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no liability, and the party of record is almost always Blandford, J., thus goes for him:
** This case was irresponsible. Let these “ charitable" gentlemen not tried in a justice's court on appeal before a jury, the have their good deeds concealed, but compel them Honorable R. G. Riggins, justice of the peace, to disclose their interest to the jury, and in case of presiding. His honor charged the jury as follows: their defeat let them pay the piper.
"Gentlemen, this is a case which has been tried by
me before, and I decided in favor of defendant; I An organization is being made to secure a popular further charge you, gentlemen, that if you find that call at the next election for a constitutional conven- any settlement has been made, you find for defendtion. Mayors Grace of New York, Thacher of ant; retire and make up your verdict.' The law Albany, Fitzgerald of Troy, Parsons of Rochester, does not require a justice of the peace to charge the Burns of Syracuse and Becker of Buffalo, with Carl jury at all; his ignorance of the law, as well as Schurz, H. K. Thurber, Thomas L. James, Alfred propriety, would seem to demand that he should Van Santvoord, Cornelius N. Bliss, Horace E. Dem-not, but if he undertakes to instruct the jury, he ing, Simon Stern, Ilenry L. Sprague, Francis W. must do it correctly and in accordance with law. A Scott and others have issued a circular to prominent justice of the peace is generally a man of consequence men of both parties throughout the State urging in his neighborhood; he writes the wills, draws the co-operation. A general conference will be held in deeds and pulls the teeth of the people; also he the fall and a plan of action adopted. This movement | performs divers surgical operations on the animals seems wise, for it is necessary to secure the affirma- of his neighborhood. The justice has played his tive votes of all the voters voting at the election, part on the busy stage of life from the time of Mr. and not merely a majority of those voting on this Justice Shallow down to the time of Mr. Justice question. The Albany Journal justly says: “The Riggins. Who has not seen the gaping, listening growth of cities and corporations, the relations of crowd assembled around his honor, the justice, on labor and capital, the temperance issue, the over- tiptoe to catch the words of wisdom as they fell burdened calendars of the higher courts, the mass of from his venerated lips? local bills which delay the legislative sessions, taxa- "And still they gazed, and still the wonder grew, tion and the canal and prison problems, suggest
That one small head could carry all he knew,' topics with either a direct or an indirect bearing on
The instruction given in this case exercised an undue probable constitutional amendments. A
and unwarrantable influence upon the jury. Such code for the government of cities, with a uniform is to be inferred from the fact that they found for system of charters. transferring the direction of defendant, when the evidence was overwhelmingly many features of municipal rule from legislative to in favor of the plaintiff.” When we were a boy we local control is a matter which will be most earnestly
use to try causes before a J. P. who always spoke of agitated.” Codification of the laws should also be
himself as his honor." insisted upon again, so that the opponents can no longer urge that the injunction in the code of 1846 has become a dead letter.
NOTES OF CASES.
We publish this week a remarkable communication OVERNOR HILL has made an important decisabout the patent system. We have for many years
ion in the matter of the extradition of Daniel believed that there is a great deal of humbug in the Brown, an alleged fugitive from justice, charged system itself and a great deal of oppression and in- ) in Pennsylvania with the crime of perjury, and justice in the administration. Our correspondent found in this State. The prisoner fled from Pennsylsets forth a terrible arraignment, and yet we dare say vania to Canada to avoid arrest, and while sojournthe experience of almost every patent lawyer willing there was induced to come into this State by the confirm him. It is notorious that most poor inven- false and fraudulent representations of persons who tors are cheated out of their rights by the oppression were hired by the complainant to decoy him thither. of capitalists, and the tediousness, inequality and There was no force used, but these persons assumed expensiveness of the practice in the patent courts. to employ the prisoner to peddle for them, and was We have no doubt too that some of the Federal persuaded to cross the Niagara river with them and judges carry on things with a high hand when the come into this State, they representing that such mood is on them. This comes of making them river was the “Grand River,” and that by crossing independent of the people whose servants they are.
it he would still be in Canada, and he believing It is a wholesome thing to have a judge to know that such representations. he is liable to step down and out at a fixed time if The governor says among other things: “I am he does not behave himself. A judicial tyrant is the unable to find any precedent or express authority to worst sort. Is not here another “living issue” for the govern this precise case. Had the prisoner been consideration of the American Bar Association? - forcibly brought into this State from Canada -- in the patent system and the administration of the other words, had he been kidnapped within the patent laws.
meaning of the statute, it is believed that a case
would have been presented requiring the discharge We feel sorry for Justice of the Peace Riggins, of of the prisoner. Georgia. In Bendheim v. Baldwin, 73 Ga. 594, "Jurisdiction cannot be acquired by the forcible
bringing of a party into the State. Neither can it “ It is suggested that the Dominion Government be obtained by acts which would constitute a crime of Canada may require a return of the prisoner. in both countries. The prisoner could not be said The answer is that this is a proceeding solely beto have 'fled' into this State if he had been forcibly tween this and a sister State. If the Canadian brought here. But in this case there was no force Government sball see fit to take action in the matter, used and the prisoner came voluntarily, although he | it must be to, and the steps to be taken thereon was deceived and mislead in coming.
must be by the Federal Government. People v. Roue, “I am aware of the general rule, applicable to 4 Park. 254; Ker v. People, 110 III. 637; 61 Am. civil cases, that a party must not be brought within Rep. 709–714; Matter of Scott, 9 Barn. & Cress. the jurisdiction of a court by trick or fraud for the 448; La Grave's case, 59 N. Y. 116. But even if I purpose of having civil process served upon him, and had a right to consider the suggestion, I do not see that a service obtained by such means will be set how the Canadian Government could legitimately aside.
ask the prisoner's return, Private frauds between “The reason upon which this just and salutary individuals are not the subject of international rule is founded, is that service of civil process is for intervention. The arrest was not made upon Canathe personal benefit of a litigant, and that juris- dian soil. The prisoner in this State was justly diction should be honestly and fairly obtained by amenable to process which will compel him to subhim, and if acquired in any other manner it will not mit to the usual investigation in Pennsylvania, of be recognized, but the same will be set aside, be- the crime charged against him. No offense was cause a party must not be permitted to take advan- committed against the laws of Canada nor were its tage of his own wrong.
rights as a sovereign State in any manner invaded. "This rule does not seem to have been extended | The unjustifiable act, if any, was by one of several to criminal cases.
A criminal action is not prosecu- | individuals against another individual and his ted for the benefit of any individual but for the individual rights." protection of the whole people. The acts of the “It would be a strict rule indeed which would in complainant do not necessarily bind the people. The all possible cases prevent the deceiving, misleading case may be prosecuted irrespective of the com- or decoying of a fleeing criminal for the purpose of plainant's wishes, and the prosecution are not re- securing his apprehension. Such methods are somesponsible for the proceedings unless they are con
times the only means by which his presence can be nected with his testimony in the case, or have some
obtained. The law in its desire to punish the guilty bearing upon such testimony any more than they are will not scrutinize the methods employed in securfor the conduct of any other witness in the case.” ing the offender so long as no criminal law is viola
“So long as the prisoner comes voluntarily into ted, and will not in such cases enter into any investithe State, it would seem as though the people are gation of such methods, even though it might disnot bound to inquire further as to the means of in
close the fact that the prisoner was over-persuaded, ducements which some witness or third person may unduly influenced or grossly deceived and misled have used or held out to induce his coming before in the coming into our State. If the prisoner in his they are permitted to arrest him upon a criminal weakness, credulity or ignorance yields to the charge. The case is to be considered the same as persuasions of misrepresentations of those who are though the prisoner had fled from the State into endeavoring to capture liim, voluntarily comes into Canada and had then returned here. It makes no our State, and is arrested, he has no one to blame difference that he fled from a sister State rather than but himself. The law has never been construed to from this State. It is sufficient that he is a ‘fugitive prevent the apprehension of a criminal by means of from justice and is found in our own State. The artifice, trick or misrepresentation.” question seems to be settled, in principle, by author
“If, before the arrest of a fugitive can properly ity. 1 Bish. Crim. Pro. (3d, ed.), § 2246: People v. Roue or safely be effected, it must first be ascertained 4 Parker Crim. Rep. 253; State v. Ross, 21 Iowa, whether any deception has been used in securing his 467, 470; Kerr v. People, 110 II. 627, 637-642; 51 presence in this State, that question would be likely Am. Rep., 706, 709-714; Er parte Scott, 9 Barn. & to be injected into nearly every case of extradition Cress., 446; 1 Bish. Crim. Law (7th ed.), § 135. See where the fugitive recently came from another also La Grave's case, 59 N. Y. 110; 38 Am. Rep. 720 State or country, and the time of the Executive note; cases cited in La Grave's case, 45 How. Pr. | would be greatly occupied in such hearings. * * * 314; 14 Abb. Pr. 343, note.
Would not the pretense of his having been in some "Kidnapping an individual is by law a legal crime | degree misled or imposed upon be set up in almost against the sovereignity in which it is perpetrated, every case where the prisoner temporarily came into and is punishable by the State in which the offense the State? It does not seem reasonable that the is committed, as a crime. It consists of overt acts law contemplates that an extradition of a fugitive within the territory of the offended sovereign. should be thus complicated and embarrassed. Fraud by one individual upon another affecting his "While the methods adopted in this case in the property or personal rights is not a crime, punishable apprehension of the prisoner are not to be comas such, by the State, except in certain cases speci. mended, yet as they are not legally objectionable fied by statute, of which the case under considera- and the prisoner having been 'found' within the
State to which he must be deemed to have 'fled,' it
tion is not one.
follows that it becomes iny duty to respect the de- 9. Whenever a court of first instance adjourns for a mand for his surrender made upon me by the
term, leaving unfinished business, the executive should Governor of Pennsylvania."
be not only authorized, but required, to commission
act as judges for the time being and finish the busi-
ness. Such temporary judges should be commissioned
11. The time allowed for appealing should be much
12. Greater attention should be paid to the selection
of judges, without which no other reform, however MINISTRATION CAN BE LESS
good in itself, can succeed.
14. The statistics of litigation in the courts of the
United States and of each State should be collected
and published yearly, that the people may know what
business has been done and what is waiting to be done. 1886.
The recommendation, which was postponed to the
present meeting, was the following: “The law itself I.
should be reduced as far as possible to the form of a
statute.” This will be first considered. To the American Bar Association: HE Special Committee on the Delay and Uncer
REDUCTION OF THE LAW TO STATUTORY FORM. taiuty in Judicial Administration have the honor
The committee as reorganized have considered this to make their second report, as follows:
recommendation anew and readopt it. The reasons The committee, as originally appointed in 1884, con- given by the original committee leave little to be sisted of the first two siguers of the present report
added. There are now in this country but two ways and three other gentlemen, one of whom died before of making law, and these are legislation and litigation. acting, and the others went out of the country before
We prefer legislation. Whether there was ever, at the report was made. The two miembers remaining any time, in any country, reason for judge-made law, made a report, concluding with fourteen reconumenda- it would be profitless to discuss. We affirm that there tions, nine of which were adopted without modifi- is not now in this country any reason for it whatever. cation; two were adopted with modification; two It is illogical, unsafe, and contrary to the American were stricken out with the consent of the committee; theory of government. The recommendation of the and one was postponed to the next meeting. Those report would not commit the association to any paradopted were the following:
ticular scheme of codification or to any form of stat. 1. Summary judgment should be allowed upon a ne- ute. But we are unwilling to believe that the wit of gotiable instrument or other obligation to pay a defi- man is so feeble and the English language so defective nite sum of money at a definite time, unless an order that rules of law which are capable of expression in of a judge be obtained, upon positive affidavit and rea- judicial decisions cannot be expressed in statutes. sonable notice to the opposite party, allowing a de- The existing statute books themselves show the fallfendant, on terms, to interpose a defense.
acy of such an opinion. A large portion of the law 2. In an ordinary lawsuit the methods of procedure is already codifled. What we insist upon is that the should be simple and direct, without a single umeces
uncodified portion of the common law, so far as it is sary distinction or detail; and whatever can be done settled by judicial decisions, should be enacted by the out of court, such as the statement of claim and de- Legislature in as brief a compass as possible and pubfense, should be in writing and delivered between the lished for the use of judges and lawyers, and for the parties or their attorneys without waiting for the information of the people. We repel the idea that the sitting of a judge.
reduction of the law, so far as practicable, to the form 3. Trials before courts, whether with or without ju- of a statute would check tbe natural growth of law. ries, should be shortened, by stricter discipline, closer We ask that the processes of legislatiou be reformed adherence to the precise issue, less irrelevant and and improved, and that the making of the rules of law, redundant testimony, fewer debates and no personal by which all members of the body politic must be gove altercation.
erned, be not left to the shifting decisions of judges in 4. Trials before referees should be limited in dura- private litigations between A. and B. or B. and C., tion, by order made at the time of appointment. which may perchance be given in collusive suits be
6. The record of a trial in every court in which offi- tween private parties, represented by incompetent cial stenographers are in attendance, should contain counsel, the public having no opportunity and no right short-haud notes of all oral testimony, which notes, ir to be heard or consulted as to the propriety of the rule the court shall so order, shall be written out in long- which the court declares. hand and filed with the clerk; but only such parts Then the people should be enabled to know beforeshould be copied and sent to an appellate court as are hand, so far as possible, by what law they are to regurelevant to the point to be discussed on the appeal, and late their conduct, instead of having their rights disif more be sent, the party sending it should be made posed of as may happen, and in point of fact does not to pay into court a sum fixed by the appellate court by infrequently happen, under the system of judge-made way of penalty.
law, by a judicial decision, which in its operation 7. A motion for or against a provisional remedy upon the case in wbich it was decided, and upon other should be decided within a fixed number of days, and existing transactions or conditions of the same kind, if not so decided the remedy should fail. In all other has all the injurious effects of a retrospective law. If cases a decision within a fixed period should be re- the law is reduced to the form of a statute, the office quired of every judge and every court, except a court of the judicial tribunals will be, for the most part, inof last resort.
terpretation instead of legislation. Judicial legisla8. The ordering of new trials should be restricted to tion will measurably cease, and the office of making cases where it is apparent that injustice has been laws will be left to the department of the government done.
which was created for that purpose. We repeat that
ce adjourns for a executiresbond , to commission be necessary, finish the bodie be commissioned Tesort.
should be more WO, should leta
1 to the selection reform, borera
78 courts of the uld be collected may know what iting to be done Ostponed to the - The law itsel
the form of
TORY FOHU. considered this
The reason are little to be
but two wasi i i and litigatics e was erer, dge-made las firm that there or it whatever.
The American dation of the 11 to any parform of stat
the real question is whether the American people through ages. We did not send counsel to Switzer-
The precedents cited in the briefs of counsel and the of publicists and judges, called the sages of the law,
here, the anti-codifiers say; here is a little statute of a It is related of Lord Mansfield that he advised a few lines, and behold what a host of questions and defriend, who was not a lawyer, going out to be gover
cisions bas it given rise to. Well, would you have had nor and chancellor in one of the dependencies of Eng- no such statute? Would you repeal it? Was that land, not to give reasons for his judgments, “for,” | English judge demented who declared that every line said he, “your judgment will probably be right, but of it was worth a subsidy? The Constitution of the your reasons will certainly be wrong." What sort of United States is, according to these anti-codifiers, ancommon law would this chancellor make? That kind other awful example of the evils of written law. See, of law is a series of inferences from reasons given for they exclaim, what volumes of commentaries from the decisions, but, says the great chief justice, make the Federalists down, what crowds of decisions on that litdecisions, but give no reasous, for they will certainly
tle Code made in these hundred years. Well, again,
would you undo it? One is tempted to ask of these If this advice were good, and the colonial judge gentlemen, do you take us to be children, that you were a sample of other judges, the common law would would foist upon us Buch nonsense? be deemed a series of wrong reasons for right judg
These men forget how it appears in the whole course ments. It is amusing to hear the criticisms some- of English and American history, that when a victory times made upon particular articles or sections of a for freedom was won, in the establishment of great proposed code; that this section or that section is not rights or duties, they were written down, that they the law, meaning that it is not a just inference from might never be mistaken or disowned. So it was with the reasoning of a particular precedent. The critio
Magna Charta, so it was with every petition or bill of thinks so, but the next critio thinks differently, and rights for which so many ages the people of England among a dozen lawyers there may be a dozen opinions. struggled for and the crown resisted. Even so long Which is right and which is wrong it is the function of
ago as 1771, when it was proposed in England upon the Legislature to declare.
trials for libel to substitute for judge-made law the An unwritten or inaccessible law is un-American.
written law of Parliament, Burke in answer to the obThe law of the Legislature, as distinguished from the
jection that the matter shonld be left to the judges, law of the courts, is the necessary sequence of the
declared that “If so, very ill would the purchase of American doctrine that the functions of government
Magna Charta bave merited the deluge of blood which should be apportioned between three great depart
was shed in order to have the body of English priviments, legislative, executive and judicial. Our prac
leges defined by a positive written law." tice is inconsistent with our theory. Ludirect meth
It is not necessary however to go back to the past ods, subterfuges and shams are not in accord with our century or to past decades for evidence or illustration. professions or our traditions. Whatever we do, we at
We are speaking of our own country and our own time least pretend to do not covertly, but openly. When
when we say we need a Code. We will not stop to inwe want a constitution of government, we write it.
quire whether the people who lived in England or When we want a treaty with another nation, we write
America before the American Revolution needed it. If we seek to make plainer our relations with the
it, but we say that we who live here now need other nations of the earth, we do not leave those rela
it. The literature of this country, and the same may tions to the decisions of the tribunals, but we put them
be said of England, demands it. However stroug may in writing as plain as possible, that they may not be
be the body of lawyers, and they are strong, and it is misunderstood. So we did when the great Frederick
for the common weal that they should be strong, for and the greater Franklin came together to frame the
they are one of the great conservative forces of society, most enlightened treaty ever made; so we did when,
they are not so strong as the people, the men of letin 1871, we dealt with England for the depredations of
ters, the thinkers and the writers, who are bound by the "Alabama.' We did not create the Tribunal of
no ties or prejudices of profession or classes, but who Geneva to pass upon questions of international
reason and speculate, study history and compare syglaw, as they lay in the usages of nations and the prece
lat the mit of e so defertise expression in 1 in statutes how the fall
of the is
is that the ) far as it is acted br the le and pube and for the dea that the to the form 'th of la.
reforned iles of law, ust be gor: I judges in 1 and (,,
suits be ompetent i no right I the rule
to regu. xhts dis does not
e made Ieration in other e kind,
office rt, in
tems, and reach their own conclusions from facts they dents of the tribunals delivered from time to time themselves have learned; men, for example, like Ba
con, Hallam and Macaulay. If the lawyers can stand committee, appears to us to imply not only the rec-
We forget moreover that our condition is different further considered, but that any other matter relating
THE SYSTEM OF TRIAL BY JURY. such a Code was introduced in the Senate at the last
Great dissatisfaction exists with trial by jury. This session of Congress.
dissatisfaction appears to be increasing with the genThe resolution 13, which was laid over at the last eral advance in popular intelligence. The magazines meeting of the association, does not declare that the and the newspapers have for several years teemed with law should be reduced to a code; it merely declares criticisms upon what is called the jury system. These that it “should be reduced, so far as possible, to the criticisms have called forth defenders of the system, form of a statute.” We think indeed that the resolu- and the result is that the subject is undergoing a very tion would in the end lead to a code, as a logical se
thorough and thoughtful discussion. We do not proquence, because we think that so much of the law can
pose so much to make our own arguments for or be reduced to statute as to result in a code.
Some | against trial by jury, as to call attention to its history, persons however may be of opinion that it is possible the changes it has undergone in different places, the to reduce only a small portion of the common law to
views entertained by its advocates and defenders, the a statutory form, not enough to entitle the product to
arguments generally used in both sides, and to recthe name of code. Then if only a few of the rules can
ommend improvements in the selection of jurors and be so reduced, the work is easier done; if many, the the conduct of trials by them. During the first fifty work is the more necessary to be done. They who do
years of the American Union a tendency was discernnot think a code attainable may nevertheless with ible to enlarge the right of trial by jury, and to insert consistency adopt the resolution as a just one. None guarantees of this right in the Constitutions, Federal can vote against it, but he who thinks that not a single and State. The right was pushed to extreme limits. rule of the common law, though quite possible to be the power of the jury was constantly enlarged and the reduced to the form of a statute, should be placed in
power of the judge correspondingly curtailed, untilin the statute book, not even the law of bills, checks and
some jurisdictions, as in Missouri and several other promissory notes, as has been done in England within
western States, the judge in a jury trial is little more the last four years. If any lawyer is willing to stand
than a moderator in a town meeting, whose duty it is upon that opinion, we leave him to the people. Let
to see that the rules of debate are strictly observed. him say to them, if he will, “I known very well that
The subject has passed through several notable we can write down in the form of enactments many,
phases. In the first or original phase, the idea of trial or at least some of the rules of law, which are the by jury was a trial by witnesses to the fact. The jury measures of your rights and duties, but we will not do consisted of twelve men of the vicinage, that is, of the it or have it done; we prefer to tell you from time to
immediate vicinity where the act in dispute was altime what they are, as you call upon us at our offices leged to have been done, and they decided upon their or in the courts."
own knowledge and neighborhood rumor. This was Here is the conclusion of the whole matter. The the original idea of our rude Saxon ancestors. This common law is made by the lawyers from time to
idea has undergone such a change that now the fact of time; lawyers on the bench and lawyers at the bar.
a juror having personal knowledge of the transaction They say, or rather many of them say, such is their ) is generally regarded as a sufficient ground of chalproper function. Some, modest men that they are,
lenge, and the fact of his having formed or expressed call themselves a trained body of experts just fitted an opinion either upon personal kuowledge, upon for the work; others, more modest, insist only that newspaper report, or upon common rumor, if the opintheirs is the true method of generating law. A free ion be of such a character as to render it improbable people who have framed their institutions, or purpose that he could come to an unbiased decision is a legal to keep the three departments of government, the ground of challenge. So that what in the early stages legislative, executive and judicial, separate and inde- of the institution was a necessary qualification in the pendent of each other, will not always submit to this juror is now a legal disqualification. Nevertheless, an assumption. They will not sit quietly by and see their inveterate conservatism has clung to the system durlaws made by the lawyers. The seventy thousand in ing the course of the centuries which have witnessed the United States, though a host counted by them
this transformation in its fundamental idea and prinselves, are yet but a handful counted by the side of ciple. It is deeply imbedded in popular affection and bixty millions of their countrymen. These are con- in popular prejudice. A superstitious veneration atsiderations which we, members of this association, and
taches to the number twelve. In the popular imaginaall members of our profession, everywhere in the
tion there is something akiu to magic in it. No bill country, may profitably take to heart.
of indictment can be returned in most jurisdictions by
a less number of grand jurors than twelve; and except The action of the association in recommitting the where recentConstitutions have made an innovation, no original resolution on delay and uncertainty to the serdict in the most petty civil cause returned by less