The Albany Law Journal.

ALBANY, FEBRUARY 6, 1892.

CURRENT TOPICS.

INCE the malign appearance of Prof. Langdell's

The Solicitors' Journal says, in speaking of the defense of drunkenness : "Chiefly under the influence of American criticism, British judges have been led to hold (a) that the inebriate comes within the meaning of the rules in MacNaghten's Case, and is irresponsible if he did not know the nature and quality of his acts (Reg. v. Baines, Lancaster Assizes, Times, 25 Jan., 1886), and (b) that inebriety, although not in itself an excuse for crime, may nevertheless alter

'In

S alleged law-book on Contracts, we have taken the stract excuse for may neverton ander up every new treatise on the subject with a degree to manslaughter (cf. Irvine's Justiciary Reports, vol. of foreboding. So when the last one was brought into 5, p. 479; II. M. Advocate v. Granger, 1878, Scottish the sanctum the other day, consisting in two huge Law Reporter, vol. 16, p. 256; and Kerr's Inebriety, volumes, and we opened it and found a mass of 2d ed.). The cases however in which this new cases in full, without head-notes, we feared a repe- doctrine has been applied are one and all nisi prius tition of the old Harvard story. A glance at the cases, and it has not yet been solemnly promultitle-page however relieved us. The title is "Se- gated." This is one of the few instances in which lections from Leake's Elements of the Law of Conwe have found any acknowledgment of American tracts and Finch's Cases on Contracts, arranged as influence on English law. The Journal continues: a text-book for Law Students, by William A. 'In his letter to Sir Lyon Playfair, published in the Keener, Professor of Law and Dean of the Faculty Times this week, Sir Henry James has not only given of Law in Columbia College." There is another the weight of his high authority to the recent judigood promise in the foreground-the book has no cial departure from the voluntarius dæmon theory, preface. So several elements of relief are evident. but has defined the legal relations of drunkenness The book makes no pretense to usefulness to prac- and crime with admirable clearness and skill. titioners of law; it professes to be designed for stu- determining,' he says, 'the legal character of the dents alone; and the author is not chained to the offense committed drunkenness may be taken into chariot-wheels of Prof. Langdell. As the author has account-(1) where it has established a condition of been too modest to give a preface, we are left in the positive and well-defined insanity; (2) if it produces dark as to whether any part of the work is original, a sudden outbreak of passion occasioning the comor whether the title-page is to be strictly construed, mission of crime under circumstances which, in the and the whole is selected. The book appeals to our case of a sober person, would reduce the offense of own prepossessions as to the proper method of teach- murder to manslaughter; (3) in the case of minor ing law, namely, by a succinct statement of princi- assaults and acts of violence it never can form any ples accompanied by a selection of cases in illustralegal answer to the charge preferred, but it may tion. It also supplies to the student a convenient either aggravate or mitigate the character of the act access to the necessary cases, which in the multi- committed-probably the former; (4) as to the effect tude of contemporaneous seekers in the law libraries that should be given to drunkenness when determinare frequently inaccessible or inconveniently post-ing the amount of punishment * * * no general poned. We have looked into these volumes sufficiently to satisfy ourselves that the principles are clearly and concisely stated and divested of rubbish, and that the cases are celebrated and well in point, well stated and accompanied by judicious expositions of the arguments of counsel. The absence of head-notes is no objection in the use for which the compilation is designed perhaps a positive advantage, as the student thus may be the more apt to get an independent and intelligent idea of the principles decided. The cases are not excessively numerous; the table covers only a page and a half, which, considering the importance of the topics and its endless ramifications, is not an "intolerable deal." So on the whole we are agreeably surprised at Prof. Keener. He has been represented to us as one of those multitudinous case-lawyers so dear to Harvard - which does not profess to make lawyers but only to teach law academically and on the contrary, unless he has here put on a deceptive countenance, we find him a teacher quite after our own heart, who is not afraid of telling the student something derivative, and uses the cases as not abusing them.

rule can be laid down.'" The Journal concludes with a funny story of an old Scotch judge who was opposed to allowing any favor to the plea of drunkenness, saying, "If he will do this when he's drunk, what will he not do when he's sober." We believe that if a man voluntarily puts himself into such a condition that he does not know what he is doing, he should be punished just as if he did know. Let the insane drunkard be estopped.

The Green Bag opens the new year by dropping the word "useless" from its sub-title, so that it now correctly represents itself as "an entertaining magazine for lawyers." The opening article of the January number is a biographical sketch of Caleb Cushing, by William C. Todd, a very interesting review of the career of one of the most accomplished and versatile scholars, and one of the most learned and expert lawyers known in the history of this country. The sketch is accompanied by a pleasing full-page portrait. This number also gives the first of a series of articles on the Supreme Court of Georgia, by Walter B. Hill, accompanied by eight

small portraits, including one of the great Lumpkin. The article is exceedingly well written, and the writer is peculiarly qualified to treat the subject. It does our souls good to be informed that Georgia abolished special pleading and provided that the defendant's answer should make the issue, in 1799, and as Mr. Hill acutely puts it, thus recognized the juridical truth that the substance of right is more important than the science of statement "a much sounder and more humane assertion than that of Judge Parker, in Bloss v. Tobey — a judgment which drove William Cullen Bryant out of the legal profession - that in a matter of technical law the rule is of more consequence than the reason of it." It also does us good to be informed that Lumpkin was an earnest " temperance" advocate. Altogether he was one of the greatest forces and one of the most interesting personalities on the Bench, and we wish that Mr. Hill, or some one equally skilled, would write his biography. This number has much good matter of minor importance.

strong an expression, but the proposal certainly is to receive subscriptions, unsolicited, for her benefit. This seems to us not the right way to accomplish this good object. The government clearly owes the duty of providing for the great judge's family, by pension. The matter should not be left to charity, however willing. Nor do we quite like the form of subscription proposed "the same to be invested and used by her either for the purpose of her own support or for the purpose of erecting a monument to the memory of her illustrious husband, or for both purposes, according to her own judgment and discretion." Let our profession erect a monument to the great man, at their own cost, and let the government provide for his family. That is the dignified and certain way of accomplishing the object. The government owes the family a living, the profession owe the dead jurist a monument. This is the best way of making sure of both. Let the profession in every State petition the representatives in Congress to accord this simple and inexpensive act of justice, and it will be done. It is disgraceful that the widow and daughters should be left in poverty, when the nation is wallowing in wealth. This pension is as justly due as any pension to veterans of the war, for "peace hath her victories no less renowned than war," and Miller was foremost in winning many of them. We wish the newspaper press would take up this matter and urge the duty upon Congress, and if their attention is called to it, no doubt the influential journals would gladly do it. If any lawyer still wishes to send his tribute to Mrs. Miller personally, opportunity is offered through the agency of Mr. Oscar B. Hillis, clerk of the United States Circuit Court, St. Paul, Minnesota, who has consented to receive such donations, and to pay them monthly to Mrs. Miller.

"State Library Bulletin, Legislation, No. 2," has made its appearance, and is a remarkably interesting and useful source of information for lawyers in every State. It is, as it professes to be, a "comparative summary and index of State legislation in 1891," and is so skillfully arranged and classified as to afford every means of finding the desired information on any particular topic. Some of the topics are very suggestive, as for example insanity a cause for divorce, in the State of Washington; circulation of newspapers, etc., largely devoted to publishing scandals and immoral conduct, in Kansas; musical instruments forbidden in dram shops, in Missouri; sale to children under sixteen of candy shells inclosing liquid containing more than one per cent of alcohol, in Massachusetts; forbidding livery stables within two hun- That anonymous and mysterious young person dred feet of a church, in Massachusetts; U. S. flag to who appears at present to edit the Central Law be displayed on school-houses, in Colorado; news- Journal, and who says he is a graduate of the Harboys and boot-blacks must have attended school at vard Law School girds at us because we recently least four months in preceding year, before license published a Connecticut case decided in 1885. He can be granted, in Michigan; women may be lawyers, seems unable to conceive that any thing of importin Wisconsin; the Bertillon system of measuring ance happened before he graduated. The case was criminals adopted, in Michigan; railroad ticket- important, and adjudged a point of law in respect scalping prohibited, in North Carolina; licensing to which there are not many decisions, and we reclock peddlers, in Alabama; bounty for killing Eng-ported it as soon as we saw it, which was rather lish sparrows, in Illinois; goats forbidden to run at large, in Arizona, and geese, in Missouri; prohibiting taking or killing sea gull, in Oregon (probably been reading "The Ancient Mariner"); protection of smelts, in New Hampshire; forbidding catching of fish in lakes covered with ice, in Illinois; penalty for tapping telegraph wires, in Illinois; inflammation of eyes of infants to be reported to physicians, in Maine; county poor-houses to be designated as "home for aged and infirm," in North Carolina. All of which exhibits much humanity, paternalism and respect for senses and sensitiveness.

A proposal has originated in St. Paul to " pass around the hat" for the benefit of the widow and children of Mr. Justice Miller. Perhaps this is too

late in the day, to be sure. We rescued it from the narrow grave of a State report, and resuscitated it, and sent it abroad rejoicing. Now, did the Central people ever publish it? We infer not, or the editor would have been sure to boast of his superior enterprise. One so full of cases as a Harvard graduate ought to have reported it. By the way, a cultured Harvard man ought not to write such bad English as way ahead." A little of the "high literary art at which he sneers would save his readers from such "villainous phrases."

Senator Hill ought to go down to Connecticut and discipline the Supreme Court, which has had the audacity to decide that Mr. Bulkiey is de rure as well as de facto governor of that State.

NOTES OF CASES.

v.

import of the word 'charitable' in Scotch law, it has been employed in the legislative language of the Parliament

IN Commisioners of Income Tas. V. Pensel, House Scottish Parliament, and of the Britibst mainly ent

when legislating for Scotland, in substantially same sense in which it has been interpreted by English courts." Lord Bramwell said: "I hold that the conversion of heathens and heathen nations to Christianity or any other religion is not a charitable purpose. That it is benevolent, I admit. The provider of funds for such a purpose doubtless thinks that the conversion will make the converts better and happier during this life, with a better hope hereafter. I dare say this testatrix did so. So did those who provided the faggots and racks which were used as instruments of conversion in times gone by. I am far from suggesting that the testatrix would have given funds for such a purpose as torture; but if the mere good intent makes the purpose charitable, then I say the intent is the same in the one case as in the other. And I believe in all cases of propagandism there is mixed up a wish for the prevalence of those opinions we entertain, because they are ours. But what is a 'charitable purpose?' Whatever definition is given, if it is right as far as it goes, in my opinion this trust is not within it. I will attempt one. I think a charitable purpose' is where assistance is given to the bringing up, feeding, clothing, lodging and education of those who from poverty, or comparative poverty, stand in need of such assistance (see per Lord Coleridge) that a temporal benefit is meant, being money or having a money value. This definition is probably insufficient. It very likely would not include some charitable purpose, though I cannot think what, and include some not charitable, though also I cannot think what; but I think it substantially correct, and that no well-founded amendment of it would include the purposes to which this fund is dedicated. Todd's Johnson gives the meaning 'kind in giving alms, liberal to the poor, kind in judging of others, disposed to tenderness, benevolent.' But of course the word must be construed in the sentence where it is found, and the first meaning alone is applicable, and the question. is whether this trust is for charitable purposes within the Income Tax Act. Indeed, the word 'benevolent' seems to me to have caused the difficulty. The purposes of this trust are doubtless 'benevolent;' good was wished to others; but certainly every benevolent purpose is not charitable. I think there is some fund for providing oysters at one of the inns of court for the benchers; this, however benevolent, would hardly be called charitable; so of a trust to provide a band of music on the village green. What of a trust for the conversion of the Jews? Is that a charitable purpose? If so, what of a trust for their reconversion? It seems to me, that the extended meaning of 'charitable purposes' would include every case of amusement and pleasure that could be thought of. I cannot think this was the intention of the Legislature. It is suggested that a fund for the saving of shipwrecked sailors would be for a charitable purpose.

of Lords, 65 L. Rep. (N. S.) 621, it was held that lands vested in trustees for the purpose of maintaining and advancing missions among the heathen are vested in them "for charitable purposes." Lord Chancellor Halsbury said: "To come now to the particular bequests before us, and to the use of the word 'charitable' in the particular act we are construing, I would say, without attempting an exhaustive definition or even description of what may be comprehended within the term 'charitable purpose' I conceive that the real ordinary use of the word 'charitable,' as distinguished from any technicalities whatsoever, always does involve the relief of poverty. No one would doubt what was the meaning of a charity sermon, a charity school or of a person giving service gratuitously because it was for a charity. * * The master of the rolls, whilst enlarging the purposes which may be described as charitable beyond the mere relief of physical necessities, as to which I do not disagree, adds these words: 'You may desire to convert the richest people, and very often do. If you desire to convert them to your religious opinions, whatever they may be, not on account of their poverty, but because you think it is desirable that their religious views should be like yours, that does not come within this canon. A religious object is not necessarily a charitable object within the sense that I have put it.' With that view I entirely concur. * * * To my mind it is obvious that the object of the mission is the propagation of the Moravian tenets among persons whom the Moravian brethren conceive to be in darkness and wish to enlighten by the views which they themselves profess, and that the element of poverty, as applicable necessarily to the objects of their efforts, is as much beside the Moravian view as the color of the converts or the situation of their territory." Lord Watson said: "I have been unable to find that the word 'charitable,' taken by itself, has any welldefined popular meaning in Scotland or elsewhere. It is a relative term, and takes its color from the specific objects to which it is applied. Whilst it is applicable to acts and objects of a purely eleemosynary character, it may with equal propriety be used to designate acts and purposes which do not exclusively concern the poor, but are dictated by a spirit of charity or benevolence. * * ** Lord Giffard, delivering judgment in Hill v. Burns, 2 W. & S. 80, uses the expression 'charitable' as equivalent to 'charitable and benevolent.' In University of Aberdeen v. Irvine, L. R., 1 H. L. Sc. 289, a trust for college bursars, who did not necessarily belong to the class of indigent persons, was dealt with as a charity, and the rules prevalent in England in cases of charitable trusts were applied to its decisions. The authorities to which I have referred appear to me to justify the conclusion that, whilst in litigated cases there has been no occasion to determine, and therefore no determination of the precise

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