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In the discussion of the question of insanity the judge, after remarking that the causes of insanity are as varied as the varying circumstances of man, breaks into a strain of poetry which he remembers from Armstrong's book on Health (Book 4, v. 84): Some for love, some for jealousy,

For grim religion some, and some for pride,
Have lost their reason; some for fear of want
Want all their lives; and others every day,
For fear of dying, suffer worse than death.

In summing up the opinion of the court he says: "We hold the rule on the question before us to be this. If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable." This is a valuable case to read. It is the foundation of all the later decisions of the Supreme Court on this question and has been consistently followed.

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In the case of Bigelow v. Berkshire Life Ins. Co. (93 U. S. 918), Bigelow, the insured, shot himself with a pistol. The defendant pleaded this and the plaintiff answered by saying that at the time of committing the act the assured was insane. The policy contained the provision that if the assured should die by suicide, sane or insane, the policy would be avoided. The addition of the words sane or insane" was an attempt by this company, as it was on the part of many others, to eliminate the question of insanity from the field of argument. The court, after alluding to the replication of insanity, said: "Such a man could not commit felony; but he could take his own life, with a set purpose to do so, conscious of the physical nature of the act, but unconscious of the criminality of it. As the line between sanity and insanity is often shadowy and difficult to define, this company thought proper to take the subject from the domain of controversy and by stipulation exclude all liability by reason of the death of the party by his own act, whether he was at the time a responsible moral agent or not. * * * For the purpose of this suit it is enough to say that if the assured be conscious of the physical nature of the act he is committing, and intended by it to cause his death,

the policy is voided, although at the time he was incapable of judging between right and wrong, and did not understand the moral consequences of what he was doing." The same question here passed upon was also decided in 1874 in the 34 Wis. 389.

In the 95 U. S. 433 will be found the case of Charter Oak Life Insurance Company v. Rodel. It was provided in the policy of insurance that it should be void in case of death by the hand of the assured. It was admitted that the assured died

from the effects of poison administered by his own hand. There was evidence going to show his insanity at the time of committing the suicidal act. Justice Bradley, in approving the charge given to the jury in the trial below, which was in the very words of the Terry case, said: “It is not every kind or degree of insanity which will so far excuse the party taking his own life as to make the company insuring liable; to do this, the act of self-destruction must have been the consequence of insanity, and the mind of the deceased must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act which he was committing. If he was impelled to the act by an insane impulse, which the reason that was left him did not enable him to resist, or if his reasoning powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act which he was about to do, the company is liable. But if the deceased, although excited or angry or disturbed in mind, formed a determination to take his own life, because in the ordinary exercise of his reasoning faculties he preferred death to life, then the company is not liable, because he died by his own hand within the meaning of the policy."

In Life Ins. Co. v. Broughton (109 U. S. 878), one Israel Ferguson procured $10,000 of insurance upon his life and thereafter proceeded to hang himself. In the policy was a provision against suicide. The plaintiff set up the insanity of the assured at the time of the commission of the act. In approving the decision in the Terry case, Justice Gray went on to say that at the time there was a remarkable conflict of opinion in the courts of England, in the courts of the several States, and in the Circuit Court of the United States, as to the true interpretation of such a condition. All the authorities agreed that the words die by suicide' or 'die by his own hand' did not cover every possible case in which a man took his own life, and could not be held to include the case of self-destruction in a blind frenzy or under an overwhelming insane impulse. Some courts and judges held that they included every case in which a man, sane or insane, voluntarily took his own life; others were of

the opinion that any insane self-destruction was not within the condition." See, also, Conn. Mut. Life Ins. Co. v. Lathrop (111 U. S. 536).

The late decision handed down by the Supreme Court of the United States is of Ritter v. Mut. Life Ins. Co. (169 U. S. 693), traverses again the field of controversy on the question. There was the usual provision avoiding the policy in case of death by suicide. It seems that at the time Runk, the assured, took his own life, there was on his life an aggregate of about $500,000 insurance, most of which had been taken out not long prior to his suicide. It was not all involved in this suit, however. There was evidence that his income was not large enough to pay the premiums on his insurance, that he was heavily in debt, that the day before his death in a letter to his partner he avowed that his debts must be paid, and that they could only be paid with his life; that on the day before his suicide he wrote his aunt, to whom he was heavily indebted, asking her forgiveness and saying it was the only way he could pay his indebtedness. He left also for guidance of his executor a memorandum of his business affairs. Here there was a verdict for the company, which the plaintiff sought to reverse on appeal. Justice Harlan, after considerable reasoning and discussion of adjudicated cases, said there could be no reversal, and that in the face of the facts presented the act of Runk must be held to be that of a sane man and that to allow recovery would be a fraud upon the company.

It has not been deemed wise to cite a large number of cases on the various phases of the question under discussion for the simple reason that if any one should wish to find additional authorities, they may be found in the cases here discussed. It is believed that the cases presented are leading cases worthy of the attention here given them and that they fairly present the law as the respective courts have the light to see the law.

It may not be out of place before concluding to say that the law presumes all men to be sane and to have died natural deaths, and any one alleging otherwise must bear the burden of proof and overcome the prima facie presumption of the law against them (Grand Lodge I. O. M. A. v. Wieting, 168 Ill. 408; Blackstone v. Ins. Co., 74 Mich. 592). Neither must we forget that while juries are instructed that because a man commits suicide he must not be considered insane, yet the fact of suicide having been committed may be used in conjunction with other circumstances to determine the sanity or insanity of the deceased.

couraging, to find so little harmony of opinion. And yet when we remember that the first adjudicated case, that of Borradaile v. Hunter, arose only a little more than half a century ago, we should not be surprised at the contrariety of opinion on this question. To build up and establish a systematic body of law upon any subject takes much time, and the argument and adjudication of numberless cases; and all the more does this become true where unsettled psychologic questions are to be considered. Circumstances may be delightful things to conjure with, but who can tell when a man is dead, and death came by reason of an act of his own, what it was that prompted him to do the act, what motive he had, if any, whether he knew right from wrong, and appreciated the moral quality of his act, or even its physical effect, who will sit in judgment on the power of his mind or the volition of his will? It is on these questions that juries disagree and judges differ.

We may remember, however, in conclusion, that as a rule the English courts have held quite uniformly that if a man takes his own life, knowing the physical consequences of his act, and knowing and intending that the act shall cause his death, the policy of insurance shall be void. It matters not that he may not be able to appreciate the moral wrong in the commission of the suicidal act. The Supreme Court of the United States has uniformly held that to be conscious of the physical consequences of the act of self-destruction and intending that the act shall terminate life, is not sufficient to avoid the policy. The deceased must have appreciated the moral wrong of what he was doing, and have comprehended fully as a sane man would the physical and moral consequence and effect of his act to himself and others. In the State courts of the various States there has been considerable conflict of opinion, but there has been more of a tendency to construe the provision against suicide according to the literal meaning of the word. Their decisions have been more favorable to the insurance companies. A large number of them have given decisions quite in harmony with the first English decisions. In other words, they have been prone to hold that if a man understands the physical consequence of his act and willfully takes his own life. his moral discrimination does not enter into the question, and there can be no recovery from the company.

The writer is led to believe that the true test is not so much whether the insured was sane or insane at the time of taking his own life, as whether the act was committed voluntarily or involuntarily, After going over so many decisions and exam- consciously or unconsciously. Insanity is largely ining the reasoning of the respective courts it is a relative term — there are many degrees of insanrather disappointing, and one may well say dis-ity. Many minds are not well balanced and few

time he is prostituting his office and outraging justice for his own personal advancement. Such a judge is a perfect scourge to the poor or unfortunate. A man of this kind always makes strong alliance with the officers of his court, because these officers may act as heralds, sounding his praises.

minds are rational on all questions, hence the wide wide-learned and even great judge, when all the scope for controversy in testing the sanity of a mind. It may not be easy to determine whether an act of suicide was involuntary, but it entirely limits the inquiry as compared with the word insane, and is a much more logical test. It raises much more directly the question of mental power and mental power at the time of the commission of the act of self-destruction is certainly the crucial test of the provision under discussion.

DEFECTIVE ADMINISTRATION OF THE
LAW.

We hear a good deal said now and then about official corruption and bribery in the administration of the law. Such broad, sweeping charges are very misleading and in the main untrue. Of out and out bribery it is exceedingly rare, and general corruption along that line is also rare. But there is that which does as much practical harm as out and out bribery, and that is, the regarding the persons of men in judgment.

To illustrate this: Take a case wherein A is plaintiff and B defendant. Now, the defendant in this case is a man of great personal popularity, has a large following, or he is a man of great wealth and consequent influence, whilst the plaintiff A is a man who has no particular popularity, on the contrary, is rather unpopular, or he is poor. When this case is called in court for trial, the plaintiff appears in court, attended by his unpopularity and justice, or right, on his side. The defendant appears with his great personal popularity, friends and wealth. Now, many judges are too prone to peep under the skits of a case, and see who is the plaintiff, and what are his surroundings, and who is the defendant, and what his surroundings.

It has been for generations the effort and purpose of English-speaking races to place their judges above sinister influences. At first the effort was to guard the judiciary against the influence and power of the king (1).

All danger of this kind has long since passed away in England and never did exist in this country. In this country-we, like our ancestors have attempted to secure the pure administration of justice. In some States our judges (State) are elected by the public; in other States the federal system is followed, of a nomination of the judges by the chief judiciary, with a power in the senate of confirming or rejecting such nomination.

And here it may be remarked that in the south, where in the main we have only one political party, this nomination of judges by the chief executive amounts in effect to an appointment of the judiciary by such executive. Because, there being only one political party, the nomination of the governor is generally confirmed as a matter of course.

After all these safeguards of the judiciary have been applied, there still remains full scope for the abuse of judicial power, if the judiciary regard the persons of men in judgment, or seek to conform their judgments to the public sentiment prevailing at the time of the rendition of such judgment. Against this evil no restrain has been imposed, except that of impeachment in outrageous cases. we have just stated that actual bribery is so rare as practically not to exist, so that a judge might go on for years perverting justice and putting down right and setting up wrong, and yet not technically lay himself liable to an impeachment.

But

And it may be said that in a country like ours,

So in the case in hand, the judge looks at the parties, and takes in the situation, or if this is not apparent to open vision, he learns the same by in- where politics and office seeking is almost a trade quiring from the clerk or sheriff. Having obtained and where the humblest boy may possibly rise to this information, the judge is fixed accordingly. He be president, there is great temptation to scheme, knows that every decision he makes in favor of the wire-pull and work every art and trick by which defendant will fall on appreciative ears, and on a man may be advanced to position and power, so those who, when they go on the street, will speak that there is with us more need than in other counin the highest terms of his rulings. And, from their tries of less free government, to safeguard the adsocial position or wealth, what they say will be ac-ministration of law, and what we want is not laws cepted by the community, whilst what the plaintiff and systems which may insure a just administration says or thinks of the judge's rulings is a matter of of the law, but laws and systems which will insure small moment. Because the plaintiff is either so a just and righteous administration of the law. poor and insignificant as not to be admitted to the company of influential men to say anything, or else he is so unpopular that his enemies rejoice in his misfortune and commend the court without knowing anything of the facts.

It is really surprising how an artful judge can, by watching the drift of public sentiment, and by observing the character and quality of the suitors in his court, build up for himself a reputation of a

It is not safe to intrust men with power subject to only an indefinite and uncertain accountability. What class of men have greater power intrusted

(1) Blackstone's Com., vol. 1, p. 98; Entick v. King's Messengers, 19 How. St. Fr., 1029; Bayard v. United land, vol. 3. c. 11; Cox's Institutions of the English States, 116 U. S., 616; May's Const. History of EngGovernment, 437: Brown's Const. Law, 558; Munn v.

Setinois, 94 U. S., 317.

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And what is their actual accountability? Practically nothing. Because no judge would continue to be guilty of such open wrongdoing as to subject himself to an impeachment. But he may under the forms of law pursue a continued system of helping the strong and turning away the poor and unfortunate without subjecting himself to process of impeachment.

There is nothing that so effectively prevents wrongdoing as the knowledge that the wrongdoer is being watched, and, if detected in wrongdoing, speedily punished. Why this government cannot afford to turn over her post-offices and mail bags to her employes without at the same time providing numerous secret post-office inspectors who continually and all the while have their eyes on these employes. And who knows how many postmasters are kept in the performance of their duty by the knowledge that they are watched by the post-office inspectors?

Now, our judges have to do with much more important matters than do our postmasters.

The conclusion of the whole matter is that our judicial system, Our administration of justice, should be continuously and carefully inspected. And it should be so provided that conduct on the part of a judge, which would now go unpunished, would cause his removal from office. The effect should be, not so much to punish judges who were guilty of derilections of duty, as to remove them from office and get good men in their places to purify the administration of the law.

It

Again, we have too many inferior courts. would be best, in the south at least, if we had one court and only one in every county. This court should have the plenary jurisdiction of a Superior Court of law and equity. There are four natural jurisdictions, necessitating four dockets-first, the common law, civil docket; second, the criminal law, criminal docket; third, the equity docket, and fourth, the probate docket, including under this head the settlement of estates, orphans' business, idiots, etc. Now, this County Court should meet on the first Monday of every month, and dispose of first the common law civil docket; then the criminal docket: after that, take up and dispose of the equity docket, and, lastly, dispose of the probate docket.

Such is not the universal custom, but such things do take place.

Now, with only one court in the entire county, meeting only once a month, these foolish negroes would forget their little differences and be friends again before the next court met.

These monthly courts would remove the complaint of delay in the administration of the law, since one term would be the pleading term, and the second term, at the first of the next month, would be the trial term.

We have had County Courts, but the trouble was we had at the same time a Circuit Court, so that the County Court was rendered unnecessary.

I see no reason why there should not be in each county in the State one court, and only one, with authority and power to dispose of the four dockets, and to sit until it had disposed of all of said dockets. This, of course, would not interfere with a Mayor's City Court to punish violators of city ordinances. We certainly and most assuredly need such a court in the negro section of the south. LINTON D. LANDRUM.

Columbus, Miss., July, 1902.

TRIAL BY JURY.

In the discussion of an institution like the jury, it is well to preface with an inquiry into its origin, and in some manner at least, trace its growth. The right of trial by jury arose out of the necessities of the people and of the times. Trial by battle and by ordeal, aided by superstitious interpretation of their results, determined all contested questions of fact.

The gradual development of civilization brought to the minds of the people a realization of the fact that these contests did not settle matters of abstract

right and wrong. Trial by wager of law and by the country became a substitute in certain cases.

The jury, as an element of English jurisprudence, was introduced by William, the Conqueror. Being drawn from the vicinage, these primitive jurors were originally witnesses, and being supposed to know the truth of the matter, were sworn to return a verdict, based upon their own knowledge, as to whether the plaintiff or defendant had the better right.

The next step forward that we can trace was that of "adjoining" witnesses to the jury, to inform them of some fact which, from its nature, was not likely to be known to them. These "adjoined" witnesses had no right to participate in the verdict. Thus began the gradual separation of the jury from those who were purely witnesses, and from this time began the change which ultimately made jurors "judges." With the increase in power of the English judges, the common people came to look upon this system

These inferior Justices' Courts in the south are a curse to the negro population. The negroes are attracted to these little courts somewhat like they go to a circus so that every little family matter, every little quarrel between two neighbors is taken to these courts; and after the court has convicted this trial by the tribunal of their number as the the defendant and got all his money, it frequently makes the defendant make an affidavit against the former plaintiff, and so the court gets all the ready cash of both parties before they leave the court.

great safeguard of their liberties, and as their only protection against the constant encroachments of the judges upon their natural rights. The years of its early history therefore, were times of constant

struggle with the courts.

Attempts to dictate decisions of contested fact, starvation, confinement for indefinite periods, every means that the ingenuity of the courts could invent, was used to coerce and mold the minds of the jury in conformity with the judge's will. But the people were triumphant, and for centuries, the right of the jury to decide questions of fact arising in cases at common law, has been undisputed.

The denial of their natural rights had driven many of our forefathers from their native land. Oppression and denial of inalienable rights had brought on the Revolution and sown the seeds of liberty, and instilled in the hearts of the people that love of natural justice which was destined to ripen into the greatest of American republics. It is but natural, therefore, for us to find, that in framing for themselves a system of government, and establishing for it a foundation in the Constitution, they should be careful to incorporate in it every precaution for the security of those principles.

The first mention of this right in the organic law is in article 3, section 2, paragraph 3. In the construction of this clause, it has been held that the word "crimes" is to be construed in the light of the principles which at common law, determined whether or not an accused person was entitled to be tried by jury. This construction includes not only felonies, punishable by confinement in the penitentiary, but also some classes of misdemeanors, the punishment of which means a deprivation of personal liberty. This was decided in Callan v. Wilson (127 U. S., 540). The exception in cases of impeachment is made because, by a previous provision (article I, section 2, paragraph 5, and section 3, paragraphs 6 and 7), the power to try such cases is vested in the senate of the United States, upon charges preferred by the house of representatives.

In the construction of the constitutional provisions relative to the right of trial by jury, many questions necessarily arise. Are the limitations and guarantees enumerated, applicable to suits in the courts of the United States only, or do they apply equally to proceedings in the courts of the States? Are they privileges that may be waived, or mandates which courts and suitors are bound to obey? What do the words "trial by jury" mean? In the absence of any more detailed description of "the jury," can the legislative power determine its composition and its duties and powers? These are vital questions, which it will be a part of our purpose to attempt to answer.

We proceed to the consideration of the first question. In an early case (Barron v. The City of Baltimore, 7 Pet., 243), Chief Justice Marshall said, in holding that the provisions applied alone to the federal courts: "The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a Constitution for itself, and in that Constitution provided such limitations and restrictions on the powers of its particular government as its

judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and calculated to promote their interests. The powers to be conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, we think necessarily applicable to the government created by that instrument." This interpretation has been affirmed by both the federal and State courts in innumerable cases.

The Constitution says that the trial of all crimes "shall" be by jury. That the word "shall" in this provision is mandatory has never been questioned, nor the wise policy disputed. The lives and liberties of men are held sacred, and the principle that the right to their enjoyment shall not be violated or denied by the judgment of one man has been held inviolate.

What was meant by "The Jury?" At common law, it was a tribunal of twelve men whose verdict was required to be unanimous, and, in the absence of express statements to the contrary in the Constitutions, this has been held to be its meaning still. In several of the States constitutional changes in the number composing the jury have often been upheld. A provision of that sort in the Constitution of Utah was sustained by the United States Supreme Court in a late case (Maxwell v. State, decided in March, 1900).

The argument has been advanced that this mandatory provision for trial by jury in criminal cases, by its own force, makes the jury the judges of the law as of the facts. This contention is supposed to be supported by the fact that a verdict acquitting the party of the crime charged, has always been held to be final, and that the court could not set such a verdict aside, and subject the party to a new trial. Such action, however, is based on the fifth amend"shall be subment, which declares that no person ject for the same offense to be twice put in jeopardy of life or limb," it being held that on a verdict of acquittal, the party has been put "in jeopardy" within the meaning of that clause of the Constitution.

The fifth amendment provides that "no person shall be held to answer for a capital or otherwise infamous crime, unless on the presentment or indictment of a grand jury." The trouble encountered in the construction of this clause has been the determination of what was an "infamous crime" within the meaning of this clause of the Constitution. While there have been several decisions from the circuit courts of the United States on the subject, the qustion first came directly before the Supreme Court in Ex Parte Wilson, decided March 30, 1885. Justice Gray there said: "No person can be held to answer, without the presentment or indictment of a grand jury for any crime for which an infamous punishment may be assessed by the court." The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment actually inflicted is infamous. What is an in

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