founded upon military warrant or warrants upon continental establishment, and the true intent and meaning of said act was to cede to the State of Ohio, only such lands as were unappropriated and not included in any survey or entry within said district which survey and entry was founded upon military warrant or warrants upon continental establishment." Section two then declared: "That all legal surveys returned to the "Land Office" on or before March 3rd, 1857, on entries made on or before January 1st, 1852, and founded on unsatisfied Virginia military continental warrants are hereby declared valid," and section 3 provides: "That the officers and soldiers of the Virginia line on continental establishment, their heirs or assigns, entitled to bounty lands which have on or before January 1st, 1852, been entered within the tract reserved by Virginia, between the Little Miami and Scioto rivers, for satisfying the legal bounties to her officers and soldiers upon continental establishment shall be allowed 3 years from and after the passage of this act, to make and return their surveys for record, to the office of the principal surveyor of said dístrict, and may file their plats and certificates, warrants, or certified copies of warrants, at the 'General Land office,' and receive patents for the same." The foregoing acts are the material acts bearing on the questions to be discussed in this article. The questions now presented are, whether the act of May 27th, 1880, like the former acts extending the time to locate and survey and return surveys to the "General Land Office," suspends the 3rd section of the act of March 23rd, 1804, forfeiting those tracts, the surveys whereof had not been returned to the "General Land Office," and extends the right conferred by the 2nd section of said act to return surveys to said office, for patent, and validates patents issued in the interim. Of these questions in their order : I. The act of March 2nd, 1807, says the Honorable Aaron F. Perry, in his able opinion (we cannot regard this opinion other than very able, for it was so powerful that nothing less than an act of Congress could repel its conclusion), furnished the trustees of said College, and fully reported in miscellaneous Document No. 42, 47th, Congress, 1st Session, House of Representatives, June 23d, 1882, p 41, extending the time for locating Virginia military warrants and returning surveys &c., confirmed by the 2nd section of the act of 1804, and suspended the forfeiture of the 3rd section of said act of those tracts, the surveys whereof had not been returned to the General Land Office. This construction of the act and of all the subsequent acts of extension has been adhered to, so long as the acts of extension to make new locations existed, and to the 1st day of January, 1852, at which period or time, it is to be conceded the 3rd section of said act of 1804, ceased to be further suspended, but certainly was within the control of Congress as before, and in justice to those holding locations in said district, standing upon entry merely and upon entry and survey, Congress passed her said act of March 3rd, 1855, extending the period for making surveys and returning surveys to the "General Land Office," to 2 years longer, coming up to the 3rd day of March, 1857, but upon entries only made previous to the 1st day of January, 1852. This act of 1855, like the former acts, it is conceded by Mr. Perry in his able opinion, and also, by the Honorable N. C. McFarland, Commissioner of the "General Land Office," in his decision of Norvell's case, reported in Vol. 2, No. 42, p 540, of the OHIO LAW JOURNAL, for June 1st, 1882, extends the right of the 2nd section of the act of 1804, to survey entries made previous to January 1st, 1852, and return surveys to the "General Land Office," and suspends the forfeiture of surveys previously made and not returned, declared in the 3rd section of said act of 1804, and this construction is confirmed by the 2nd section of the act of May 27th, 1880, declaring all such surveys returned to the "Land Office" on or before March 3rd, 1857, valid. And such must be the construction of the 3rd section of the act of 1880, which is a mere copy of the act of March 3rd, 1855, but more full and perfect to sustain the construction given all the previous acts, to return surveys under the 2nd section of the act of 1804, and to suspend the forfeiture of the 3rd section of said act. There is another rule however, which further confirms this construction of the act of 1855, and the act of 1880. If you subtract the act of 1855, or the 3d section of the act of 1880, from sections 2 and 3, of the act of 1804, and you have left the right under the act of 1804 to make new entries only or if you please take from 2nd and the 3d sections of the act of 1804, the right to make new entries and you have the act of 1855, or the 3d section of the act of 1880 left; or in other words you have all the rights conferred by the 2nd section of the said act of 1804, minus the right to make new entries with the forfeiture of the 3d section of that act suspended. I have always conceded the force of the construction given to the act of March 23rd, 1804, by Mr. Perry in his opinion as to the forfeiture of the locations. But I have ever insisted that congress by the provision of the act of March 2nd, 1807, took into her special protection such surveys, and that it was never intended by congress to deprive the locators of them, but to preserve them for the officers and soldiers for whom they were originally reserved by Virginia, and when the forcible opinion of Mr. Perry was presented to congress she said in the 1st section of her act of 1880, just what I advised Colonel Leet she would say of her act of February 18th, 1871, ceding the land remaining unsurveyed and unsold," in the Virginia military district to Ohio. I never had any confidence in the open letter of the Hon. William Lawrence to the Hon. N. C. McFarland, Commissioner of the General Land Office of August 23, 1881, reported in the 2nd vol. no. 4 p. 49, of the OHIO LAW JOURNAL for September 8th, 1881, and the opinion in said letter announced, of the meaning of the act of May 27th, 1880, or of the disinterestedness of the writer. I regarded it in the light of a letter of a politician who was not a candidate if the other man was, or unless the people called him out. I am glad congress passed her act of May 27th, 1880, to enable the people to perfect their title to the locations in said district, standing upon entries and surveys. There ought never to have been any limitation on the right to make surveys or to return them for patent. From the time the entry was made, the land has borne its share of taxes and the limitation has clogged the right to perfect the title, and it is the duty of congress to repeal this limitation at once. It will do more to quiet the titles in the district than any act congress can pass upon the subject. II. These acts of extention however under the retroactive constructions always given them and which has become a rule of property in the district, the effect of which is to validate all surveys previously made and patented, has operated to confirm these titles, that certain parties engaged 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 discrediting them by giving out in speeches and publications that there are 130,000 acres of land in the district to which the people occupying them have no title, but which have lapsed to the United States and become a part of the pub lic domain by such forfeiture. Justice Matthews held in his decision of the case of Chamberlain v. Marshall, in the Circuit Court of the United States, N. D. of Ohio, August, 1881, reported in the Federal Reporter, vol. 8, no. 6, p. 444-5 that a sale of such location for taxes cannot survive such forfeiture but must equally come to naught. Congress should at once report a bill, repealing so much of section two, of said act of 1804, as limits the time for completing surveys and all subsequent statutes of limitations of the right to complete such surveys and to repeal section 3, of said act of 1804, and all other acts or parts of acts limiting the time for return, location, &c. for patent. Had the officers and soldiers and their representatives been justly and fairly treated by the deputy surveyors, who were interested with the locations of their warrants, and congress had left them free to return their surveys for patent, there would to-day not be 1,000 acres of land in the district standing upon entry and survey but the titles would all be perfect. But as the business was conducted under the forfeiture of the 3d section of the act of 1804, it is manifest, that all sales, for taxes or other sales depending upon the validity and subsistence of the location standing upon entry or upon entry and survey, previous to the act of May 27th, 1880, went to the ground with the forfeiture of the location, and are only restored by this act and destined to go there again if not now returned to the "General Land Office"; if returned there, they are safe; or if the limitation is repealed they are safe. But take not the advice of any man who boasts he has in any manner defeated the passage of acts of congress to enable the people to perfect these titles. I had supposed that Mr. Lawrence, who was counsel for Chamberlain in the case alluded to, would have felt the force of the remark of Justice Matthews in that case that the sale of a location for taxes could not logically survive the forfeiture of the location itself; a conclusion from the premises not to be controverted; but here in the face of this decision, in the form of his said open letter, he comes and boasts, he has had the honor of defeating acts which would not only have validated the original location, but perhaps confirmed the sale for taxes alleged by him in said action. His letter only proves he has no land to be affected by the decision that the commissioner may make. I am &c. very respectfully yours, JEREMIAH HALL. LAW AND LAWYERS. The following is from the address of Hon. Wm. P. Black, of the Chicago Bar, before the graduating class of the Union College of Law, June 15th: "Law is eternal! She hath her seat in the bosom of God!" So wrote the panegyrist, centuries ago-meaning by Law, probably, the impulse which leads the rightly constituted mind to seek the accomplishment of justice among men. And worthy of even such praise is this impulse, having its origin in the highest good of which we can conceive. Very blessed is it, too, that in all ages there have been those who esteemed truth above triumph, justice above success, right above revenue; and who, even in "the corrupted currents of this world," where "oft 'tis seen, the guilty prize itself buys out the law," have held earnestly by a grand ideal, conceiving of justice as throned with God, and dreaming of its establishment in the earth. These, to the measure of their ability, and according to their apprehension of right, have striven to realize, in legal enactments and judicial determinations, exact justice among men, and to establish a system of law, common and statute, which should secure this end. That they have failed-that as the result of the labor of such men, we have, in the various civilized nations of the world, bodies of statutes and multiplied precedents, contradictory and irreconcilable, supporting different views on numerous questions, so that a precedent can be found for almost any proposition having any degree of plausibility, while many a statute operates to accomplish absolute wrong, is resultant upon two things: First, that even the best of those instrumental in the establishment of our system of law were fallible men, whose minds, though "reflecting an image of heaven," were yet were yet "darkened by shadows of earth," the prejudices and faults of education, the atmosphere of the time in which they wrought, the errors of ignorance and the warpings of interest: and Second, that always among the co-laborers in the structure of law have been found many of ignoble heart and purpose who have betrayed the great trusts committed to their hands, and who, for their own ends, have sought to make of the law a system of chicane, using it to defeat justice and to buttress wrong. It results, that never within recorded history has any system of law deserved the panegyric quoted never has any code or body of law, whether confessedly sought out and set in order or established by men, or professedly of divine origin, deserved to endure, or represented to us the highest conceivable good! It does not follow that simply because a thing is lawful, it is therefore right-that because it has the sanction of precedent or the authority of enactment, it is therefore equitable and just and this is a truth important to be remembered by every one engaging in, or purposing to enter upon, the practice of the law, and who would preserve a clear conscience, a quick, true sense of justice. From the days when the law provided that for theft above the value of thirteen pence half-penny the punishment should be hanging, and that the counterfeiter should be boiled in oil-when penalties for even trivial offences were so atrocious that we shudder to read the black page chronicling them-and when the entire administration of what was termed justice was in the interest of oppression -from those days we have made vast progress; but we are yet far from the ultimate of excellence and he who would render the highest service to the profession and the public in the administration of law, must not only aim at securing the observance of right laws, but must labor for the improvement of its provisions, and the correction of abuses or failures in its administration. But if the law, by which is now meant the system of laws obtaining among us, is far from perfect, much more faulty is the administration of law under existing circumstances-an administration which in our cities, has become a mocking and by-word, so that it has come to be a saying that no richman-no man who can command money-can be punished for crime: while many hold that it is the part of wisdom to forego even a just debt rather than attempt its collection at law, if the debtor be an unprincipled, man ready to employ a disreputable attorney, or to corrupt a juror willing to accept a bribe. While, doubtless, the evil which exists, the abuses of this nature which are practiced, are greatly exaggerated in the mouth of public rumor, still the evil does exist, tainting the administration of justice as a whole, and bringing reproach upon the law. In this connection it may not be out of place to advance a suggestion which, if acted upon, will, it is believed, result in the removal of most of this ground of complaint. The jury system, as applied to the determination of civil controversies, is illogical and absurd. This system grew up in the days of the law's ferocity, and was then a valued safeguard, essential to the well-being of the subject. But that to-day, before a man can collect a disputed claim. or enforce a contested liability, he must have the concurrence of twelve men in the verdict; that in this one particular there should be a departure from the principle of majority rule, which obtains with us, not only in political matters but also in all other branches of judicial administration-so that a majority of arbitrators make a finding upon which a court enters judgmenta majority of appraisers make a report which, as a rule, the court accepts and acts on-and a majority of the judges of all courts sitting en banc, whether at nisi prius or in the Appellate or Supreme Court, determine the weightiest questions alike of law and fact-that the principle of requiring a unanimous jury in order to à verdict in civil cases should be enforced, is not only out of harmony with all the tendencies of our times and the theories of our Government, but it is absolutely pernicious in its results. To this requirement of our law, incorporated in our very Constitution, may properly be attributed the entire system of jury packing, with its attendant evils. There are men who engage in the practice of the law, not because. they are lovers of justice, or seeking the triumph of right, but because they believe they will find a profitable field for their disreputable practices; and these men are retained by unscrupulous litigants, particularly in defending against obviously just claims, to render the unexpressed service, directly or indirectly, of bribing a juror and thus securing a disagreement. thus securing a disagreement. Under the present system all that is required of these men, in order to the defeat of justice, is that they find and reach in a panel of twelve jurors, one man who will accept the wages of iniquity-for that one man can "hang" the jury. If a second can be found on the panel at no very great expense, he also will be "fixed," so that the concurrence of the two may make the corruption less obvious. Give to a majority of the jury, or say at most two thirds of the panel, the power to find a verdict in any matter involving dollars and cents only, that is to say, in all actions not involving the personal liberty or the life of the defendant, so that in order to corrupt a jury and defeat justice, it would be necessary to bribe at least five of the jurors, and the difficulties of this business would be so enormously increased, because of the practical impossibility of finding in any panel five depraved men, that the jury-bribing industry would come to an end, and jury bribers would be driven from the profession they dis grace, because of the loss of their occupation. Let it still be demanded that in grave criminal matters, twelve men shall concur in order to a verdict for here comes in the righteous rule of giving to the accused the benefit of every doubt, and of the presumption of innocence, so that it is meet the State should, by its evidence, be required to convince the entire panel, ere taking the liberty or life of the defendant; and if it be objected that in such cases are found the very strongest incentives to bribery, when guilt is probable, and that experience has shown that professional jury-packers ply their vocation in our criminal courts, the answer must be, that yet we cannot, consistently with our established theories of criminal jurisprudence, break down any of the immemorial safe-guards defending the life or liberty of the accused; to which may be added this suggestion, that if jury bribery in civil cases can be brought to an end, this will so far operate to discourage corrupt men from entering our profession, and other corrupt men from seeking places on the jury lists, as to reduce this evil even in criminal cases, to the mini What are the requisites to our highest efficiency in this service? What are the characteristics that should be possessed and cultivated by every lawyer? First in order and importance is honesty. No one should engage in the practice of law who is not essentially honest. That the profession is, in the popular apprehension, considered an asylum for the dishonest-that an upright lawyer is deemed rare, is unquestionable. It is not uncommon to hear people, and people of fair intelligence, too, express a doubt whether any one can be honest and be a lawyer. It is lamentable that such an impression should prevail-but it would be infinitely more lamentable were the impression well-founded. And, indeed, it may well be questioned whether this impression is in the form of a conviction, or only a suspicion. It will be admitted that no man is so fully trusted, so unreservedly and generally relied on, as the lawyer, into whose hands are placed the most important business interests of the community, not alone as a result of the necessity of the situation, but in the absolute confidence that such interests will be faithfully guarded and duly accounted for. Prominent examples of unfaithfulness are, of course, to be found in almost every community-cases of men inherently dishonest, who have engaged in the practice of the law with the purpose of carrying on a system of secret pillage-but in fact such cases are the exception, not the rule; and among the intelligent, certainly, the suspicion of dishonesty while perhaps entertained with reference to "the other man's" lawyer, finds no entertainment as to one's own. As a rule a lawyer is selected by the intelligent because of a well-grounded belief that such lawyer may be trusted-and in the exceptional cases, the secret of the choice lies in Undoubtedly, however, there are strong temptations to the practicing lawyer to surrender his integrity, not so much nor so often in his own supposed interest as in the supposed service of his client; and these temptations are most potent from two scources-first, from the suggestions of dishonest clients; and second,, from the temptation to ignore the "ministry of justice" in the strife for success. As to the first mentioned source of temptation, it must be admitted that it is dangerous in the extreme. The dishonest are almost sure to be litigious (though it by no means follows that the litigious are even presumably dishonest,) these seeking to evade the requirements of justice through the frailties of law, its technical rules unknown to the multitudes, and its delays and expenses denying its relief to the poor. A dishonest litigant does not seek a lawyer to be advised as to his rights or liabilities-in reference to these he is probably fully posted-but only with a view to requiring that lawyer's services to accomplish injustice, if possible. The jury briber, the suborner of perjury, the deviser of a defence or scheme of recovery known to be false or unjust, plies his vocation because he finds a clientage ready to make such practice profitable, with a profit commensurate to the character and peril of the service rendered; just as the lobby exists because its services are in demand. Many an honest young lawyer yields to the insidious temptation presented to him by a client who has, in the first instance, engaged his services in legitimate directions, until the lawyer has come to have a feeling that he owes to such client his utmost endeavor, and the client has then suggested and secured such a service as has corrupted that lawyer's entire professional life. Beware of a dishonest client! and beware of the first suggestion of a departure from an upright course! All the more is there occasion for this caution and need of watchfulness in this regard, because there is a natural tendency to seek success by any means, the excitement of the contest often blinding the judgment, and the longing for victory lulling the conscience, particularly when joined to the tempting suggestion that the lawyer's duty is to advance, by all possible means, the cause of his client-the interests of the adverse party resting in the care of opposing counsel— and many an unconscionable advantage taken, being excused by such bastard logic. For in this process of reasoning, the fact is ignored that the lawyer's position is that of one aiding in the administration of justice, called to further his client's cause only by proper means, to urge his suit only by right argument, not attempting to mislead the court, nor to take advantage of the ignorance, mistake or inexperience of an adversary to the furtherance of known wrong. The lawyer's oath, binds him only to a right use of his powers derived from study and experienceand every lawyer should advise his client to deal justly without regard to technical advantage, or the possibilities of unscrupulous conduct dictated by superior craft or cunning. Do not be afraid to be honest toward an adversary. You may at times be required to forego an apparent advantage, and perhaps an important one, and to put your own success in jeopardy-you may even sometimes be required by such a rule as this to relinquish easy victory-and you certainly will, by observing such a rule of conduct, eliminate the openly dishonest from your clientage, sooner or later, to your own temporary, and perhaps permanent, pecuniary disadvantage. But you can not afford to win success by the sacrifice of integrity or to hold as your clients those who wou'd make dishonest practices on your part a condition of the compensation however munificent, they would render to you-and in the preservation of conscious rectitude, and the keeping of a clear conscience, essential to honorable and self-satisfying being, you will preserve that which can not be compensated by any golden dole. Of course I do not say that honesty is essential to success on the contrary, many of the members of our profession winning the most pronounced success, have not been honest men, their very dishonesty being the foundation of their success. But I do say, that honesty in a lawyer, sterling, inflexible probity, is absolutely requisite to the ideal lawyer, and lies at the very basis of any success worth striving for, faithfulness in any cause or to any interest in life, being surely predicable only of an upright man; and the man known to be dishonest, whatever the measure of his success in minor things, makes failure to win an honorable repute among his fellows because of the remediless shipwreck of his character. No one needs more than the lawyer to treasure the apostolic injunction, "Provide things honest in the sight of all men!" Judge Bleckly, of Georgia, having resigned, read the following verses on the conclusion of his last opinion. The verses may be found in 64 Ga. 452: IN THE MATTER OF REST. I. Rest for my hand and brow and breast, For fingers, heart and brain! Rest and peace! a long release From labor and from pain: Pain or doubt, fatigue, despairPain of darkness everywhere, And seeking light in vain! II. Peace and rest! Are they the best No bliss but this, from sun and soil TRESPASS-FREQUENTED PATH ACROSS RAILROAD-NEGLIGENCE-RAIL- SUPREME COURT OF PENNSYLVANIA. PHILADELPHIA AND READING R. R. Co. v. TROUT MAN. April 10, 1882. 1. When a foot-path across a railroad has been used by the public for many years and is well-known, and there is no evidence of objection to its use on the part of of the railroad company, a person using the path to cross the railroad cannot be considered a trespasser. 2. Where a train intended for a flying switch is detached some three quarters of a mile from, and out of sight of a crossing, and is sent at the rate of from ten to fifteen miles per hour down a main track, and is then, without warning, suddenly thrown upon a siding upon which a person is walking at a point near the crossing, the railroad company will be held guilty of negligence. 3. Where a locomotive blocks a crossing it is not contributory negligence for a person desiring to cross to go upon a side track for the purpose of going around the locomotive, there being at the time of his going on no car in sight upon the side track, and no apparent likelihood of any coming thereon, although the accident happened to him from the sudden throwing of a train upon said track, without warning. Case for negligence. On the trial the evidence showed the following facts: The plaintiff, a weak-minded girl, had been sent on an errand on the line of the defendant's railroad, which was crossed by a well-beaten path, which had been used by the public many years. At this point the railroad consisted of three tracks. The plaintiff walked along the path, and on reaching the first track, known as the Kaufman siding, stopped and stood still until an engine coming down the third track, stopped at some fifty or sixty feet distance. She then looked up and down and seeing nothing walked down the siding intending to go around the engine; while by some cars which had been disconnected from walking toward it, she was struck from behind the engine some three quarters of a mile away, and had been run on a flying switch upon the track on which the plaintiff was. She was seriously injured. No warning was given her, neither the conductor nor brakeman seeing her, and the engineer of the locomotive not seeing that she was on the track. From the point of contact of the path and the railroad, the railway signal tower, about three quarters of a mile away, could not be seen even by a full-grown person. The cars were going at the rate of from ten to fifteen miles per hour. The defendant 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 plaintiff was a trespasser and therefore could not recover. Sassaman, J., answered that there was no direct and positive evidence of negligence except such as might be inferred from all the evidence, and that though the plaintiff was a trespasser, yet if the defendant suffered such repetitions of trespass which led the child over the path, the fact of her being there would negative |
