the problems of free government and give the Constitution vitality; the Anglo-Saxons are such a people.

The theories as to natural and inalienable rights, the right to life, liberty and the pursuit of happiness, are French in their origin, Rousseau having taken them from the speculations of the Greek Stoics, who conceived of an ideal state of nature as existing at the dawn of civilization, to which we should go back through revolution rather than seek perfection as the goal of humanity through evolution. The speaker attacked this theory of society and argued that the world owes no man a living, but that the survival of the fittest is God's eternal law; that universal wealth cannot be divided among the units of the human race, and that, if attempted, equality would not subsist during the minute of time devoted to the division. Equality can never be secured by human law; nature abhors equality in the stars of the heavens, the sands on the seashore and in the leaves of the forest. Even in court the rich man with his learned counsel and his expert witnesses, with his debtors and pensioners in the jury box, on the witness stand or even on the judicial bench, is more than a match for his opponent, who is a man of poverty in simple ignorance pleading his own

cause.

Dr. Russell continued:

Progress is the divine law of human life. Perfection as the goal of humanity and not its starting point is the verdict of history and the injunction of philosophy. Activity, not rest, is man's healthiest condition. Man is unhappy where he cannot grow; only sleep, suicide and oblivion are welcome there.

"The assumption of human equality underlies much of the pseudo-philosophy of our own times. Manhood suffrage, so-called, and the utilitarian theory of ethics are both based on the postulate that all men are created free and equal. Otherwise votes would be weighed, not counted; and the highest advantage of the progressive elements of society would be the test of morality, rather than the greatest pleasure of the vulgar throng. The manhood wage involves the same erroneous assumption; this means, in substance, that a laboring man, a man of family, representing as nearly as may be the unit of toil, is entitled to a recompense which will provide a good living for himself and his dependents. Conditions of competition in production are here ignored and the needs of the toiler alone are considered. Equal wages for unequal services is a gross offence against the dictates of equality and justice.

"The great charm of life is found in its variety, diversity and inequality; man's ill-advised attempts to remove these have only disfigured the face of nature and subjected human existence to hopeless Many vain attempts have been made to recreate and debasing monotony. Equality of opportunity the world, and build utopias where passion and to compete for the good things of life is all that the greed are to have no place, and where society is to individual can rightly demand of society. The right be founded on justice and equality. In France social to prosper and the pursuit of happiness secures to reconstruction has been wrought out in part, and the captain of industry the splendid rewards of civil and religious freedom advanced under the in- financial and mercantile genius, however great in spiring watchwords of liberty, equality, and frater-millions the same may be. The right to labor innity.' Life, liberty, and the pursuit of happiness' are among the proud possessions of Anglo-Saxon freemen, to whom 'the equal protection of the laws' is guaranteed by the Constitution, and whose persons and estates cannot be seized or proceeded against except under the appropriate forms of judicial inquiry, and in accordance with the law of

the land.'

Mr. Herbert Spencer, the apostle of the synthetic philosophy, made his first important literary venture in a work which treated of the conditions essential to human happiness. 'Social Statics' was the name of the book, and it set forth the constitution of a perfect community where the forces operating on man in society were assumed to be in equilibrium. Here we find Mr. Spencer attacking the private ownership of land, opposing sanitary legislation, advocating the private coinage of money, and urging the right of the individual to ignore the State. He reaches his conclusions by logical deduction from the fundamental postulate.of equal liberty, as the first and most far-reaching of the rights of But science knows nothing of so-called social statics, or the equilibrium of a perfect society. The living world vibrates with motion, and only what is dead and inorganic rests in stable equilibrium.

man.

cludes the right to sell one's labor in any market, and for any price which he is willing to take for it; to molest an honest workman at his task, or to threaten his home with torch and dynamite, is to re-establish slavery, to organize a reign of terror and dissolve civil society in anarchy. While the rights of laborers to associate and to strike must be upheld, whenever strikers assume to attack those who take up the work which the strikers themselves have voluntarily relinquished they levy war on civilization and human freedom.

The rights of mercantile corporations must be distinguished from the rights of individual human beings. A corporation is the creature of the Legislature; it must remember its creator. Its corporate franchises, its succession and perpetuity, its very life, even, rest on legislative grant. For the public good these artificial persons come into existence; they are, therefore, entirely at the mercy of the Legislature, which may limit their powers, withdraw their franchises, control their conduct and end their very existence. The economic freedom which an individual enjoys under constitutional guarantee may, for wise reasons, be denied to corporations."

Dr. Russell continuing, showed that equality before the law is found in Magna Charta in chapter

40, which reads: "To no one will we sell, to no one will we deny, to no one will we delay, right or justice." It is found in the famous phrase of the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal." It is also found in the fourteenth amendment, the new Magna Charta, which says: "No State shall deny to any person within its jurisdiction the equal protection of the laws."

prescribed to all for like offences (4). No person shall be singled out as a special subject for discriminating and hostile legislation (5). But the hardship, impolicy or injustice of laws is not necessarily an objection to their constitutional validity (6). The amendment is one of a series of constitutional provisions having a common purpose, namely, to secure an emancipated race, held in slavery through many generations, all the civil rights enjoyed by the superior race; it exempts them from unfriendly legislation against them distinctively as colored; denying the right of being jurors because of color puts a brand upon them, implies legal inferiority, and lessens their security (7). But this does not demand a mixed jury; nor does it mean that a colored person may not be tried by a jury composed wholly of whites (8). Educational qualifications may be required of jurors, and they may be confined to males, freeholders or citizens; but no one can be deprived of the right of participating in the administration of justice because of color (9). But women may be excluded from juries. A foreign corporation can be wholly excluded from a State without a violation of the equality clause (10). But the States still hold the police power; and the laundry business, (11) the slaughtering of animals and public prostitution may be confined with certain

The speaker then sketched the history of the amendments to the Constitution, showing that that historic instrument had been amended practically only three or four times; that the first ten amendments were substantially a part of the Constitution at the start, a bill of rights freely conceded by the friends of the Constitution from the beginning; that the eleventh amendment resulted from a single suit by an individual against a State; that the twelfth amendment changed the method of choosing a president to the present familiar plan after the alarming controversy between Jefferson and Burr, and that the last three amendments sum up the constitutional results of the Civil War. Nevada was taken into the Union to accomplish this noble end; and, after the Southern planters had been vainly entreated to grant suffrage to the negroes under a threat of reduced representation in Congress, the fifteenth amendment was passed to express the unshaken limits prescribed by municipal ordinance (12). State resolution of the triumphant North. The amendments have been much misunderstood. Many of them limit simply the Federal power against arbitrary encroachments of governmental authority. But the fourteenth amendment limits the State authority also. Early cases seemed to confine its application to the emancipated blacks; but the Supreme Court soon receded from this ground, and now the fourteenth amendment is daily appealed to as a shield and protection against State and Federal authority alike by those who are unjustly deprived of life, liberty, prosperity and equality.

The speaker then proceeded to discuss a large number of decisions of the Supreme Court, applying and interpreting this section regarding "the equal protection of the laws." Among other things he said:

"The clause applies to all persons, of any age, sex, or race, native or alien (1). It operates against all departments of government, legislative, judicial and executive, and all subordinate agencies (2). It stands as a shield against all unequal legislation, whether directed against the most humble or the most powerful; against the despised laborer from China, or the envied master of millions (3). There shall be no arbitrary spoliation of property; all are equally entitled to pursue happiness and acquire property; all shall have like access to courts; no greater penalty shall be prescribed for one than is

(1) Slaughter House Cases, 16 Wall., 36.

(2) Ex parte Virginia, 100 U. S., 339; C. B. & Q. R. R. v. Chicago, 166 U. S., 226.

(3) Yick Wo v. Hopkins, 118 U. S., 356,

laws may require separate cars and schools for colored persons (13). Building and loan associations may be exempted from the operation of the usury law; corporations may be compelled to pay wages weekly; labor in underground mines may be limited to eight hours; (14) and habitual criminals may receive heavier penalties than first offenders (15).

"Many economists advocate a graduated or progressive tax on incomes, inheritance and property. But others have criticised progressive discriminating taxation as socialistic and spoliative, as class legislation, and thus calculated to equalize fortunes and force communism by law. The Supreme Court has approved the constitutionality of these enactments (16). An inheritance tax law of Illinois was sustained as not denying equality before the law because it placed unequal burdens on persons inheriting different values. Such taxes are regarded not as taxes on property, but on a privilege; hence the Legislature may impose conditions like those regulating the privilege of making wills (17). Cor

“The rules," he says, "for the regulation of conduct with respect to the courtesies and proprieties of life, and that enjoin delicate regard for the feelings and sensibilities of others, are not to be found in statutes or judicial decisions." And he concludes, not only that the young woman whose portrait was used without her consent and against her wish to advertise a brand of flour, or the other young woman whose portrait was used to sell certain newspapers, upon the occasion of the suicide of a young man who had at one time been engaged to marry her, has not suffered any injury of which the courts will take cognizance.

porations, considering that they have privileges and is that the right of privacy does not legally exist. franchises from the State which individuals do not possess, may be taxed differently from individuals, and by a different process (18). Exemptions from taxation are valid; and States are bound by such exemption laws, although government depends on taxation and cannot live without it (19). A State may tax government bonds going to legatees because the inheritance tax is not a tax on property. Every now and then we hear the Supreme Court bitterly assailed on the ground that it has decided against the validity of all Federal income tax laws; but the truth is the court has recognized the validity of such a tax when apportioned among the States as required by the Constitution. The power of Congress to tax is plenary and absolute" (20).

Dr. Russell concluded his address as follows: Finally, man can claim justice from his fellow. Without justice we live under a degrading despotism. If we but grant justice to the ignorant and laboring poor we can reduce our charitable contributions one-half. Without justice alms are a mockery. Bread and fuel, doled out by the millionaire, in ostentatious philanthropy, from his store accumulated in fraud of others, only embitters the lot of the poor. Justice, like life and liberty, cannot be bought and sold as merchandise. A contract not to sue is void (21). The outlaw, so-called, an escaped convict and hunted fugitive, or a wretch who assassinates the president, cannot be denied the equal protection of the laws. Justice, equal, impartial, priceless and inalienable, ever abides, man's noblest and heavenliest heritage."

THE RIGHT OF PRIVACY.

Judge O'Brien of the Court of Appeals does us the honor to take some editorial remarks in this journal, on the decision of that court respecting the right to privacy, as a text for an article on "The Right of Privacy." in the current number of The Columbia Law Review. Judge O'Brien insists that the decision of the Court of Appeals by no means went to the length of denying the right to privacy, but merely set forth that the plaintiff, in the case submitted to it, "had not stated a case for the interference of a court of equity by the writ or process of injunction."

With every respect for Judge O'Brien, it seems to us that his version of the scope of the decision of the court and our own come, practically, to precisely the same thing. To say that an assumed right is not enforceable by the courts is surely tantamount to denying that it is a legal right at all. And, indeed, though the decision went only so far as to deny an injunction, Judge O'Brien's own argument

(18) Tel. Co. v. Mass., 125 U. S., 530.

(19) New Orleans v. Houston, 119 U. S., 265. (20) Pollock v. Farmers' L. & T. Co., 157 U. S., 429. (21) Insurance Co. v. Morse, 20 Wall. 445; Doyle v. Insurance Co., 94 U. S., 535.

With respect to the former case, the case decided, Judge O'Brien says: "If the use of this young woman's picture was a legal injury at all it was an injury either to her person or to her character. We may discard entirely the suggestion that a lady has anything in the nature of a property right in her form or features that is invaded by the circulation of her picture against her will or without her consent." Oh, may we? It is tolerably well known that popular actresses have posed for photographers, and divided with them the profits of property rights in their own forms and features. It is matter of common gossip that "professional beauties" have acquired pin money in the same manner. If a lady has nothing in the nature of a property right in her own form and features, who has a better right? Has not the Court of Appeals in effect decided that somebody has, to wit, anybody who chooses to make advertising use of them without her consent? Suppose that, after the manufacturers who embellished their announcements with her portrait had been for some time in undisturbed possession of the property right which they apparently have, though she apparently has not, in "her form or features," and had for some years made her picture the trade mark of their business, the young lady herself should decide to go into business on her own account and should decide to make her own portrait the trade mark of her own business. Then suppose the manufacturers who had pre-empted her portrait should apply to the equity side of the Court of Appeals to prevent her from infringing their trade mark. Would not the court be forced to decide, either that her form and features were ferae naturae," and that anybody who captured them with a kodak had the prior right to them, as against herself, or else that she really had a property right in them, which it was an offense to infringe?

66

We observe with interest that the editor of The Columbia Law Review, in which Judge O'Brien's remarks appear, makes some editorial remarks upon them which indicate that the learned judge's reasoning by no means convinces him. The safest comment upon the present aspect of the matter seems to be that some legislation is needed. As Judge O'Brien points out, it would be difficult to draw such a statute without making more mischief than the statute could cure. And he cites one instance

and of the entire South American continent. This ignorance of foreign systems explains the feeling, so prevalent at the bar, that any system other than the common law is unable to meet the requirements of justice We are not always mindful of the fact that the Roman law exercised a marked influence on the development of the common law, and that during the last two centuries there has been a gradual approach of the two systems toward a common standard, especially in the law of commercial relations.- From "The New Porto Rican Law Codes," in the American Monthly Review of Reviews.

of an attempt to protect the right of privacy by of law there is involved the most serious danger incistatute which covered the legislative attempter with dent to the contact with civilizations different from ridicule and never came to anything. That was our own. The training of the American lawyer is in largely because, on the face of it, the attempt was the common law. Little or no attention is given to to protect the shrinking sensibilities of those two the great body of civil or Koman law, which is at sensitive plants, Thomas C. Platt and Richard the root of the legal systems of continental Europe Croker. Naturally, 'solutae sunt risu tabulae;" the project was dismissed with guffaws. But in this matter of the right of privacy it seems to us that the Court of Appeals of the State of New York has missed a great opportunity, for which a lower court had prepared the way, to expand, in view of a new contingency, the body of "Judge-made law" so as to protect a private right and serve a public need. The theoretical basis of the actual law of criminal libel, we believe, is only the exiguous assumption that to say malicious things about a man provokes him, or might provoke him to a breach of the peace. Yet upon that narrow basis the courts have erected a body of decisions under which it is unsafe to publish malicious or impertinent things. Upon the equally slender basis of the property right of a man or a woman, in his or her own form and features, a right which Judge O'Brien simply scouts, might have been erected those bulwarks of the right of privacy against new and unforeseen modes of attack, which the Court of Appeals of the State of New York has ignored and broken down altogether.N. Y. Times.

ROMAN LAW AND THE PORTO RICAN
CODES.

As regards the system of private law, the recommendations of the commission possess a peculiar significance. In Porto Rico we have, for the first time, come into direct contact with the Spanish system. It is true, that in both California and New Mexico we find the Spanish law in force, but it soon gave way to the American system, and the influence of the Spanish inhabitants was rapidly overcome by

the influx of immigrants from the east and north. In Porto Rico, however, we have to deal with a densely populated island which, because of climatic conditions, will never attract a large number of persons from the north. The system of law must, therefore, always remain in close harmony with the inherited ideas and traditions of a population essentially different from that which we find in the States of the Union. Both reports furnish ample evidence that the commission realized the danger of attempting to force upon the people of Porto Rico a new system of law which would be certain to arouse a feeling of distrust and resentment in the native population.

It is furthermore evident, from the commentary contained in the report, that considerable pressure was brought to bear upon the commission to sweep away the Spanish system at one fell blow, and to substitute for it the codes of one of the States of the Union. In this attitude toward foreign systems

CONSTITUTIONAL LAW.

MAINTENANCE OF CHILDREN IN INSTITUTION UNDER
PRIVATE CONTROL· WHEN CHILD NOT
A PUBLIC CHARGE.

NEW YORK COURT OF APPEALS.
(Decided October 7, 1902.)

In the Matter of the Application of the NEW YORK
JUVENILE ASYLUM for a Writ of Mandamus.

No public moneys can be used by a city, town or village for the maintenance and education of a child in any asylum or institution wholly or partly under private control, unless committed to or placed therein by a magistrate, superintendent or overseer of the poor, commissioner of charities, or other officer authorized by law to do so (State Constitution, art. 8, sec. 14, Laws of 1895, chap. 754; Laws of 1896, chap. 546; rule 1 of the State Board of Charites).

The provisions of the charter of the New York Juvenile Asylum (Laws of 1866, chap. 245, sec. 28), requiring the county of New York to pay to the institution $110 a year for the support and education

of each child intrusted or committed thereto, were

Superseded by the rules of the State Board of Charities adopted pursuant to the requirements of the Constitution and statutes above cited; and thereafter a

child placed in the institution merely on the consent

of the parents or guardian was not a public charge.

Appeal from an order of the Appellate Division, First Department, affirming the order of the Special Term denying the application of the New York Juvenile Asylum for a writ of mandamus.

Robert Goeller, for the Juvenile Asylum, Appellant; George L. Rives, Corporation Counsel (Theodore Connoly of counsel), for Respondent.

HAIGHT, J.- On or about the 5th day of August, 1901, Mamie Schellberger, a minor of the age of thirteen years, was surrendered to the New York

Juvenile Asylum by her mother as an ungovernable Constitution, shall remain in force until amended child. She was received by the board of directors or repealed by the legislature

of the asylum and for the remainder of the month was retained therein, after which time the asylum in accordance with its custom, rendered a bill to the commissioner of public charities for the support of the child in order to obtain a certificate that the child was a proper public charge, and that the asylum was entitled to its pay therefor by the comptroller of the city of New York. The commissioner of public charities refused to give the certificate called for, upon the ground that the child had not been committed to the asylum in accordance with the rules established by the State Board of Charities; thereupon this proceeding was instituted to compel the commissioner to give the certificate called for.

The New York Juvenile Asylum was incorporated by special act of the legislature in the year 1851, by chap. 332 of the laws of that year. Its object was the reception of children between the ages of five and fourteen years, to provide for their support and to afford them the means of a moral, intellectual and industrial education. The corporation was authorized to take under its care the management of such children as should by the consent, in writing, of their parents or guardians be voluntarily surrendered and intrusted to it; also such children as should be committed to its charge by order of any magistrate of the city and county of New York; and also such children as should be found in the streets, highways and public places in the city in circumstances of want, suffering, abandonment, exposure, neglect or

vagrancy.

*

Section 14. "Nothing in this Constitution contained shall prevent the legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper; or prevent any county, city, town or village from providing for the care, support. maintenance and secular education of inmates of orphan asylums, homes for dependent children or correctional institutions, whether under public or private control. Payments by counties, cities, towns and villages to charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private control, for care, support and maintenance, may be authorized, but shall not be required by the legislature. No such payments shall be made for any inmate of such institutions who is not received and retained therin pursuant to rules established by the State Board of Charities. Such rules shall be subject to the control of the legislature by general laws."

Pursuant to these provisions of the Constitution, the legislature in 1895, chapter 754, authorized cities, towns and villages in their discretion to appropriate and raise money by taxation and to pay the same over to "charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private control, for the care, support and maintenance of their inmates, of the moneys which are or may be appropriated therefor; such payments to be made only for such inmates as are received and retained therein pursuant to rules established by the State Board of Charities," and again by the Laws of 1896, chapter 546, section 9, subdivision 8, provided that the said board of charities shall "establish rules for the reception and retention of inmates of all institutions which, by section 14 of article 8 of the Constitution, are subject to its supervision."

By an amendment of the act of incorporation in 1866, chap. 245, sec. 28, the board of supervisors of the county were required in each year to levy and collect by tax and to pay over to the asylum one hundred and ten dollars per annum, or proportionately for any fraction of the year, for each child which, by virtue and in pursuance of the pro- Section 230 of the Greater New York Charter, as visions of the act, “shall be intrusted or committed amended by chapter 466 of the Laws of 1901, authorto the said asylum and shall be supported and in-ized the board of estimate and apportionment in its structed therein." This section of the statute was discretion to annually include in its estimate, to be subsequently incorporated into the Greater New raised and appropriated, various sums of money for York Charter, sec. 230, which is the statute upon institutions therein specifically named, among which, which the petitioner bases its claim for support of the child Mamie Schellberger. Under this statute claims of this character have been paid for many years, and unless it has been repealed, amended or modified by the imposition of conditions, it furnishes authority for the payment of the petitioner's claim. The Constitution of 1895, article 8, section II, provides that "The legislature shall provide for a State Board of Charities, which shall visit and inspect all institutions, whether State, county, municipal, incorporated or not incorporated, which are of a chari table, eleemosynary, correctional or reformatory character * * *""

Section 13. "Existing laws relating to institutions referred to in the foregoing sections, and to their supervision and inspection, in so far as such laws are not inconsistent with the provisions of the

by subdivision 14, is the New York Juvenile Asylum; but by the concluding subdivision 24 of the section it is provided that payments were to be made “only for such inmates as are received and retained therein pursuant to rules established by the State Board of Charities." Again, by the same charter, section 658, a department of public charites was created, and the head of the department was called the "commissioner of public charities." Such commissioner was given jurisdiction over all the hospitals, almshouses and other institutions belonging to the city, with power to commit children who may become a public charge to any institution incorporated for charitable purposes, and to reimburse such societies and corporations for the expense incurred in the support of such children (secs 60 and 664); but by section 661 it is provided that "No payment shall be made