« PreviousContinue »
the tribunal before which an offending barrister is arraigned to take his trial for dear professional life, is composed of non-representative men. The Benchers of Gray's Inn are gentlemen who have recently shown a disposition to elevate and improve the position of their society; but they are not the most eminent members of the profession, and we cannot consider that they will constitute a satisfactory tribunal before which the fate of a Queen's counsel charged with grave breaches of decorum and decency should be decided. It is obviou is absurd that the governing body of an almost extinct Inn of Court should adjudicate upon a matter in which the entire profession and the public are so largely interested. The governing bodies of the Inns of Court are not representative, being self-elected, and any one body, even if it represented the members of its own society, could not be taken as representing all the members of the other three Inns. There is no other tribunal, however, which can take cognizance of the alleged offences.
The next subject for consideration is the nature of the penalty which should be attached to breaches of professional propriety. Clearly this must depend altogether upon the nature of the offence. We are not, however, without precedents, one being recently furnished by a leading Inn of Court, the Inner Temple. Mr. Edwin James was disbarred for sins against his profession rather than against public morality. Driven by overwhelming necessity, he sacrificed his independence by accepting pecuniary aid from an opponent. This and other questionable monetary transactions caused him to be expelled from a society which his brilliant eloquence had adorned, and the decree was found to be irrevocable after years of exile and contrition. Dr. Kenealy, on the other hand, is charged with the most reckless violation of all the rules which should govern the conduct of counsel in the cross-examination of witnesses and in making comments upon their evidence, whilst ,t is said that the government of the country, the impartiality of the judges, the living and the dead who were connected with the case for the prosecution, were reviled in the bitterest and coarsest terms. These are not only offences against the profession,—that they do indeed bring dishonor and discredit upon the bar is admitted on all hands, — but they are offences against public morality, and calculated to impede the course of justice. If proved to the satisfaction of the judges to whom Dr. Kenealy is bound to answer, and if they cannot be excused on the ground of the exigencies of the case, the extreme punishment would seem to be inevitable. It is impossible to contrast such a case with the precedents to which we have alluded without feeling that we have reached the lowest depth which the profession has experienced, at any rate within the memory of the living.
We would gladly find some excuse for Dr. Kenealy in the extraordinary circumstances which surrounded him, and the enormous and bewildering labor which was imposed upon him. He spoke the truth when he said that he had to contend with difficulties in defending his client which no counsel had ever encountered before. Virtually single-handed he had to contend against an array of skill and talent of no mean order, — as high indeed as the English bar could furnish; whilst the keen intellect of the Lord Chief Justice allowed scarcely a single fallacy advanced by him to pass without dragging it into light and almost compelling the counsel who supported it to make blind and mad efforts to produce impossible explanations, and to reconcile the irreconcilable. These, undoubtedly, are matters to be considered; and grave as the position is in which Dr. Kenealy has placed himself, he is as yet uncondemned by the constituted authority, and his case should be approached — as we are certain it will be approached — with scrupulous impartiality and freedom from prejudice, with a full sense of the importance of the issue, not to Dr. Kenealy only, nor indeed to the profession, but to law and order and the administration of justice.
An Illiterate Voter. — The Bristol Post reports the following examination of a witness on the trial of the Stroud election petition. The witness is described as a workingmau and a voter.
3Ir. Baron Bramwell: Do you know which party governs the country now? — Witness: The yellows, I suppose, sir. (Laughter.)
His Lordship: Do you suppose Mr. Disraeli is a " yellow"?— Witness: Well, I don't know, sir. (Laughter.)
His Lordship: You don't know ?—Witness: I don't know; I'm a man as can't understand.
Sis Lordship: When you gave your vote, did you know what principles you were voting for? Did you know what party the color you voted for represented ? — Witness: Yellow is the Liberal party. (Laughter.)
Sis Lordship: What are the other party called?— Witness: The blues. (Loud laughter.)
His Lordship: Don't you know any other name ? — Witness: No, sir.
His Lordship: What are the blues?— Witness: I don't know what they do call 'em. (Renewed laughter.)
His Lordship: Have you heard of Mr. Disraeli's name? — No answer.
His Lordship: Have you heard the name of the present Prime Minister ? — IFi'fness: No, sir. I don't know. (Laughter.)
His Lordship: Mr. Gladstone. Have you heard of him ? — Witness: Oh, yes, Mr. Gladstone. (Loud laughter.) .
His Lordship: What is he? — Witness: I suppose he is a Liberal, sir; I think.
Sis Lordship: Do you know what opinions the Liberals have ? — Witness: I think the Liberals be the best side of the party, sir. (Laughter.)
Mr. Hawkins: This is one of the new voters under the act of 1867. — Sis Lordship: Yes, and I was rather curious to see what he knew about it.
Copyright. — Court Of Queen's Bench. Toole v. Young. — An interesting point on the Dramatic Copyright Act (3 & 4 Will. 4, c. 15) was lately decided by the Court of Queen's Bench, in Toole v. Young. Mr. Hollingshead having written a story, afterwards dramatized it, and sold the drama to the plaintiff. Afterwards, another writer, in ignorance of the existence of Mr. Hollingshead's drama, dramatized the story, and this second drama was acted without the plaintiff's license. The action was brought to recover the penalty imposed by section 2 of the act for every representation infringing the proprietary right. It was admitted that the two dramas, although certain large portions were the same in each, were independent adaptations of the story. The question for the decision of the court was, whether under these circumstances the plaintiff's sole liberty of representing his drama had been infringed. Now, in Reade v. Conquest (10 W. R. 271; II C. B. n. S. 479), the author of a drama " novelized " it, and the defendant afterwards, in ignorance of the prior drama, dramatized the novel. Some parts of the two dramas were the same. The court held that the copyright under 3 & 4 Will. 4, c. 15, was infringed if the whole or any part of the plaintiff's drama was represented without leave; and since a very considerable part of it had been so represented by the defendant, he was liable for infringement. It was urged in Toole v. Young that this rule wquld apply where the defendant's drama was founded on a novel on which the former drama was founded. The court, however,
VOL. VIII. 51
refused to take this view. Any one may dramatize a novel (Reade v. Conquest, 9 W. R. 434), and the court thought that the mere fact that the author of the novel had done so could not prevent any one else from doing the same. The second dramatist could not take his drama from the previous drama, but why not from the novel from which the previous drama was taken. Supposing even that the dramas were the same, they were taken independently from the same source. In Reade v. Conquest the novel was a copy of the drama, and, therefore, the defendant in copying the novel necessarily copied the drama; here both dramas were copies of the same novel. The lesson of the recent case to dramatic authors is, write your drama before you "novelize " it; then neither can your drama be pirated nor (practically) can your novel be dramatized. If you publish your novel first and then dramatize it, not only can your novel be dramatized, but all the effective scenes of your drama may be reproduced in other dramas constructed from the novel.
To The Editor Of Thb American Law Review: —
Dear Sir, — In the January number of your Review, in noticing Vol. L of the Federal Court Reports, for this Seventh Judicial Circuit, prepared by myself, you criticise my practice of publishing, as decisions, various charges to the jury, and complain that I nowhere give a reason for so doing; and, in your last number, you make the same accusation against Judge Dillon in his Reports for the Eighth Circuit. I will therefore now give you the reasons why, in my opinion, charges to the jury occupy a proper place in Reports for the United States Circuit and District Courts, — reasons which doubtless operated, to a greater or less extent, upon Judge Dillon, while proparing those Reports in his circuit which have met with such universal favor.
In the first place, these federal courts sitting mostly at nisi jirius, a charge to the jury is strictly and properly a decision, just as much so as an opinion upon a demurrer, motion for new trial, or any other form in which a point may arise and be passed upon. The only objection to publishing charges is, that they may be hastily conceived, and not thoughtfully considered. This objection is obviated in my volumes by the fact that every charge, before being handed to the printer, is submitted, for revision, to the judge who delivered it, and afterwards submitted to him in the proof, so that it represents his deliberate judgment as to the law of the case as thoroughly as though it were a written opinion; while in Judge Dillon's Reports, he being his own reporter, it cannot be said that his charges are not revised and considered.
In the second case, many of the most interesting and important questions decided in the Circuit and District Courts naturally arise on charges to the jury; and some questions come up only in that form. Admiralty and chancery questions are, of course, heard by the court alone; but what would become of the whole class of insurance and railroad cases, of actions for damages, actions against common carriers, cases of fraud, criminal cases, and many branches of contracts, many questions of commercial law, and even infringement of patents, if all charges to the jury were thus summarily excluded from our Reports? I grant that it would not do to publish all the charges of the courts as they are delivered; but for the Seventh Circuit I will say that the reported charges are only a small proportion of those which have come to my hands, and that these selected charges are only published when they are believed to contain the decision of questions of permanent interest and importance to the profession, and then only after a careful statement of the essential facts, and an elimination of those immaterial to the real issues of law, however material to the parties as questions of fact; and to whatever of interest or value the Reports thus far published may have, the charges to the jury therein contained contribute their full share. Nor did this practice, for which you criticise Judge Dillon and myself, originate with us, nor is it contrary to the custom of reporters. Judge M'Lean, in his Reports, uniformly published charges to the jury, as also did Judge Curtis, Judge Cranch, and Judge Washington.
In Judge Deady's Reports, the charges to the jury constitute a considerable portion of the volume, as in Bond's Reports, Benedict's, Woolworth's, and Abbott's.
But if you will examine the Reports of the United States Circuit and District Courts within your own circuit, and published by the eminent firm which publishes your Review, and with which you are so intimately connected, you will find that there also the charges to the jury have been regularly published, and even rulings of the court on interlocutory motions, and offers of instructions to the jury. Gallison, Mason, Sumner, Story, Woodbury & Minot, and Curtis, all published charges in their Reports; and Judge Curtis even adds charges to the grand jury, while Clifford has a single charge of twenty-nine pages.
With these facts before you, I trust that you will be able to see that, as the questions are not presented before these courts as before appellate tribunals, these charges to the jury, when judiciously selected and properly reported, constitute an important and essential element in such a series of reports.
Yours very respectfully,
JOSIAH H. BISSELL,
Official Reporter, Seventh Judicial Circuit.
Chicago, April 28, 1874.
[The arguments against publishing charges seem to us so obvious as not to require repetition; nor are we convinced by Mr. Bissell's letter that the views we have expressed are wrong. Reports should contain only cases valuable as precedents; and no court would countenance the citation of charges to juries on the briefs of counsel, or regard them as authorities. The object of preserving the opinions of the judiciary is to show the growth and state of the law, and not to record the history of litigation; and it seems to us that a charge to a jury is not likely to be so valuable even, as an interlocutory judgment . Without the greatest efforts at condensation, and the suppression of all but the most important matters, our reports will soon become unmanageable. — Eos.]