« AnteriorContinuar »
The Central Law Journal. overwhelming. It was not a doubt of your
guilt, but a doubt of your conviction of guilt.
That doubt was the doubt of the virtue of the ST. LOUIS, JULY 16, 1886.
people themselve to maintain their common
laws. It was a cynical doubt of everything CURRENT EVENTS.
which is good. It was a doubt as to the virtue of our jury system, as to the zeal of our
public prosecutors, as to the fidelity of the DEATH OF JUDGE David Davis.—By the
detective branch of the police. These doubts recent demise of Judge David Davis, of
have been dissipated, and the lesson is a good Illinois, for many years one of the Justices
one—the lesson of an increase of faith in the of the Supreme Court of the United States,
good in our cities and in our laws, of an inwho died at Bloomington, in the seventy-first
crease of faith in the validy of our instituyear of his age, the legal profession has lost
tions, and the efficacy of impartial laws in one of the most honored and distinguished of
those institutions. There is also another lesits members. Eminent as he had been at
son, and that is a lesson not of supporting the bar, and prominent and successful in
faith, but of the destruction of faith-for you political life, „Judge Davis was most distin
and such as you have had a vital faith in the guished upon the bench. For the judicial of supremacy of evil, and in the impossibility of fice he was singularly fitted by nature, as well
working out good results, believing that the as the training of his long professional life.
very corruption of which you have been conCalm in his temperament, and impartial in his
victed is almost universal. That faith will judgment, always ready to hear and to do
be lessened by your conviction, and the other justice to both sides of any question, he pos
and better faith will be increased.” sessed the qualities of the perfect ideal judge,
It will be observed that Judge Barrett's rethe very qualities which unfitted him for the
marks apply chiefly to urban populations, struggles of partizan politics. Few men
and to crimes of dishonesty. They are have ever held political office who had so lit
equally true with reference to the rural distle of the partizan politician in their nature, and very few men have ever held judicial of
tricts, and to general crime, including crimes
of violence. No matter how remote or unsofice whose fairmindedness and sense of justice were so little marred by political or per
phisticated the community may be, the belief
is general, that if a rich man or a “big” man sonal predilections. His career has been an
commits a crime he will escape punishment. honor to the country, his State, and the profession.
This results from a want of confidence of the people in themselves and in each other, as well as in the law and its officers. People
are very ready to believe that juries will not FAITH IN THE ADMINISTRATION OF THE Law. convict, or in other words, that they them- In sentencing Jaehne, the convicted New selves will fail to discharge their duty when York Alderman, some month or two ago,
the occasion for its performance shall arise. Judge Barrett improved the occasion," (to This distrust, added to the want of confiuse an antique clerical phrase,) by delivering dence in the officers of the law, and the popa short but very sensible discourse, over the ular idea of its general uncertainty is one of head of the prisoner, to the community the chief sources of the prevalence, in some large, on the faith or want of faith of the sections of the country, of lynch law, and in public in the administration of the law. He all others of a strong tendency to it whenever said:
an offence of unusual atrocity is committed. “The saddest thing of all about your case For example, in a southern city, less than is the doubt which pervaded many good and a year ago, a man committed a murder, a honest minds of your conviction. There was very atrocious crime, but he was arrested, not a doubt of your guilt. It was universally examined, fully committed to jail for trial conceded, when the evidence was in, that the upon evidence amply sufficient to convict. case against you was clear, convincing and Two nights afterwards he was taken out by
Vol. 23.–No. 3.
armed men and put to death. The question competent for it, under the statutes, to grant is, why was this done? Why cannot the peo- (in effect) a new trial, but its duty was conple, for these armed men were a part of the fined to hearing what the Queen's Proctor, as people, trust their own laws which they have a public officer, had to adduce against the cormade, their own officers whom they have
rectness of the decree pronounced in the case. elected, their own juries to be taken out of Sir Charles Dilkc appealed from this decitheir own number? The answer is, they dis
sion. The Solicitor's Journal of a recent trust themselves and each other.
date (June 19,) says on this subject: perience and observation have taught them “The appeal by Sir Charles Dilke from that lapse of time, with its softening influ
the decision of Sir James Hannen in the ences, will so tone down the public senti
Crawford-Dilke case will settle an interesting ment, that when the legal delays, prolonged question on the practice as to intervention by as far as zealous counsel can prolong them,
the Queen's Proctor-viz., whether such inshall have been exhausted, a jury will be im
tervention is to be virtually equivalent to a panelled who will either acquit outright, or
It is not necessary to speculate a very moderate term of imprison
on the result of the appeal, but we may point assess ment.
out that the practice as to intervention is, to
some extent, an excresence upon the original In the country as in the city, the small
statute (20 & 21 Vict. c. 85) by which the criminals only are caught and caged, the
Court of Divorce was established. The Magreater, break the net and escape. There
trimonial Causes Act, 1860 (23 & 24 Vict. c. are exceptions, such as Tweed, Ward, Jaehne,
145), first provided that every decree for a but it is noteworthy that these are pecuniary
divorce should, 'in the first instance, be a de. offences. As to crimes of violence-When
cree nisi, not to be made absolute till after and where was any man bearing the port and
the expiration of such time, not less than similitude of a gentleman banged for murder?
three months from the pronouncing thereof,' We cannot recall a single instance later than
as the court should direct, and this interval that of Dr. Webster, of Boston, now nearly
was extended to six months by the Matrimofifty years ago. And how many such men in
nial Causes Act, 1866 (29 & 30 Vict. c. 32), the United States, have, within those fifty
Sec. 7 of the former Act then goes on years, committed murder?
to enable any person, within the specified period, 'to shew cause why the said decree should not be made absolute by reason of the
same having been obtained by collusion or by DIVORCE LAW—THE QUEEN'S PROCTOR reason of material facts not brought before SiR CHARLES DILKE.-Qur attention has re
the court,'and on cause being thus shewn, the cently been attracted to the attempt of Sir court may make the decree nisi absolute, or Charles Dilke, to re-enter the scandalous reverse it, or require further inquiry.'” Crawford v. Crawford and Dilke divorce suit.
We are of opinion that there is a lesson This case is again pending upon the inter for us, on this side of the water, in the legisvention of the Queen's Proctor.
lation cited in the foregoing extract. We do that this officer, acting under the direction of not generally favor the “law's delay," but the Attorney-General, filed a plea alleging we think that in divorce cases the practice of that the decree was pronounced contrary to rendering a decree of divorce nisi, not to be the justice of the case, with other allegations made absolute for six months after its renwhich the court regarded as surplusage. dition, would be a wholesome check upon the Mrs. Crawford also filed her petition, asking unseemly haste with which re-marriage so to be allowed to support her former admis often follows legal separation. The delay sions. Sir Charles Dilke, too, applied to be would in many cases give time for reflection restored to his position in the suit to defend and possibly afford a locus penetentiæ-not himself against the Crawfords, both husband that the parties have not already had plenty and wife. The court refused the application of repentance, but probably not of the right of Sir Charles Dilke, as well as that of Mrs. sort, nor for the proper reasons. The whole Crawford, upon the ground that it was not subject of divorce is, at best, unpleasant, ex
hibiting, as it often does, the most revolting NOTES OF RECENT DECISIONS. vices and the most poignant misery incident to modern society. It is the policy of our VOLUNTARY ASSIGNMENT IN FAVOR OF CREDlaws to make marriage as easy as is consist ITORS-EXTRA-TERRITORIAL OPERATION OFent with proper precautions against the hasty ATTACHMENT COMITY CAN ONE STATE BE union of persons who, from nonage, ought REQUIRED OR EXPECTED TO ENFORCE THE not to be married ; with reference to divorce LAWS OF ANOTHER STATE.—We publish, in there should be a reverse policy, it should be the current number of the JOURNAL, two cases treated as, at the best, a sad necessity, and involving the question whether an insolvent never granted until every other happier solu debtor can transfer by a general assignment tion has become manifestly impossible. Un of his property for the benefit of his creditder the practice of most of our States, the
ors, personalty situated in another State, so proceedings in divorce cases is unduly sum
as to defeat the liens of attachments levied mary A petition is filed, an answer, or very upon such property by his creditors. One frequently a default, a few depositions
case was decided in Massachusetts,' the other taken, a few witnesses examined, and a final in Texas. The cases were similar in all ledecree follows, often at the same term of the
gally essential points, but the courts arrived court, severing forever the bonds of a relation,
at conclusions precisely opposite to each which most people believe was instituted by
other. God himself, not to be severed, save for one The facts in the Massachusetts case were, cause only.
that the debtors, residents of New York, as“It is a solemn thing to be married” said
signed to a trustee for the benefit of their a grave father to his daughter. “Yes,” was
creditors, all their property, including certhe pert reply, “but it is a deal solemner not
tain assets, the legal situs of which was Bosto be.” More serious than either the respon
ton. Afterwards, the plaintiff, a creditor, sibilities of matrimony, or the forlorn status
and resident of Boston, caused an attachof celibacy, is the act of severing the marital
ment to be levied on the Boston assets. The relation. It is a mere platitute and truism to
Supreme Judicial Court held that the assignsay that a dissolution of marriage bonds
ment was inoperative, as against an attachshould not be lightly sought; that it should
ment duly issued in accordance with the laws not be lightly granted, is an admonition
of Massachusetts. which cannot be too often, or too seriously
This decision is based upon the principle, impressed upon our legislatures and courts.
that the laws of one State cannot be executed That the former need such admonition is manifest from the long list of statutory
in another, except by comity, which does not causes of divorce which so steadily grows un
require that they should be so executed when der legislative manipulation; and that the
it would be in contravention of the public latter require similar cautions is equally clear policy of the State, or without the sanction from the liberal construction they give to di
of its laws, or injurious to the best interests vorce statutes, and especially from the enorm
of its citizens. It is the settled policy of
that ous aggregates of grists, that the “divorce Massachusetts, re-affirmed in this ruling, mills," as the newspapers suggestively call no voluntary assignment for the benefit of them, are constantly turning out.
creditors, the only consideration of which is We think, therefore, that the six months the acceptance of the trustee, is valid against post-divorce period of probation might well attachments, except so far as assented to by be borrowed from our English friends, for it creditors, and that assent must be shown afis a practice worthy alike of commendationfirmatively. The rule seems to be well esand imitation.
1 Faulkner v. Hyman, S. J. Ct., Mass., N. Eng. Rep. Vol. 2, 181.
2 Weider v. Maddox, s. C. Texas; Texas Law Rev., Vol. 6, 371.
3 Widgery v. Haskell, 5 Mass., 145; Swan y. Crafts, 124, Mass. 453; Pierce v. O'Brien, 129 Mass. 314; Ingraham v. Geyer, 13 Mass., 146.
tablished in that State, that its courts are not estates of non-residents, because, such laws bound to enforce a foreign contract, and will necessarily assume, that property has a situs not enforce it against the interests of citizens entirely distinct from the owner's domiof the State. 4
cile.' The Massachusetts rule as to assignments Judge Davis proceeds: “If New York canfor the benefit of creditors, as established in not compel the personal property of Bates, Widgery v. Haskill, is commented on by (one of her citizens) to contribute to the exMr. Justice Story, with manifest doubt as to penses of her government, and if Bates had the value of the case as establishing a prin the legal right to own such property there, ciple of law, though he has no doubt it was and was protected in its ownership by the rightly decided upon its own circumstances. laws of the State; and as the power to proHowever that may be, it did certainly estab tect implies the power to regulate, it would lish the principle that an assignment for the seem to follow that the dominion of Illinois benefit of creditors, whether made within or over the property was complete, and her right without the State, must receive the assent of perfect to regulate its transfer, anu subject the creditors, or it will not be valid. This it to process and execution in her own way, doctrine is believed to be peculiar to Massa
and by her own laws.” chusetts. The general rule as as to the jur
So far as comity and inter-State relations isdiction of personal property is thus stated of parties are concerned, the Massachusetts by Mr. Justice Story :7
caselo proves too much, and can hardly be re“It is well settled as a doctrine of internation- | garded as an authority upon that point either al jurisprudence, that personal property has no
way. The criterion by which the validity of locality, and that the law of the owner's dom
a voluntary assignment is to be judged in icile is to determine the validity of the alien
that State is, not the citizenship of parties, ation thereof, unless there is some positive or
nor the situs of the property, but the affirmacustomary law of the country where it is
tive assent of the creditors; with that assent
the assignment is good, whosoever may be found, to the contrary.” In a later case, however, the Supreme Court of the United
the parties, or where the situs of the propStates modifies this dictum. 8 Mr. Justice
erty; without it, the assignment is invalid.
The ruling upon comity in that case, it would "The theory
that the voluntary
appear, therefore, was an obiter dictum. transfer of personal property is to be gov
The Texas case, 11 similar in some respects, erned
every where by the law of the owner's is very different in others; the facts were, domicile, proceeds on the fiction of law that that Spiro, a citizen of Missouri who also carthe domicile of the owner draws to it the ried on business in Texas, executed, under personal estate he owns, wherever it may the laws of his domicile, a general voluntary happen to be located. But this fiction is by assignment of all his
assignment of all his property, including his no means of universal application, and, as
Texas assets, but excluding his statutory exJudge Story says: ‘yields whenever it is nec emptions; that the assignee, having complied essary for the purposes of justice that the ac
with the Missouri law by giving bond, &c., tual situs of the thing should be examined.' took possession of the Texas property but did It has yielded in New York on the power of
not record the assignment in Texas; that afthe State to tax the personal property of one
terwards, at the instance of a creditor, the of her citizens, situated in another State, and defendant, sheriff of the county, levied an and always yields to 'laws for attaching the
attachment on the goods. The Supreme
Court of Texas held that the assignment so 4 Ingraham v. Geyer, supra; Blake v. Williams, 6 executed in accordance with the laws of MisPick. 286; Fall etc Co. v. Croade,15 Pick. 11; Martin souri passed the title to the goods, and that v. Patter, 11 Gray 47; Green v. Van Buskirk, 5 Wall.
the attachment was invalid. For the grounds (U. S.) 307. 8 Supra. 6 Halsey v. Whitney, 4 Mason, C. C. 216.
9 People ex rel v. Commrs. of Taxes, 23 N. Y. 225. 7 Black v. Zacharie, 3 How. (U. S.) 514.
10 Faulkner v. Hyman, supra. 8 Green. v. Van Buskirk, 7 Wajl. 150.
Ji Weider v. Maddox, supra.
of this decision, the reader is referred to the 4. Independent Recollection Necessary. opinion itself, which appears in full in this 5. Summary of the Conflicting Views. number of the JOURNAL.
6. Arguments in Favor of both Views. In may be remarked that in the view which
1. General Principles of the Practice.-It the Supreme Court of Texas takes of this
is a well settled principle in the law of evicase, there is a departure from that usually
dence that a witness may, under proper cirtaken in cases involving the same principle.
cumstances, refer to written or printed memThe court holds that the right which it en
oranda, documents and papers, to refresh forces is a common law right, not a right ac
and assist his memory, concerning facts about quired or held under the law of Missouri,
which he is testifying.' consequently that the principle of comity
But this practice is attempted to be condoes not operate in the matter at all. It
fined within certain limits, though not always would seem however, that the assignment was made under the law of Missouri, according accurately prescribed, yet, perhaps of suffi
cient definiteness to meet most, if not all, orto its forms, and the limitations, as to bonds, responsibility to courts, &c., prescribed by dinary requirements. This practice is largely the laws of that State. Hence, in our view,
discretionary with courts. They are required the Supreme Court of Texas, in this case,
to take great care to guard against forgery, does enforce the common law as modified by
interpolation, etc., thus preventing the abuse
of the right. The chief objection to it being the law of Missouri and therefore the princi
that the paper referred to operates upon the
mind of the witness like a leading question. ple of comity does come into play.
But it is rendered necessary by the frailty of That, however, is not material, for the rul
human memory which, as every person knows, ing can be sustained upon the principle of
is such that very few witnesses are able to comity. The assignment seems to be in ac
testify as to particular dates, numbers, quancord with the law of Texas, contravenes no
tities and sums after any considerable lapse law, custom, or rule of public policy of that
of time, without reference to papers or memState, and is therefore good under the rule of
oranda.3 comity on that subject, which may be thus
The witness, with his memory thus quickexpressed: "If a general voluntary assign
ened and refreshed, is enabled to testify with ment for the benefit of creditors be made ac
greater clearness and accuracy than without cording to the law of the domicile of the as
the use of the paper, even though he rememsignor, it will be valid to pass all the person
bers quite distinctly the general facts conal property of the assignor wherever situated, unless its operation is limited or restrained
cerning which he is giving evidence. In caby some local law or policy of the State where
ses involving long accounts this practice is
rendered indispensable and the authorities the property is found.” 12
concur in sustaining it.
the statutes of Missouri, or in other words, of
19Hanford v. Paine, 32 Vt. 442; Ockerman v. Cross, 64 N. Y. 29; Chaffee v. Fourth National Bank, 71 Me. 514.
REFRESHING MEMORY RECOLLEC-
1 Ford v. Commonwealth, 130 Mass. 64; S. C. 39 Am. Rep. 426; Queen v. Langton, 22 Q. B. D. 296; 1 Green. on Ev. (14th Ed.) $$ 436-439 and notes.
2 Harrison v. Middleton, 11 Gratt. (Va.) 527, 544; Merrill v. Ithaca, etc. R. R. Co. 16 Wend. (N. Y.) 600; Chapin v. Lapham, 20 Pick. (Mass.) 467.
3 Feeter v. Heath, 11 Wend. (N. Y.) 477, 485.
4 Wise v. Phoenix Ins. Co. (N. Y. 1886) 4 N. E. Rep. 634; Affirming S. C. 31 Hun. 87; Lawson y. Glass, 6 Col. 134, 135; Howard v. McDonough, 77 N. Y. 592; McCormick v. R. R. Co., 49 N. Y.303; Driggs v. Smith, 36 N. Y. Super. Ct. Rep. 283; Commonwealth v. Jeffs., 132 Mass. 5; Commonwealth v. Ford, 130 Mass. 64; S. C. 39 Am. Rep. 426; State v. Miller, 53 Iowa, 154, 209; Cooper v. State, 59 Miss. 264, 272; Robertson v. Lynch, 18 Jobns. (N. Y.) 451; Clough v. State, 7 Neb. 320; McCausland v. Ralston, 12 Nev. 196, 217; Kent v..Ma. son, 1 Bradwell (Ill. App.) 466, 471; Coffin v. Vincent, 12 Cush. 98: Rambert v. Cohen, 4 Esp. 213; Jacob v
1. General Principles of the Practice.
2. Conflict as to whether Memory of Fact Should be
(a) Rule Stated and Illustrated.