Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, SEPTEMBER 15, 1877.

CURRENT TOPICS.

THE Social Science Association which met at Saratoga last week, discussed a number of very important questions relating to legislation, the administration of justice and other subjects in which the profession take an interest, and men of national and world-wide reputation took part in the discussions. The financial and social troubles which affect the country were touched upon in well-considered essays; the currency, the banks, the strikes and the tramps, each receiving a considerable amount of consideration, while the old evils of a more general nature and which are known as pauperism and crime were given the usual share of attention. The subject of law schools was exhaustively considered both in essays and discussion and there was a general agreement that these institutions had become a necessary aid in training for the profession. The association also discussed the matters of delinquent children, marriage certificates, the navigation laws of Great Britain and the United States, the tariff, the Chinese, the condition of the South, municipal government, and of course, international law. The essays read on these various subjects were, all of them, carefully considered, and the proceedings of the association at this conference when collected and published will make a most valuable contribution to the body of learning that we include under the name "social science," and particularly to that portion of it known as jurisprudence. Those who took part in the conference were, many of them, practical men, and while here and there the theorist had the whole say, in most instances the test of experience was the only one acknowledged as reliable. The discussions upon every point indicated that the science of sociology has made great progress during the last few years. Not only in the accumulation and classification of facts and the deduction of principles therefrom is this progress manifested, but in the readiness on the part of students and workers of every section and nation to act together and to yield up preconceived opinions and to pass by without remark matters wherein harmony cannot be reached. In every branch of learning the leading men have taken a long step forward, and the social science associations in various countries have in a large degree contributed to the accomplishment of this result.

VOL. 16.- No. 11.

The subject of Law Schools was treated at the social science conference by Professor Baldwin of Yale College, who read a paper entitled "Graduate Courses at Law Schools." He advocated lengthening the time of study, saying that if every State made a three years' course obligatory the benefit to the community would be immense, yet he feared such action would be disastrous to the schools. He favored a post-graduate course. This kind of course was also favored by Chancellor Hammond of Iowa University and Professor Wells of Ann Arbor. The former gentleman seemed to think a law school preferable to a law office as a means of teaching. Mr. David Dudley Field favored a lengthening of the course of study, believed the law school indispensable and office teaching also, and spoke of the benefits accruing to the cause of legal education from the adoption of a code. We do not share in the fear of Professor Baldwin that a lengthening of the time of study required for admission to the bar would injure the law schools. Indeed we do not believe that a law school properly conducted has any thing to fear from any condition of the rules regulating admission to practice. If the school produces the best lawyers its position is beyond the reach of any thing legislators or courts can do to facilitate or retard entrance into the profession. If the time of study required is long the student will feel that it is more profitable for him to spend it at the school. If no fixed period is prescribed the school will be able to fit him better and more expeditiously. The three years' course of study should be insisted upon, however, as a pre-requisite for admission to the bar as a protection, not to those already in the profession or to the schools, but to the public.

Professor Wayland of Yale College gave a long and interesting dissertation upon the subject of "tramps," in which he remarked that the law as it now stands is powerless to punish these individuals for their misdemeanors on account of the impossibility of procuring evidence to convict. He advocates the adoption of a law similar to one introduced in the State assembly last winter by Mr. Fish, as a means of suppressing the evil. We do not understand, however, that even with this enactment the difficulty of procuring evidence would be overcome. The fact is that we have laws enough to punish tramps. The employment of a couple of good men as detectives to follow up and procure evidence against vagrants of this kind would rid any country town of the nuisance in a month's time. Juries and courts would not be lenient, and a fear of being compelled to labor in a penitentiary would prevent tramps from committing misdeeds, and if the country people will refuse to feed them they cannot continue traveling, and so would cease to pursue their vocation.

Mr. Bowles of Springfield read a paper upon the relations between the State and municipalities, in which the disadvantages of our present system of local government are portrayed, and suggestions made for their removal. These suggestions were in substance that most of the powers now given to municipalities be retained in the State and exercised by it, a method which might be effective though we suspect at the expense of a demoralization of the State government.

The article by Hon. David Dudley Field upon the Army Bill, which appears in our present number, gives the views advanced by that gentleman in the House of Representatives last winter, when a measure for the support of the Federal army was under discussion. At the time, this measure, like every other one of importance brought before Congress, was, to some degree, a matter of partisan controversy, but the circumstances which made it such no longer existing, a temperate discussion of the constitutional principles regulating the organization of the army, and the powers of the legislative and executive departments of the government in relation thereto, is now possible. The views advanced by Mr. Field, who has given the subject long and careful attention, and has examined all its bearings, are worthy the consideration of every one, no matter whether agreeing or disagreeing with the conclusions reached. That there must be conflicts between the executive and legislative branches upon this subject, is the lesson taught by all history, and the only result ultimately possible will be victory for one side or the other, for the executive, as in ancient Rome and in France, or for the legislative, as in England. The Federal Constitution has endeavored to provide against difficulty in the matter; whether it has done so is yet to be determined.

The Board of Police Commissioners of New York

city have made an attempt to put down the practice known as "shystering," which has long been a disgrace to the criminal courts of that city. The means proposed to the end sought are these: To give attorneys no access to those arrested for crime unless the one arrested desires to consult or employ counsel, and then to allow him to communicate only with the counsel selected. The regulations which have been made by the police commissioners seem to be sufficient for the purpose, if faithfully carried out. The practices of the disreputable class of attorneys who hang around the police tribunals have scandalized the whole profession of the city, and should before this have invited the attention of the Bar Association. This organization, probably thinking the business too insignificant to receive its care, has left it to others. We are glad some one has been found to do it, though it is not at all to the credit of the bar of New York city that its

morals and manners should be purified by the intervention of the police.

Judge Blatchford, of the United States District Court for the Southern District of New York, on the 7th inst., decided a case in which there are perhaps full as many persons directly interested as in any other heretofore pending in any of the courts, unless we except the contests over the estate of Anneke Jans-Bogardus. It was an action brought by the assignee in bankruptcy of the firm of Duncan, Sherman & Company, whose failure two years ago brought distress upon a multitude of American travelers in every part of the world, against Alexander Duncan and others, to set aside certain conveyances of real estate which were alleged to be fraudulent as to creditors, and also invalid under the bankrupt act, and also to set aside an assignment for the benefit of creditors, made under the State laws, as void under the bankrupt law. The court decided in favor of the defendants upon both questions. We presume the estate will now be settled up under the original assignment proceedings, and the creditors stand a chance of receiving some returns upon their claims.

The death of Brigham Young, it is said, will give occasion to a vast amount of litigation. Not to speak of the difficulties liable to arise out of the peculiar relationship existing between the decedent and the women and their offspring who are called his wives and children, the tenure under which he held a large share of the real estate of which he died possessed, cannot be determined except by an appeal to the tribunals of justice. As the head of the Mormon church, he acquired a large amount of property, which he held in a sort of trust for that organization. It is said that the law in force in Utah does not recognize such an individual as the head of the church, but that the ownership of lands follows the title. It is said that the heirs of the deceased prophet will insist upon the strict construction of the law in this matter, but there may arise a question as to heirship which may puzzle the courts. There is one thing, however, which is certain to result, and that is, business for the Utah lawyers, who, if they cultivate this field well, need not continue the business of vending divorces for use in other States and territories.

The practice of the law is full of "strange devices," and the statutes regulating the sale of spirituous liquors have given occasion for the use of a multitude of these. We all remember when the statute forbade the sale of liquor how the penalty was avoided by selling a cracker at an exorbitant price and making the purchaser a present of a glass of spirits. Another enactment did not allow the vending of intoxicating fluids by the glass. Sales were then made by the small bottle, an empty glass

being placed on the counter near by for the use of the customer, if desired. These and various other tricks were, however, surpassed by the one lately adopted by the counsel for certain liquor dealers in Virginia, to escape the payment of a tax imposed by the State upon the sale, by retail, of spirits and beer. In order to determine the amount of tax which each dealer ought to pay, there being an assessment upon each drink sold, those making a sale are required to register the sale in the same manner as conductors on some horse cars register the taking of a fare. The law required the use of a certain patented machine for this purpose. Just as operations were about to commence, a suit was commenced in the Federal courts involving the patent upon the machine, and an injunction procured restraining everybody from using it. We are sorry to be compelled to state that this proceeding gave only temporary relief, for the injunction has been dissolved, and the venders of spirits will hereafter be obliged to submit to the laws that be, and become honest in their dealings with the public treasury.

The National Board of Trade at its recent session, held at Milwaukee, put forth its regular annual remonstrance against the continuance of the bankrupt law. Whether this complaint will prove more efficacious than the ones that have preceded it, we will not undertake to say, but it is our opinion that next year at this time a bankrupt law very much resembling the present one will be in existence, and the respectable body who now resolve such a law to be unjust, oppressive, dishonest, partial, uncertain and productive of fraud, will, at its regular meeting, then held, denounce it for the same reasons. We will add a more powerful reason for a repeal of the law than any which the National Board suggested, namely, that it is injurious to the business of the lawyers. This may not seem to a body of merchants as good a ground for abrogating the law as the ones they have named, but it ought to have an overwhelming influence in Congress, and we think it will, if so pressed, that it is understood and believed. Under the present system, when a man becomes insolvent, his estate is divided between the register in bankruptcy, the assignee and the United States deputy marshals, the latter functionaries receiving the principal share. Under the old system it was divided between the insolvent's lawyers and his wife, a much more satisfactory distribution than the present one or than any other that has yet been proposed. Sometimes, indeed, a creditor would complain because too large a share of the debtor's property had gone to his wife, but he had his remedy in a creditor's bill, under which the court could order a further distribution among the lawyers. There was another feature in the old system, hardly known in the new, which might be mentioned - the

creditors sometimes received something from the estate. We hope that our national lawmakers may be influenced by what we have said to restore the old system; they certainly will not by any thing the National Board of Trade has said.

NOTES OF CASES.

N the case of Steel v. St. Louis Mut. Life Ins. Co., recently decided by the St. Louis Court of Appeals, and reported 5 Cent. L. Jour. 158, the action was on a policy of life insurance. The policy contained a clause rendering it void if there should be a failure to pay any premium upon the day it was due. In this case there had been such a failure to pay, but in order to excuse this failure plaintiff relied upon a clause in an advertisement which had been, during several years previous to its occurrence, issued by the defendant, and very extensively circulated, which clause read thus: "This company, having no desire to reap an advantage from the misfortunes of such of its members as may, through adverse circumstances, be unable to meet promptly their annual premiums, has made its anissued, non-forfeiting, by extending the full amount nual life-policies, now in force and hereafter to be of the insurance over such period of time as the premium reserve' or 'value of the policy' will pay for, applied as a single premium for temporary insurance." This statement was followed by a table illustrating the plan. The court held that the advertisement was admissible in evidence, and could not be excluded on the ground that it tended to vary by parola written contract, and that, if brought to the knowledge of the insured, and he, in reliance upon it, failed to pay his premium when due, the defendant was estopped from setting up such failure as a defense to the policy. It has been held in several cases that the terms of a prospectus could not be introduced to vary those of a policy issued after the prospectus had been published. Insurance Co. v. Ruse, 8 Ga. 534. In that case a prospectus stated that failure to pay a premium for thirty days after it was due would forfeit a policy. A policy taken out contained no reference to the prospectus, and the court held that the time to pay the premium was not extended thereby so as to render the contract enforceable when the insured had died, four days after the payment was due. See, also, Tarleton v. Stamforth, 5 T. R. 695; Galvin v. James, 6 East, 571; Ruse v. Mut. Benefit Life Ins. Co., 23 N. Y. 578, though the decision in the latter case was shaken by an opinion delivered upon a motion for a rehearing. 24 N. Y. 653. See, however, as sustaining the principal case, Wood v. Dwaris, 11 Exch. 493; Collett v. Morrison, 9 Ware, 173; Wheelton v. Hardisty, 8 El. & B. 232; Viele v. Germania Ins. Co., 25 Iowa, 1; Henning v. United States Ins. Co., 47 Mo. 425 4 Am. Rep. 232 (see, however, S. C., 2 Dill. 26); Horwetz v. Equitable Ins. Co., 40 id. 360; Thompson v. St. Louis Life Ins. Co., 52 id. 478.

UNITED STATES CITIZENSHIP.

BY SAMUEL T. SPEAR, D. D.

THE people, designated in the preamble of the Federal Constitution as "the people of the United States," constitute a political and corporate unit, organized under and operating through the Government of the United States. This Government is one of enumerated powers, granted either expressly or by necessary implication; and in both cases the Constitution is the instrument and the evidence of the grant. It acts directly upon the people, and, as to persons and things, extends over the entire domain of the several States, and also all the territory belonging to the United States. Though limited in its sphere, it is, nevertheless, sovereign and supreme in that sphere, self-interpreting, self-regulating, and self-executing by its own agencies.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are," in the Fourteenth Amendment, declared to be "citizens of the United States." The general position of such citizens is that of subjection to the authority of the Government of the United States in the exercise of the powers bestowed upon it by the Constitution, and that of a just claim to protection in the peaceable enjoyment of all the rights pertaining to and resulting from this citizen status. These rights are spoken of as "the privileges or immunities of citizens of the United States." The Constitution nowhere gives an exhaustive inventory of them; and the reference to them by the Supreme Court of the United States has uniformly been either in general terms or in such specific enumerations as were suited to the particular case under consideration.

Referring to their origin, Justice Miller, in stating the opinion of the court in The Slaughter-house Cases, 16 Wall. 36, spoke of these rights as owing "their existence to the Federal Government, its National character, its Constitution, or its laws." Chief-Justice Waite, in The United States v. Reese et al., 2 Otto, 214, characterized them as rights "created by or dependent upon the Constitution of the United States." So, also, in The United States v. Cruikshank et al., id. 542, he said: "The same person may at the same time be a citizen of the United States and a citizen of a State; but his rights of citizenship under one of these governments will be different from those he has under the other." The rights of United States citizenship are not only based upon the Constitution as their potential and ultimate source, but are such, and such only, as belong to this particular status. All other rights are those of State citizenship, and are left under the direction and protection of State constitutions and laws, except so far as the States are limited or restrained by the Federal Constitution.

The question in Crandall v. The State of Nevada, 6 Wall. 35, was, whether a law of that State, imposing a capitation tax upon every person departing therefrom by any public conveyance, was constitutional. The Supreme Court decided that it was not; and, among the reasons assigned by Justice Miller in stating its opinion, was the fact that the law was an encroachment upon the rights of the General Government, in respect to citizens of the United States, and also, "the correlative rights" of these citizens themselves. Some of the rights of such a citizen were thus specified: "He has the right to come to the seat of Government to assert any claim he may have upon that government, or to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its seaports through which all the operations of foreign trade and commerce are conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States; and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it." The character of the case before the court suggested this enumeration of the rights of United States citizens.

So, also, in The Slaughter-house Cases, supra, the question was, whether a law of Louisiana, granting a special and exclusive privilege to a designated corporation organized under the authority of that State, is consistent with the provisions of the Fourteenth Amendment, especially the one which declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The court sustained the law. Justice Miller, having adverted to the language used in the above case, proceeded to say:

Another privilege of a citizen of the United States is to demand the care and protection of the Federal Government over his life, liberty and property, when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends on his character as a citizen of the United States. The right peaceably to assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conterred by the clause under consideration. It is, that a citizen of the United States can, of his own volition, become a citizen of any State by a bona fide residence therein. To this may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth,

next to be considered." The object of this statement was to show that there are rights of United States citizenship in distinction from those of State citizenship, and that the former only were had in view in the clause which declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Gilman v. Philadelphia, 3 Wall. 725, and The United States v. Cruikshank et al., 2 Otto, 542.

Moreover, the powers actually granted are so distributed among the three co-ordinate departments of the Government that they reciprocally act as restraints upon each other. If the President exceeds his powers, there is a remedy for the abuse. If Congress enacts an unconstitutional law, the judiciary may render it inoperative. If Federal judges become corrupt and oppressive, they may by im

tion thus furnishes the means of arresting, without resort to revolutionary violence, any action of the Government beyond its proper limits. The design is to protect the people of the United States against abuses of power by the Government itself.

Judge Cooley, in his fourth edition of Story on the Constitution, sec. 1937, comments upon this clause as follows: "Although citizens of the Uni-peachment be removed from office. The Constituted States are commonly citizens of the individual States, this is not invariably the case; and if it were, the privileges which pertain to citizenship under the General Government are as different in their nature from those that belong to citizenship in a State as the functions of the one government are different from those of the other. Indeed, it is a considera tion of the sphere of the governments respectively which suggests the rights and privileges as citizens of those entitled to their protection. A citizen of the United States, as such, has the right to demand protection against the wrongful action of foreign authorities; to have the benefit of passports for travel in other countries; to make use, in common with all others, of the navigable waters of the United States; to participate with others in the benefits of the postal laws, and the like. It would be useless to attempt a general enumeration; but these few may suffice as illustrations, and will suggest others. Such rights and privileges the General Government must allow and insure, and such the several States must not abridge or obstruct; but the duty of protection to a citizen of a State in his privileges and immunities as such is not by this clause devolved upon the General Government, but remains with the State itself where it naturally and properly belongs."

These statements, while giving particular illustrations of the rights of United States citizenship as a distinct political status, separate from that of State citizenship, do not by any means exhaust the whole class of such rights. They simply indicate by examples their general character. The Constitution itself is the basis of all these rights, whatever may be their specific form; and, hence, in it we must find their sources and final authority.

A fundamental principle in the interpretation of this Constitution is, that the Government of the United States has no existence, and, of course, no power, beyond the limits of the grants which are made to it. It can act only as it is authorized to act. It cannot protect the citizen of the United States beyond the scope of its own powers, or act upon him or against him in the exercise of any power not granted. It is the intention of the Constitution to limit the Government to the grants of power made by it. What is not granted is in effect denied. See Briscoe v. The Bank of Kentucky, 11 Pet. 317;

[ocr errors]

One of the departments of this Government is legislative; and in the grants of power made to it we find a prolific source of the rights of United States citizenship. Rights thus created are directly statutory, being provided for in the Constitution, yet for their actual existence and definition, with their legal remedies, dependent on the legislation of Congress. They are legislatively evolved from the Constitution; and, when Congress acts within the limits of its powers, they are as real as they would have been if specifically enumerated in the organic law. What they are we must hence look to constitutional legislation to ascertain. They may be postal rights, or commercial rights, or rights in respect to bankruptcy, according to the special character of this legislation. Certain is it that a large body of these rights is traceable to this source.

The treaty power is lodged with the President of the United States, subject in its exercise to the advice and consent of the Senate. Treaties of the United States, when they operate proprio vigore, without the aid of legislation for their execution, are ipso facto supreme municipal laws, and, as such, equivalent to acts of Congress in their relation to individual rights. Rights thus secured to citizens of the United States have a constitutional foundation, and courts are bound to enforce them. See The United States v. The Schooner Peggy, 1 Cranch, 103; Norwood's Lessee, 5 id. 344, and Foster v. Neilson, 2 Pet. 253.

The judicial power of the United States extends to all cases in law and equity arising under the Constitution, laws, or treaties of the United States; and for the purpose of vesting this power, Congress is authorized to establish tribunals inferior to the Supreme Court, and also to make all laws "necessary and proper" to carry it into execution. Such courts and laws Congress has established; and, hence, the citizen of the United States has, under the provisions of law, the right to seek in the Federal courts judicial relief in respect to any question affecting his interests, and arising under the Constitution, laws, or treaties of the United States. These courts are

« ΠροηγούμενηΣυνέχεια »