The Central Law Journal.

ST. LOUIS, SEPTEMBER 24, 1886.

CURRENT EVENTS.

IS MARRIAGE A CONTRACT?-Nobody can "say an undisputed thing in such a solemn way," as judges of courts of high degree. And it may be added, that the superb confidence with which they often enunciate propositions manifestly disputable will sometimes mislead even the very elect of the law. We are led into this line of remark by having observed, in the report of the cause celebre of Morduant v. Moncrieffe,1 a dictum of one of the judges to this effect: "Marriage is not, as it is often popularly called, a contract. If it were, it could, according to every principle of the laws of contracts, be rescinded by mutual consent, but it cannot. There is a contract before marriage, which is a contract to marry, but marriage is the fulfillment of the contract which is then satisfied and ended, and there is no further contract. Marriage imposes a status which was by the law, before the statute, fixed on the persons forever."

In this extract, and we say it with appropriate deference, there are, in our opinion, two errors, It is not true that "according to every principle of the laws of contracts," a contract, not of marriage, may be rescinded by mutual consent, or in other words, that rescindability by mutual consent is of the essence of u contract. If that were true, contracts might be rescinded by mutual consent even after the rights of third persons had become involved. The true theory of the rescission of contracts is, as we conceive, that parties competent to contract once, can tract a second, third, or fourth time, as often indeed as they choose, and as long as they continue competent. And as long as they hold the control of the subject matter of the first contract, they can do with it as they please. In other words, the rescission of a contract is a new contract with the parties reversed, and the terms so adjusted as to restore perfectly

the antecedent status.

con

The learned judge says; "Marriage is not,

1 43 L. J. H. of L. Prob. and Matri. 49. Vol. 23.-No. 13.

as it is often popularly called, a contract." That it is not a mere popular and vulgar error to call marriage a contract is manifest from the following remark of Judge Story, who says: "Marriage is treated by all civilized nations as a peculiar and favored contract." It is not, as the learned judge assumes, merely the fulfillment of the antecedent contract to marry, but a new and momentous contract, and the very words of the marriage service of the Church of England, and of every other church, indicates its nature beyond all controversy. There is the essential "meeting of minds," each party, in consideration of the correlative promises and undertakings of the other, promises and undertakes thereafter to do and perform certain succinctly stated things, and the contract is complete. Public policy appends to it the quality of irrevocability, and all churches concur in bestowing upon it their benediction.

Marriage is therefore primarily a contract; it has, and must needs have, all the essential elements of a contract, the competency of parties, the consensus, or meeting of minds, the reciprocal consideration. Judge Story says: "I have, throughout, treated marriage as a contract in the common sense of the word, because that is the light in which it is ordinarily viewed by jurists, domestic as well as foreign." 3 Besides being intrinsically and essentially a contract, marriage is a good deal more; it is, as Judge Story says, "an institution of society," as the learned Judge puts it, it is "a status," it is the Holy Estate of Matrimony, as the clergy reverently call it, and according to the Roman Catholic Church it is a sacrament.

ing his absence, she had been guilty of adultery with several, named, titled personages. Soon afterwards, and before the institution of proceedings for divorce, it became manifest that she was insane, and it was a matter of great doubt, at the time, whether her insanity did not, in legal phrase, "relate back to," and include her confession, whether there was any truth whatever in it, and whether the wreck of her good name was not the result of incipient insanity.

CRIMINAL LAW REFORM.-The New York Nation, of the 16th inst., publishes a communication from a Kentucky correspondent entitled, "Agitation against Murder," protesting against the laxity with which the law is administered in cases of murder and other crimes of violence. The writer lays the blame less upon "a mawkish sentiment in favor of the unhappy prisoner, or a barbarous sympathy with his crime," than upon the influence over legislation, of "lawyers who practice in the criminal courts," and in a less degree upon the undue leniency and over caution in trial and appellate courts, and the too merciful exercise of the pardoning power of the executive. We think that the Nation's correspondent ascribes too much influence in this matter to criminal court lawyers, indeed, we doubt whether such influence is really exerted to any appreciable extent. The other causes to which he attributes the evil, certainly exist, and are sufficient of themselves to account for it. There can be no doubt that the tardiness and uncertainty of justice, especially in cases of those whom the Nation's correspondent denominates "genteel criminals," is a shame and a scandal to our courts and demands a thorough and speedy remedy. Time was, within a hundred years past, when criminal law deserved the reproach of excessive severity. Men, women, even children were hanged for petty larceny, even for stealing a loaf of bread. The dreadful list of capital crimes included not less than a hundred offenses.

In these latter, more merciful days, we have changed all that, but the pendulum has swung too far in the other direction. The reform now needed is not, as in the

days of Romilly, on the side of mercy, but on that of justice. We want, not more severity perhaps, but more certainty and more expedition in the punishment of crime. In the old times, as now, the "genteel prisoner" escaped scatheless. "Genteel" people slaughtered each other in duels, with even more impunity than they now do in the modern street-fight. The evil is undeniable, what is the remedy?

6.

The Nation's correspondent suggests the organization of a National Association for Criminal Law Reform;" that from it should proceed projects of reform, to be laid before the State legislatures, and before Congress. Six subjects are suggested on which reform is deemed essential:

"1. The mode of empanelling juries, and particularly the admission of 'bystanders,' and the challenge for having 'formed or expressed an opinion.'

2. The continuance of causes on the mere demand of the accused, based on his own affidavit.

3. The definition of insanity, as an excuse for crime; the proof of such provocation as adultery, seduction, etc.

4. The definition of self-defense in cases of homicide.

5. The allowance of new trials and writs of errors or appeals.

6. The pardoning power; its restriction or regulation.

On the first point, it is hardly necessary to say that special caution is necessary, lest in changing the mode of selecting jurors, the substantial benefits of the time-honored right of trial by jury be diminished, or imperilled. We think, however, that with due care, great improvements may be made on the present system. The subject of continuances will bear a deal of very thorough reformation. Under the existing practice, a regular system of obtaining continuances may be, and often is, framed by astute lawyers, somewhat like the infallible combination of the gambler, but unlike that combination, it will always win. Before the battle of the Boyne, King William said to Schomberg, his favorite general: "The enemy is advancing upon us." "That is as he pleases," replied the veteran. "He will give

us battle to-morrow," added the King. "That will be as we please," replied the

strategist. So, under the loose practice in most of the States, the experienced criminal lawyer can, at his pleasure, try or continue until all dangerous witnesses have been removed by death or expatriation.

The ex post facto insanity, tolerated by criminal courts, has long been a reproach to the administration of the law. A man may go through his youth, deep into middle age, with a head, according to the judgment of all his friends and acquaintances, as level as a mill pond, but if, even late in life, he commits a gross crime, he is adjudged, by the court, to be, and to have been from his youth upward, a crank of ths very craziest description. This subject, however, is rather too large and too tough to be disposed of at the end of an article, and we can only add that we cannot see much hope of reforming the abuses connected with it without a thorough revision and reorganization of the whole system of expert evidence. Whatever else the doctors may be, they are certainly, and always, dissentaneous, two of them can hardly ever agree, and with half a dozen as expert witnesses, it will be a very clear case if one of them does not furnish a loop upon which to hang the much disiderated reasonable doubt. For want of space we must defer, to a more convenient season, what we have to say as to self defense, new trials and pardons.

NOTES OF RECENT DECISIONS.

HABEAS CORPUS-ESCAPE-TERM OF IMPRISONMENT.-In Delaware a case of the first impression in that State, and in some respects equally unprecedented elsewhere, has recently been decided upon an application for discharge from imprisonment made upon habeas corpus. It seems that Frank McCoy, a noted malefactor was, a number of years ago, sentenced to imprisonment in the county jail, for a term of ten years. After suffering a portion of his imprisonment he made his escape, and remained at large for nine years, seven month and ten days. Having been recaptured, he was consigned to jail to serve out his term of ten years. He sued out a writ of habeas corpus and asked to be discharged upon the ground that his term of imprisonment had expired by lapse of time.

ate.

Without more, there seems to be no difficulty in denying the prayer of his petition, and remanding him to jail. But it seems that, in Delaware, the statute prescribes that when a defendant is convicted and sentenced to imprisonment, the sentence must designate not only the day when the imprisonment shall begin, but also the day on which it shall terminMcCoy's sentence was in conformity with the statute; it designated the day on which, regularly, he would be entitled to demand his liberation. That day was past, and the question for the judge, upon hearing the petition was, what effect, if any, should be given to the clause of the statute which required that the day of liberation should be designated, and what it meant, if anything.

As already stated, there can be no doubt that when there is no time fixed for the termination of the imprisonment, the convict may be required to serve out the full time for which he was sentenced, although, during the time, he was illegally at liberty, the term of years for which he was sentenced may have expired. The time fixed for executing a sentence. or for the commencement of its ex ecution, is not one of its essential elements, and strictly speaking, is not a part of the sentence at all. But when the statute requires, as in this case, that the sentence shall designate the beginning and the end of the term of imprisonment, the case is not so clear. It always requires a little nerve to so construe a penal statute as to decide, in effect, that it practically means nothing at all, so far at least as the case under consideration is concerned. In this case, unlike the Kansas case, the designation of the time when the punishment shall end, does form a part of the sentence, and was included in it in obedience to an express statutory enactment.

It is true, as the court sets forth in its opinion, that the modern tendency is to construe penal statutes less strictly than in former time, when capital punishment followed every conviction, yet we are strongly inclined to think that it is too free a construction to say that the provision in question means just nothing at all, or what amounts to the same thing, that it was prescribed as a

1 Ex parte Clifford, 29 Ind. 101; See also, Hollon v. Hopkins, 21 Kans. 638.

2 Hollon v. Hopkins, supra.

"rule of mathematical convenience, as a matter of descriptive detail."

The court in this case remanded the prisoner to jail, where he will suffer the prescribed punishment; justice will be satisfied, and the result is not absurd. If the decision had been otherwise, the result would have been absurd, as it would have released a notorious malefactor, because he was adroit as a jail-breaker, and expert as a fugitive from justice. The absurdity is properly chargeable to the legislature of Delaware, in incorporating so useless and mischievous a provision in its criminal code.

SALE-WARRANTY-BREACH-ORAL TESTIMONY TO VARY WRITING-CAVEAT EMPTOR.In a recent case the Maryland Court of Appeals found it necessary to reiterate the well known doctrine that oral testimony cannot be admitted to vary the terms of a written contract.3

The proof offered was a conversation between the parties on the day before the writing of the first of the two letters which constituted the written contract.

The attempt seems to have been made to secure the admission of the testimony on the ground that the conversation having been referred to in both letters was a part of the contract. The court however said: "It is in vain to reduce a contract to writing, if you may afterward refer to all that passed, by parol." 4

It seems that the contract related to coal sold for the use of the glass-works the description specified was "fine and the run of the mine." The complaint was that the coal was inferior, and that the plaintiff was thereby damaged. On this subject and the doctrine of caveat emptor.

The court says: "It will be perceived that that by the terms of the contract there is no express warranty with respect to the quality of the coal. In England the older decisions enunciate the general principle that the seller is not liable for defects of any kind in the thing sold, unless there is an express warran

3 Warren Glass Works v. Keyston Coal Co., 6 East. Rep. 562.

4 Pickering v. Dorsen, 4 Taunt. 784; Gardner v. Gray, 4 Camp. 144.

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ty or fraud on the part of the seller. A sound price is not tantamount to a warranty of the quality of the thing sold." In Hall v. Conder, it is said 'the law is quite firmly established that, on the sale of a known ascertained article, there is no implied warranty of its quality.' It is true that in some cases there may be what is termed falsa demonstratio, as in the sale of goods by samples; and it has been held that under a contract to supply goods of a specified description which the buyer has had no opportunity of inspecting, the goods must not only, in fact, correspond to the specific description, but must be salable or merchantable under that description. But no such case is presented by this record. The contract was for Keystone coal, fine and the run of the mine, and the plaintiff's evidence shows that it received coal, corresponding to this particular description. The contract specifies Keystone coal, 'fine and the run of the mine,' and there is nothing else in its terms to indicate the quality contracted for. When delivered at the place designated, the plaintiff certainly had ample opportunity to ascertain the quality by an inspection. There is, therefore, no foundation for an implied warranty and the authority of Jones v. Just, is inapplicable to the case presented by this record.

It is true that at least in two of the States the doctrine of the civil law, that a sale for a sound price implies a warranty of the thing sold, was at one time recognized and adopted.

But in most of the States this doctrine has been repudiated. In Seixas v. Woods, Kent, J., adopting the language of Sir Edward Coke, says that 'by the civil law every man is bound to warrant the thing he selleth, albeit there be no express warranty; but the common law bindeth him not, unless there be a warranty in deed or law.’ And in a later case the same court decided that "there is no implied warranty in a general sale, that the quality shall be equal to the price." 10 Mixer v. Coburn,11 Chief Justice Shaw says:

In

5 Harvey v. Young, Yelv. 21; Parkinson v. Lee, 2 East. 322.

62 C. B. (N. S.) 40.

7 L. R., 3 Q. B. 197.

8 Bailey v. Nichols, 2 Root, 407; Whiteford v. MeLeod, 2 Bay, 380.

92 Caines, 48.

10 Hart v. Wright, 17 Wend. 269.

11 11 Metc. 561.