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“There seems to be nothing before our of the most brilliant “forenoon' lawyers I modern courts more full of difficulty than to have ever known is delving in the silver determine how far one can sue for damages mines near Leadville. Hundreds of young arising out of some felonious or criminal act, attorneys, who begin practice in large cities, for it has long been said or assumed, that it never come to the surface for a dozen years, is contrary to public policy that any such while a great many more quit the business or damage should be recovered until the crimin

move far away in the country, and we know al has first been prosecuted or brought to very

little of their first or last cases. The justice. In a series of important cases oc- world is so large, and the lawyers so many, a curring now and then during the last quarter thousand to one to what they were when of a century, many leading opinions have Webster told of room in the upper story, that been given on different phases of this ques-to-day even the upper stories are crowded, tion, and still there is always an underground and the immortal Daniel would need to reof misgiving as to what is the right rule, if vise his useful saying that has lured so many there be a rule."

into believing they would reach his high Then follow a number of cases in which the standard in good season. All are not Webnon-existence of any well settled rule is made sters in build, dignity, learning and developabundantly manifest. The nearest approx- ment; most are quite the opposite, and have imation to such a rule is the following: need to seek honor of a different kind, and

“1. A felonious act may give rise to a fame from another platform. To conform to maintainable action. 2. the cause of action the new conditions and study the newer arises from the commission of the offence. methods is wiser than stopping to lament that 3. Notwithstanding the existence of the we were not born earlier, before the great cause of action, the policy of the law will not rush to the legal profession. The Websters allow the person injured, to seek civil redress of the future are the Justice Court boys in if he has failed in his duty of bringing or en- practice of to-day, and those who are doing deavoring to bring the felon to justice. 4. their duty as they reach it, without any other This rule has no application to cases in which reward than the high sense of work well done, the offender has been brought to justice, at as they reach it. From a long list of emithe instance of some other person, or in nent advocates that have attained their high which prosecution is impossible by reason of positions through the slow and gradual steps, the death or escape of the felon.”

that began in little courts, and grew higher, One ground upon which the rule is justi- scarcely a man, that tried his first cases well fied is thus stated :

in a blacksmithshop or a bar-room, has failed "In this country, there is nobody in strict- to try them well in Washington; and the ness charged with any duty to prosecute a motto of all mottoes to-day, that will most malefactor. All is left to chance or to the tend to make young lawyers into maturer spirit of revenge which usually impels the Websters, is to try their first cases with care, party who is mainly injured, to resort to an interest and energy, aud take them to court indictment or other criminal remedy.” with as much strength and stability as the

Hence, it may be inferred, it is regarded as granite corner stones on which great public against public policy to permit one injured buildings must rest and remain forever. by a felonious act, to bring a civil action and The early cases are the foundation in pracrecover damages, because he will be satisfied tice, and it will not do, as a rich young lawwith the judgment and abstain from prose- yer lately told me he had planned, to hire all cuting the offender.

the help needed before the argument, and rely As we have already said, on this side of upon that alone to win a law suit. The drill, the water we have changed all that, and re- the courage, the tact, the experience, and leased ourselves from this relic of feudalism. even the eloquence of cases, will rest with the

one who masters the whole practice and re-
lies
upon
himself in early cases.

J. W. DONOVAN. First Cases.—A lawyer's first case may a fford a small clue to his later success. One

so.

NOTES OF RECENT DECISIONS.

what, under ordinary circumstances, would

be a reasonable time. Not only storms and CARRIER-DELAY BY STRIKERS—Non-DE floods and other natural causes may excuse LIVERY OF GOODS.—The New York Court of delay, but the conduct of men may also do Appeals have recently decided a question An incendiary may burn down a bridge, that some months ago would have been of even a mob may tear up the tracks or disable the more interest than it is now. The facts were rolling stock or interpose irresistible force or that the plaintiff shipped a number of cattle overpowering intimidation, and the only duty and hogs on the trains of the defendant resting upon the carrier, not otherwise in fault, company and part of the journey had been is to use reasonable efforts and due diligence accomplished, when by reason of a strike of to overcome the obstacles thus interposed, the employes of the defendant, a stop was put and to forward the goods to their destination. to further progress, and the cattle and hogs While the court below conceded this to be were delayed for a considerable, but unspeci the general rule, it did not give the defenfied time. The strikers not only refused to dant the benefit of it, because it held that the work themselves, but also to permit any other men engaged in the violent and riotous resispersons to fill their places, until their de tance to the defendant were its employees, mands should be complied with. They were for whose conduct it was responsible, and in numerous and were supported by many out that holding was the fundamental error comside sympathizers, and all together con mitted hy it. It is true that these men had stituted a force that the defendant company been in the employment of the defendant. could not resist or overcome. When the But they left and abandoned that employcompany finally succeeded in moving its ment. They ceased to be in its service,or in freight, and delivered plaintiff's cattle and any sense its agents for whose conduct it was hogs at Buffalo, the animals were much de- responsible. They not only refused to obey teriorated in value by the delay, and for this its orders or to render it any service, but they damage the shipper brought suit.

willfully arrayed themselves in positive hosIn the trial court he obtained a judgment tility against it, and intimidated and defeated under the ruling that if the persons who de the efforts of employees who were willing to layed the trains by their unlawful conduct, serve it. They became a mob of vicious law were chiefly or altogether the servants of the breakers, to be dealt with by the government defendant company, it was responsible for whose duty it was, by the use of adequate them, and “their acts were the acts of the force, to restore order, enforce proper recorporation."

spect for private property and private rights, Upon appeal the judgment was reversed. and obedience to law. If they had burned The appellate court states the law controlling down bridges, torn up tracks, or gone into this subject in the following forcible terms: passenger cars and assulted passengers, upon

"A railroad carrier stands upon the same what principle could it be held that as to footing as other carriers, and may excuse de such acts they were the employees of the delay in the delivery of goods by accident or fendant for whom it was responsible? If misfortune, not inevitable or produced by the they had sued the defendant for wages for act of God. All that can be required of it in the eleven days when they were thus engaged any emergency, is that it shall exercise due in blocking its business, no one will claim that care and diligence to guard against delay, they could have recovered. and to forward the goods to their destination ; It matters not if it be true that the strike and so it has been uniformly decided.?

conceived and organized while the In the absence of special contract there is strikers were in the employment of the deno absolute duty resting upon a railroad car fendant. In doing that, they were not in its rier to deliver the goods intrusted to it within service or seeking to promote its interest or

to discharge any duty they owed it; but they 1 Geismer v. Lake Shore etc. R. R. Co., N. Y. Ct. were engaged in a matter entirely outside of App. June 22, 1886; 6 East. Rep. 166.

their employment, and seeking their own ends Wibert v. New York & Erie R. R. Co., 12 N. Y. 245; Blackstock v. New York & Erie R. Co., 20 Id. 48.

and not the interests of the defendant. The

was

2

mischief did not come from the strike, from transactions there was only one instance of the refusal of the employees to work, but actual delivery, that the actual amount of marfrom their violent and unlawful conduct after gins put up by defendant in all these transthey had abandoned the service of the defen actions was only $1700. The locus of all dant.

these transactions was in the State of PennHere upon the facts, wnich we must as sylvania. The traffic came to an end, and sume to be true, there was no default on the the plantiffs sued for money advanced, compart of the defendant. It had employees missions etc., and the defendant pleaded that who were ready and willing to manage its the whole business was a series of wagers, train and carry forward its stock, and thus wholly illegal in Pennsylvania, and that he perform its contract and discharge its duty, owed the plaintiffs nothing. Judgment how. but they were prevented by mob violence ever was rendered against him and he apwhich the defendant could not by reasonable pealed. efforts overcome. That under such circum The court held that as both parties resided stances, the delay was excused had been held in Pennsylvania, and the principal employed in several cases quite analogous to this, which the plaintiffs (brokers) to make purchases are entitled to much respect as authorities.3 and sales in other States, but it being agreed

The cases of Weed v. Panama 4 and Black that deliveries were to be made in Pennsylstock v. N. Y. & Erie R. R. Co.,' do not sus

vania, the law of that State governed. That tain the plaintiff's contention here. If in

the law of that State is, that when a person this case the employees of the defendant had enters into gambling stock transactions simply refused to discharge their duties, or through a broker, he will be deemed to be to work, or had suddenly abandoned its ser dealing with that broker as a principal, not as vice, offering no violence and causing no an agent;' that selling stocks which the selforcible obstruction to its business, those au ler does not possess at the time of the sale is thorities could have been cited for the main a gambling contract, contrary to the policy tenance of an action upon principles stated of the law, and void.8 This being the law of in the opinions in those cases.

Pennsylvania and the contract having been We are, therefore, of opinion that this

made in that State in which plaintiffs and dejudgment should be reversed and a new trial

fendant resided, the Court of Maryland adgranted, costs to abide event.”

ministering that law held that the parties dealt with each other as principals, and the transactions between them being against pub

lic policy, when and where they were made, WAGERING CONTRACTS-LEX

CON

were illegal and created no right of action. TRACTUS—BROKERS.—In the Maryland Court of Appeals was recently decided 6 a case of

7 Kuchezky v. DeHaven, 97 Penn. St. 202. some interest, to persons engaged or concerned

8 Dickson v. Thomas, 97 Penn St. 278; See also, Farin speculative traffic. Tne facts were, in

cira v. Gabell, 89 Penn St. 98; North v. Phillips, 8

Penn St. 250; Brua's Appeal, 55 Penn St. 294. brief, that defendant was a lawyer worth about $3500, that he engaged plaintiffs who were brokers to buy and sell stocks, grain, and other commodities for him, upon mar

THE AMERICAN ABROAD. gins, that they carried on a large business in that way, the aggregate of the transactions

As there has been a great deal said about amounting to $800,000, that in all those

the failure of the United States Government

to protect the rights of its citizens in foreign 3 Pittsburgh & C. R. R. Co. v. Hazen, 84 Ill. 36; S. C., 25 Am. Rep. 422; Pittsburgh C. W. L. Ry. Co. v. countries, it may be worth while to enquire Hallowell, 65 Ind. 188; S. C., 32 Am. Rep. 63; Bennett

briefly what those rights are; and, in order v. L. S. & M. S. R. R. Co., 6 Am. & Eng. Cas. 391; I. & W. L. R. R. Co. v. Juntgen, 10 Bradw. 295.

thereto, to consider some of the anomalies of 4 17 N. Y. 262.

American citizenship, and how its privileges 51 Bosw. 77; affirmed, 20 N. Y. 48.

are acquired and lost. I shall not, therefore, 6 Stewart v. Schulle, Skd. Ct. App. May 14, 1886, 3 Cent. R. 509.

here employ the term “citizen” in its etymo

LOCI

logical sense, nor yet in the sense indicating Absurd as this proposition now seems, it one to whom necessarily belongs the right of had never been judicially controverted. On participation in the affairs of government; the contrary, the decision in the celebrated but in the sense in which it is used in the

Dred Scott case virtually sustained it. And United States exclusively, namely, as indicat since that decision was never reversed or ing a person of either sex and of any age, overruled, a negro, though born of free native born or naturalized, who owes allegi- | parents and within our allegiance and jurisance to our government, and is entitled to its diction, could never become a citizen of the protection in the exercise and enjoyment of United States by anything short of an amendall the so-called private rights. Thus, for ment to the Constitution. example, we, in the United States, have always But persons of the African race are not had, and we still have, two classes of citizens

the only beneficiaries of this amendment. It -one which has, and one which has not, the

reaches far beyond the incidents and conserights of suffrage; but the individuals of both

quences of slavery. It eradicates from our are equal before the law, and are equally en federal system a most pernicious doctrine titled to protection by the government in the that had distracted the country for more than exercise of all the fundamental rights inci half a century, and which had culminated in dent to citizenship.

unequal legislation and in practical insecurity By the old English common law (the basis to life and property. It makes American of our American jurisprudence) a native citizenship a sure guarantee of safety by putborn subject owed an allegiance which was ting forever at rest, the question as to whether intrinsic and indelible. It could not be di a person may be a citizen of the United vested by any act of his own, nor was it in

States other than as he is such incidentally, the power of a foreign State, by employing by reason of his citizenship of some of the or naturalizing him, to dissolve the bond of States. It goes even beyond this, and makes allegiance between him and the crown. And a marked distinction between national and although this doctrine was practically aban

State citizenship. Thus, a person may not doned by Great Britain in 1814, when the

only be a citizen of the United States withprisoners, taken in the service of the United out being a citizen of a State, but an imporStates, were unconditionally exchanged, it

tant condition is necessary to give him the was never explicitly renounced until 1870, character of the latter. He must "reside" when it was declared by statute that a British within a State to make him a citizen of it, subject ceases to be such, upon becoming

whereas, it is only necessary that he should duly naturalized in a foreign State.

be born or naturalized within our Federal The first attempt at a constitutional defini

jurisdiction, in order to be a citizen of the

United States. tion of American citizenship occurs in Article XIV., adopted July 28, 1868. It is therein It has been rather loosely asserted that declared that,"all persons born or naturalized this constitutional provision fastens upon us in the United States, and subject to the juris the doctrine, derived from the English comdiction thereof, are citizens of the United mon law, that all persons born within our States, and of the State wherein they reside.territory are, with few exceptions and to all Previous to that time, it had been held, that a intents and purposes, citizens of the United person could not be a citizen of the national States. It, however, makes personal subjecgovernment, except as he was a citizen of tion to our jurisdiction a necessary element one of the States. Such was the well-known of citizenship, and this has been held to exopinion of Mr. Calhoun, and of the political clude Indians. The native-born African is party of which he was the chief ornament subject to our jurisdiction, and is therefore a and exponent. Thus, for instance, that per citizen. But the native-born Indian is adsons born and residing in the District of judged to be beyond our jurisdiction (at Columbia or other Territory of the Union, least for certain purposes) and is not, therethough within the United States, and subject fore, deemed a citizen. Our government to its jurisdiction, were not citizens of the makes treaties with him, and thus nominally United States.

awards him the status of national independ

ence; and yet, strangely inconsistent with How or under what circumstances a citizen this, it holds that he is a "domestic subject” may be deemed to have changed his allegiance, and hopelessly beyond the reach of its natur and to have obliterated all obligations resultalization laws. [See Opinion U. S. Attorney-ing from his previous allegiance, has been General, 7,746.] So that, a descendant of

among the vexed questions connected with the original lords of the soil, can be admitted our administration of foreign affairs. It has to citizenship only by a special act of Con been only about fifteen years since the old gress, or by treaty. The Pueblo Indians of feudal doctrine of indelible allegiance was New Mexico constitute no exception, because, explicitly abandoned in some parts of Europe, as citizens of the Mexican Republic, they and previous to that time, even after the became citizens of the United States by the treaty of 1814, there was always more or less Treaty of Guadeloupe-Hidalgo.

conflict between our theories of naturalizaAnother test of nationality is the national tion and European theories of expatriation. ity of the father. "By the law of nature There is some friction still, though it has alone,” says Vattel, “children follow the been diminished by a series of special treacondition of their fathers, and enter into all ties. Thus, for instance, there still remain their rights. The place of birth cannot, two opposing doctrines of expatriation, therefore, in itself, produce any change in namely: First, the American, as proclaimed this particular, nor furnish any

valid reason in our law of July 27, 1868, whereby exfor taking from a child what nature has given patriation is declared to be “a natural and him." Our government formally adopted inherent right of all people ;” and, second, this doctrine by the act of Congress of Feb the continental, as embodied in the Code Na. ruary 10, 1855, with, however, a qualification poleon, whereby an emigrant incurs the loss that the rights of citizenship shall not descend of civil rights in his native country, and to persons whose fathers never resided in the

(should he return thereto) certain penal conUnited States. And even in cases where, by sequences, if the emigration took place withthe laws of a foreign country, all children out permission of the government. born therein are citizens thereof, notwith

There are also as many as four main sysstanding the nationality of the father, our

tems of naturalization, namely: First, by government has never recognized their citi

residence for a stated period, renunciation of zenship as against that country, though it is

native allegiance and oath of allegiance to obligated to recognize their citizenship as

adopted country, as in the United States; against all other countries. The practice of

second, by employment in the public service, the English government is the same. But it

a residence in the country for a stated period, is manifest that the adoption of this test of by oath of allegiance and a certificate granted nationality, even with the modifications re

at the discretion of the government, as in ferred to, logically requires the abandonment England; third, by either employment in the of that by place of birth, at least to a corres

public service or certificate from the governponding extent, so that our so-called “Civil

ment, as in Prussia, and, fourth, by residence Rights Bill," (of April 9, 1866,) avoids pos for a stated period and certificate from the sible conflict by only declaring to be citizens, government without oath, as in France. And persons “born in the United States and not in addition to these there are often excepsubject to any foreign power.”

tional provisions for the naturalization of Thus, our government has adopted neither aliens, as in the United States, by service in of these tests of nationality—that by the the army with one year's residence, ro three place of birth nor that by the nationality of years' service in the merchant marine, or, as the father-without important qualifications. in England, by two years' naval service durThe law in both England and France is sub ing actual war. stantially the same. That of England, like It has never been difficult for a foreigner our own, lays chief stress on the place of (if “a free white person 21 years of age,") birth, while in France the father's nationality to become a citizen of the United States. usually determines, though not absolutely, Under our existing laws, he must have rethat of the child.

sided in our midst not less than five years ;

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