Imágenes de páginas

vious compensation was in full, and the inference of after-discovered written evidence which might have fact would rather be that it was partial only, simply affected the witness' credit with the jury. And to because the decedent himself so treats and declares the same effect is Eofert v. Des Coudres, 1 Mill, 70. It it. Such a declaration is certainly some evidence that cannot be objected to granting a motion for a new there was an obligation which the decedent regarded trial on the ground of newly discovered evidence, that as binding upon him; and in consideration of his own such evidence is cumulative if it is of a different kind sense of duty in the circumstances, no matter how it or character from that adduced on the trial. Whart. arose, he contracted with the plaintiff that he would Crim. Pl. & Pr. (8th ed.), S 870; Long v. State, 54 Ga. give her a due-bill for the amount stated. In execu- 564; Guyot v. Butts, 4 Wend. 579. A majority of the tion of this contract he did give her the due-bill in court are of the opinion that the facts here disclosed, question upon which this suit is founded. If it be under the peculiar circumstances of the case, exempt granted that the agreement to give the due-bill im- | this statement from the operation of the general rule posed no legal obligation, how can it be denied that it referred to, and that a new trial ought to have been created at least a moral obligation to do so? The duty | granted to Merritt Fletcher. Ill. Sup. Ct., May15, 1886. to perform a positive promise which is not contrary to Fletcher v. People. Opinion per Curiam. [7 N. E. Rep. law or to public policy, or obtained by fraud, imposi- | 80.] tion, undue influence, or mistake, is certainly an ob

OBSTRUCTION OF HIGHWAY - ABANDONMENT. ligation in morals, and if so it is a sufficient consider- --Where the public acquiesce in the occupation of a ation for an express promise. But in the duo-bill the part of a road by the adjoining land-owners for miles recital of the consideration of actual services rendered along the line, in such a manner as to narrow it, for is repeated, and it is some proof that the services had more than twenty years, an abandonment will be prebeeu rendered, and had not been fully compensated. sumed, and no criminal prosecution can be mainThe decedent himself so admits and asserts, and it tained, for obstructing the highway, against one who would be an unjust assumption in the law to infer the in good faith sets his fence on the line with his neighcontrary in the face of such testimony. These fea- bors. Manifestly if none but the appellant, or if only tures in the present case constitute a wide differeuce an isolated person here and there along the line, had between it and the case cited for the plaintiff in error, intruded or encroached upon the Michigan road, by in which it was either proved or properly assumed merely extending the line of fence into or upon it, no that the past cousideration was entirely executed. presumption of an abandonment could have arisen Here there is, in the first place, a written agreement from the fact. Something more than the encroachto give the due-bill, and the actual execution and de- ment merely of one person will be required to work livery of the due-bill in performance of that agree- an abandonment. No one would have the right to asmeut. There is iu addition the undisputed declara- sume, under ordinary circumstances, that a highway tion of the promise, or that both the agreement and had been abandoned along his field or farm, while as due-bill were given as compensation for loug and to all other adjacent fields and farms, it was being faithful services actually rendered by the plaintiff, maintained the width at which it was laid out and esand no distinct proof that those services had been tablished. On the other hand, if through a given disfully paid for. In such circumstances we cannot say | trict or neighborhood, or along a particular line, a there was no evidence of any obligation, legal or moral, highway had been maintained, substantially of a unito give the due-bill in question; and such being the form widtb, less than that at which it was established, case, there being nothing else to impeach the right of for twenty years or more, an abandonment by lawful recovery, the court below was right in directing a ver- authority might well be presumed, so far as the excess dict for the plaintiff. Penn. Sup. Ct., April 26, 1886. is concerned along that part of the line. We think Bentley v. Lamb. Opiniou by Green, J. [4 Atl. Rep. this is the fair result of the cases, and a reasonable 200.]

view of the subject. Where the public authorities had CRIMINAL LAW-NEW TRIAL-NEWLY DISCOVERED EV- permitted the owners of property along the line of a IDENCE-After a conviction of murder, the defendant highway to occupy and improve their property in such discovered that the deceased bad made dying declara- a way, and had acquiesced for such a length of time tions tending to reduce the offense to manslaughter. as that to involve such owners in criminal consequenThis was known to the State's attorney, but not to the ces, although acting in good faith on the appearance defendant or his attorney at the time of the trial. Held, of things, would be manifest injustice, au abandonthat a new trial should be granted. The general rule ment will be presuned. Where the owner or occuis that a new trial will not be granted merely for the pant of lands along a highway does nothing more than purpose of admitting cumulative evidence, or to im- to maintain the highway at a general uniform width peach a witness. The rule however is subject to ex- at wbich it has been maintained by adjoining owners emptions. Cochran v. Ammon, 16 Ill. 316. In Fabril- for twenty years or more, it would be manifest inius v. Cock, 3 Burr. 1771, Lord Mansfield granted a justice to maintain a criminal prosecution against new trial because of the discovery, subsequent to the such owner. Whatever else the public may do, it cantrial, that the judgment was rendered upon the testi- not assert its right to re-open the highway by that mony of a witness whose testimony was suborned. In method. In such a case as we have assumed, a prePeagram v. King, 2 Hawks, 605; S. C., 11 Am. Dec. sumption of abandonment will be indulged; and when 793, a court of equity decreed a new trial at law be- to disturb long-established lines would involve crimi. cause of the discovery, subsequent to the trial, that nal consequences, or work serious injustice to valuable the judgment was rendered upon perjured evidence. improvements made in good faith, such presumption In Wright v. State, 44 Tex. 645, where the principal will be conclusive. Brooks v. Riding, 46 Ind. 15; Jefwitness for the State, in an affidavit, stated that her fersonville, etc., R. Co. v. O'Connor, 37 id. 95; Sims evidence given on the trial was incorrect, and her v. City of Frankfort, 79 id. 446; Louisville, etc., Ry. mother, by affidavit, stated that sbe was unreliable, it Co. v. Shanklin, 98 id. 573; Amsbey v. Hinds, 46 Barb. was held to be grounds for new trial as subequently 622; Aug. Highw., $ 323; Dill. Mun. Corp. 667-675. discovered evidence. So in Great Falls Manuf'g Co. While it is true that the statute of limitations, operat. v. Mates, 5 N. H. 574, it was held sufficient ground for ing alone, may not bar the right of the public to innew trial that one of tbe witnesses on whose evidence sist upon the use of a highway, yet if such appearance the verdict was rendered, was convicted of perjury in is created by non-user as that acts are done by an adhis testimony, on his own confession. In Durant v. joining proprietor which indicate that he is in good Ashmore, 2 Rich. Law, 184, a new trial was granted on

faith claiming as his own that which is iu fact a part

[ocr errors][ocr errors]

of the highway, aud is expending money on the faith sought to establish its case. It was necessary to esof his claim, by adjusting his property to the highway tablish the fact that at least those who signed as comas he supposes or claims it to be, the public will be es- missioners were such at the date of the lease, and to topped. Cheek v. City of Aurora, 92 Ind. 107. Ind. prove their handwriting. The certificate of the secreSup. Ct., May 18, 1886. Hamilton v. State. Opinion | tary did not aid in this. If the records of his office by Mitchell, J. [7 N. E. Rep. 9.]

enabled him to state who were the commissioners at a EVIDENCE PRODUCTION OF BOOKS

former time, when the lease was executed, he may

SEALING UP IRRELEVANT PORTIONS.—On an order for the produc properly certify the record which shows this, but he tion of account books, the court may give leave to

cannot certify that this fact appears by the record. A seal up irrelevant portions. It was made to appear certificate from a public officer tbat certain facts exist. that the stocks in question, as is the usage with stock

or appear by the records of his office, is not competent brokers in Chicago, were bought and sold by appellees evidence of such facts. Bobbins v. Townsend, 20 through their agents in New York, on the New York

Pick. 345; Wayland v. Wara, 109 Mass. 248; Hanson v. Exchange; that the books of appellees do not, and the South Scituate, 115 id. 336. Nor is the certificate of books of stock brokers in Chicago, as customarily the secretary competent upon the question whether kept, would not show some of the said facts said to be the signatures to the original lease are genuine. He is needful for testing the accuracy of appellant's per- not authorized by law to attest them. As to matters sonal account; and that they can only be shown by which he is not authorized by law to attest, bis certithe books of the New York correspondent. It seems

ficate is extra-official, can have no higher weight than therefore that‘in this case the inspection of appellees'

that of a private citizen, and is therefore inadequate accounts with otber persons would uot serve the pur

to make the proof required. Oakes v. Hill, 14 Pick. pose of determining as to the correctness of appellant's 442-448. The lease offered as an original required some account; and that for the court to have gone further

additional proof of its authenticity, and was therefore than it did in its ruling, and to the extent asked by

improperly admitted. Mass. Sup. Jud. Ct., May 12, appellant, would have been but a needless exposure of

1886. Commonwealth v. Richardson. Opinion by Derappellees' trasactions with their other customers. The

ens, J. [7 N. E. Rep. 26. ] court's action was in conformity with the authorized

REGISTER OF MARRIAGE IN ANOTHER STATE. practice in respect of the production of books gener- - A register of a marriage, kept in a sister State, by a ally. In Greenl. Ev., $ 301, it is laid down: “And clerk of a court of record, or a certified copy thereof, where books are to be produced, the defendant will is inadmissible to prove a marriage unless it appears have leave to seal up and conceal all such parts of that such register is kept pursuant to a statute. There them, as according to his affidavit previously made was no evidence whatever of any law or usage of Minand filed, do not relate to the matters in question." nesota upon the subject. We have a statute making Iu Dias v. Merle, 2 Paige, 494, the court say: “While the register of marriages in this State evidence of a the course of judicial investigation frequently requires marriage. It not only does not appear that there is a party to produce parts of his books in which the ad- any such statute in Minnesota, but it does not appear verse party has an interest, for the inspection of the that by the law of Minnesota there is any provision latter, it may frequently be of great importance to the for the keeping of a register of marriages. It is laid former that his accounts and transactions with other down in 1 Greenl. Ev., $ 484, that registers of births persons should not be exposed to the examination of aud marriages made pursuant to the statutes of any strangers, and particularly of an enraged adversary. of the United States are competent evidence. It is Where his books are subjected to inspection, it is the because of their being made by publio authority, and uniforin practice of the court to permit a party to under the sanction of official duty, that they, and exseal up those parts which do not relate to the subject emplified copies of them, are received in evidence. It of litigation." In Gerard v. Penswick, 1 Swans. 533, does not here appear that the registry in question was an agent had books of account wbich contained some made by any such authority or sanction; it appeariug accounts relating to his agency, and others relating to merely that there were in the clerk's office such a his own private business, and the order was that the marriage license and certificate of marriage copies of defendant should leave the books with his clerk in which were given. We are inclined to hold there was court, sealing up those parts which did not concern error in admitting the certificate of the register in the plaintiff, and pledging himself by oath that he evidence. Ill. Sup. Ct., May 15, 1886. Tucker v. Peohad sealed up those parts only. Ill. Sup. Ct., May ple, Opinion per Curiam. [7 N. E. Rep. 51.] 15, 1886. Pynchon v. Day. Opinion by Sheldon, J. [7 N. E. Rep. 65.]


was about to be married to B., offered to have a policy PUBLIC RECORDS-CERTIFICATES OF PUBLIC OF- of insurance upon his life taken out in her name. This FICERS.-A certificate of a public officer that certain she declined to accept if so taken out. A. then had facts exist, or appear by the records of his office, is not the policy issued in his own name, and later married competent evidence of such facts; and at the trial of a | B. The policy was placed with other papers of A. and complaint against the defendants, charging them with B. in a safety-box, which A. handed to B. to give to unlawfully fishing in a pond alleged to have been | her mother to keep for her. No actual assignment of leased to the complainant, a certificate of the secre- the policy was ever made to B., but A. a number of tary of the Commonwealth, attached to what pur- times mentioned that the insurance it evidenced bad ported to be a lease of the pond in question to the been effected for the benefit of B. A. died intestate complainant, certifying that certain signatures borne and without creditors. In a contest between B. and upon the lease were genuine, and that two of the per- certain relatives of A., as to wbether the amount due sons pamed were “commissioners of inland fisheries upon the policy belonged to B. or to the estate of A., at the date of the lease," the lease not being in the held, that under the circumstances it shouid be concustody of the publio officers, is extra-official, and in- sidered the separate property of B. Had A. executed adequate to make the proof required of the validity of an assignment of the policy in question to his wife, the lease. The lease offered in the case at bar was not there could have been little, if any doubt as to her in the lawful custody of those persons who are now right to the proceeds, though the delivery of that asthe commissioners of inland fisheries. It had been signment had been evidenced by ncthing more than left in the custody of the town officers, and it was by its deposit in a box, or other receptacle, common to putting the original in evidence that the government the use of both husband and wife. But, says Mr. Jus

tice Sharswood, in Bond v. Bunting, 78 Penn. St. 210: As related by their own oaths, the scheme worked "Is not a gift an assigument, perfected by delivery, out by agreement between the prosecuting attorney, which debars tbe donor from revocation?” Undoubte the sheriff and one Matt Pinkertou, a detective, was edly it is, and this doctrine is recognized in Grey's to keep away from the respondents in this case all atEstate, 1 Barr. 326. It is however hardly necessary to torneys, to introduce Pinkertou as a lawyer, get bim refer to authorities in support of a principle now so employed by them, and then, as their pretended counwell established. Certainly this delivery was quite as sel, worm out a confession from one or both of them, complete as that in the case of Crawford's Appeal, 61 and by a betrayal of their confidence use the confesPenn. St. 52, where a husband directed a clerk to en- sion in evidence to convict them. ter on his books a credit to his wife in the sum of Acting upon this preconcerted scheme, the prosecut. $3,000, and annually added the interest thereto until | ing attorney and sheriff kept a letter written by Marhis death. There was in this case no delivery which shall G. Barker to Howard & Roos at Kalamazoo, and was good for any thing either as against the husband also refused Mr. Roos an interview with the respondor his creditors, yet as against volunteers it was held

ents when he came to Paw Paw for the purpose of seeto raise a valid trust in favor of the wife. We woulding them. They also keep all other counsel from them indeed regard it as a very ungracious task were we until a letter from the Circuit judge informs them compelled to take the gift of a kind, though perhaps that the Barkers are entitled and have the right to see careless husband to his coufiding wife, and transfer it attorneys of their own choice. to those for whom he never intended it. It is true.we

A detective passing under the name of Stearns is would do so did the law aud facts of the case so deter

sent by Pinkerton from Chicago to meet the prosecutmine, and so doubtless would the court below have

ing attorney, and act under his direction. The prosedone under like circumstances, but as the matter now cuting attorney swears in substance that the man stands, as facts and law are with the appellee, we are

Stearns, under his advice and direction, forged a note the rather pleased to affirm the decree of the Orphan's and went to the bank and attempted to pass it. The Court. Penn. Sup. Ct., Feb. 15, 1886. Appeal of Ma- prosecuting attorney then drafted a complaint, and ardeira. Opinion by Gordon, J.

rested Stearns for forgery, aud placed him in jail

where he could have access to the respondents. AnDECOYS AND DETECTIVES.

other detective, Matt Pinkerton, theu arrived upon

the scene, ostensibly as the attorney employed to dePeople v. Barker (Mich. Sup. Ct.), 27 N. W. Rep. fend Stearns, and passing under the name of A. S.

549, we find the following vigorous dissenting opin- Trude, a prominent lawyer of Chicago. The sberiff ion by Judge Morse :

swears that he introduced Pinkerton to the Barkers MORSE, J. (dissenting). I cannot assent to confirm as an attorney, and as A. S. Trude, from Chicago, in the conviction in this case. Every man under the Paw Paw, for the purpose of defending Stearns against Coustitution of our State and Nation is entitled to a the pretended charge of forgery, and while he detains fair trial, which the respondents have not had. The

the letter written by Marshall to Howard & Roos, and treatment of these men after they were arrested, and

prevents the Barkers from seeing or employing counbefore trial, by the prosecuting attorney and sheriff

sel, he advises the respondents to employ Pinkerton, of Van Buren county was an outrage upon justice, for

alias A. S. 'Trude, as their attorney, which advioe they which there can be given no possible excuse, and the accept and follow. results of which, as intended, were used against them,

The detective, Pinkerton, personating Trude, bewithout right, upon the trial of the cause. It is true comes their attorney, and thereby secures the faith that the community were satisfied generally of their

and confidence of the accused. He, as their attorney, guilt, and apprehensive that justice might be defeated advises them what story each shall tell in order to get by some slip or tecbnicality, but this cannot excuse un

Marshall off with a light sentence, and to acquit Wiljust, unfair or treacherous dealing with the accused,

liam of any offense whatsoever. He gains a confeswho were imprisoved and at the mercy of the law and

sion from each of them in accordance with his theory, its executors. The more aroused and the higher the

which he writes down. The whole object of this feeling against them, the more necessity that in the

scheme was to obtain such a confession, and then to due and orderly administration of justice the safe

use it against them, as admitted by the prosecuting at. guards of the Constitution and the laws should not be torney and sheriff. removed or kept from them, and the more reason why

The sheriff very frankly says upon the witness stand ample opportunity should have been afforded them to

that “Pinkerton was introduced there for the purpose employ and receive the advice and assistance of attor. of gaining the confidence of the Barkers by the repreneys of their own choice and seeking. A more sbame

sentations he might make to them; the object was to ful and disgraceful method of depriving men accused get a confession from them;" that at the time he of any opportunity of employing counsel and acting kept the letter from Marshall to Howard & Roos ho under their advice; a more oppressive and deceitful

did not want Barker “to have an attorney uutil Pinkcourse of conduct to prevent their enjoyment of their

erton had got through his part with him." constitutional privileges, and a more mean and wicked

When these confessions had been secured, the detecbetrayal and suppression of their rights under the law tive, Stearns, who had been allowed the liberties of by these two officials, I have never read in the history the jail upon a charge of forgery, was released, and of American jurisprudence. It seems like going back disappeared. The Barkers are thereupon informed of into the dark ages of the administration of criminal the bogus Trude that Stearns was discharged in court, law, when a person accused of crime was allowed no because he followed the advice of his attorney, counsel to speak or act in his behalf, and was sub

"Trude." jected to the examination and browbeating of the While the respondents were thus confined in jail, prosecutor, assisted often by the judge, without any denied the assistance or right of counsel save this pre. right or privilege worth naming to protect himself. tender, by whom they were being deceived and beIt is to be hoped that such proceedings as are shown trayed into admissions of guilt, the officials heretofore by the record in this case are not to be repeated or named employed another party in the jail, who got made a precedent in our State. I for one am not dis- into his possession notes and letters from Marshall to posed to tolerate such action, even if the consequences

William and from Marshall to his wife, and from Wilof my judgment should go further than the reversal of liam to Marshall, and handed them as received to the an otherwise just conviction.

wife of the sheriff.

[ocr errors]


The written confessions obtained by Pinkerton in the show that if it had not been for the work of Pinker character of Attorney Trude were procured for the ton there would have been no admissions or confesa express purpose of being used as evidence upon the sions by these men. It is not disputed but they were trial, and were offered by the prosecuting attorney

made while Pinkerton was acting as their attorney, after the circumstances of their procuration had been and iu accord with the theory which he impressed detailed in court. They were properly ruled out by upou them as their only means of salvation. This the court, the Circuit judge evincing throughout the was know and showu in court before any of them whole trial a very manifest disposition to give, as far were admitted. The court left it to the jury to deter. as it was in his power, these men a fair and impartial mine whether they were voluntary or not. This was trial; yet I cannot but think that he committed a a grave and substantial error that I cannot overlook. very grave error in admitting the notes and letters in As a matter of pure law, they were plaivly not volunthe keeping of the sheriff's wife in evidence. It had tary, and the court should so have decided. Not only the effect of partially, at least, carryivg out the con- was the hope and promise of favor held out to them, spiracy of the detectives and officials against the lives but they were obtained by the grossest fraud and deaud liberties of the respondents, as well as against the ceit. What any person confides to his attorney, even law. These notes and letters were written, many of in a civil cause, is most zealously guarded and kept them during the time Pinkerton was acting as the pre- secret by law; but by a trick in this case the confestended but trusted attorney of the Barkers, who were sions made to a pretended attorney, under his advice, blindly and in plicitly following his advice. Others are also in substance verbally communicated to others were written after his real character was known to in furtherance of the plan devised by him, as he them, and bore evidence upon their face of the great claimed, for their escape, and then allowed to be used wrong he had done them in his dual capacity as law- against them. Every element of law cries out against yer and detective. Nearly every one of them was these proceedings, and human nature is outraged at taunted with the poison of this vile conspiracy against this exhibition of official treachery and duplicity upon their rights as citizens, unless it be held that the mere the part of the prosecuting attorney and sheriff, who fact of arrest for crime shall make a man a felou, and joined and aided in the detective's plan, and it does serve as an antidote against any and all wrongs that not seem to me that the excuse " that any end justifies may be perpetrated upon the accused before trial.

the means should be supported by the courts in Some of these notes made reference to the supposed | Michigan. lawyer, and what he had advised them to do. Here

There can be no excuse for the employment are two of them:

of such means to obtain a conviction as were used Exhibit A, 17. " Bill, the way your woman and here. If the law cannot be enforced or crime puuinine is swearing, that is the only way to get out clear. ished without depriving the accused of counsel, and Don't be afraid, for we are innocent; but I want to foisting upon them a detective as an attorney, with get clear, and can't no other way. Now, Bill, don't the purpose of advising action on their part to betray wait too long, for he (Pinkerton) says he cav clear you and convict them, it would be as well and less expenanyway, and me too. If you don't you will go over sive to dispense with courts and juries, and authorize the road by the way your woman says. Tell me what the prosecuting attorney and sheriff at once to pass is the reason you don't say so. Don't wait now. judgment upon persons arrested, and if convicted in

“M. G. BARKER." the minds of these officials, or of the community, conExhibit A, 18. “The lawyer wants my brother to vey them without further trouble to State prison. If say, to help me as a brother, to carry off the body; meu who are supposed to be guilty can be treated in and for me to say I did kill him in the house-choked this way, then may an innocent man also be subjected him to death, and went and got my brother to help as

to the same usage. a brother to conceal and get him out of the way; and seeing the woman swears to a lie, we had to do the

COURT OF APPEALS DECISIONS. same thing to clear us in it. He says not to be afraid, in the least, of nothing."

HE following decisions were handed down FriThis detective, acting as attorney, made these men day, June 25, 1886: believe that their wives were testifying against them, Order affirmed with costs-Paddock v. Kirkham; or would do so, and that the only way to get out of -Judgment affirmed-People v. Clark..-Judgment the matter was for Marshall to confess that he choked affirmed with costs-Gould v. N. Y. C. E. ; Third NaKeith to death in the bedroom, and that William had tional Bank of Buffalo v. Carnes; Polley v. City of 110 part in the killing, but as a brother, after the deed Buffalo; In re will of Lyon; In re will of Decker; was done, helped Marshall to conceal the body to cover Stoughty v. East River Ferry Co.; Watson v. Rome, up the traces of the crime.

Watertown & Ogdeusburg R. Co.-- Appeal dismissed The alleged admissions or confessions of William with costs-Iloyt v. Continental L. Ins. Co.; Claim of Barker to Depuy, and of Marshall Barker to DePuy | Averill Berg v. Grace; Levy v. Solomon.-Order afin the presence of the witness Conkle, were made | firmed with costs--People v. State Bank of Fort Edwhile the men were under the influence and acting on ward; Olmstead v. Olmstead; In re Attorney-Genthe advice of Pinkerton, and should bave been exclu- eral v. Western New York L. Ips. Co.; Claim of Gloded. It also appears that all the votes were written wacke, Mayor, etc., of New York v. Eden Musee after Pinkerton had gained the coufidence of the de- | American Co.; In re accounting of Gomprecht, aspouents, and some of them, especially one, written by signee, etc.—Order affirmed with costs, but with libMarshall to William, told the story of the killing, as erty to the purchaser to be relieved from his purchase was advised by Pinkerton, and urged William to fol- | if he so elects-Protestant Episcopal Lay v. Stevens. low the same story, as the lawyer said it was the only -Motion to advance cause denied, with leave to way to get clear. In fact every admission, written or submit a brief-Strucker v. Manhattan R. Co.verbal, introduced against the Barkers was in corrob- Judgment aflirmed with costs-Coffin v. Scott. oration of the theory mapped out by Pinkerton.

It was ordered that the court take a recess until These respondents, under his advice and dictation, July 27, at Saratoga Springs, for the purpose of renderfollowed the lines marked out by him in these admis- | ing decisions, and that thereafter the court will take a gions, and as soon as they found out that he had de- further recess to October 4 next, at the Capitol, in ceived them, and was not an attorney, but a spy, they Albany, then to proceed with the call of the present denied them. It needs but a glance at the record to calendar.





skill which its importance demands, would indeed The Albany Law Journal.

give clearness, certainty and facility of reference to

that which is now confusion, uncertainty and obALBANY, JULY 10, 1886.


But the opponents of codification, with our own venerated Legaré at their head,

tell us in the spirit of the Caliph Omar, that to cod CURRENT TOPICS.

ify that which is fixed and certain in the principles

of the law would be useless, and that which is E had hoped that we should not be called on to

doubtful and obscure would be hurtful would be say any thing more about codification until to substitute the legislative will for the distilled next winter's campaign, but if lawyers will keep on

wisdom of centuries, and to chain down to the protalking about it we must keep track of them. Just crustean bed of the statute law the varying and now we are in receipt of the transactions of the first accommodating forms of the common law – to disannual meeting of the South Carolina Bar Associa- | card our books, and to substitute questions of contion, in which we find a paper by Mr. W. A. Leestruction, for the far more philosophical search afon the Common Law, pronouncing a glowing eulogy ter analogies in the multitude of decided cases. on it, and then — mirabile dictu / -recommending But admitting that novel questions of construction codification as follows: “What is codification? If arise, they are yet questions to be decided in the it consists in extracting, classifying and digesting light of adjudicated cases, and a knowledge of the those leading principles which lie at the basis of all old will be necessary to explain the new, and the decided cases, and give them harmony and consist legislative will will be best interpreted in the light ency; if it consists in giving order and symmetry of past and contemporaneous construction. The to the ill-sorted material which lies at our hands, opponents of codification seem to assume that it is rejecting this and selecting that, but erecting the

to fix the law sure and fast for all time; that it is to new edifice substantially out of the old material, in

be circumscribed in the bounds of the present, withthe spirit of a wise master-builder, and the temper

out the reflected lights of the past, or the anticiof a just conservatism; in fine, if it consists in giv- pated wisdom of the future. But this is to assume ing clearness, certainty and facility of reference to

what no friend of codification has contended for the half-buried treasures of the law, eliminating that whilst the world moves legislation is to stand the husks and retaining the life-giving germ, then

still. This is not so, The design is to condense codification is a thing to be desired, and would and to crystallize the fruits of past research, to simseem to be justified alike by reason, by precedent plify the complex, to bring to light the obscure; to and by authority. * Language has its rules, reconcile opposing doubts, and to bring order out and logic the panoply of the schools; and shall the of confusion; and rejecting what is obsolete and law, which from the immensity of its stores, and retaining all that is useful, to digest the whole into the varied and complex character of its material, symmetrical and harmonious proportions. But the needs above all others the labors of the collator and

work is not to remain in the old moulds of past codifier, alone fail to aspire to the name of a liberal wisdom, but is to be revised as revision becomes science? *

We have abundant precedent necessary to accommodate it to the varying wants in the work of codification on a small scale in of a complex and advancing civilization. Some of every treatise and digest which issues from the

us may not live to see the day, but some of us may, press. They are but the precursors, the avant when the common law, embellished by the lights couriers of a wider and more complete work,


of learning and philosophy, will yet surpass the the necessities of the hour and the demands of the

Code of Justinian as well in the harmony and symfuture are pressing upon us.

In every State of the metry of its proportions, as now it does in the vigor Union there has been a revision of the statutes, and

and spirit of its unpruned luxuriance, and may every revision is codification. We have penal

merit the title of being the noblest body of luws codes and codes of civil and penal procedure, and

that the world has ever seen." why not codify the body of the law? Its antiquity, complexity and immensity, whilst increasing the difficulty of the task, make it more necessary. It Charity suffereth long” in the English courts in is no longer a question of utility and practicability, these days. The London Law Times says:

" What is since both have been established in the history of a charity? That is a question more easily asked legislation and jurisprudence. Some years ago we

than answered, and on which judges have differed. codified our military law and the law relating to It is of course impossible to give a definition, and county officers; this was followed by that revision little more can be done than to enumerate the sevof our law and Code of Procedure, which again re- eral objects, gifts to which have been held to be vised, now form our General Statutes. This is only charitable. In the recent case of Pease v. Pattinson, work upon a small segment of the law, but it is a 54 L. T. Rep. (N. S.) 209; 32 Ch. Div. 154, Vicebeginning, and an attempt upon a small scale of a Chancellor Bacon decided that a friendly society work, which is extended to embrace the whole sys- | partly supported by the subscriptions of its memtem of jurisprudence, in its varied and complex re- bers, and partly by donations from outside is a lations, and executed with the care, learning and I charity, and allowed the application of the cy près

Voi 34 No. 2



« AnteriorContinuar »