« PreviousContinue »
Whether Mississippi was without civil tribunals during any portion of the time since the contract revived, is neither averred in the replication, nor was it proved on the trial. This court cannot take judicial knowledge of that point. But it is immaterial. The plaintiff could have resorted to the State tribunals of Connecticut, or to this court at any time since his appointment as administrator. Not having brought his suit within the time limited by the policy, exclusive of the whole period of disability, the plea in bar is a conclusive answer to his right to recover. Judgment must, therefore, be entered for the defendants.”
This opinion of the learned judge, though not in direct conflict with the opinion of the Attorney General, given above, can hardly stand together with it.
ILLINOIS. THE CHENEY CASE. — The Rev. Charles Edward Cheney, a presbyter of the Protestant Episcopal Church, is a clergyman of what are popularly called Low Church or Evangelical views, and has been charged, whether rightly or wrongly, with habitually omitting the words “regenerate” and “regeneration" in the office of infant baptism. On this charge he was summoned by the Bishop of Illinois before an ecclesiastical court. Mr. Cheney appeared before the court and made several objections to the jurisdiction and proceedings of the tribunal; these objections were overruled, whereupon Mr. Cheney applied to Judge Jameson, of the Superior Court of Chicago, for an injunction restraining the members of the court from acting or pretending to act as an ecclesiastical tribunal, and the judge granted the injunction. This proceeding has elicited much comment, and the action of Judge Jameson has been loudly applauded and loudly condemned; but none of those who have discussed the question seem to us to have looked at the matter from the proper legal point of view.
Judge Jameson's action we hold to be improper, and for this short reason. Mr. Cheney is a presbyter of the Episcopal Church, which is, in the eye of the law, merely a voluntary association ; by accepting that office in such association he acquired a legal right to certain privileges and immunities granted by the rules of such association to its presbyters, and he also became liable to be removed from office by a tribunal which, by the rules of such association, should have jurisdiction to try him, and which should proceed against him in accordance with such rules. But if a tribunal tries him which by such rules has no jurisdiction of his case, or if a tribunal which has jurisdiction does not proceed against him in accordance with such rules, the action of such tribunal is simply void and its judgment inoperative: there is no need to enjoin its proceedings; its sentence has no more effect than if the so-called court was a pack of boys playing at bishops. If an attempt is made at enforcing such sentence by ejecting the accused clergyman from his church, or refusing him his salary or otherwise, then he has his remedy at law, but not till then. We take it, that any man or number of men have a right to try any person for heresy (if such person is fool enough to appear before him or them) without being enjoined by a court of law. If he or they are a tribunal which, by the rules of the ecclesiastical body to which the accused belongs, have a right to try the accused, and if they proceed according to such rules, then their sentence is operative; if they are not such tribunal, or if they do not so proceed, then their sentence is nothing but idle words.
Whether the proceedings against Mr. Cheney are regular or not we have not the means of judging; but, whether regular or not, we are clear that a court of chancery has no right to stop them by an injunction.
The enormous increase in the use of injunctions by courts of equity throughout the United States during the past few years may well awaken the alarm of the community. They are employed with a frequency and in cases which were never dreamed of by the early chancellors, beyond the utmost claims of Lord Ellesmere in his contest with the greatest of the common lawyers. An injunction is a powerful aid to justice, but it may also be a powerful instrument of oppression. The granting of an injunction is eminently an act of judicial discretion; and in a country where, in theory at least, the judiciary have almost autocratic power, where they are above not only the executive, but the legislature, judicial discretion ought to be strictly limited and confined within narrow bounds. We commend the matter most seriously to the attention of our legal reformers.
IOWA. In the June number of the “Western Jurist” (Vol. 3, p. 134) will be found the case of Hansen v. Vernon, on which the Supreme Court of Iowa hold that, under the Constitution of the State, the legislature has no power to authorize the majority of the inhabitants of a township to vote a tax the proceeds of which are to be given to a private railway company in which the tax-payers have no interest. The elaborate opinion of Chief Justice Dillon is worthy a careful reading. A similar decision has been made by the Supreme Court of Wisconsin in the case of a railroad, in Whiting v. Sheboygan R.R. Co., 1 Chicago Leg. J. 378; and also by the Supreme Court of Wisconsin in the case of the Jefferson Liberal Institute, in Curtis v. Whipple, 1 Chicago Leg. J. 335.
MARYLAND. · COURT OF APPEALS. — Ward v. State of Maryland. The Act of the legislature of Maryland of 1868, c. 413, provides that “no person, not being a permanent resident of this State, shall sell, offer for sale, or expose for sale, within the limits of the city of Baltimore, any 'goods, wares, or merchandise, other than agricultural products and articles manufactured in the State of Maryland, within the limits of said city, either by card, sample, or other specimen, or by written or printed trade list or catalogue, whether such person be the maker or manufacturer thereof or not, without first obtaining a license so to do." The cost of a license is three hundred dollars a year, and a penalty is imposed for selling without license.
A case has been brought before the Court of Appeals to test this law. The counsel for the defence contended that the act was repugnant to that clause of the Constitution of the United States which gives to Congress the power to regulate commerce with foreign nations and among the several States, and also to that other clause which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens of the several States.” The court, however, overruled both objections, and held the act constitutional. The case is reported in the “ Baltimore Daily Law Transcript" for July 24, 1869.
MASSACHUSETTS. RICHARD FLETCHER AT THE BAR. — We have been kindly furnished with the following sketch of Judge Fletcher.
On Thursday, the twenty-fourth day of June last, all that was mortal of this estimable man was laid to rest at Mount Auburn. The funeral was a quiet and unostentatious one, in every way such as Mr. Fletcher would have coveted. Nothing in his life more became him than his reported injunction, on leaving it, against any meeting of the Bar and any resolutions of respect at his decease. He was opposed to all crowds, all vain displays, and all empty demonstrations. He abhorred show and respected substance. He knew that sincere respect and heart-felt grief do not find their best manifestation in tumultuous gatherings and paper resolves. But for all this, Richard Fletcher, at the bar, will be a cherished recollection in the memory of all his professional brethren. Elsewhere and by others he is eulogized for amiable qualities as a man, for urbanity and grace as a gentleman, for open-handed benevolence and unbounded kindness of heart, for fervent, sincere, unostentatious piety and charity. By many he will be long remembered as the ablest lay member of a most numerous and respectable religious sect. By numerous clients whom he has served as a wise counsellor and a sincere friend, he will be held in warm regard. The many who have tasted his charity and felt his benevolence now remember them and him well, —
- "For his bounty
That grew the more by reaping." But for other and different qualities and characteristics a Bar, of whom he was the oldest member, now revere him. His was that peculiar eminence which came of a happy combination of character, of talent, of learning, and of manner; and it is as a chivalrous and successful champion in the temple of justice that he is by the Bar best remembered.
Like most lawyers, the leading events of his life are quickly narrated. He was a native of Cavendish, Vt, and was born Jan. 8, 1787; he graduated at Dartmouth in 1806; studied with Mr. Webster, and was called to the bar in 1809. He at first settled at Salisbury, in New Hampshire, but soon removed to Portsmouth, where he remained until 1825, when he came to Boston. He was a member of the Massachusetts legislature in 1837, and was subsequently a member of Congress for a single term. In 1848, he went upon the Supreme Bench, and finally retired from practice in 1856. He died at Boston in June last. The judicial career of Judge Fletcher covered but a period of five years, extending from 1848 to 1853. On the bench he sustained his reputation, but he did not materially advance it. It was a laborious place for a man of his age. He tired of the office, and gladly withdrew from the bench again to the bar; but it was to give advice rather than to mingle in the active turmoils of the courts.
His acquirements in letters were respectable, though not extensive. But in the profession of the law, both as a science and as an art, he was eminently a cultivated man. Yet he recommended thinking rather than much reading to the student. “I wish you to tell the young men of the country,” said he to an author about to publish a first book of the law, “that they must think. The want of thought is the great want of the professional mind in the present age.” What he thus recommended to others he had for a lifetime practised himself. Although he was a laborious student, a hard thinker, a large practitioner, and a legal enthusiast, he wrote little and published less, and hence his fame will rest on uncertain tradition and memory. He was slow with the pen, and detested the tedium of set composition. He never wrote a law book, and, though often urged, and, it is understood, sometimes tempted, to put on paper his professional experience and reminiscences, he never we believe seriously attempted it. How well he was fitted, in his old age, to write a law treatise above the level of ordinary law books, will be conceded by all. How valuable his forensic recollections and hints on advocacy would have been, is known to those acquainted with his crowded legal life. Whether greatness can be claimed for him may be doubted; and yet to some of its elements he must have had some pretensions, to hold successful competition with the men he did. He is said to have been slow, rather than quick, of comprehension ; but he had industry, care, and caution, which made up for the want of the rapidity of genius and the comprehensiveness of greatness. He came to the trial of a case thoroughly posted; and his whole previous professional life was a general preparation for the single case. He had a reserved power which was not put forth on all occasions; we have heard it said that in a great case he had to be whipped twice before he awoke at the third trial to the full exhibition of his strength and resources. He was thoroughly well read in all the leading branches of the law. Real Property, Chancery, Admiralty, Patent, Mercantile, as well as Criminal Law, were familiar to him, if he was not equally well fitted to try a cause involving either. But he was something higher and better than a legal book-worm: if he was not an originator, an inventor, and a reformer in the law, he was a thinker of much more than average power and strength.
But few of the eminent men of the profession, in any day or country, have better understood the higher arts of advocacy or more skilfully filled the office of an advocate. His heart was in his profession : he felt that this his chosen vocation was the one in which he was best fitted for usefulness, comfort, and success. It was unfortunate for him that the exigencies of party and the importunities of friends ever induced him for the shortest time to abandon the labors of the profession for the toils of the politician and the annoyances of the legislature. For he was destitute of that pliability, elasticity, and adaptability to men, to times, and to events which too often make the skilful trimmer ascend to the height of political advancement. He was, it is just to add, not largely possessed of that boldness which is essential to the great political leader or those comprehensive and original ideas which constitute the great statesman. Accordingly, it was generally understood that his political diversion was a failure, and in that view of it we have always understood he acquiesced. Destitute of the more shining qualities which make a commanding public man, he was eminently possessed of those less brilliant but more useful qualities of mind which make a sound jurist, a safe adviser, and a skilful court lawyer. For all the exigencies of such a life, he had a sufficiency of boldness, originality, and constructive genius. No client ever had a safer, a wiser, or a more prudent counsellor, either in the smallest or the largest affairs. No client was ever more bravely defended when accused, or had his rights more vigorously asserted when he sought redress, than he who secured Richard Fletcher. Yet prudent legal discretion was with him ever the wisest part of forensic valor. His mode of conducting a cause is familiar to the seniors at this bar, and may be safely copied as a model of the highest art and the best skill. He was quiet, pointed, direct, simple, and strong. No corrupt witness found it easy to deceive him, or possible to evade his keen, well-pointed thrusts and point-blank exposure, and this was effected not by bullying or blustering, or by a multitude of weak, flippant, and pointless questions ; but by watching his man, keeping quiet, lying low until the opportune moment came, and then, by a few friendly, persuasive questions, he drew the witness on and out, until, in sheer self-deception, he almost became an honest witness, and his exposure or else his surrender was an almost necessary consequence. When at the New Hampshire bar, and early after his advent here, Mr. Fletcher is said to have fallen into the ruder arts of storming cross-examination; but as he grew older and wiser he threw this aside as a vulgar mistake, and ever after recommended to his young friends, by word and by example, a higher, a purer, and a more effective style of advocacy. But few men were better skilled in the conduot and management of a case. He was cautious, wary, and yet, when occasion demanded, he could be bold, and even arrogant. His address to the jury was a model of its kind; and if that kind was not the most intellectual and eloquent, it was because he rightly judged that a great oration is one thing and a successful address to a jury was another and a very different thing. He cultivated that calm, familiar, quiet, colloquial style which made Sir James Scarlett the most successful of jury advocates, notwithstanding he had not a particle of eloquence, and made him deserve the highest tribute which could be paid an advocate, that he got into the jury box, and became, to all intents and purposes, a thirteenth juryman. Some have argued to juries more philosophically, others more brilliantly, but few if any more skilfully or more successfully than Judge Fletcher. He always had a theory of his case, and to that theory those who knew him best report that he adhered with pertinacity and spirit, and that theory he was careful to make consistent, plausible, reasonable, and as nearly just as possible. His great weight before a jury came from two facts: his moral character, and the skill with which he amplified, enforced, and drove facts home. Without mere vulgar repetition, he could present a series of facts to a jury in a half a dozen different phases: no jury suppposed him capable of misrepresentation or unfair dealing with them. He held a high place with illustrious contemporaries, and, as he closes the scene, a comparison is natural. With Mason, he fought many a hard fight here and in New Hampshire. He had not his strength, vigor, and acuteness, and possibly not his learning; but he was competent to wage a creditable war with that mighty giant. He lacked Webster's eloquence, power of action, and broad philosophy ; but, as a lawyer, in many respects he was his equal. With Choate, the material of contrast, rather than comparison, exists. What Choate accomplished by fire and fury, brilliant metaphor, and drafts upon all the resources of learning, humor, and wit, Fletcher accomplished by character, logical vigor, and the power of clear, close, concise, effective statement, and strong, plain argument.
His old age was cheerful and happy. The scene was lengthened out; but no imbecility darkened or second childishness clouded it. It was not an ambitious old age, but it was dignified and quiet. In the practice of a chamber counsel he found useful and profitable employment, until increasing years compelled him to give up bis office. Instead of waiting until a testamentary bequest could make