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founded upon military warrant or warrants up- was within the control of Congress as before, on continental establishment, and the true in- and in justice to those holding locations in said tent and meaning of said act was to cede to the district, standing upon entry merely and upon State of Ohio, only such lands as were unappro- entry and survey, Congress passed her said act priated and not included in any survey or entry of March 3rd, 1855, extending the period for within said district which survey and entry was making surveys and returning surveys to the founded upon military warrant or warrants "General Land Office,” to 2 years longer, comupon continental establishment.”
ing up to the 3rd day of March, 1857, but upon Section two then declared: “That all legal sur- entries only made previous to the 1st day of Janveys returned to the “Land Office" on or before March 3rd, 1857, on entries made on or before This act of 1855, like the former acts, it is January 1st, 1852, and founded on unsatisfied onceded by Mr. Perry in his able opinion, and Virginia military continental warrants are here- also, by the Honorable N. C. McFarland, Commisby declared valid," and section 3 provides : sioner of the "General Land Office," in his de
"That the officers and soldiers of the Virginia cision of Norvell's case, reported in Vol. 2, No. line on continental establishment, their heirs 42, p 540, of the Ohio LAW JOURNAL, for June 1st, or assigns, entitled to bounty lands which have 1882, extends the right of the 2nd section of the on or before January 1st, 1852, been entered act of 1804, to survey entries made previous to within the tract reserved by Virginia, between January, 1st, 1852, and return surveys to the the Little Miami and Scinto rivers, for satisfy- “General Land Office," and suspends the furing the legal bounties to her officers and soldiers feiture of surveys previously made and not reupon continental establishment shall be al- turned, declared in the 3rd section of said act of lowed 3 years from and after the passage of this 1804, and this construction is confirmed by the act, to make and return their surveys for record, 2nd section of the act of May 27th, 1880, declarto the office of the principal surveyor of said dís- ing all such surveys returned to the “Land trict, and may file their plats and certificates, Office" on or before March 3rd, 1857, valid. warrants, or certified copies of warrants, at the And such must be the construction of the 3rd "General Land office,' and receive patents for the section of the act of 1880, which is a mere copy same."
of the act of March 3rd, 1855, but more full and The foregoing acts are the material acts bear- perfect to sustain the construction given all ing on the questions to be discussed in this the previous acts, to return surveys under the article.
2nd section of the act of 1804, and to suspend The questions now presented are, whether the the forfeiture of the 3rd section of said act. act of May 27th, 1880, like the former acts There is another rule however, which further extending the time to locate and survey confirms this construction of the act of 1855, and return surveys to the “General Land and the act of 1880. Office," suspends the 3rd section of the If you subtract the act of 1855, or the 3d secact of March 23rd, 1804, forfeiting those tion of the act of 1880, from sections 2 and 3, of tracts, the surveys whereof had not been re- the act of 1804, and you have left the right turned to the "General Land Office," and ex- under the act of 1804 to make new entries tends the right conferred by the 2nd section of onlyor if you please take from 2nd and the 3d secsaid act to return surveys to said office, for pat- tions of the act of 1804, the right to make new ent, and validates patents issued in the in- entries and you have the act of 1855, or the 3d terim.
section of the act of 1880 left; or in other words Of these questions in their order :
you have all the rights conferred by the 2nd secI. The act of March 2nd, 1807, says the Hon- tion of the said act of 1804, minus the right to orable Aaron F. Perry, in his able opinion (we make new entries with the forfeiture of the 3d cannot regard this opinion other than very able, section of that act suspended. for it was so powerful that nothing less than an 8 I
I have always conceded the force of the conact of Congress could repel its conclusion), fur. struction given to the act of March 23rd, 1804, nished the trustees of said College, and fully re- by Mr. Perry in his opinion as to the forfeiture ported in miscellaneous Document No. 42, 47th, of the locations. Congress, 1st Session, House of Representatives, But I have ever insisted that congress by the June 23d, 1882, p 41, extending the time for loca- proyision of the act of March 2nd, 1807, took ting Virginia military warrants and returning into her special protection such surveys, and surveys &c., confirmed by the 2nd section of the that it was never intended by congress to deact of 1804, and suspended the forfeiture of the prive the locators of them, but to preserve them 3rd section of said act of those tracts, the surveys for the officers and soldiers for whom they were whereof had not been returned to the General originally reserved by Virginia, and when the Land Office. This construction of the act and of forcible opinion of Mr. Perry was presented to all the subsequent acts of extension has been congress she said in the 1st section of her act of adhered to, so long as the acts of extension to 1880, just what I advised Colonel Leet she would make new locations existed, and to the 1st day say of her act of February 18th, 1871, ceding the of January, 1852, at which period or time, it is land remaining unsurveyed and unsold,” in the to be conceded the 3rd section of said act of 1804, Virginia military district to Ohio. ceased to be further suspended, but certainly I never had any confidence in the open letter of the Hon. William Lawrence to the Hon. standing upon entry or upon entry and survey, N. C. McFarland, Commissioner of the General previous to the act of May 27th, 1880, went to Land Office of August 23, 1881, reported in the the ground with the forfeiture of the location, 2nd vol. no. 4 p. 49, of the Ono LAW JOURNAL for and are only restored by this act and destined to Septeinber 8th, 1881, and the opinion in said let- go there again if not now returned to the "General ter announced, of the meaning of the act of May Land Office"; if returned there, they are safe ; 27th, 1880, or of the disinterestedness of the or if the limitation is repealed they are safe. writer. I regarded it in the light of a letter of But take not the advice of any man who boasts a politician who was not a candidate if the he has in any manner defeated the passage of other man was, or unless the people called him acts of congress to enable the people to perfect out.
these titles. I had supposed that Mr. Lawrence, I am glad congress passed her act of May 27ths, who was counsel for Chamberlain in the case al1880, to enable the people to perfect their title luded to, would have felt the force of the reto the locations in said district, standing upon mark of Justice Matthews in that case that the entries and surveys. There ought never to have sale of a location for taxes could not logically been any
limitation on the right to make sur- survive the forfeiture of the location itself; a veys or to return them for patent. From the time conclusion from the premises not to be controthe entry was made, the land has borne its share verted; but here in the face of this decision, in of taxes and the limitation has clogged the the form of his said open letter, he conies and right to perfect the title, and it is the duty of boasts, he has had the honor of defeating acts congress to repeal this limitation at once. It which would not only have validated the origiwill do more to quiet the titles in the district nal location, but perhaps confirmed the sale for than any act congress can pass upon the sub- taxes alleged by him in said action. ject.
His letter only proves he has no land to be II. These acts of extention however under the affected by the decision that the commissioner retroactive constructions always given them and
may make. which has become a rule of property in the dis- I am &c. very respectfully yours, trict, the effect of which is to validate all sur
JEREMIAH HALL. veys previously made and patented, has operated to confirm these titles, that certain parties en
LAW AND LAWYERS. gaged in the practice of law in the district, assuming to know the law of Virginia Military Land Titles in Ohio, and go about the district
The following is from the address of Hon. discrediting them by giving out in speeches and Wm. P. Black, of the Chicago Bar, before the In the district to which the people occupying June 15th: publications that there are 130,000 acres of land graduating class of the Union College of Law, them have no title, but which have lapsed to the United States and become a part of the pub "Law is eternal! She hath her seat in the lic domain
forfeiture. Justice bosom of God!" So wrote the panegyrist, cenMatthews held in his decision of the case of turies ago-meaning by Law, probably, the imChamberlain v. Marshall, in the Circuit Court pulse which leads the rightly constituted mind of the United States, N. D. of Ohio, August, to seek the accomplishment of justice among 1881, reported in the Federal Reporter, vol. 8, And worthy of even such praise is this no. 6, p. 444–5 that a sale of such location impulse, having its origin in the highest good for taxes cannot survive such forfeiture but of which we can conceive. Very blessed is it, must equally come to naught.
too, that in all ages there have been those Congress should at once report a bill, repeal- who esteemed truth above triumph, justice ing so much of section two, of said act of 1804, above success, right above revenue; and who, as limits the time for completing surveys and all even in "the corrupted currents of this world," subsequent statutes of limitations of the right where "oft 'tis seen, the guilty prize itself buys to complete such surveys and to repeal section 3, out the law,” have held earnestly by a grand of said act of 1804, and all other acts or parts of ideal, conceiving of justice as throned with God, acts limiting the time for return, location, &c. and dreaming of its establishment in the earth. for patent.
These, to the measure of their ability, and acHad the officers and soldiers and their repre-cording to their apprehension of right, have sentatives been justly and fairly treated by the striven to realize, in legal enactments and judeputy surveyors, who were interested with the dicial determinations, exact justice among men, locations of their warrants, and congress had and to establish a system of law, common and left them free to return their surveys for patent, statute, which should secure this end. That there would to-day not be 1,000 acres of land in they have failed—that as the result of the labor the district standing upon entry and survey but of such men, we have, in the various civilized the titles would all be perfect. But as the busi- nations of the world, bodies of statutes and mulness was conducted under the forfeiture of the 3d tiplied precedents, contradictory and irreconcilsection of the act of 1804, it is manifest, that all able, supporting different views on numerous sales, for taxes or other sales depending upon questions, so that a precedent can be found for the validity and subsistence of the location almost any proposition having any degree of
plausibility, while many a statute operates to rumor, still the evil does exist, tainting the adaccomplish absolute wrong, is resultant upon ministration of justice as a whole, and bringing two things: First, that even the best of those reproach upon the law. instrumental in the establishment of our system In this connection it may not be out of place of law were fallible men, whose minds, though to advance a suggestion which, if acted upon, "reflecting an image of heaven,” were yet will, it is believed, result in the removal of “darkened by shadows of earth,” the prejudices most of this ground of complaint. and faults of education, the atmosphere of the .. The jury system, as applied to the determinatime in which they wrought, the errors of ig. tion of civil controversies, is illogical and absurd. norance and the warpings of interest : and This system grew up in the days of the law's Second, that always among the co-laborers in ferocity, and was then a valued safeguard, essenthe structure of law have been found many of tial to the well-being of the subject. But that ignoble heart and purpose who have betrayed to-day, before a man can collect a disputed claim the great trusts committed to their hands, and or enforce a contested liability, he must have the who, for their own ends, have sought to make of concurrence of twelve men in the verdict; that the law a system of chicane, using it to defeat in this one particular there should be a departjustice and to buttress wrong. It results, that ure from the principle of majority rule, which never within recorded history has any system of obtains with us, not only in political matters law deserved the panegyric quoted never hasany but also in all other branches of judicial admincode or body of law, whether confessedly sought istration-so that a majority of arbitrators make out and set in order or established by men, or a. finding upon which a court enters judgmentprofessedly of divine origin, deserved to endure, a majority of appraisers make a report which, as or represented to us the highest conceivable a rule, the court accepts and acts on-and a magood!
jority of the judges of all courts sitting en banc, It does not follow that simply because a thing whether at nisi prius or in the Appellate or Suis lawful, it is therefore right-that because it preme Court, determine the weightiest questions has the sanction of precedent or the authority alike of law and fact—that the principle of of enactment, it is therefore equitable and just requiring a unanimous jury in order to a verdict and this is a truth important to be remembered in civil cases should be enforced, is not only out by every one engaging in, or purposing to enter of harmony with all the tendencies of our times upon, the practice of the law, and who would and the theories of our Government, but it is preserve a clear conscience, a quick, true sense absolutely pernicious in its results. To this reof justice. From the days when the law pro- quirement of our law, incorporated in our very vided that for theft above the value of thirteen Constitution, may properly be attributed the pence half-penny the punishment should be entire system of jury packing, with its attendant hanging, and that the counterfeiter should be evils. There are men who engage in the pracboiled in oil-when penalties for even trivial ice of the law, not because they are lovers of offences were so atrocious that we shudder to justice, or seeking the triumph of right, but beread the black page chronicling them and cause they believe they will find a profitable when the entire administration of what was field for their disreputable practices; and these termed justice was in the interest of oppression men are retained by unscrupulous litigants, par--froin those days we have made vast progress ; ticularly in defending against obviously just but we are yet far from the ultimate of excel- claims, to render the unexpressed service, lence and he who would render the highest directly or indirectly, of bribing a juror and service to the profession and the public in the thus securing a disagreement. Under the presadministration of law, must not only aim at se- ent system all that is required of these men, in curing the observance of right laws, but must order to the defeat of justice, is that they find labor for the improvement of its provisions, and and reach in a panel of twelve jurors, one man the correction of abuses or failures in its admin- who will acoept the wages of iniquity--for that istration.
one man can hang" the jury. If a second can But if the law, by which is now meant the be found on the panel at no very great expense, system of laws obtaining among us, is far from he also will be "fixed," so that the concurrence perfect, much more faulty is the administration of the two may make the corruption less obvious. of law under existing circumstances-an admin- Give to a majority of the jury, or say at most istration which in our cities, has become a two thirds of the panel, the power to find a vermocking and by-word, so that it has come to be dict in any matter involving dollars and cents a saying that no richman-no man who can com- only, that is to say, in all actions not involving mand money-can be punished for crime: while the personal liberty or the life of the defendant, many hold that it is the part of wisdom to fore- so that in order to corrupt a jury and defeat juggo even a just debt rather than attempt its col- tice, it would be necessary to bribe at least five lection at law, if the debtor be an unprincipled, of the jurors, and the difficulties of this business man ready to employ a disreputable attorney, or would be so enormously increased, because of the to corrupt a juror willing to accept a bribe. practical impossibility of finding in any panel While, doubtless, the evil which exists, the five depraved men, that the jury-bribing indusabuses of this nature which are practiced, are try would come to an end, and jury bribers greatly exaggerated in the mouth of public would be driven from the profession they dis
grace, because of the loss of their occupation. the client's own dishonesty, which he wishes Let it still be demanded that in grave criminal furthered. matters, twelve men shall concur in order to a Undoubtedly, however, there are strong tempverdict-for here comes in the righteous rule of tations to the practicing lawyer to surrender his giving to the accused the benefit of every doubt, integrity, not so inuch nur so often in his own and of the presumption of innocence, so that it supposed interest as in the supposed service of is meet the State should, by its evidence, be re- his client; and these temptations are most potent quired to convince the entire panel, ere taking from two scources-first, from the suggestions of the liberty or life of the defendant, and if it be dishonest clients; and second,, from the templaobjected that in such cases are found the very tion to ignore the ministry of justice" in the strongest incentives to bribery, when guilt is strife for success. As to the first mentioned probable, and that experience has shown that source of temptation, it must be admitted that professional jury-packers ply their vocation in it is dangerous in the extreme. The dishonest our criminal courts, the answer must be, that are almost sure to be litigious (though it by no yet we cannot, consistently with our established means follows that the litigious are even pretheories of criminal jurisprudence, break down sumably dishonest,) these seeking to evade the any of the immemorial safe-guards defending the requirements of justice through the frailties of life or liberty of the accused; to which may be law, its technicul rules unknown to the multiadded this suggestion, that if jury bribery in tudes, and its delays and expenses denying its civil cases can be brought to an end, this will so relief to the poor. Å dishonest litigant does not far operate to discourage corrupt men from en- seek a lawyer to be advised as to his rights or tering our profession, and other corrupt men liabilities-in reference to these he is probably from seeking places on the jury lists, as to reduce fully posted—but only with a view to requiring this evil even in criminal cases, to the mini- thut lawyer's services to accomplish injustice, if mum.
possible. The jury briber, the suborner of perjury, the deviser of a defence or scheme of recov
ery known to be false or unjust, plies his voca. What are the requisites to our highest effi- tion because he finds a clientage ready to make ciency in this service? What are the characteris- such practice profitable, with a profit comnientics that should be possessed and cultivated by surate to the character and peril of the service every lawyer ?
rendered; just as the lobby exists because its First in order and importance is honesty. No services are in demand. Many an honest young one should engage in the practice of law who is lawyer yields to the insidious temptation prenot essentially honest. That the profession is, sented to him by a client who has, in the first in the popular apprehension, considered an asyinstance, engaged his services in legitimate lum for the dishonest—that an upright lawyer is directions, until the lawyer has come to have a deemed rare, is unquestionable. It is not uncom- feeling that he owes to such client his utinost mon to hear people, and people of fair intelli- endeavor, and the client has then suggested and gence, too, express a doubt whether any one can secured such a service as has corrupted that be honest and be a lawyer. It is lamentable lawyer's entire professional life. Beware of a that such an impression shoull prevail-but it dishonest client! und beware of the first suggest. would be infinitely more lamentable were the ion of a departure from an upright course! All impression well-founded. And, indeed, it may the more is there occasion for this caution and well be questioned whether this impression is need of watchfulness in this regard, because there in the form of a conviction, or only a suspicion. is a natural tendency to seek success by any It will be admitted that no man is so fully means, the excitement of the contest often blindtrusted, so unreservedly and generally relied on, ing the judgment, and the longing for victory as the lawyer, into whose hands are placed the lulling the conscience, particularly when joined most important business interests of the com- to the tempting suggestion that the lawyer's munity, not alone as a result of the necessity of duty is to advance, by all possible means, the the situation, but in the absolute confidence cause of his client--the interests of the adverse that such interests will be faithfully guarded party resting in the care of opposing counsel
Prominent examples and many an unconscionable advantage taken, of unfaithfulness are, of course, to be found in being excused by such bastard logic. For in this almost every community--cases of men inher-process of reasoning. the fact is ignored that the ently dishonest, who have engaged in the prac- lawyer's position is that of one aiding in the tice of the law with the purpose of carrying on a administration of justice, called to further bis system of secret pillage--but in fact such cases client's cause only by proper means, to urge his are the exception, not the rule; and among the suit only by right argument, not attempting to intelligent, certainly, the suspicion of dishonesty mislead the court, nor to take advantage of the while perhaps entertained with reference to "the ignorance, mistake or inexperience of an adverother man's”lawyer, finds noentertainment as to sary to the furtherance of known wrong. The one's own. As a rule a lawyer is selected by the lawyer's oath, binds him only to a right use of intelligent because of a well-grounded belief his powers derived from study
and experience, that such lawyer may be trusted-and in the ex- and every lawyer should ad vise his client to deal ceptional cases, the secret of the choice lies in justly without regard to technical advantage, or
the possibilities of unscrupulous conduct dic- TRESPASS-FREQUENTED PATH ACROSS tated by superior craft or cunning. Do not be RAILROAD-NEGLIGENCE-RAILafraid to be honest toward an adversary. You
ROAD-CONTRIBUTORY NEGmuy at times be required to forego an apparent
LIGENCE advantage, and perhaps an important one, and to put your own success in jeopardy--you may SUPREME COURT OF PENNSYLVANIA. even sometimes be required by such a rule as this to relinquish easy victory-and you cer- PHILADELPHIA AND READING R. R. Co. v. TROUTtainly will, by observing such a rule of conduct, eliminate the openly dishonest from your clientage, sooner or later, to your own temporary, and
April 10, 1882. perhaps perinanent, pecuniary disudvantage.
1. When a foot-path across a railroad has been used But you can not afford to win success by the by the public for many years and is well-known, and sacrifice of integrity or to hold as your clients
there is no evidence of objection to its use on the part of those who wou'd make dishonest practices on
of the railroad company, a person using the path to cross
the railroad cannot be considered a trespasser. your part a condition of the compensation how- 2. Wbere a train intended for a flying switch is deever munificent, they would render to you—and tached some three quarters of a mile from, and out of in the preservation of conscious rectitude, and the
wight of a crossing, and is sent at the rate of from ten to
tifteen miles per hour down a main truck, and is then, keeping of a clear conscience, essential to hon- without warning, suddenly thrown upon a siding upon orable and self-satisfying being, you will preserve which a person is walking at a point near the crossing, that which can not be compensated by any
the railroad company will be held guilty of neglige nce.
3. Whore a locomotive blocks a crossing it is not congolden dole.
tributory negligence for a person desiring to cross to go Of course I do not say that honesty is essential upon a side track for the purpose of going around the loto success on the controry, many of the mem
comotive, there being at the time of his going on no car
in sight upon the side track, and no apparent likelhood bers of our profession winning the most pro- of any coming thereon, although the accident happened nounced success, have not been honest men,
to him from the sudden throwing of a train upou said their very dishonesty being the foundation of track, without warning. their success. But I do say, that honesty In a
Case for negligence. On the trial the evilawyer, sterling, inflexible probity, is absolutely
dence showed the following facts : The plainrequisite to the ideal lawyer, and lies at the very
tiff, a wenk-minded girl, had been sent on an basis of any success worth striving for, faithful
errand on the line of the defendant's railroad, ness in any cause or to any interest in life, being which was crossed by a well-beaten path, which surely predicable only of an upright man; and
had been used by the public many years. At the man known to be dishonest, whatever the
this point the railroad consisted of three tracks. measure of his success in minor things, makes
The plaintiff walked along the path, and on failure to win an honorable repute among his reaching the first track, known as the Kaufman fellows because of the remediless shipwreck of siding, stopped and stood still until an engine his character. No one needs more than the law coming down the third track, stopped at some yer to treasure the apostolic injunction, “Provide
fifty or sixty feet distance. She then looked up things honest in the sight of all men!"
and down and seeing nothing walked down the
siding intending to go around the engine; while Judge Bleckly, of Georgia, having resigned, by some cars which had been disconnected from
walking toward it, she was struck from behind read the following verses on the conclusion of the engine some three quarters of a mile away, his last opinion. The verses may be found in and had been run on a flying switch upon the 64 Ga. 452:
track on which the plaintiff was. She was ser
iously injured. No warning was given her, IN THE MATTER OF REST.
neither the conductor nor brakeman seeing her, 1.
and the engineer of the locomotive not seeing Rest for my hand and brow and breast,
that she was on the track. From the point of For fingers, heart and brain !
contact of the path and the railroad, the railRest and peace ! a long release
way signal tower, about three quarters of a mile From labor and from pain:
away, could not be seen even by a full-grown Pain of doubt, fatigue, despair
person. The cars were going at the rate of from Pain of darkness everywhere,
ten to fifteen miles per hour. The defendant And seeking light in vain!
asked the court to charge, inter alia that there was no evidence of negligence on the part of the defendant (second point), and that the plaint
iff was a trespasser and therefore could not rePeace and rest! Are they the best cover. Sassaman, J., answered that there was For mortals here below ?
no direct and positive evidence of negligence In soft response from work and woes
except such as might be inferred from all the A bliss for men to know ?
evidence, and that though the plaintiff was a Bliss oftime is bliss of toil:
trespasser, yet if the defendant suffered auch repeNo bliss but this, from sun and soil
titions of trespass which led the child over the Does God permit to grow.
path, the fact of her being there would negative