocent of themselves may be rendered libellous by the place and circumstances of their publication, for such place and circumstances may impress on them a meaning and suggestion which standing alone they do not have. Thus, though the words here do not, of themselves, impute wrong, they might be published in such a place or under such circumstances as to make them capable of naturally conveying the impression that plaintiff had been guilty of dishonest practices, either in contracting the debt or in withholding payment of it. And so they come under the second class mentioned in the case referred to, of words reasonably susceptible of a defamatory as well as of an innocent meaning. What meaning they would naturally convey was for the jury to determine, in view of the circumstances of their publication. In this respect the case is similar to Woodling v. Knickerbocker, 31 Minn. 268. * * * Although one who publishes a libel is not to be held responsible for an independent wrong done by a third person, though connected with the libel, he is responsible for the natural consequences of his own wrongful act, although the wrongful act of a third person may concur in bringing about such consequences. If it were a natural consequence of defendant's publication through the newspaper that some evil-disposed person should send a copy of the paper, or the item cut from the paper, to some one whom defendant had not thought of its reaching, he would be liable for it as the consequence of his own wrong. Townsh. Sland. & Lib. 158; Miller v. Butler, 6 Cush. 71. It was for the jury to say whether sending the postal card by a third person was a natural consequence of defendant's publication in the newspaper." In Woodling v. Knickerbocker, supra, the libel consisted in a placard on a piece of furniture on a sidewalk in front of a store, inscribed, "taken back from W., who could not pay for it; to be sold at a bargain. Moral, beware of dead-beats."

SOME FACTS ABOUT LAWYERS TOOLS.

ПHAT lawyers should be indifferent to the tools

and yet it is measurably true of them as a class. The law of the State of New York is the English common law, modified by certain accidents of situation, by local statute and by revolution. The methods of its development are, notwithstanding the revolution, essentially Anglican in character, and the modifications are such as the post-revolutionary government impressed upon it at a bound, or such as are consistent with the theory on which the present government exists. The substratum of American law is still the English common law as it stood in the cases collected in Tomlin's Repertorium Juridicum (which brought the English adjudications about up to the battle of Lexington), and the theretofore adjudged colonial cases which determined what portions of the Anglican law were hostile to the colonial situation. The colonial cases have a decided negative value, and act as a sort of index expurgatorium to Tomlin's Repertorium Juridicum. The colonial statutes are of considerable absolute value, notwithstanding their repeal, and they are of immense historical value.

Yet New York lawyers as a class take little interest in these vestiges of the past, either because they have no active fee-producing qualities, or because no immediate personal advancement is apparent in them. Consequently the antiquaries, or the public authorities, are left to do the work which should be done by the profession most interested.

What the colonial law of New York was, is often a question of great practical importance, and yet the means for ascertaining it are wholly inadequate. Massachusetts, and lately Maryland, have published costly volumes of their colonial statutes, but in the great State of New York there is not a single public institution, not a public library where a complete set of the New York colonial statutes exists. Massachusetts carries the history of her colonial courts back for some period by means of a volume of colonial reports of immense value, but in New York nothing of this kind exists, though the material is abundant. The colonial bar of New York was an able one, clever, cultivated and assiduous, yet most of the present practitioners would be puzzled to know who the colonial barristers were, for no official chronicles of their forensic triumphs and contentions remain. Yet they paved the way to the revolution, and they laid the foundations of our present system of law.

It is not in the sentimental aspect alone that a volume of colonial leading cases is due to the profession, but in the practical aspect. The true development of our law would be greatly promoted by tracing certain of our present juridical ideas to their source; and if properly annotated the reports themselves would point the attorney's way to sources of practical import. For instance, within the past few days, several important cases have arisen which involve the construction of the ancient law

of New York. One of these cases, a case of descent, turns upon the law of marriage as it stood in the early part of the eighteenth century; the other,

ership of the soil of the highways. These instances are but two of many; they however serve to show the practical importance of colonial law.

Unsatisfactory-most unsatisfactory-as the condition of the sources of colonial law is, it is next to impossible to awaken the interest of the bar in the subject. A very eminent private collector has expended a large part of a useful life in the collection of the unpublished colonial statutes, but he has never been able to arouse the interest of the legal profession in his endeavors to publish them. Whether this lethargy comes from the large sprinkling of non-native lawyers in the New York State bar, many of them coming to the metropolis from other States or countries, is uncertain; but the fact exists, and the fact is not creditable. That New York should have less public spirit than Massachusetts or Maryland is equally discreditable. Why the bar associations should not now take hold of the subject and interest themselves more than they do in such movements we cannot tell. Certainly they are the only professional associations of the kind in the world that manifest little apparent interest in the development of the literature of their profession. The reports of their doings might be made far less jejune by their taking hold of some intellectual movement, by means of enlarged publication funds, through professional and paid corresponding secretaries, or by active participation in the old world movements toward new educational methods.

As matters at present stand the literary tools' of the New York lawyers are behind the age. Compare the curriculum of any of our law schools with that prescribed by the law faculty of Oxford, and learn how primitive our conceptions of legal training actually are. We have been termed the 'Asiatics of western civilization,' so complacent are we with our own crude methods, and with the legal ploughs, inherited from our ancestors. Nor do we in this remark ignore the notable exceptions which have from time to time been seen among us; they are not sufficient to change the fact.

In many directions we Americans prefer bigness of tools to more delicate characteristics of skilful work. Our law libraries are comparatively enormous in point of quantity, but with one or two exceptions they are singularly defective in quality. It would be unjust to deny that bigness is a merit in any library; but bigness is not all. No one appreciates this better than the actual librarians of our institutions, but they are usually controlled by indifferent or perfunctory guardians, by respectable mediocritics or by ignorant officialism. One of the best, perhaps the best, law library in the State is that of the New York Law Institute, in the city of New York. It now approximates to 33,000 volumes, and by reason of the intelligent interest of Mr. Lodewick and Mr. Winters, the assistant librarians,

on behalf of the people then appealed to this court, and the sole question for our determination is whether the act of 1884, creating the offense for which the relator was arrested, was a constitutional exercise of legislative power.

The facts as they appeared before the police justice were as follows: The relator at the time of his arrest lived with his wife and two children in a tenement house in the city of New York, in which three other families also lived. There were four floors in the house, and seven rooms on each floor, and each floor was occupied by oue family living independently of the others, and doing their cooking in one of the rooms so occupied. The relator at the time of his arrest was engaged in one of his rooms in preparing tobacco and making cigars, but there was no smell of tobacco in any part of the house except the room where he was thus engaged.

These facts showed a violation of the provisions of the act which took effect immediately upon its passage and the material portion of which was as follows:

"Section 1. The manufacture of cigars or preparation of tobacco in any form on any floor, or in any part of any floor, in any tenement house is hereby prohibited, if such floor or any part of such floor is by any person occupied as a home or residence for the purpose of living, sleeping, cooking, or doing any household work therein.

Sec. 2. Any house, building, or portion thereof, occupied as the home or residence of more than three families living independently of one another, and doing their cooking upon the premises, is a tenement house within the meaning of this act.

Sec. 3. The first floor of said tenement house on which there is a store for the sale of cigars and tobacco shall be exempt from the prohibition provided in section one of this act.

Sec. 5. Every person who shall be found guilty of a violation of this act, or of having caused another to commit such violation, shall be deemed guilty of a misdemeanor, and shall be punished for every offense by a fine of not less than $10 and not more than $100, or by imprisonment for not less than ten days and not more than six mouths, or both such fine and impris

oument.

Sec. 6. This act shall apply only to cities having over 500,000 inhabitants."

What does this act attempt to do? In form it makes it a crime for a cigar maker in New York and Brooklyn, the only cities in the State having a population exceeding 500,000, to carry on a perfectly lawful trade in his own home. Whether he owns the tenement house or has hired a room therein for the purpose of prosecuting his trade, he cannot manufacture therein his own tobacco into cigars for his own use or for sale, and he will become a criminal for doing that which is perfectly lawful, outside of the two cities named, every where else, so far as we are able to learn, in the whole world. He must either abandon the trade by which he earns a livelihood for himself and family, or if able, procure a room elsewhere, or hire himself out to one who has a room upon such terms, as under the fierce competition of trade and the inexorable laws of supply and demand, he may be able to obtain from his employer. He may choose to do his work where he can have the supervision of his family and their help, and such choice is denied him. He may choose to work for himself rather than for a taskmaster and he is left without freedom of choice. He may desire the advantage of cheap production in consequence of his cheap rent and family help, and of this he is deprived. In the unceasing struggle for success and existence which pervades all societies of men, he may be deprived of that which will enable him to

maintain his hold and to survive. He may go to a tenement house, and finding no one living, sleeping, cooking or doing any household work upon one of the floors, hire a room upon such floor to carry on his trade, and afterward some one may commence to sleep or to do do some household work upon such floor, even without his knowledge, and he at once becomes a criminal in consequence of another's act. He may go to a tenement house and finding but two families living therein independently, hire a room, and afterward by sub-division of the families, or a change in their mode of life, or in some other way, a fourth family begins to live therein independently, and thus he may become a criminal without the knowledge or possibly of the means of knowledge that he was violating any law. It is therefore plain that this law interferes with the profitable and free use of his property by the owner or lessee of a tenement house who is a cigar maker, and trammels him in the application of his industry and the disposition of his labor, and thus in a strictly legitimate sense it arbitrarily deprives him of his property and of some portion of his personal liberty.

The constitutional guaranty, that no person shall be deprived of his property without due process of law may be violated without the physical taking of property for public or private use. Property may be destroyed, or its value may be annihilated; it is owned and kept for some useful purpose and it has no value unless it can be used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be conceived; and hence any law which destroys it or its value, or takes away any of its essential attributes, deprives the owner of his property. The constitutional guaranty would be of little worth if the Legislature could, without compensation, destroy property or its value, deprive the owner of its use, deny him the right to live in his own house or to work at any lawful trade therein. If the Legislature has the power under the Constitution to prohibit the prosecution of one lawful trade in a tenant house, then it may prevent the prosecution of all trades therein.

66

Questions of power," says Chief Judge Marshall in Brown v. State of Maryland, 12 Wheat. 419, "do not depend upon the degree to which it may be exercised. If it may be exercised at all it must be exercised at the will of those in whose hands it is placed." Blackstone in his classification of fundamental rights says: "The third absolute right inherent in every Englishman is that of property, which consists in the free use, enjoyment and disposal of all his acquisitions without any control or diminution, save only by the law of the land." 1 Com. 138.

In Pumpelly v. Green Bay Co., 13 Wall. 177, Miller, J., says: "There may be such serious interruption to the commou and necessary use of property as will be equivalent to a taking within the meaning of the Constitution."

In Wynehamer v. People, 13 N. Y. 378, 398, Comstock, J., says: "When a law annihilates the value of property and strips it of its attributes by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the constitutional provision intended expressly to shield personal rights from the exercise of arbitrary power."

In People v. Otis, 90 N. Y. 48, Andrews, J., says: "Depriving an owner of property of one of its attributes is depriving him of his property within the constitutional provision."

So too one may be deprived of his liberty and his constitutional rights thereto violated without the actual imprisonment or restraint of his person. Liberty in its broad sense, as understood in this country, means

the right, not only of freedom from actual servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws therefore which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except as such laws may be passed in the exercise by the Legislature of the police power, which will be noticed later) are infringements upon his fundamental rights of liberty which are under constitutional protection.

In Butcher's Union Comyany v. Crescent City Co., 111 U. S. 746, Field, J., says: That among the inalienable rights as proclaimed in the declaration of independence "is the right of men to pursue any lawful business or vocation in any manner not incousistent with the equal rights of others, which may increase their property or develop their faculties, so as to give them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits which are innocent in themselves and have beeu followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same terms. The right to pursue them without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright." In the same case Bradley, J., says: "I hold that the liberty of pursuit the right to follow any of the ordinary callings of life—is one of the privileges of a citizen of the United States," of which he cannot be deprived without invading his right to liberty within the meaning of the Constitution.

In Live Stock, etc., Association v. Crescent City, etc., Co., 1 Abb. U. S. 398, the learned presiding justice says: "There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor."

In Wynehamer v. People, Johnson, J., says: "That a law which should make it a crime for men either to live in, or rent, or sell their houses," would violate the constitutional guaranty of personal liberty.

In Bertholf v. O'Reilly, 74 N. Y. 509, 515, Andrews, J., says, that one could be deprived of his liberty in a constitutional sense without putting his person in confinement," and that a man's right to liberty inoludes "the right to exercise his faculties and to follow a lawful avocation for the support of life."

But the claim is made that the Legislature could pass this act in the exercise of the police power which every sovereign State possesses. That power is very broad and comprehensive, and is exercised to promote the health, comfort, safety, and welfare of society. Its exercise in extreme cases is frequently justified by the maxim salus populi suprema lex. It is used to regulate the use of property by enforcing the maxim sic utere tuo ut alienum non laedas. Under it the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other; and in cases of great emergency engendering overrul· ing necessity, property may be taken or destroyed without compensation, and without what is commonly called due process of law. The limit of the power cannot be accurately defined, and the courts have not been able, or willing definitely to circumscribe it. But the power, however broad and extensive, is not above the Constitution. When it speaks its voice must be heeded. It furnishes the supreme law, the

guide for the conduct of legislators, judges and private persons, and so far as it imposes restraint the police power must be exercised in subordination thereto. Judge Cooley, speaking of the regulation by the Legislature under the police power of the conduct of corporations holding inviolable charters, says: "The limit to the exercise of the police power in these cases must be this: the regulations must have reference to the comfort, safety and welfare of society, they must not be in conflict with any of the provisious of the charter, and they must not under pretense of regulation take from the corporation any of the essential rights and privileges which the charter confers. In short they must be police regulations in fact and not amendments of the charter in curtailments of the corporate franchise." Con. Lim. (4th ed.) 719.

In Potter's Dwarris on Stat. 458, it is said, that "the limit to the exercise of the police power can only be this: the legislation must have reference to the comfort, the safety or the welfare of society; it must not be in conflict with the provisions of the Coustitution."

In Commonwealth v. Alger, 7 Cush. 84, Shaw, C. J., says, that the police power was vested in the Legislature by the Constitution, to make, ordain, and establish all manner of wholesome aud reasonable lawe, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of the power than to mark its limitations or prescribe limits for its exercise."

In Austin v. Murray, 16 Pick. 121, 126, it is said: "The law will not allow the rights of property to be invaded under the guise of a police regulation for the promotion of health when it is manifest that such is not the object and purpose of the regulation."

In Watertown v. Mayo, 109 Mass. 315, 319, Colt, J., says: "The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of health or protection against a threatened nuisance, and when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citi

the pretense of prescribing a police regulation, the State cannot be permitted to encroach upon any of the just rights of the citizen which the Constitutiou intended to secure against abridgment."

In Coe v. Shultz, 47 Barb. 64, a learned judge speaking of the constitutional limitations upon the police power says: "I am not willing to concede that the Legislature can constitutionally declare au act or thing to be a common nuisance which palpably, according to our present experience or information, is not and cannot be under any circumstances a common nuisance. By the common-law definitions or commonlaw decisions, I am not willing to conclude that the Legislature cau constitutionally declare or authorize any sanitary commission or board to declare the keeping or the use in any way of sugar or vinegar to be a common nuisance because the one is sweet and the other sour, or for any other reason. By such an unlimited power it is easy to see that any citizen might be deprived of his property without compensation, and without any colorable pretext that the public