Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση
[ocr errors][ocr errors][merged small]

in the sixteenth subdivision of that section_ the that a crime unknown to the Federal authoripower is granted to that body to "exercise ex- ties has been committed upon territory within clusive legislation in all cases whatsoever, over the exclusive jurisdiction of the United States such district (not exceeding ten miles square) can be held to oust the State tribunal or officer as may, by cession of particular States, and the issuing the habeas corpus of jurisdiction to proacceptance of Congress, become the seat of ceed further in the matter. If the mere insergovernment of the United States, and to exer- tion that such and such a crime has been cise like authority over all places purchased by committed and that the place where it was comthe consent of the Legislature of the State in mitted is "within the exclusive jurisdiction of which the same shall be, for the erection of the United States" be alone sufficient to clothe forts, magazines, arsenals, dock yards, and other the Federal officers with absolute control over needful buildings." Therefore, in order to the matter, then, says Commissioner Ryan, “à vest exclusive jurisdiction in the Federal governUnited States commissioner can issue his warment, two things are requisite, namely, purchase rant reciting that one alderman has assaulted by the government and the consent of the Legis- another in the city hall of the city of Milwaukee, lature of the State. According to the statutes county of Milwaukee and State of Wisconsin, of Wisconsin certain conditions are prescribed "being within the exclusive jurisdiction of the by which the State may yield its authority over | United States," and such warrant would be an land to the national government. Having de- absolute protection to the marshal against all termined under what circumstances the Federal interference by the State courts, and the quesauthorities have exclusive jurisdiction, the ques- tion whether the Milwaukee city hall is or is tion narrows down to whether those circum- not within the exclusive jurisdiction of the stances existed at the time of the commission of United States can be decided only by the Fedthis crime by Kelly. Commissioner Ryan goes eral courts, the State having no voice whatever into the history of the organization of the Wis- in the matter. He does not believe that this consin Soldier's Home by the women of Mil-case is controlled by Booth v. Ableman or Tarwaukee in 1865 and the transfer of the property to the National Asylum for Disabled Volunteer Soldiers, its successors or assigns, but he claims that in this act a transfer of the property to the United States was not contemplated, nor were the provisions of the State law complied with. In 1867 the Legislature of Wisconsin sought to transfer jurisdiction over the Soldiers Home grounds to the Federal government, but this act was declared unconstitutional by the Supreme Court of that State, the only authority competent to pass upon the question. Therefore, since it is not claimed In the meanwhile United States Court Comthat the grounds were deeded to the United missioner Bloodgood, who had issued the warStates or that the title is held by the general rant for Kelly's arrest, refused to recognize the government, it rests solely with the State Legis- proceedings carried on before State Commislature (the Federal laws being silent on this sioner Ryan. At the preliminary examination point) to provide in what manner and upon before Commissioner Bloodgood, Rublee A. what conditions the consent of the State to the Cole, attorney for the prisoner Kelly, made the purchase by the Federal government must be same argument as he offered on the habeas corexpressed in order to subsititute the one juris- pus proceedings, that the Federal government diction for the other. From the fact that the had no control of the Soldier's home, and that United States does not possess jurisdiction over the Federal statutes provided no penalty for the place where this crime was committed, Com- the commission of this crime. Before pleadmissioner Ryan very sensibly argues that the ing, however, Mr. Cole denied the jurisdiction mere insertion in a complaint or committment of Commissioner Bloodgood's court in this mat

bel's case (supra) and considers that the commitment by virtue of which the marshal claims to hold the petitioner, constitues neither authority nor color of authority nor what purports to be the authority of the United States, but a mere attempt to exercise by force an authority and jurisdiction not conferred by law and a dangerous and unwarrantable invasion by the Federal authorities of the rights and powers of the State. He, therefore, commands the marshal to produce the prisoner. So much for the habeas corpus proceedings.

[graphic]

ter.

The United States district attorney, Mr. Wigman, had promised State Commissioner Ryan that no further action would be taken in the Federal courts until the habeas corpus proceedings had been disposed of. Thereupon Commissioner Bloodgood refused to recognize the jurisdiction of the State court, and as the Federal officers refused to appear in the case, Mr. Bloodgood went on without them. After hearing argument on the case he bound Kelly over to the United States court for January, 1896, to await the action of the grand jury at that term of the court. The result of this is that the sheriff will probably arrest the United States marshal, whereupon the United States district attorney will go before a Federal judge and sue out a writ of habeas corpus on behalf of the United States marshal. It is supposed that the Federal judge will uphold the ruling of the United States commissioner and the case will immediately be brought to the United States Supreme Court for final decision.

Another recommendation of the attorneygeneral called out by recent dilatory proceedings in the case of Dr. Buchanan, the New York wife poisoner, and in a number of other notable murder cases, is as follows:

"A growing abuse of the writ of habeas corpus should be corrected which is wasting the time of the Supreme Court and bringing discredit on the administration of justice. Proceedings in State courts are absolutely stayed by section 766, Revised Statutes, pending appeals to the Supreme Court from action of the Circuit Courts on writs of habeas corpus, which may be taken as of right. By suing out successive writs and prosecuting appeals to the Supreme Court, persons convicted in State Courts have succeeded in securing repeated delays of execution. There is no limit to this process, so long as prisoners are able to secure counsel. I respectfully suggest, as a cure for this evil, that the allowance of a stay by the Supreme Court, or a judge thereof, be required, at least on all appeals after the first."

The attorney-general adds:

"If the Supreme Court were relieved, as above suggested, its jurisdiction over cases arising un

The maiden report of Judson Harmon, as attorney-general, containing a review of the operations of the Department of Justice for the last fiscal year, was laid before Congress De-der the revenue laws might, and should be, recember 7th. It treats at length of the business of the Supreme Court of the United States and recommends that, except in capital cases, appeals in criminal matters should not be taken to the Supreme Court.

[ocr errors]

To accomplish this result he recommends an amendment of the law so as to exclude the words" other infamous crimes from the cases subject to appeal to the highest tribunal, and to remit minor cases to the courts of appeal. He points out that the words "infamous crimes " have been given a very broad interpretation. The definition, he says, includes all offenses which may be punished by imprisonment at hard labor, or for more than one year without hard labor, whether they are actually so punished or not. If such punishment might have been inflicted the case may be taken to the Supreme Court, even if the culprit has escaped with a mere fine. That high tribunal of nine judges is frequently required to review conviction of such offenses as passing $50 of counterfeit money, charging over $25 for legal assistance to a pensioner, and unlawfully cutting timber.

stored. The United States has now no right to a review by that court of any decision construing a tariff or internal revenue law, although millions of dollars may be directly or indirectly involved. A provision for appeals and writs of error from the Circuit Court of Appeals in these cases, similar to that contained in section 707 of the Revised Statutes with respect to appeals from the court of claims would be highly beneficial to the government."

[ocr errors]

The number of cases on the Supreme Court docket at the end of the October term, 1894, is stated at 649, in 1890 there were 1,190, and since that date the court has been gradually reducing the amount of accumulated business.

There are 9,000 cases on the docket of the Court of Claims, and it is increased by 900 cases per year. Discussing this point AttorneyGeneral Harmon says:

"The very diligent exertions of the present force serve to dispose of less than 800 annually. For the preparation of the claimants' side of suits, there is a roll of more than one thousand attorneys, of whom some hundreds devote their

[ocr errors][ocr errors][merged small][ocr errors][ocr errors]

whole time thereto. Against these is set a corps of seven assistant attorneys for the defense. With such disproportion of force, its seems superfluous to state that the defensive preparation cannot be as thorough as it should be, even in the cases tried. A single important judgment incurred by reason of lack of time for proper preparation may involve many times the cost of an adequate increase of force.

"In my estimate for the next fiscal year I have included an increase of approximately one-third, which it is belived will suffice to enable the department to occupy the time of the Court of Claims. Until that is accomplished, it is not necessary for either Congress or the court to consider plans for increasing the efficiency of the court. The court is by present methods able to hear and decide many more cases than can be prepared."

Mr. Harmon gives a brief summary of the celebrated Peralta-Reavis case, involving the title to over 12,000,000 acres of land in Arizona and New Mexico, under an alleged Spanish grant, which was recently decided in favor of the United States, and says of it:

"The court, by unanimous decision, held that every title paper out of one hundred or more had been manufactured and forged, in whole or in part, and surreptitiously deposited among the archives in the countries named. The case is remarkable as probably the greatest fraud ever attempted against a government in its own courts, and its decision removes a cloud from thousands of titles held by actual settlers.

"Since the decision I have caused Reavis to be arrested and indicted for fraud and perjury, and he is now in prison awaiting trial."

claims that it should follow the south branch. In spite of proclamations by President Arthur in June, 1884, and by President Cleveland in December, 1887, Texas has encouraged settlements in this territory, and if the decision shall be in favor of the United States, the question will arise whether Congress should wholly disregard the claims of settlers, as it will have an undoubted right to do, or provide legislation by which they may be protected upon making reasonable payment for the land occupied."

The attorney-general asks Congress to direct him what to do in the Bell telephone litigation. The expense of this case, he says, is very heavy. It will take six months to prepare rebuttal testimony. He favors continuing the case to a final decision, provided the expenses can be met, and says:

"If the people have been deprived

of their natural rights by the improper issue of a patent, as the govenment avers, it would not be a proper course on its part to discontinue litigation, which has probably been purposely protracted until the patents have expired, but such litigation should be persisted in to establish finally, for the sake of future action on its part, its right to sue to annul patents."

Mr. Harmon discusses the relations of the Union Pacific railroad and its branches to the government, He says:

"The situation has been maintained as it was when the last Congress adjourned, so far as legal proceeding are concerned, but large amounts of subsidy bonds are about to fall due of those issued to the Central Pacific as well as those issued to the Union Pacific company, and no assurance can be given that the present situation will be long maintained.

"Action should be promptly taken toward Referring to the Greer County (Texas) boun- working out some solution of the problem predary case, now in the Supreme Court, Mr. Har-sented by the government's relation to these properties.

mon states:

"The controversy depends on the meaning

"As it may become advisable or necessary of the treaty of 1819, between Spain and the for the government,to institute legal proceedUnited States, fixing the boundary line betweenings against one or both of the companies above the two countries, which treaty in turn was named, I beg to call attention to the necessity adopted by treaties of the United States with of a law giving some proper court in the DisMexico and with Texas. The treaty describes trict of Columbia jurisdiction of the entire propthe line as running up Red river to the one erty and of all the parties in interest. What hundreth meridan. Texas claims that when has been herein before said as to the general nethe forks of the river are reached the line should cessity of giving one court full jurisdiction in follow the north branch. The United States such cases applies with special force here. Such

[graphic]

a provision was included in the bill prepared by Attorney-General Olney at the request of the last Congress. It should now be put in the form of a separate act, so as to be made independent of any particular plan of reorganization. Until the passage of such an act, any attempt of the government to protect its rights by litigation will be greatly hampered."

REPORT OF THE COMMISSIONERS OF CODE REVISION.

To the Legislature of the State of New York: The Commissioners of Code Revision beg leave to submit their first report.

By chapter 1036 of the Laws of 1895, the governor was directed to "appoint three members of the bar of this State who shall examine the code of procedure of this State and the codes of procedure

In regard to the Northern Pacific railroad, and practice acts in force in other States and his recommendations are as follows:

"The Northern Pacific Railroad litigation has called attention in a striking way to the necessity which has long existed of legislation to regulate the appointment of receivers and judicial sales of railroads, parts of whose lines are in different circuits. Public, as well as private, interests require the preservation of the unity of such lines in their management pending the foreclosure, and in their sale. This can. now be accomplished only by harmony of action among the courts of the various circuits, but the appointment of receivers and the repetition of orders in each circuit cause a multiplication of trouble and expense which can well be avoided. When, however, the different courts refuse to co-operate, not only are public and private interests in the property imperiled and costs more greatly multiplied, but there is constant risk of scandal from which the administration of justice should be kept free.

"There seems to be a general demand for relief. It can readily be afforded by providing that suits to foreclose mortgages or appoint receivers of such railroads shall be brought in the circuit where the principal operating offices are, or in the circuit in which the chief terminals

are situated, or in that containing the greatest length of track, or full jurisdiction might be given to the court in which suit is first brought."

. JURISDICTION

FLOATING PILE

ADMIRALTY DRIVER.-A pile driver consisting of a floating platform, carrying a derrick, engine, and pile-driving apparatus, and also furnished with a wheel by which it may propel itself about the bay or harbor, from one place of work to another, and which in its present condition is not fitted for purposes of transportation, is not a subject of admiralty jurisdiction; and contracts to furnish it with supplies are not maritime contracts enforceable in the admiralty (Pile Driver E. O. A., U. S. D. C. [Mich.], 69 Fed. Rep. 1005.

countries, and the rules of court adopted in connection therewith, and report thereon to the next Legislature in what respects the civil procedure in the courts of this State can be revised, condensed and simplified."

On the 15th of June, 1895, we were appointed, pursuant to the provisions of this law, commissioners to revise the Code of Civil Procedure, and immediately entered upon the discharge of our duties. We have given the subject of civil procedure and code revision some attention, but have not been able to examine in detail all the provisions relating to practice in force in other States and countries, as tion of the codes and practice acts and rules of required by the act. The comparative examinacourt affecting procedure in other States and countries requires more time than was given us by the act under which we were appointed, and it is impracticable, if not impossible, within this time, to submit to the Legislature a proposed draft of a Code of Civil Procedure, if one were to be recommended, or to state with much minuteness "in what respects the civil procedure in the courts of this State can be revised, condensed and simplified."

To answer this suggested inquiry, much time and careful study will be necded. The civil procedure in the courts of this State is the product of many years of slow and halting growth, and a revision, such as might be justified by the terms of this law, should be the result of close study of principles and methods, and much deliberation; and a commission should study not only the whole subject of proced

ure, historically and scientifically, but the comparative merits of different systems which are, or have been, in force in different States and countries. We are unwilling to submit a revision which does not embody substantially the result of such care and study, and hence, at this time, we deem it proper to suggest only general recommendations with an outline of the changes proposed, together with a brief statement showing the development of civil procedure, and the systems of practice in use in other States and countries. The civil procedure in the courts of this State can, doubtless, be revised, condensed and simplified, and the administration of justice thereby greatly improved.

[ocr errors]
[ocr errors]

of

The members of the bar have such a vital interest in the subject of a revision of civil procedure, as Serb interpreters of the law, "friends of the court," and "ministers of justice," that we felt justified in trying to avail ourselves of their experience, and obtain their opinions, on the subject of revision in general, and also upon particular subjects which might need special attention. We accordingly prepared and sent to nearly ten thousand lawyers, and also to the judges, a circular letter, under date of July 25, 1895, in which, after referring to the statute, we said:

hree t

[ocr errors]

ཡོང་

Othe

[merged small][ocr errors][ocr errors]

"This appointment involves a possible revision of the code of civil procedure of this State, and also a revision of the practice in all the courts, whether the rules governing such practice are included in the Code of Civil Procedure, or in general and independent statutes. But, before engaging in a general revision of the code, we deem it important to obtain an expression of opinion from the bar of the State, upon the general question of revision; whether such a general revision is desirable at this time, and if so, upon what lines it should be made; and if such a revision is not deemed desirable, then what particular changes should be made in the detail or scheme of the code, in order to make it more practical and less complex in its provisions.

"An examination of this subject involves an inquiry whether everything relating even remotely to practice should be included in the Code of Civil Procedure, or whether the code should include only those matters which deal directly with procedure in actions, leaving to other and independent statutes subjects like the organization of courts, the functions and fees of various officers of the court, and matters of substantive law. If the code is to include all matters relating to practice either in actions or special proceedings, then, even with its thirty-four hundred sections, it is incomplete, and several subjects now included in other statutes should be added to the code. If, on the other hand, the Code of Civil Procedure should be limited strictly to questions relating to practice in actions, from their commencement until their final determination, without regard to various subordinate and subsidiary matters that arise in the progress of an action, then some subjects that are now in the code should be eliminated therefrom, in the interests of simplicity, and embraced in other statutes. "It has been suggested that the practice in justices' courts and in surrogates' courts does not properly belong in the Code of Civil Procedure; also, that the detailed rules of evidence in our present code more properly belong elsewhere; that the various provisions of a local character should be taken from the code and included in the charters of the municipal corporations to which they relate;

that the subject of the organization and jurisdiction of the various courts, and the election and appointment of various officers of the courts, is no part of a proper system of procedure. It has also been suggested that the code of practice should be confined to the rules regulating proceedings in actions generally in courts of record, and that actions of a special character, and special proceedings, should be treated in an independent code.

"If these suggestions should be adopted, it would involve the separation of several subjects and sections from the present code, and their incorporation in other statutes, but it need not necessarily involve a revision or change in the phraseology of various sections; it would require a rearrangement of the law, without changing its language. We are not unmindful of the uncertainty, if not positive mischief, produced by frequent changes in the phraseology of a statute, especially where it has received judicial construction; and the language of a statute which has become familiar to the practitioner should be retained, unless a change will tend to make the law more clear.

"In connection with our work as Commissioners of Statutory Revision we have found numerous instances of omissions either in general statutes, or in the Code of Civil Procedure, and several subjects of general or minor importance are included in other statutes, which, possibly, ought to be incorporated in the code; and in formulating plans for the general revision of the statutes, in connection with possible code revision, it seems to us that the subject should be considered as a whole, and that code revision should be considered in connection with its bearing upon general statutory revision, and vice versa. Our statute law is now too fragmentary, and we think that an attempt should be made to produce a harmonious system upon lines which may be considered feasible and practicable, but we are unwilling to engage in a general revision of the code, without first attempting to ascertain the opinion of the bar upon the subject. The determination of this question of a revision of the code will have an important bearing upon our work of general statutory revision."

The responses to this circular show a very decided preponderance of opinion in favor of a general revision of the code.

[ocr errors]

THE DEVELOPMENT OF CIVIL PROCEDURE. The methods of judicial procedure used in settling private controversies, and which seem so familiar to us, are not the spontaneous invention of any person, nation or period. They have in large part come down to us from former generations, representing and illustrating the customs and manners of people widely separated in history, in experience and in civilization; and it seems to us that in discussing

« ΠροηγούμενηΣυνέχεια »