Page images

cumulative system of voting where three or more are to be chosen at once. But the Convention hesitates to recommend an appointed instead of an elected judiciary, though that change is generally favored by the better citizens. Surely the success of the present system has not been such as to warrant its continuance, if we may judge from the description of its result given by the Cincinnati Gazette, which says :—

It has not kept up the character of the Ohio judiciary. The good judges cannot redeem the system from the poor. It has not done its worst with us, but is continually growing worse. New political institutions generally start out with high resolves, which in the beginning fill them with good officers. The debasement to the common level comes by degrees. The nomination or election of a judge is not now regarded by lawyers, nor by any intelligent persons, as an evidence of judicial fitness. The judicial office is by degrees settling down to the level of the small lawyer, who supplements his small legal capacity by being a small politician. Respect for the judiciary is on the decline. Judges are more and more looking to popular influences in their acts. Judicial decisions are losing more and more the weight of that learning, which may give an approach to exactness and certainty, and are taking on the character of a trial of chances, to be repealed through courts of different degrees.


Constitutional Reform. Judiciary. — It is interesting to compare with the Ohio propositions above noticed the manner in which the Pennsylvania Constitutional Convention, now in session, has dealt with the same questions. The judiciary article, as it passed the second reading, still retains the elective system, but makes the term of Supreme Court judges twenty-one years, "if they so long behave themselves well," and provides that they shall not be eligible for re-election. This is a sort of compromise, which is open to quite as many objections as it cures. The terms of other judges are made ten years, and they may be re-elected. Here, also, minority representation ia secured by a provision that, when two judges are to be chosen for one term, the voter shall vote for only one, or if three, for only two. We regret that this convention has not taken the more decided ground of recommending a return to the system of appointment.

Constitutional Reform. Legislative Corruption. — The reluctant admission that laws may be passed by bribery, or some form of fraud, has found definite expression in the Constitutional Convention, the- proposed remedy being as follows :—

Section 21. Whenever, within six months after the official publication of any act of the assembly, in the pamphlet laws, and not thereafter, it shall be alleged before the Attorney-General by affidavit, showing probable cause to believe that the passage or approval of such law was procured by bribery, fraud, or other corrupt means, it shall be the duty of the Attorney-General forthwith to apply to the Supreme Court, or one of the judges thereof, for process in an appropriate proceeding, which shall be ordered, if there appear to the said court or to such judge to be such probable cause, and in which the commonwealth, upon relation of the Attorney-General, shall be plaintiff, and such party as the Supreme Court or the judge who shall grant such issue shall direct shall be defendant, to try the validity of such act of assembly, whereupon the court shall direct publication of the same, and any party in interest may appear, and upon petition be made a party plaintiff or defendant thereto; the said issue shall be framed and tried before a jury, by one of the judges of the Supreme Court, in whatever form and in such county as the Supreme Court may direct; and if it shall appear to the court and jury upon such trial, that the passage or approval of the same was procured by bribery, fraud, or other corrupt means, such act of Assembly shall be adjudged null and void, and such judgment shall be conclusive, and the Governor shall thereupon issue his proclamation declaring such judgment; either party shall be entitled within three months, and not thereafter, to a writ of error, as in other cases; no officer of the commonwealth, nor any officer or member of the legislature, shall be exempt from testifying, when required, in such case; but the testimony of any such witness shall not be used against him in any criminal prosecution, except for perj ury therein.

This section has passed two readings, and is strongly advocated by gentlemen of opposite political views. Whether a jury would always afford a sufficient check to corrupt legislation ; whether, for example, in times of high party excitement, the question of the legality of an act of the legislature, passed, after a hot contest, by a small majority, could be safely left to the ultimate discretion of a body selected as juries are, and representing no one, are questions suggested by this novelty in constitution making; but perhaps it is expected that purity in legislation will be attained by the mere moral effect of this provision; that corruption in law-making is fostered by the independence and supremacy of the legislature, and the absence of means to deprive the briber of the profits of his fraud, is certain; and it may be that if the power were given to the courts to inquire into the honesty of legislation, the advantage gained by taking away the prospect of profiting by the use of corruption would compensate for the uncertainty that must necessarily result from having laws subject to the revision here provided for. The judges of the Supreme Court of New Hampshire, in an opinion given to the Governor, August 20, 1873, have declared a law invalid, because it never received the assent of the House of Representatives, although it was signed by the Speaker of that body and the President of the Senate, was approved and signed by the Governor, and published as one of the public statutes of the state. This was a case where a bill, properly passed in one branch, found its way to the joint committee on engrossed bills, was reported on by them as properly engrossed, and then was signed as if a valid law, whereas it had never been before the other branch at all, and the judges, taking the bull fairly by the horns, declared it no law. There was no issue of fraud in this case; but the issue was an analogous one.

William M. Meredith, one of the foremost lawyers of this state, died on the 17th day of August, at the age of seventy-five. He graduated in 1812, the youngest in his class at the University of Pennsylvania; was admitted to the bar in 1817, and for more than a quarter of a century before his death was recognized as a leader. At the time of his death he was chairman of the 'Constitutional Convention.

Evidence. Photograph. District Court. Schaible v. Washington Life Ins. Co. — The court here held that a photograph, proved by witnesses to be a correct likeness of the insured at the time the risk was taken, was properly shown to the jury as evidence of her apparent bodily condition at that time, the issue being whether the insured knew she was then diseased, the suspicions of the company having been aroused by her dying of abscesses in her lungs within ten days after the policy was issued.


Right Of Bail To Arrest Principal. — Gordon Gordon, a soi-disanl lord, was arrested in a civil action at the suit of Jay Gould in New York, and held to bail. He obtained bail and then absconded, making no defence to the action, and leaving his bail liable to the amount involved in the suit. The bail gave to one Captain Hoy an authenticated copy of the bail bond and a power of attorney, authorizing him to capture Gordon and surrender him to the sheriff of New York in exoneration of the bail. Upon these papers Hoy went to Manitoba and took Gordon into custody. Immediately thereupon the Manitoba authorities arrested Hoy and his assistants for kidnapping, but not, it is claimed, until they had got over the border, and were actually in Minnesota. The Court of Queen's Bench, by Judge Mckenzie, refused to admit Hoy and his assistants to bail, saying, —

. This is an application on the part of the prisoners to be admitted to bail. The law says it is discretionary with the judge before whom application is made to grant it or not. Every one, I think, must understand that the word discretion, as here used, does not imply that the judge may, according to arbitrary will, admit one person to bail, and, under similar circumstances, withhold it from another. Legal discretion, as denned by Sir Edward Coke, is to discern a. cording to law. Let us apply this definition to the case in point. It has been abundantly established in evidence, and admitted by at least two of the prisoners, Hoy atd Keegan, that they, with the active co-operation of Fletcher and Blakely, forcibly seized, and confined against his will, one Gordon, with intent to take him out of Canada. Our statute declares this offence felony, the maximum punishment of which is seven years in the penitentiary. The accused have sought to justify their action by stating that they held a power of attorney from a person in New York, authorizing the capture of Gordon, and, having only acted under this power, they had infringed no law; that by common law a bail might follow his principal even into the British Dominions, and take and forcibly carry him away without a warrant. I do not subscribe to this doctrine, which, in my opinion, is most dangerous to our national independence; but, assuming this opinion to be sound, it would not meet the present case, as the power of bail to take his principal is a personal right confined to himself alone, and cannot be delegated to another. Now, with these data before us, what remains?

1st. That the offence charged against the prisoners is a most serious one.

2d. That the evidence sustains the charge, and leaves little doubt as to the guilt of the prisoner.

3d. The plea of justification is, in my opinion, untenable.

Let us, in conclusion, apply our discretion to these facts, not forgetting our definition that discretion in this sense means to discern according to law. It is laid down in books that where the ofFence charged is of a serious nature, and proof of guilt strong, the judge ought to refuse bail.

This decision has caused much excitement in Minnesota, of which state Captain Hoy was a citizen, and under the circumstances, considering the many questions of law raised by the facts, and, that acts done under color and claim of right, albeit illegal, are by no means heinous, it would seem that the people of Minnesota had good ground for thinking that the outrage was on the Canadian side.

The cases of Nicholls v. IngersoU, 7 Johns. 145; Parker v. Bidwell, 3 Conn. 84; Commonwealth?. Brickett, 8 Pick. 138; and Anon., 6Mod. 231, sustain the doctrine that bail can pursue their principal to the ends of the earth, and take him to exonerate themselves; and the latter case states that they may depute an agent to seize him. The question, however, seems entirely simple, and it will perhaps be difficult to give any reason why the courts of Canada should decline to enforce the contract between bail and principal any more than any other civil contract.

We were reminded by this double arrest of a dramatic occurrence that took place in Massachusetts some two or three years since, which well deserves recital and preservation.

One C., a man of some property, was arrested in New York in a civil blackmail suit for a large sum of money, and bail fixed in a considerable amount. The plaintiffs in that suit became his bail, and, by frequent threats of surrendering him, endeavored to force a settlement and obtain some of his property. At length, tired of these threats, C., while peing so badgered, handsomely thrashid one of the plaintiffs and bail, a stout Englishman twice his size. This, coupled with the pecuniary disappointment, induced the bail to make the threatened surrender; but while he was gone for an officer, C. escaped and went to Boston, where he reported to counsel and took advice as to his situation. About a week thereafter, a friend of C.'s rushed into his lawyer's office and said that, while at breakfast at the hotel, C. was seized by two men, put into a close carriage, and hurriedly driven off. The statute of personal replevin of Massachusetts seemed to furnish a remedy, if the parties could be found, and a writ was obtained for the body of C., said to be the first writ of that kind ever drawn in Boston, and, with an officer, the lawyer proceeded to the Providence station, thinking that C. would be taken there'to be put on board the noon train for New York; but he was nowhere to be found. A section of the statute provided that if, on the replevin writ, the officer should return that the body could not be found, and he had reason to suppose was secreted, a capias should issue to arrest those supposed to have possession thereof. Such a capias was with some difficulty obtained, authorizing the arrest of the Englishman and a man described as John Doe, but who, it turned out, was a New York officer, the companion of the bail. C.'s lawyer, on reflection, concluded that the carriage had probably driven to Framingham to meet the afternoon express train for New York on the Boston and Albany Railroad. There was just time to telegraph to a sheriff at Worcester to meet that train on its arrival there, and, armed with the capias, to take passage. As it happened, the guess was right, and at Framingham C., with his capturers, entered the smoking-car where the lawyer was. No recognition was observed between C. and his lawyer ; but on arriving at Worcester the bail and the officer were surprised by a sheriff's entering and informing them that he had a capias for their arrest. With whatever grace they could, they left the car, and as the sheriff declined to take C. with them, and their warrant with their bail-bond only authorized them to take him to New York and not to Worcester jail, C. was advised to take the next train for Boston, which he did. At the sheriff's office the lawyer, who was thus far ahead, became their bail, as they had no friends nor money, advising them that now he had the same power over them as they over C., and perhaps it would be better for them to return to New York and not trouble C. again. At any rate, they had driven in a driving snow-storm from Boston to Framingham, some fifteen or twenty miles, had failed in their attempt, and probably felt that their whole proceeding was a rascally one, for nothing more was ever done in either the New York or Massachusetts suits.


International Arbitration. — Not the least significant among the events of the quarter is the passage by the House of Commons of the resolution offered by Henry Richard, member for Merthyr Tydvil, and Secretary of the London Peace Society, " that, in the opinion of the house, Her Majesty's government should communicate with foreign powers for the purpose of improving international law, and with a view of establishing arbitration as a permanent resort for the settlement of differences between nations." Mr. Richard's statistics are a little startling, and are worthy of preservation. He showed that the danger of war kept four millions of men armed annually in Europe, rendering necessary a taxation of $2,000,000,000, and the payment of the yearly interest on the war debts of $750,600,000. In addition to this, the value of labor withdrawn from industry was estimated to be $1,250,000,000. In Germany the conscription forced an emigration which was depopulating the country, and Russia, France, and Italy were crippled financially by the expense of their enormous military establishments.

Mr. Gladstone opposed the motion, arguing that it would defeat its own object, because continental nations held widely different views on the subject. He asked Mr. Richard to withdraw his motion, but he refused, and the division resulted in a tie, — 98 yeas to 98 nays, — when the speaker gave the casting vote in favor of the motion, and it was adopted.

In view of the very general dissatisfaction which has prevailed in England with the results of their recent experiments in arbitration, the passage of this resolution, in the face of Mr. Gladstone's opposition, is not a little encouraging to those who believe that in the course of the next century war will cease to be a means of settling international disputes, if only because it has become too expensive a luxury to be afforded.

It tends also to increase the hopes entertained that some solid advantage will result from the meeting of the International Peace Congress, which is to be held at Brussels, October 28th. There seems little reason to doubt that the Congress will be largely attended by eminent publicists from all nations. If the Congress, however, undertakes to adopt the plan discussed by M. Rolin Jacquemyns in a late number of La Revue du Droit Internationale, viz.: First, to agree upon a code of international law; second, to make such modifications

« PreviousContinue »