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The Hon. Charles Devens, Jr., has been appointed a Justice of the Supreme Judicial Court, to fill the vacancy caused by the promotion of the Hon. Horace Gray. Mr. Justice Devens, in his honorable career at the bar, in the army, and, for the last six years, on the bench of the Superior Court, has proved himself an eloquent advocate, a successful general, and an accurate, courteous, and dignified judge. His elevation to the supreme bench meets with general acceptance as a fitting recognition of his distinguished services.
Constitutional Law. — Supreme Judicial Court. In the matter of E. W. James and Others, Petitioners for the appointment of Supervisors of Elections. — This was a petition by five legal voters of Ward 3 in Boston, for the appointment of supervisors of elections under the provisions of chapter 376 of the acts of 1873, being an act to prevent fraud at elections in cities. The question was argued whether the act, so far as relates to such appointment of supervisors by the Supreme Court, was constitutional. The Chief Justice gave the decision. He said that he had conferred with the other judges, and the opinion which he was to announce was the opinion of the full court. It was an important constitutional question. The statute was plain enough; but if it was clearly repugnant to the constitution, it must be disregarded. The people, in the constitution, had taken special precautions to separate the three departments of the government. The judges could not hold political offices. They might make appointments of certain subordinate officers, but such of these as had duties to perform which were at all executive in their nature must make report to the court. They might appoint clerks and other officers, who might be necessary to transact the business of the court, and they might try the title to an office. This statute provided, in the first section, that the Supreme Judicial Court might appoint and commission supervisors, who were to be sworn to the faithful discharge of their duty. Their duties were defined by the second section. Certain powers were intrusted to them beyond what belonged to other citizens. They were to be sworn. They were not to return any report to the court. They were to scrutinize the election. The question was, whether the appointment of such officers belonged to the judicial department of the government, and the judges were unanimous in their opinion that it did not, and that the act was so far unconstitutional. It might be said that this decision was at variance with the decisions of the circuit courts of the United States which had appointed supervisors under an act of Congress. But these courts might not have had the question distinctly before them. The judges were obliged to act separately, and, besides, the Constitution of the United States differed from that of Massachusetts. The phrase had a broader meaning in the one than in the other. In reply to the question whether the decision went to the constitutionality of the whole act, the Chief Justice said that the court only decided that so much of the act as declared it to be the duty of the judge of the court to appoint supervisors could not be complied with, because in conflict with the constitution.
This important decision has not been reported yet, and we are indebted for the above imperfect sketch to the Boston Daily Advertiser.
The Bankrupt Act. Accommodation Indorser. — In re Clemens. — The United States Circuit Court for the Eastern District of Missouri reverses the decision of Judge Treat, ante, page 168, and decides that the indorser of a note not originating in his business, and solely for the accommodation of another person, cannot, if he fails to pay the same, be proceeded against in invitum, and be adjudicated a bankrupt. Judge Withey (Re Nicodemus, 2 Chicago Legal News, 49, 8. c. 3 Bank. Reg. 55) and Judge Blatchford (/noes v. Carpenter, 4 Bank. Reg. 139, and also Re McDermolt Bolt Co., 3 ib. 33; Re Lowenstein, 2 ib. 99) have expressed the opinion that the accommodation indorsement of the note of another did not make it, within the meaning of the clause of the act under consideration, the commercial paper of the accommodation indorser. On the other hand, Judge Lowell (Re Chandler, 4 Bank. Reg. 66, s. C. 1 Lowell Decisions, 478) has reached the opposite conclusion.
The Peofle V. Stokes. — The course of this now famous case has been finally run; and Edward S. Stokes has been convicted of manslaughter in the third degree, and sentenced to imprisonment in the state prison for four years. The management of the case for the people, and the conduct of the presiding judge, are worthy of remark. That the District Attorney tried his case on behalf of the people without the assistance of a private prosecutor, and that Judge Davis was evidently shocked at the behavior of the jury and the result at which they arrived, mark, it seems to us, a healthy change in the administration of criminal justice in this state. The subsequent indictment and sentence of several of the jury for bribery and corrupt practices show how well founded was the general opionion as to the propriety of the verdict.
The Judiciary Amendment. —We regret to say that an appointed judiciary has met with no favor from the people of New York, the amendment to the constitution establishing it having received about 100,000 votes out of a total poll of 400,000. But one county voted in its favor; New York city cast a negative vote of two to one, and the country voted overwhelmingly the same way. But little effort to instruct and persuade voters was made by the bar and those in favor of the amendment till just before the election. The country people said that their judging was done very well under the present law, and the city said, " Our judges are good enough for us;" and possibly they are.
The Peofle V. Tweed. —Three years ago there was organized in New York the Tweed Testimonial Association, having '' for its object the erection of a statue of the Hon. William M. Tweed, in consideration of his services to the Commonwealth of New York." The twenty-ninth of last November Tweed was taken to the state penitentiary on Blackwell's Island, in which he has been sentenced to twelve years' imprisonment at hard labor, and where at last he will have an opportunity of doing some good "service to the Commonwealth of New York." It is a time for honest men to rejoice and be glad, and especially to render due respect to the few untiring and devoted men, who, undeterred by the threats of the guilty and the sneers or faint-hearted predictions of the indifferent, have wrought this good work to the end.
If we can trust the newspapers, there are some great emotional natures at the New York bar. We are told that, on the announcement of the favorable verdict for Stokes, one of his counsel " wept like a child," upon which the prisoner'• patted his shoulder caressingly." Mr. Graham, too, weeps when a motion in favor of Tweed is overruled, and also, and perhaps with more reason, when he himself is punished for contempt. Tears we have been taught to consider woman's weapon; and, having a wholesome fear of its power, we have, we confess, always looked with some alarm on her prospective admission to the bar. Fancy the effect on tender-hearted jurymen of lovely woman in distress, dissolved in tears at objections to the admission of her evidence by the opposing male counsel, or at the adverse ruling of a masculine jadge. Possibly it is with a view of meeting these new opponents that the gentlemen above mentioned are practising what Mr. Weller, we believe, used to call "letting on the main;" and they may hope to be able, with patience and perseverance, to beat the ladies at their own weapons. It would seem, however, to be a fond and foolish striving.
Contempt Of Court. — Tweed's trial, like that of Stokes, had a sequel; but in the former it was the prisoner's counsel, and not his jurors, who met what we have every reason to suppose was deserved punishment. Contempt of court is strictly defined by the statutes of New York, and its punishment limited. The Ring, when it and its judges were in power, brought forward a bill to extend this power of the courts with a view of silencing more effectually their opponents. But the bill never became a law. Mr. Justice Davis inflicted on Tweed's counsel the highest fine in his power, — two hundred and fifty dollars.
This prerogative of the court, it seems to us, should be exercised, as in this case it was, with great discretion. Recently, during the progress of a suit in the highest court of one of the States, a newspaper published a scurrilous article abusing the plaintiff and his motives in bringing the suit; and a copy of the newspaper was found in the house of the foreman of the jury. The publisher of the newspaper was brought before the court, and fined, for contempt, ttcenty-Jice dollars, the penalty for drunkenness or a simple assault. Now, if this contempt was an offence at all, it was a most aggravated one, and merited a severe punishment. We cannot think that this paltry fine did much to enhance the dignity of a great court, or respect for the administration of justice.
Constitutional Reform.—Judiciary. — Legislative Corruption. — Corporations.—The new constitution was submitted to the people on the sixteenth of December, and adopted by 200,000 majority, Philadelphia itself casting 30,000 majority in its favor. In our last number, page 170, we spoke of the judiciary clause, and also of a proposed section invalidating bills passed by corrupt means. The latter, however, was defeated in the convention. From a letter of the executive committee of the convention to the people of Pennsylvania, we copy a description of some of the prominent features of the constitution: —
The article on legislation requires that every bill shall be read at length on three different days in each house, and no bill shall become a law unless passed by a majority of the members elected to each house; nor unless on its final passage the vote is taken by yeas and nays, and the vote of each member entered on the journal. The legislature is restrained from passing local or special laws upon a number of specified subjects.
To insure official fidelity, so far as possible, it is provided that any member of the General Assembly who shall solicit, demand, or receive, or consent to receive, directly or indirectly, any money or thing of value, or appointment, or personal advantage, or promise thereof, for his vote or official influence, or for withholding tho same, shall be held guilty of bribery, and be disqualified from holding any office or position of profit in the state; and the like punishment is provided for any person who shall influence, or attempt to influence corruptly any member of the General Assembly.
Another clause authorizes the governor to veto any one or more items of any bill making appropriations of money, and to approve the rest.
The seventh article requires senators and representatives, and all judicial, state, and county officers, to take and subscribe the usual oath to support the constitution, and discharge their duties of office with fidelity; and, in addition, that they have not knowingly violated any election laws of the commonwealth, or procured it to be done by others, and that they will not knowingly receive, directly or indirectly, any money or other valuable thing for the performance or non-performance of any act or duty pertaining to such office other than the compensation allowed by law; and provides that any one convicted of having sworn or affirmed falsely shall be guilty of perjury, and for ever disqualified for holding any office of trust or profit within the common wealth.
Neither the state, nor any county, city, borough, or township, shall loan their credit, or become stockholders in any company, association, or corporation.
The seventeenth article, on railroads and canals, gives to every railroad company the right, with its road, to intersect, connect with, or cross any other railroad, and requires them to transport each the other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination.
All persons shall have equal right of transportation, and no unreasonable discrimination shall be made in charges or in facilities for transportation, and persons and property shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class in the same direction to any more distant station.
Railroad companies are forbidden to consolidate with, or own, or control competing lines, or to engage in any other business than that of common carriers, or to own or acquire lands, except such as shall be necessary for carrying on its business; discriminations in charges by drawbacks or otherwise are forbidden. Free passes, except to officers and employees, shall not be issued.
The accompanying ordinance provided that, while the rest of the state should vote on the adoption of the constitution, according to the provisions of the existing election laws in the city of Philadelphia, the election should be under the charge of five commissioners appointed by the convention. This was done to meet the notorious frauds and corruptions of the Philadelphia "ring," which now casts the vote of that city, and which is, naturally enough, opposed to constitutional and all other reform. The Supreme Court of the state has pronounced this action of the convention void, and declares that it went beyond its powers in prescribing the mode of voting upon its adoption. This is an interesting question, and one on which there is a wide difference of opinion. The practice has certainly been for constitutional conventions to regulate the manner of voting on their work.
Personal. — The following extracts from a contemporary legal journal must be of much interest to a limited circle, and are entertaining reading even to others. We suppress names.
Leo1s Person*. — A. B., Esq., is building up a lucrative practice in H.
C. D., Esq., enjoys an enviable reputation at the X bar.
E. F., Esq., of G., is the only lawyer in that borough. We envy him.
And so on.
Telegraph Company. — Liarility For Negligence. Candee v. Western Union Telegraph Co. Tyler v. Same. Redpath v. Same. — On page 763 of Volume VII. of the Law Review, we gave the facts in the first of these three cases. The case was afterwards carried to the Supreme Court, which has lately given its decision in favor of the plaintiff. Through some oversight or negligence of the operator, the plaintiff's order to purchase stock was sent the day after it should have been sent, and the plaintiff thereby lost $500. The message was written on a " night message blank," which contained the condition that the company would not be liable for errors or delay in the transmission or delivery, or for non-delivery of messages, from whatever cause arising. The court says: —
We think that the regulations were intended to secure the company against liability for the injurious consequences flowing from its own, and from the negligence and omissions of its agents and operators in and about the performance of its contract entered into with the sender of the message. The supposed exemption is broad and sweeping, and calculated, no doubt, to relieve the company from all responsibility for the improper or insufficient performance, or attempted performance, of the contract, or for the entire failure to perform it, from whatever cause occurring-. Aside from the objections resting on grounds of public policy, and which forbid the com