The Albany Law Journal.

A

ALBANY, FEBRUARY 4, 1888.

CURRENT TOPICS.

SSISTANT District Attorney Semple and the judges of the New York General Sessions seem to have conflicting views of the public duty of prosecuting officers, if the accounts of the daily newspapers are trustworthy. The difference grows out of the convictions of obscenity in the McGrath and DeLeon cases, in which Mr. Semple declined to present briefs or to argue on appeal at the General Term, owing to his opinion that there "is no provision for the punishment of such dastardly offenders as DeLeon." Judge Cowing is represented as saying, among other things, that this was a "mistake,” but he is "disposed to be very charitable. Mr. Semple is a young man, has much to learn, and very likely this incident will do him good. If his idea were to be entertained it would make the district attorney's office an appellate court." And it is reported that Judge Gildersleeve added the following comments: "Mr. Semple's duties in the district attorney's office are cast iron, and there is scarcely an excuse for a deviation from his fixed line of duty. It was his duty to prepare all cases on appeal, and to uphold the judgments of these courts in every legal way. He had no right nor power to say whether the trial was fair or not, or whether the evidence was admissible or inadmissible. It was his duty, and his only duty, to investigate all the material in the hands of the district attorney looking toward an affirmation of the judgment of the lower courts." An eminent member of the New York city bar writes us as follows: "We do not know Mr. Semple and have no interest in him, but we venture to say that Mr. Semple seems as nearly right as the judges, if they are correctly reported in the Times. We beg to remind the judges that the district attorneys are the successors of the assistant attorney-generals. Originally in New York the attorney-general was the public prosecutor, and respresented Respublica. Indeed some of the indictments, such as Respublica v. Sweers, were conducted by the attorney-general in person, and many of the cases for the people were led by him. The duties of the district attorneys are in all cases those of the attorney-general under similar circumstances, and the attorney-general's powers are prescribed by the common law. At common law an attorney-general who prosecuted against his conscience would be regarded as highly censurable. His duty was to the State and to the prisoner as much as to the State. A prosecutor who would push for a conviction under all circumstances, whether the accused was guilty or not guilty, would be highly censurable, and ought himself to be brought to the bar. So far as the judges quoted take another view, they are not right if the comVOL. 37 No. 5.

mined his duty at the Oyer and Terminer, not in banc, but in any event the judges are wrong in their statement of the law in abstracto." In this we concur, and would add that the power and responsibility of entering nolle prosequi is in and upon the district attorney. Mr. Semple may be wrong in his law, but he is right in his ethics.

It is remarkable how fond lawyers have always been of Shakespeare, and how much they have written and printed about him, especially in regard to his legal acquirements. To say nothing of Lord Campbell, we have had in this country Mr. Franklin Fiske Heard, Senator Cushman R. Davis and Mr. Appleton Morgan, who have devoted much time and research toward showing that Shakespeare must have been a lawyer. The only exception that we can recall is ex-Judge Nathaniel Holmes, now a Harvard Law School professor, who is a rabid Baconian, and has published a large book to prove that the great philosopher and lawyer wrote the Shakespearian plays. Shakespeare is Col. Ingersoll's god, and if any Baconian should dare to ventilate his audacious theories in his presence the irate colonel would probably start him toward "that undiscovered country," etc. Mr. Morgan has just published a book entitled "Shakespeare in Fact and in Criticism," which is one of the most entertaining contributions to Shakespearian literature that we have ever read, full of acuteness, ingenuity, and a delicious sarcasm. One chapter is entitled "Law and Medicine in the Plays," in which he concludes that "this Shakespeare then was a lawyer," but purposely uttered bad law in the Shylock case in order to produce the best stage effect. Mr. Morgan gives the opinion of the court in review of Portia's decision granting a new trial, with the syllabi and all in due form a very clever skit. Mr. Morgan demolishes the Baconian theory in a chapter devoted to it, and in various arguments scattered through the work. For some of his opinions he need not apply for a patent, for no one will think of infringing; as for example, that Hamlet was the very essence of decision and determination, who moved inexorably to the execution of his purpose; that Ophelia was not in love with him, but was meanly willing to betray him to her father and the king; that the sonnets were a consecutive poem, and that Shakspeare did not write them; that Elizabeth ordered a play representing Falstaff in love, and that Shakespeare in compliance wrote "Merry Wives of Windsor." But all these opinions Mr. Morgan advocates with a lawyer's skill, and it is really refreshing to have something new about Shakespeare. Let every lawyer who loves the great bard read this entertaining book.

Chicago seems to be the paradise of law editors of the female sex. There is Mrs. Bradwell, the (we do not dare say veteran) editor of the Legal News,

and there is Mrs. Catharine V. Waite of the Chicago Law Times, the first number of the second volume of which is before us. This is an interesting number. Judge Cassoday of Wisconsiu contributes a biographical sketch of Lord Mansfield. Mr. James

M. Kerr of Rochester, N. Y.. contributes an article entitled "Diogenes or Antipater, which?" consisting in a review of the two novel and contradictory cases of Sherwood v. Walker, 36 Alb. Law Jour. 243, relating to the sale of a blooded cow, erroneously supposed by the owner to be barren, for eighty dollars, and Wood v. Boynton, 64 Wis. 265; S. C., 54 Am. Rep. 610, relating to the sale of a valuable diamond for one dollar by the owner, a woman, who did not know the value of it. This latter case of course appeals to the sympathies of all women. The editor's husband furnishes an article on "The Sixteenth Amendment Senator Ingalls in 'The Forum.''

There is also an article on "Reform in Civil Procedure" by (Mr. we suppose) M. J. Gorman, and one on "Inter-State Commerce as affected by the late Wabush decision," by Mr. John W. Smith. The editorial notes contain a sharp criticism of Mr. C. L. Bonney's pamphlet on "Our Remedy in the Laws." Mr. Waite's "Notes of Travel in England and Ireland " may usefully be skipped. Mr. Hamilton Willcox of New York advertises that he will, without charge, advise women how to proceed in obtaining their rights." We understand that at our last election he advised them to swear in their votes, and that several have been indicted and are in danger of punishment for following Mr. Willcox's ridiculous and gratuitous advice. Gratuitous advice is seldom good.

of Jurisprudence still more worthy of its name, and to devote a portion of its contents every month to the discussion of the fundamental principles and the burning questions of the science, such as the characteristics and position of the different schools of law, the rights of property, the family and its legal relations, the rights of succession, and the doctrine and forms of contract. Nor will commercial and international law be forgotten. In order to deal interestingly and competently with these important topics, the resources of continental, and especially German, French and Italian juristic literature will be drawn upon, and this will form a marked new element in the Journal. It is believed that the discussion of the subjects by the most emiment continental jurists, such as Savigny, Stahl, Puchta, Bluntschli, Laurent, Rosmini, Gioberti and distinguished living writers, will be welcome to readers of the Journal, and some of their most interesting and valuable contributions will be reproduced in our pages during the year. At the same time increased attention will be paid to the more practical wants of the profession." The current number contains a paper on the "Medical Jurisprudence of Inebriety," by Mr. Clark Bell of New York, well known to our readers.

Mr. E. D. Palmer, our townsman, has presented to the State a bronze copy of the arms of the State, executed by him on stone for the Washington monument at the national capitol. In 1850 Governor Fish, by authority of the Legislature, commissioned Mr. Palmer to do this work, and it was executed and forwarded. Mr. Palmer could then find no definite and authoritative data, but his or

ting a party out simply because the opposite party is dead than in excluding one disinterested witness merely because another disinterested witness is dead. The true theory, and the theory now in vogue is, that every party shall be heard, and the jury or the court shall judge of the comparative credibility. The law cannot “even things up,” and if one party has died that should not render the other party unworthy of credit. Is it not preposterous to concede that one man should possibly lose his right because another man has died? That is the plain English of it.

its seal for more than thirty years. Subsequently, through the researches of the late Dr. Homes, the State librarian, it was discovered that the traditional arms adopted by Mr. Palmer was not correct, and a new design was made and officially adopted, and under legislative authority Governor Hill commissioned Mr. Palmer to re-execute the arms for the monument. This he has done, on one-half in thickness of the original stone, which had been returned, and of this new design he has had this bronze copy made, and has hung it in the main executive chamber at the capitol. The original stone, a black marble, peculiar to this State, is in another room, and will eventually be set in the wall-as soon as it appears that it will not tumble down, we suppose. With characteristic modesty Mr. Palmer has omitted to put upon the bronze any indication that it is a gift from him.

IN

NOTES OF CASES.

the pilot-house of the defendant's propeller. Held, proper. The court said: "The evidence is of a fact derived from observation, and the conditions being in all respects the same the distance which the light could be seen would be uniform, as its effect is dependent upon natural causes only. In McKerchnie v. Standish, 6 N. Y. W. Dig. 433, a witness who had made astronomy a study was permitted to state how far a certain vessel would be visible at half-past six o'clock, P. M., on October 15th, if there was nothing to interrupt the view. The court, on review, remarked that this evidence was merely speculation and not to be relied upon unless other evidence failed, and that its competency even then was doubtful. The statement of the witness there does not appear to have been supported by any observation or knowledge other than that derived from his astronomical information, and by that he must have undertaken to measure the obstructive force of twilight, merely by the application of science as an expert. We assume that the statement made by the witness of the distance the light could be seen was based upon his knowledge obtained from his observation as a mariner, and as such was competent for the same reason that a person who has given attention to the movement and velocity of railroad trains may give his opinion of their speed on occasions when he has observed their passage. Northrup v. N. Y., O. & W. R. Co., 37 Hun, 295. And as to the time requisite for walls of a building to dry and become fit for occupation. Smith v. Gugerty, 4 Barb. 615, 625. The reason of the rule which permits such evidence is that knowledge on the subject is not common to all, but comes from the personal observation and experience of those only who have given it attention, or by habits and business have gained information which enables them to have and understandingly express a judgment in respect to the matter of inquiry, and when without the aid of such evidence the jury might have no means of intelligently considering the fact. But the value when given of opinions is always for the jury to determine." In the same case the court said: "The plaintiff offered and put in evidence that portion of Dr. Jayne's almanac which purported to show the time of the rising of the moon on October 2, 1881, to which objection and exception were taken. The almanac was not competent evidence as such to prove when the moon rose on that or any day. But if the statement on the subject in it was correct the defendant could not have been prejudiced by it. Judicial notice will be taken of the time the moon rises and sets on the several days of the year as well as of the succession of the seasons, the difference of time in different longitudes, and the constant and invariable course of nature. It may be assumed that the court, treating the almanac as correctly stating the time when the moon rose on the day in question, received it in evidence to refresh the memory of the jury on the subject. in that view we think it was competent. Morris, 46 Conn. 179; Munchower v. State, 55 Md.

And State v.

11; S. C., 39 Am. Rep. 414. In the latter case the court held that the almanac was the most accurate available source of information on the subject, and therefore competent. In England the almanac annexed to the book of common prayer has been treated as part of the law of that country, but as that did not contain any thing about the rising or setting of the sun, Pollock, C. B., expressed doubt about the admissibility of the almanac as evidence of the fact. Tutton v. Darke, 5 Hurl. & Norm. 647. And in Collier v. Nokes, 2 C. & K. 1012, it was held that while the courts would take judicial notice of days they would not of the hours of the day in the calendar."

The London Solicitors' Journal says: "An interesting question is stated to have been recently decided by the judge of the Southwark County Court in a case of Flint v. Bell. The action was to recover compensation from a Turkish bath proprietor for the loss of a watch, chain, purse containing £2 10s. in money, and a pair of boots, intrusted by the plaintiff to the defendant to keep for him during the period of bathing. The valuables had been placed by the defendant in a drawer, the key of which an assistant of the defendant banded to the plaintiff, who put it in his waistcoat pocket, and the boots were placed by the plaintiff in 'the place provided for them.' The bath over, the key was missed, and so were the boots; and it turned out that the valuables had been handed by the attendant to a man who produced the key (which he no doubt had extracted from the pocket of the plaintiff's waistcoat) and paid for the bath, and took the opportunity to walk off in the plaintiff's boots. The learned judge held that the defendant was a gratuitous bailee, and (see Doorman v. Jenkins, 2 A. & E. 256) liable for gross negligence only, which he thought had not been proved, and therefore he gave judgment for the defendant. The question seems to be more one of fact than of law, being, in our opinion, whether the charge for the bath was intended by the parties to include a charge for the safe custody of the valuables and the boots. None of the articles lost could have been taken by the plaintiff into the bath with him, and custody of the clothes, etc., of bathers by the proprietors of baths is a necessary incident of the user of the bath for which the hire is paid. Was not therefore the hire paid for the user of the bath and the custody also? We cannot but think that it was, the keeping of a locked drawer and the handing the key to bathers being evidence of a habitual practice, which the plaintiff might be taken to know of, and to expect to be followed in his own case. On the other hand, to hold a bath-keeper liable for the loss of a ring worth £100 or so, or for a £1,000 bank note, would be very hard; and we think that a bath-keeper's implied contract could only be said to be to keep such articles in addition, of course, to clothes, as a customer might reasonably be expected to bring with him, though if the bath-keeper accepted custody of articles unreasonably brought, there is some

therefrom.

ground for saying that the implied contract would extend to them also." Somewhat analogous is the case of Minor v. Staples, 71 Me. 316; S. C., 36 Am. Rep. 318, holding that the innkeeper, who also keeps a sea-bathing house separate from the inn, is not liable for goods and clothes of his guest, left there while the guests were bathing, and stolen See also Rea v. Simmons, 141 Mass. 561; S. C., 55 Am. Rep. 492, where it was held that a tailor was not responsible for the loss of his customer's valuables stolen from his clothes laid aside while he was trying on a new suit in a closet. The contrary however was held in a precisely similar case. Mc Collin v. Reed, Penn. Com. Pl., 55 Am. Rep. 493, note.

In Earl v. Lefler, 46 Hun, 9, a practical test of evidence was admitted. It was held that in an action for breach of warranty of a horse, an impression of his mouth in wax or plaster was competent in evidence. The court said it might "be classed as a species of evidence with diagrams, drawings and photographs." Gibson's Law Notes informs us that "the other day Kay, J., amused himself and his court with a performance of dancing-dolls!" We shall look for an account of that case with curiosity. In the Crewe County Court, in Powell v. Parker, a fox terrier was in dispute. The dog was brought into court, and as the evidence was conflicting, his honor toward the end of the case had the animal placed beside him on the bench, and the plaintiff went to the far end of the court and called out, "Sam, Sam." No sooner did it hear the voice than it found its way through a crowded court to the plaintiff, and began to gambol around him. The defendant had described the dog as partly deaf. The judge said he believed the dog belonged to the plaintiff, and gave a decision accordingly.

THE

THE NEW EXTRADITION BILL.

HE inter-State extradition bill, prepared by a committee appointed by the inter-State Conference recently held in the city of New York, if adopted by Congress, would repeal the present law on this subject, as originally enacted in the first and second sections of the act of February 12, 1793, which, with slight alterations not affecting their general character, subsequently became sections 5278 and 5279 of the Revised Statutes of the United States. These sections read as follows:

SEC. 5278. "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory, to which such person has fled, to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive

authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory."

SEC. 5279. "Any agent so appointed, who receives the fugitive into his custody, shall be empowered to transport him to the State or Territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent, while transporting him, shall be fined not more than $500, or imprisoned not more than one year."

This law does not prescribe any preliminary arrest and detention of the fugitive, in advance of the demand for his delivery, or of the action of the executive of the State or Territory who is directed to make the delivery. It takes effect only when a demand has been made. It does not, in terms, forbid State regulations, in the exercise of the police powers of the States, for the arrest and detention of fugitive criminals, prior to the demand for their delivery, and with a view to facilitate the end at which the law aims. It assumes that the executive authority of every State has the constitutional right, without any legislation by Congress, to demand the delivery of any person, who being in that State legally charged with treason, felony, or other crime, has fled therefrom, and is found in another State," and also that Congress has power to provide by law for a compliance with such demand when made. The law does not directly impose any duties upon the demanding executive, and does not directly subject him to any limitations, restrictions, or regulations in exercising the right of demand.

It is only to the executive on whom the demand is made that the law speaks; and what it says to him is, that on certain conditions specified, either expressly or by necessary implicatiou, it shall be his "duty to do the things named in the statute. These conditions are the following: 1. The person to be arrested and delivered up must be charged with treason, felony, or other crime against the laws of the State or Territory from which the demand proceeds. 2. The charge must be in the form of an indictment found or an affidavit made before a magistrate of that State or Territory. 3. A copy of this indictment or affidavit must accompany the demand for delivery. 4. This copy must, by the demanding executive, be certified as authentic. 5. The person demanded must be shown to be a fugitive from the State or Territory charging him in this way with crime therein, and to be in the State or Territory on whose executive authority the demand is made. 6. There must be a formal and official demand, by the executive authority of the State or Territory from which the person thus charged has fled, addressed to the executive authority of the State or Territory to which he has fled, and in which he is found, for the arrest and delivery of this person as a fugitive criminal.

These conditions, simple and plain in their character, furnish the rules by which the delivering executive, in making the delivery of a fugitive criminal, is to be governed; and whether in a given case they have been complied with or not, by the demanding executive, is a question for the former to determine. The latter must supply these conditions, in order to bring the case within the terms of the law, whatever other conditions he may adopt before making demands, or the law of the State or Territory may prescribe for his observance. The law of Congress knows nothing about any conditions other than those which it specifies; and as to the obligation of delivery, they are

matters of no consequence to the executive upon whom the duty of delivery is imposed. It is sufficient for him if the conditions contained in the law are complied with. The obligation then exists, but not otherwise. Executives of States and Territories have, as a rule, undoubtedly aimed to give effect to the law by acting according to its letter and intent. If they commit mistakes, as sometimes they have done, by ordering the arrest and delivery of persons not coming within the conditions prescribed, then these persons have a legal remedy for the correction of such mistakes by suing out a writ of habeas corpus from a competent court, whether State or Federal, which court has fuil power to afford them summary relief against any illegality in their arrest and detention. There is nothing in the law that excludes a resort to this remedy.

A law that in a republican government has, without change, and without any general demand for a change, stood the test of experience for nearly a century, ought not to be hastily repealed, and ought not to be repealed at all, without a strong probability of putting a better law in its place. Had there been any serious failures on the part of governors of States or Territories to perform the duties imposed upon them by the luw, the presumption is that ere this Congress would have devised some system of purely Federal agency for the arrest and delivery of fugitive criminals, and prescribed with sufficient detail the rules to be observed by such agency. It has this power. Prigg ▼. The Commonwealth of Pennsylvania, 16 Pet. 539, and The Matter of Voorhees, 3 Vroom, 146. The fact that the law has been in operation for so long a period, and that Congress has hitherto seen no sufficient reason for any change in it, is an equal presumption that there is no practical necessity for changing it. The law as to simplicity, brevity, and clearness of statement, is a model; and to it has been added a large number of precedents, executive and judicial, in the way of interpretation and application.

It is moreover to be remembered that inter-State extradition is in no sense a trial of the guilt or innocence of the party subject to the process. The only question to be considered is whether the party comes within the conditions for his arrest and delivery as prescribed by law. The Matter of Ctark, 9 Wend. 212. If this fact appears, then he is to "be delivered up, to be removed to the State having jurisdiction of the crime." His trial will take place, if at all, in that State. The simpler the legal machinery for the execution of the constitutional mandate on this subject the better, provided that it involves no injustice to the party accused.

An indictment by a grand jury, or a complaint under oath before a magistrate competent to administer an oath and issue a warrant of arrest, is the usual American manner of making a legal charge of crime, and thus initiating criminal proceedings against a party; and hence Congress very properly saw fit to adopt this manner in providing for the charge of crime in extradition, with a view to a trial in the State or Territory in which the crime is charged to have been committed. The simple object is to secure the party thus accused, and place him in the jurisdiction competent to try him.

Inasmuch also as the demand must be made by "the executive authority of the State from which" the party "fled," Congress in providing for his arrest and delivery, with equal propriety, vested the power of such arrest and delivery in the executive authority of the State or Territory to which he had fled, and in which he is found, to be exercised upon the prescribed evidence of a charge of crime. The whole proceeding on both sides is therefore conducted by the supreme executive authoriey of a State or Territory.

Chief Justice Booth, commenting, in State v.

Schlemm, 4 Harring, 577, upon the Constitution and the act of 1793, said: "The right and power under the Constitution of the United States, and the first section of the act of Congress of 1793, to demand, arrest, commit and surrender fugitives from justice, are exclusively vested in, and confided to, the executive authority of the State from which the fugitive has escaped, and that of the State where he has taken refuge." These executives are State officers; and the same is true of all the agents who act by their appointment. Do these officers, in being charged with the duties and clothed with the powers specified, become officers of the United States? Judge Sawyer, in In re Robb, 19 Fed. Rep. 26, answered this question in the affirmative. The Supreme Court of the United States, in Robb v. Connolly, 111 U. S. 624, overruling the decision of Judge Sawyer, answered it in the negative. So also the same court, alluding, in Taylor v. Taintor, 16 Wall. 306, to extradition cases, said: "In such cases the governor acts in his official capacity, and represents the sovereignty of the State, in giving efficacy to the Constitution of the United States and the law of Congress."

This settles the question that State officers do not become Federal officers when carrying into effect the law of Congress for inter-State extradition. The law creates no office, but simply empowers certain State officers, namely the governor of a State or Territory, to do certain things.

The question whether Congress can confer such authority upon State officers was considered by the Supreme Court of the United States, in Prigg v. The Commonwealth of Pennsylvania,16 Pet. 539, and answered in the affimative. That decision related to the act of February 12, 1793, which provided for the rendition of fugitive criminals, and also of fugitive slaves; and in both respects it was held to be a constitutional exercise of power vested in Congress. Mr. Justice Story, in stating the opinion of the court, said:

"We hold the act to be clearly constitutional in all its leading provisions, and indeed with the exception of that part which confers authority upon State magistrates, to be free from reasonable doubt and difficulty upon the grounds stated. As to the authority so conferred upon State magistrates, while a difference of opinion has existed, and may still exist on the point, in different States, as to whether State magistrates are bound to act under it, none is entertained by this court that State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation."

The words "State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation," imply that such magistrates are at liberty not thus to choose, and also that State legislation may forbid them to exercise the authority in question, in which event they would not be bound to exercise it. The general fact however that Congress may legislate for the execution of the extradition provision of the Constitution, and that in such legislation it may im pose duties and confer powers upon State officers, who do not thereby become Federal officers, has been settled by the Supreme Court of the United States, and is not now in dispute.

The question whether Congress has power to compel these State officers, by such legislation, to perform the duties assigned to them, was considered by the Supreme Court of the United States, in Kentucky v. Dennison, 24 How. 66, and answered in the negative. Dennison, who was the governor of Ohio, refused to deliver up a fugitive criminal upon the demand of the governor of Kentucky. Kentucky then applied to the Supreme Court of the United States for a mandamus to compel him to make the delivery, and the court overruled the application, on the ground that "there is no power delegated to the general government,