Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

The Albany Law Journal.

ALBANY, OCTOBER 11, 1873.

THE SUPREME COURT OF ENGLAND.

Who can say that the age is not one of progress? Or what lawyer, standing in Westminster Hall, as he recalls its founder William Rufus, and the parent of all the courts which there congregate, the Aula Regis now hesitates to exclaim with Galileo, "E pur si muove" as he reads in the September number of the Law Reports, the act of the British parliament "for the constitution of a supreme court" in England, passed August 5, 1873. Alas for the glory of the departed, when, after the 2d November, 1874, we shall have to speak of the Queen's Bench and Common Pleas, names long since consecrated to the cause of justice, and venerable by all the glorious associations of near a thousand years, as things of the past. And the remarkable thing about it is, that a body of Englishmen have done this, when their whole law is a matter of precedent and tradition, and no way has even yet been discovered for stating or explaining that law by any process which is not sanctified by the consecrated robe and wig of the jurist who pronounces the oracle. Lord Selborne must, hereafter, be as immortal in fame, as he who applied the torch to the temple of old, since he has not only destroyed the ancient fabric, but has erected a larger and more compact one in its place.

The act of which we are speaking contains one hundred sections, besides a schedule of rules of procedure having fifty-eight clauses, the whole covering fifty-four large octavo pages, "for the constitution of a Supreme Court," etc. To do this it unites and consolidates the High Court of Chancery, Queen's Bench, Common Pleas, Court of Exchequer, High Court of Admiralty, Court of Probate, Court of Divorce, etc., and the London Court of Bankruptcy.

This supreme court is to consist of two parts or divisions, one "Her Majesty's High Court of Justice," generally spoken of as simply the "High Court; " the other "Her Majesty's Court of Appeal."

The "High Court" is to consist, at its first organization, of the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, the several Vice-Chancellors of the High Court of Chancery, the Judge of the Court of Probate and of the Court of Divorce, etc., the several Puisne Justices of the Courts of Queen's Bench and Common Pleas, the several junior Barons of the Court of Exchequer, and the Judge of the High Court of Admiralty, except such, if any of these, as shall be appointed ordinary judges of the Court of Appeals. As vacancies occur in these offices, new appointments are to be made as judges of Her

Majesty's High Court of Justice, with the exception of the Lord Chief Justice, Master of the Rolls, Lord Chief Justice of the Common Pleas and the Lord Chief Baron, who are to be specifically appointed to their offices by the same title and rank in respect to procedure, as has hitherto been done. But the permanent members of the High Court are not to exceed twenty-one, when, by vacancies, the incumbents. shall be reduced to that number.

And in this, we cannot too much admire the consistency and good faith of the British Parliament in dealing with their judges, compared with the legislatures of some of our States who have not hesitated to change the name and organization of their courts, in order to get rid of one set of officers and give their places to new ones, as rewards for political service or subserviency.

The Lord Chief Justice is to be the President of the High Court, in the absence of the Lord Chancellor. The "Court of Appeal" is to consist of five ex officio judges, and not exceeding nine ordinary judges. The five ex officio judges are the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the Lord Chief Justice of the Common Pleas and the Lord Chief Baron of the Exchequer. The ordinary judges are to be, at first, the existing Lords Justices of Appeal in Chancery, the existing salaried judges of the Judicial Committee of the Privy Council, and such three other persons as the Queen may appoint. Besides these, the Queen may, if she thinks fit, from time to time, appoint as additional judges of the Court of Appeal, any person who has been a judge of the Superior Courts of Westminster, or Lord Justice in Scotland, or Lord Chancellor or Lord Justice of Appeal in Ireland, or Chief Justice of the High Court in Bengal, Madras or Bombay, and who may signify his willingness to serve as such judge in the Court of Appeal.

The members of this court are to be styled "Lord Justices of Appeal." But neither of them is any longer to be required to take or have taken the degree of Serjeant at Law. The tenure of their offices is to be for life, and their salaries, except for the ex officio judges which are to remain as at present, are to be £5,000 in the Court of Appeal, and £4,000 in the High Court.

The jurisdiction of the several courts above named, together with that of the Court of Common Pleas at Lancaster, the Court of Pleas of Durham and the courts created by Commissioners of Assize, of Oyer and Terminer collectively, is vested in this High Court. On the other hand, the Court of Appeal is to have the jurisdiction of the Lord Chancellor and the Court of Appeal in Chancery, the Court of Appeal in Chancery of Lancaster, the Court of the Lord Warden of the Stanneries, the Court of Exchequer Chamber, and all jurisdiction now exercised by her Majesty in Council or the Judicial Committee of the Privy Council upon appeal upon any judgment or

order of the High Court of Admiralty, etc. It is also to hear and determine appeals from any judgment, with certain exceptions, of the High Court aforesaid. And the judicial force of appeals to the House of Lords made up of the Lord Chancellor and the corporal presence of a Peer or two upon its otherwise empty benches, is no longer to be repeated.

It would require more space than can be afforded, | to enter further into details of the constitution of this court, while, for the same reason, only an outline can be given of the mode in which these powers and jurisdiction are to be exercised.

In the first place, the court is to have cognizance of all civil causes both in law and equity, and is empowered to exercise jurisdiction as nearly as may be, in the same manner as the same might have been exercised by the respective courts whose jurisdictions they have, and, among other things, to exercise full equity powers by way of right or relief, and to apply and enforce all remedies known to and adopted by courts of equity, including the custody and education of infants. And either from never having heard what might be done in New York by way of judges playing off injunctions upon each other, or from being frightened by what had already been done there, the act declares that "no cause or proceeding, at any time pending in the High Court of Justice or before the Court of Appeal, shall be restrained by prohibition or injunction." And where there is a conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail. Practically, for purposes of remedy, the assignment of a debt or chose in action, not negotiable in terms, is made as effectual in transferring the legal right to the same, as if it had a negotiable form.

The time honored division of the year into terms, is done away with, and what is more, with Hilary and Michaelmas terms, even the "Hilary Rules," so gravely promulgated by the judges in Westminster Hall in 1833, are, by the sweeping act of 1873, consigned to the receptacle of all things lost and forgotten. Fortunately, the subject of vacations which, next to costs and fees, come nearest a lawyer's comfort and sense of independence, is not wholly overlooked, but is left to be regulated by Her Majesty in Council, upon the recommendation of the Council of Judges. The danger of confusion that might, at first thought, be apprehended from concentrating so many and so various and conflicting matters under the cognizance of one court, is obviated by a division of the High Court into five parts or sections corresponding to the courts of Chancery, Queen's Bench, Common Pleas, Exchequer, and Divorce and Admiralty, and bearing their names. And a corresponding distribution of the business of the court is to be made by means of rules regulating the arrangement of the same.

The judge who tries a cause under this act has great latitude in sending it for a hearing before a

referee, whose finding is to be equivalent to the verdict of a jury. All solicitors, attorneys and proctors of the several courts now existing, are to become solicitors of the Supreme Court, but nothing in the act seems to favor the filling up or bridging over that impassable gulf which the law and usage have so long kept open between barristers and attorneys in the English courts.

The act, as already suggested, is accompanied by a schedule of rules of procedure. And in those, the changes and reform in the old system are as radical as in the courts themselves. All proceedings are instituted by what is called "an action," no matter whether heretofore they were cognizable in law, chancery or admiralty. The action is to be commenced by "a writ of summons which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action." The writ states to which division of the court it is intended to have the action assigned. The forms of these writs are to be fixed by rules of court. No misjoinder or defect of parties seems to be an objection to the court proceeding till all such errors are corrected, and right parties are before it. One of a class of parties interested may sue in behalf of the others.

The defendant is to file and deliver to the plaintiff a printed statement of his defense, set-off or counterclaim, if any, and the plaintiff is to file and deliver a printed statement of his reply, if any, to such defense, set-off or counter-claim. And all that is said of form is, that "such statements shall be as brief as the nature of the case will admit." The plaintiff may embrace ever so many causes of action in the same writ, and separate trials, if necessary, may be had of those subject-matters of claim. If a question of law arises in a trial, which it is desirable to have settled before evidence has been offered, the judge trying the cause may raise and reserve it for decision before proceeding any further in the trial. The parties in an action may have new trial orders for discovery upon interrogations filed by the one seeking it.

The mode of trying an issue is before a judge or judges, or before a judge sitting with assessors, or before a judge and jury, or before an official or special referee, with or without assessors. The plaintiff or defendant is to give notice by which of these modes he wishes his case to be tried, and this is to be determined by the court or judge before whom the case is pending, and different issues of fact in the same case may be tried by any of these different modes of trial, if the court or judge see fit so to order.

The testimony of witnesses in all trials is to be given orally unless there are rules or a special order of the court to the contrary, doing away the distinction, in this respect, between proceedings in law and equity. Bills of exception and proceedings in error are abolished, and appeals may be from a part or the whole of any judgment.

These are some of the most prominent points in respect to which the act in question works a change in the existing system of administering justice in England. Its details are too numerous to be commented upon in a singe article. Those already mentioned are sufficiently significant to suggest the importance of the reforms it proposes. Pleading, for aught that appears, may be regarded as a defunct science, except as a process of intellectual training for the student. Nobody need, hereafter, give color, confess and avoid, or come down upon his adversary with the mystical objurgation of an absque hoc. Nothing technical is any longer to stand between suitors and justice, and that strange coyness and jealousy which have so long kept equity and common law asunder, have come to an end, and they are hereafter to go lovingly to work to disarm wrong and injustice wherever they find it, and to hold up a common shield behind which innocence is to be safe, and right can always find security and protection. At least such is the promise which this act holds out, and the world will wait with no ordinary interest for time to solve the problem.

A REMARKABLE CASE OF ERRONEOUS CONVICTION.

Most students of "Greenleaf on Evidence" will remember a brief note in one of the volumes referring to the trial and conviction of the Boorn brothers for the murder of Russell Colvin, and the subsequent return of the man supposed to have been murdered. The case was so extraordinary and so opposed to all our notions as to the infallibility of tests of crime that very likely many of us have taken Mr. Greenleaf's statement cum grano salis.

But a recent full report of the case by one of the counsel at the trial* renders it impossible longer to entertain a doubt as to the facts. The reporter-the Hon. Mr. Sargeant is about the only survivor of those who were interested in the affair or connected with the trial, and as no complete account of the case has been heretofore published, this little pamphlet is tinely and most acceptable. It contains a general account of the case and a full report of the evidence and proceedings taken from the minutes of Chief Justice Chase who presided at the trial, and who, by the way, was the uncle of the late Chief Justice of the United States.

The following is a brief statement of the facts: In 1812 Barney Boorn with his family, consisting of his wife, two sons, Stephen and Jesse, a daughter and her husband, Russell Colvin --lived in the town of Manchester, Vermont, near the Battenkill river. The old people were reputable and in comfortable circum

The Trial, Confession and Conviction of Jesse and Stephen Boorn for the murder of Russell Colvin, and the return of the man supposed to have been murdered. By Hon. Leonard Sargeant, ex-Lieut. Governor of Vermont. Manchester: D. K. Simonds, 1873.

stances, while the younger members of the family were considered rather wild and reckless. The sonin-law, Colvin, was a man of weak intellect, sometimes insane, and occasionally accustomed to wander away for days and weeks without giving an account of himself.

In May, 1812, Colvin suddenly disappeared. The general impression was that he had gone on one of his customary tramps. Days and weeks and months wore away into years, but he returned not; nor was there tidings of him. Rumor was not idle. It was remembered that the two younger Boorns and Colvin had not lived together amicably that they sometimes quarreled and sometimes came to blows. It was reported that one of the brothers had stated that Colvin was dead, and the other that "they had put him where potatoes would not freeze." In short, people at length came to the conclusion that the Boorn brothers had murdered Colvin.

Then came the "circumstantial evidence." Some children at play near the "old Boorn place" found a musty old hat which was recognized as the hat Colvin had worn when last seen. About this time Amos Boorn, uncle of the young men, and a man of good character, dreamed a dream wherein Colvin came to him and told him he had been murdered, and that if he would follow he would show him where he was buried. Three times was the dream repeated. The place of burial as described in the dream was an old cellar hole, and which was used at the time of Colvin's disappearance as a place for burying potatoes, but which had afterward been filled up. These dreams to the simple townsmen was "confirmation strong as proof of Holy Writ."

About this time a barn on the Boorn farm was burned and it was supposed by many that the body might have been concealed under it. But the circumstance that formed the apex of this evidential cone was this: A lad was walking with a dog over the Boorn property-suddenly the dog began to dig beneath an old stump-he dug out some bones - they were pronounced to be human bones.

Jesse and Stephen Boorn were straightway arrested for the murder of Russell Colvin. This was in 1819, seven years after Colvin's disappearance. The examination lasted several days and was attended by a large concourse of people. Mr. Sargeant says: "The country was scoured for evidence. The old cellar hole was reopened, and a large knife, a pen-knife and a button were found. The large knife and button were identified as having belonged to Colvin. The bones found in the hollow stump were brought into court, and four physicians were called, who, after an examination, pronounced them to be the bones of a human foot, together with some toe-nails, and perhaps a thumb-nail. One of the physicians, who lived in Arlington, after thinking the matter over, concluded there might, after all, be a doubt about it, and on examining a human skeleton at home was convinced

that he had been mistaken, and the next day went into court and retracted his former statement. The other physicians were not satisfied, and to settle the matter sent to a neighboring town and had a leg that had been amputated and buried, exhumed and brought into court, and, on comparing the two specimens, every one was convinced that the bones were not human. This dampened the public ardor somewhat, and it is probable that Jesse would have been discharged, but that on Saturday he made a statement that he believed Colvin had been murdered, and that his brother Stephen was the murderer. That Stephen had told him the previous winter that he (Stephen) and Colvin were hoeing in what was called the "Glazier lot," that they had a quarrel and Colvin attempted to run away; that he struck him on the back part of the head with a club and fractured his skull; that he (Jesse) did not know what had become of the body, but mentioned several places where it might be found. Whether it was to save himself, or some other consideration, that induced Jesse to make this statement, was never known, but it added immensely to the fuel which was already in a blaze of excitement. The next day, Sunday, nearly all the people for miles around turned out to search for the remains of Colvin. Stumps were overturned, cellar-holes examined and the side of the mountain back of the premises carefully searched, but all to no purpose; nothing resembling human remains was found."

In September following, an indictment was found against both Stephen and Jesse, the principal witness being a man who was confined in the jail with them, and who testified that Jesse made a confession to him. It was said to have been made in the night when Jesse awoke appearing much disturbed.

and they were sentenced to be executed on the 28th of January, 1820.

Strenuous efforts were made to secure a commutation of sentence, but failed.

The Boorns thereupon protested their innocence, and urged that efforts be made to discover the missing man. An advertisement was inserted in the Rutland Herald, and widely copied by other papers, asking information of said Colvin. The notice was copied in the Evening Post of November 29th, 1819, and came to the attention of a Mr. Chadwick, of New Jersey, who recognized the description as that of a man living with his brother-in-law, at Dover, in his State. He communicated the fact to the parties in interest, and the man was identified as the lost Colvin, He was brought back to Vermont, and was fully recognized and identified by scores of those who had known him. He was partly insane, and had no excuse for his absence, but freely admitted that the Boorn brothers had neither hurt him nor frightened him away. Of course, the Boorn's were released, although the court was at a loss to know what course to pursue, to effect the discharge.

There were many who pretended to believe that Colvin was really murdered, and that the man supposed to be him was an impostor, but no one who examines the proofs of the identity of Colvin can believe it for a moment.

The confession of Jesse was no doubt made with the purpose of screening himself and of casting the guilt upon his brother, and that of Stephen was designed to save them both from the punishment which they were assured would certainly follow unless the confession was made. "Out of thine own mouth will I judge thee," is popularly considered the very highest species of judgment, but this case strongly illustrates its fallacy.

CURRENT TOPICS.

While they were in jail, they were visited by many persons, and were told by men of character and influence, and by officers of the law, that the case was clearly against them, that to confess was the best thing they could do, and that if they confessed, an attempt would be made to have their sentence commuted. Thereupon, Stephen made a written confession, that he killed Colvin, but claimed that it was done in a quarrel, and that Colvin struck him first. The confession coincided substantially with what circumstan-public need of such an appointment, as the business tial evidence there was.

The trial took place in November, before Chief Justice Chase and Judges Doolittle and Brayton. State's attorney Sheldon appearing for the prosecution, and Richard Skinner, Wellman and Leonard Sargeant, for the respondents. The evidence against the prisoners was entirely circumstantial, and mostly unimportant, with the exception of the confessions, which were objected to by the prisoner's counsel on the ground that they were extorted by undue influence, but they were admitted. The case was ably argued by the various counsel, and submitted to the jury. The jury, after an absence of one hour, returned a verdict of murder against both prisoners,

It is stated by a Washington correspondent and very likely correctly, that the President will not make an appointment of chief justice until congress meets. In the first place, he does not consider there is any

of the court will go forward in just as satisfactory manner for the short time it will be in session before convened as though the bench was full. Associate Justice Clifford of Maine will preside as the senior justice of the court. No cases of general public interest are to be immediately decided. If a chief justice were to be appointed and take his seat before confirmation, he would incur the risk in some important case of disappointing the members of the senate belonging to the party in majority, or if his decision were pleasing to that majority, it might subject him to charges from the other political party of partisan action and subserviency that would be unpleasant. A chief justice, by sitting before confirmation, would

have his action submitted to the senate for reviewal, practically, for that body, if not agreeing with his decisions, could in effect exercise the power of reviewal by refusing to confirm, while in such complications as would probably arise in the present instance there seems to be no need of fixing a precedent from which future harm may result. The fate of John Rutledge is a sufficient justification for this delay.

The Boston Daily Advertiser has been investigating Mr. Conkling's antecedents, with a view of testing his capacity for the chief justiceship. It finds that he was born in 1829, and could not have been admitted to the bar before his majority, in 1850. He was then elected district attorney of Oneida county. In 1858, he was mayor of Utica, and in 1859, when only thirty years of age, he was elected member of congress, where he remained three terms. In 1867, he was elected to the Senate, where he has since remained. The Advertiser is also informed that Mr. Conkling's practice, always very small, has been almost entirely confined to the trial of cases before a jury. One certainly is led to wonder, in what period of his life Mr. Conkling could have made himself such a lawyer as the position of chief justice of the United States requires. The law has always been considered a jealous mistress, and it is generally believed that a good lawyer is made so, only by years of hard labor in his profession, and not in politics. There is something, however, in the argument of the Troy Daily

Times- an advocate of Mr. Conkling's appointmentthat he will undoubtedly make a good judge after five or ten years' experience—that is, we can plant the politician on the bench, and he may, eventually, grow into a jurist.

The Democratic Convention for the Third Judicial District on Wednesday nominated the Hon. Theodore R. Westbrook, of Ulster county, for Justice of the Supreme Court. Mr. Westbrook is an able lawyer and an honest man. The Republicans of the Seventh District have nominated the Hon. David Ramsey for the Supreme bench. Judge Ramsey was appointed by the governor to succeed the late Judge Johnson.

The proposed amendments to the constitution providing for an appointive judiciary, were not directly passed upon in either of the State conventions. The subject appears to be one in which politicians do not feel very safe. The republican judiciary convention of the seventh district have, however, declared against the amendment, on the ground "that the people of the State of New York have made better selections than we could expect under a system of appointments." While we admit that the selections by the people have, on the whole, been quite as good as we could expect under the other system, we still believe

[ocr errors][merged small]

The lawyers of Philadelphia have set about correcting certain professional evils in downright good earnest and in a very judicious manner. A special committee, appointed for the purpose of devising means to restrain the unprofessional and disreputable practices of certain members of the profession, has reported in favor of having the entire Bar of Philadelphia incorporated, in which corporation the "characteristics of unity, authority and dignity as well of numbers as of influence, could not fail, by the adoption of wise and thorough supervision and regulation, to assist in restoring our profession to its once universally honored name and usefulness."

"The report was adopted and a general meeting of the Bar has been called, with a view to forming an incorporated organization. The profession of the city will be much more likely to be restored to its traditional glory by this means than by means of a closed corporation.

NOTES OF CASES.

After an abstract of recent bankruptcy decisions was in type, we received the opinion of Judge Dillon of the United States circuit court, reversing the decision of Judge Treat In re Clemens. Judge Dillon decided that an accommodation indorser cannot be forced into bankruptcy for a failure to pay the paper indorsed under the thirty-ninth section of the bankrupt act; that such paper is not "his commercial paper." In harmony with this decision are Re Nicodemus, 3 Bankr. Reg. 55; Innes v. Carpenter, 4 id. 139; Re McDermott Ball Co., 3 id. 33, and Re Lowenstein, 2 id. 99. On the other side is Re Chandler, 4 Bankr. Reg. 66. All of these decisions are of the district court.

The United States supreme court, in Phoenix Insurance Co. v. Hamilton, decided at the last term, held that a nominal partner had an insurable interest in the effects of the partnership. The firm in that case were commission merchants, and the insurance effected on the goods consigned. The court held that the interest of the nominal partner in the liabilities of the firm were such as, in the absence of fraud, to entitle him to join with the other members of the firm in effecting insurance on the property of the concern.

« ΠροηγούμενηΣυνέχεια »