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The Albany Law Journal.
ALL communications intended for publication in the The subject of Law Schools was treated at the LAW JOURNAL should be addressed to the editor, and the social science conference by Professor Baldwin of name of the writer should be given, though not necessa
Yale College, who read a paper entitled “Graduate rily for publication..
Courses at Law Schools." He advocated lengthenCommunications on business matters should be addressed to the publishers.
ing the time of study, saying that if every State made a three years' course obligatory the benefit to the community would be immense, yet he feared such action would be disastrous to the schools. He
favored a post-graduate course. This kind of course ALBANY, SEPTEMBER 15, 1877.
was also favored by Chancellor Hammond of Iowa
University and Professor Wells of Ann Arbor. The CURRENT TOPICS.
former gentleman seemed to think a law school prefTHE Social Science Association which met at Sara erable to a law office as a means of teaching. Mr. I toga last week, discussed a number of very im David Dudley Field favored a lengthening of the portant questions relating to legislation, the admin- | course of study, believed the law school indispensaistration of justice and other subjects in which the ble and office teaching also, and spoke of the beneprofession take an interest, and men of national and fits accruing to the cause of legal education from world-wide reputation took part in the discussions. the adoption of a code. We do not share in the The financial and social troubles which affect the fear of Professor Baldwin that a lengthening of the country were touched upon in well-considered essays; time of study required for admission to the bar the currency, the banks, the strikes and the tramps, would injure the law schools. Indeed we do not each receiving a considerable amount of considera believe that a law school properly conducted has tion, while the old evils of a more general nature any thing to fear from any condition of the rules and which are known as pauperism and crime were regulating admission to practice. If the school progiven the usual share of attention. The subject of duces the best lawyers its position is beyond the law schools was exhaustively considered both in es- reach of any thing legislators or courts can do to says and discussion and there was a general agree facilitate or retard entrance into the profession. If ment that these institutions had become a necessary the time of study required is long the student will aid in training for the profession. The association | feel that it is more profitable for him to spend it at also discussed the matters of delinquent children, the school. If no fixed period is prescribed the marriage certificates, the navigation laws of Great school will be able to fit him better and more expeBritain and the United States, the tariff, the Chi- | ditiously. The three years' course of study should nese, the condition of the South, municipal govern- be insisted upon, however, as a pre-requisite for adment, and of course, international law. The essays mission to the bar as a protection, not to those read on these various subjects were, all of them, already in the profession or to the schools, but to carefully considered, and the proceedings of the as
the public. sociation at this conference when collected and published will make a most valuable contribution to the Professor Wayland of Yale College gave a long body of learning that we include under the name and interesting dissertation upon the subject of 66 social science," and particularly to that portion of “tramps,” in which he remarked that the law as it it known as jurisprudence. Those who took part in now stands is powerless to punish these individuals the conference were, many of them, practical men, for their misdemeanors on account of the impossiand while here and there the theorist had the wholebility of procuring evidence to convict. He advosay, in most instances the test of experience was the cates the adoption of a law similar to one introduced only one acknowledged as reliable. The discus in the Stute assembly last winter by Mr. Fish, as a sions upon every point indicated that the science of means of suppressing the evil. We do not undersociology has made great progress during the last stand, however, that even with this enactment the few years. Not only in the accumulation and classifi difficulty of procuring evidence would be overcome. cation of facts and the deduction of principles there- | The fact is that we have laws enough to punish from is this progress manifested, but in the readi tramps. The employment of a couple of good men ness on the part of students and workers of every as detectives to follow up and procure evidence section and nation to act together and to yield up against vagrants of this kind would rid any country preconceived opinions and to pass by without re- town of the nuisance in a month's time. Juries and mark matters wherein harmony cannot be reached. I courts would not be lenient, and a fear of being In every branch of learning the leading men have compelled to labor in a penitentiary would prevent taken a long step forward, and the social science tramps from committing misdeeds, and if the counassociations in various countries have in a large de-try people will refuse to feed them they cannot congree contributed to the accomplishment of this re tinue traveling, and so would cease to pursue their sult.
| vocation. VOL. 16.- No. 11.
Mr. Bowles of Springfield read a paper upon the morals and manners should be purified by the relations between the State and municipalities, in intervention of the police. which the disadvantages of our present system of local government are portrayed, and suggestions Judge Blatchford, of the United States District made for their removal.' These suggestions were in Court for the Southern District of New York, on substance that most of the powers now given to mu- the 7th inst., decided a case in which there are pernicipalities be retained in the State and exercised by haps full as many persons directly interested as in any it, a method which might be effective though we other heretofore pending in any of the courts, unless suspect at the expense of a demoralization of the we except the contests over the estate of Anneke State government.
Jans-Bogardus. It was an action brought by the as
signee in bankruptcy of the firm of Duncan, Sherman The article by Hon. David Dudley Field upon the
& Company, whose failure two years ago brought disArmy Bill, which appears in our present number,
tress upon a multitude of American travelers in every gives the views advanced by that gentleman in the
part of the world, against Alexander Duncan and House of Representatives last winter, when a meas
others, to set aside certain conveyances of real estate ure for the support of the Federal army was under
which were alleged to be fraudulent as to creditors, discussion. At the time, this measure, like every
and also invalid under the bankrupt act, and also to other one of importance brought before Congress,
set aside an assignment for the benefit of creditors, was, to some degree, a matter of partisan contro
made under the State laws, as void under the bankversy, but the circumstances which made it such no
rupt law. The court decided in favor of the delonger existing, a temperate discussion of the con
fendants upon both questions. We presume the stitutional principles regulating the organization of
estate will now be settled up under the original the army, and the powers of the legislative and
assignment proceedings, and the creditors stand a executive departments of the government in rela
chance of receiving some returns upon their claims. tion thereto, is now possible. The views advanced by Mr. Field, who has given the subject long and
The death of Brigham Young, it is said, will give careful attention, and has examined all its bearings,
occasion to a vast amount of litigation. Not to are worthy the consideration of every one, no mat
speak of the difficulties liable to arise out of the ter whether agreeing or disagreeing with the con
peculiar relationship existing between the decedent clusions reached. That there must be conflicts
and the women and their offspring who are called between the executive and legislative branches upon
his wives and children, the tenure under which he this subject, is the lesson taught by all history, and
held a large share of the real estate of which he the only result ultimately possible will be victory for
died possessed, cannot be determined except by an one side or the other, for the executive, as in ancient
appeal to the tribunals of justice. As the head of Rome and in France, or for the legislative, as in
the Mormon church, he acquired a large amount of England. The Federal Constitution has endeavored
property, which he held in a sort of trust for that to provide against difficulty in the matter; whether
organization. It is said that the law in force in it has done so is yet to be determined.
| Utah does not recognize such an individual as the
head of the church, but that the ownership of lands The Board of Police Commissioners of New York | follows the title. It is said that the heirs of the city have made an attempt to put down the practice
deceased prophet will insist upon the strict conknown as "shystering," which has long been a dis
struction of the law in this matter, but there may grace to the criminal courts of that city. The
arise a question as to heirship which may puzzle the means proposed to the end sought are these: To
courts. There is one thing, however, which is cergive attorneys no access to those arrested for crime
tain to result, and that is, business for the Utah lawunless the one arrested desires to consult or employ
yers, who, if they cultivate this field well, need not counsel, and then to allow him to communicate
continue the business of vending divorces for use only with the counsel selected. The regulations | in other States and territories. which have been made by the police commissioners seem to be sufficient for the purpose, if faithfully The practice of the law is full of "strange decarried out. The practices of the disreputable class vices," and the statutes regulating the sale of spiritof attorneys who hang around the police tribunals uous liquors have given occasion for the use of a have scandalized the whole profession of the city, | multitude of these. We all remember when the and should before this have invited the attention of statute forbade the sale of liquor how the penalty the Bar Association. This organization, probably was avoided by selling a cracker at an exorbitant thinking the business too insignificant to receive its | price and making the purchaser a present of a glass care, has left it to others. We are glad some one of spirits. Another enactment did not allow the has been found to do it, though it is not at all to vending of intoxicating fluids by the glass. Sales the credit of the bar of New York city that its' were then made by the small bottle, an empty glass being placed on the counter near by for the use of creditors sometimes received something from the the customer, if desired. These and various other estate. We hope that our national lawmakers may tricks were, however, surpassed by the one lately be influenced by what we have said to restore the adopted by the counsel for certain liquor dealers in old system; they certainly will not by any thing the Virginia, to escape the payment of a tax imposed | National Board of Trade has said. by the State upon the sale, by retail, of spirits and beer. In order to determine the amount of tax
NOTES OF CASES. which each dealer ought to pay, there being an I IN the case of Steel v. St. Louis Mut. Life Ins. Co., assessment upon each drink sold, those making a 1 recently decided by the St. Louis Court of Apsale are required to register the sale in the same peals, and reported 5 Cent. L. Jour. 158, the action manner as conductors on some horse cars register was on a policy of life insurance. The policy conthe taking of a fare. The law required the use of tained a clause rendering it void if there should be a certain patented machine for this purpose. Just a failure to pay any premium upon the day it was as operations were about to commence, & suit was due. In this case there had been such a failure to commenced in the Federal courts involving the pay, but in order to excuse this failure plaintiff patent upon the machine, and an injunction pro- relied upon a clause in an advertisement which had cured restraining everybody from using it. We are been, during several years previous to its occursorry to be compelled to state that this proceeding rence, issued by the defendant, and very extensively gave only temporary relief, for the injunction has circulated, which clause read thus: “ This combeen dissolved, and the venders of spirits will pany, having no desire to reap an advantage from hereafter be obliged to submit to the laws that the misfortunes of such of its members as may, be, and become honest in their dealings with the through adverse circumstances, be unable to meet public treasury.
promptly their annual premiums, has made its an
nual life-policies, now in force and hereafter to be The National Board of Trade at its recent session,
issued, non-forfeiting, by extending the full amount held at Milwaukee, put forth its regular annual re
of the insurance over such period of time as the monstrance against the continuance of the bankrupt
"premium reserve' or value of the policy' will pay law. Whether this complaint will prove more effi
for, applied as a single premium for temporary cacious than the ones that have preceded it, we will
insurance." This statement was followed by a table not undertake to say, but it is our opinion that next
| illustrating the plan. The court held that the adyear at this time a bankrupt law very much resem
vertisement was admissible in evidence, and could bling the present one will be in existence, and the
not be excluded on the ground that it tended to respectable body who now resolve such a law to be
vary by parol a written contract, and that, if brought unjust, oppressive, dishonest, partial, uncertain and
to the knowledge of the insured, and he, in reliance productive of fraud, will, at its regular meeting, then upon it, failed to pay his premium when due, the held, denounce it for the same reasons. We will add
defendant was estopped from setting up such faila more powerful reason for a repeal of the law than
ure as a defense to the policy. It has been held in any which the National Board suggested, namely,
several cases that the terms of a prospectus could that it is injurious to the business of the lawyers. not be introduced to vary those of a policy issued This may not seem to a body of merchants as good after the prospectus had been published. Insurance a ground for abrogating the law as the ones they Co. v. Ruse, 8 Ga. 534. In that case a prospectus have named, but it ought to have an overwhelming stated that failure to pay a premium for thirty days influence in Congress, and we think it will, if so after it was due would forfeit a policy. A policy pressed, that it is understood and believed. Under taken out contained no reference to the prospectus, the present system, when a man becomes insolvent,
and the court held that the time to pay the premium his estate is divided between the register in bank was not extended thereby so as to render the conruptcy, the assignee and the United States deputy tract enforceable when the insured had died, four marshals, the latter functionaries receiving the days after the payment was due. See, also, Tarleprincipal share. Under the old system it was di- ton v. Stamforth, 5 T. R. 695; Galvin v. James, 6 vided between the insolvent's lawyers and his wife, East, 571; Ruse v. Mut. Benefit Life Ins. Co., 23 N. a much more satisfactory distribution than the
Y. 578, though the decision in the latter case was present one or than any other that has yet been pro shaken by an opinion delivered upon a motion for a posed. Sometimes, indeed, a creditor would com rehearing. 24 N. Y. 653. See, however, as sustainplain because too large a share of the debtor's prop ing the principal case, Wood v. Divaris, 11 Exch. erty had gone to his wife, but he had his remedy | 493; Collett v. Morrison, 9 Ware, 173; Wheelton v. in a creditor's bill, under which the court could
llardisty, 8 El. & B. 232; Viele v. Germania Ins. Co.,
25 Iowa, 1; Henning v. United States Ins. Co., 47 order a further distribution among the lawyers.
Mo. 425 : 4 Am. Rep. 232 (see, however, S. C., 2 There was another feature in the old system, hardly | Dill. 26); Horwetz v. Equitable Ins. Co., 40 id. 360: known in the new, which might be mentioned — the | Thompson v. St. Louis Life Ins. Co., 52 id. 478.
The question in Crandall v. The State of Nevada, UNITED STATES CITIZENSHIP.
6 Wall. 35, was, whether a law of that State, imposBY SAMUEL T. SPEAR, D. D.
ing a capitation tax upon every person departing THE people, designated in the preamble of the therefrom by any public conveyance, was constitu
Federal Constitution as “the people of the tional. The Supreme Court decided that it was United States," constitute a political and corporate not; and, among the reasons assigned by Justice unit, organized under and operating through the Miller in stating its opinion, was the fact that the Government of the United States. This Govern law was an encroachment upon the rights of the ment is one of enumerated powers, granted either General Government, in respect to citizens of the expressly or by necessary implication; and in both United States, and also, “the correlative rights” of cases the Constitution is the instrument and the these citizens themselves. Some of the rights of evidence of the grant. It acts directly upon the such a citizen were thus specified: “He has the people, and, as to persons and things, extends over right to come to the seat of Government to assert the entire domain of the several States, and also all any claim he may have upon that government, or to the territory belonging to the United States. transact any business he may have with it, to seek its Though limited in its sphere, it is, nevertheless, protection, to share its offices, to engage in adminissovereign and supreme in that sphere, self-interpret tering its functions. He has a right to free access ing, self-regulating, and self-executing by its own to its seaports through which all the operations of agencies.
foreign trade and commerce are conducted, to the “All persons born or naturalized in the United sub-treasuries, the land offices, the revenue offices, States, and subject to the jurisdiction thereof, are," and the courts of justice in the several States; and in the Fourteenth Amendment, declared to be this right is in its nature independent of the will of "citizens of the United States.” The general posi any State over whose soil he must pass in the exertion of such citizens is that of subjection to the cise of it.” The character of the case before the authority of the Government of the United States court suggested this enumeration of the rights of in the exercise of the powers bestowed upon it by | United States citizens. the Constitution, and that of a just claim to protec So, also, in The Slaughter-house Cases, supra, the tion in the peaceable enjoyment of all the rights question was, whether a law of Louisiana, granting pertaining to and resulting from this citizen status. a special and exclusive privilege to a designated corThese rights are spoken of as “the privileges or poration organized under the authority of that immunities of citizens of the United States.” The State, is consistent with the provisions of the FourConstitution nowhere gives an exhaustive inventory teenth Amendment, especially the one which declares of them; and the reference to them by the Supreme that “no State shall make or enforce any law which Court of the United States has uniformly been either shall abridge the privileges or immunities of citizens in general terms or in such specific enumerations as of the United States.” The court sustained the were suited to the particular case under consid- law. Justice Miller, having adverted to the laneration.
guage used in the above case, proceeded to say: Referring to their origin, Justice Miller, in stating “Another privilege of a citizen of the United States the opinion of the court in The Slaughter-house is to demand the care and protection of the Federal Cases, 16 Wall. 36, spoke of these rights as owing Government over his life, liberty and property, when "their existence to the Federal Government, its on the high seas or within the jurisdiction of a National character, its Constitution, or its laws.” | foreign government. Of this there can be no doubt, Chief Justice Waite, in The United States v. Reese nor that the right depends on his character as a citiet al., 2 Otto, 214, characterized them as rightszen of the United States. The right peaceably to "created by or dependent upon the Constitution assemble and petition for redress of grievances, the of the United States.” So, also, in The United privilege of the writ of habeas corpus, are rights of States v. Cruikshank et al., id. 542, he said: “The the citizen guaranteed by the Federal Constitution. same person may at the same time be a citizen of The right to use the navigable waters of the United the United States and a citizen of a State; but his States, bowever they may penetrate the territory of rights of citizenship under one of these govern- | the several States, all rights secured to our citizens ments will be different from those he has under the by treaties with foreign nations, are dependent upon other.” The rights of United States citizenship are citizenship of the United States, and not citizenship not only based upon the Constitution as their poten- of a State. One of these privileges is conferred by tial and ultimate source, but are such, and such the clause under consideration. It is, that a citizen only, as belong to this particular status. All other of the United States can, of his own volition, berights are those of State citizenship, and are left come a citizen of any State by a bona fide residence under the direction and protection of State consti- therein. To this may be added the rights secured tutions and laws, except so far as the States are by the thirteenth and fifteenth articles of amendlimited or restrained by the Federal Constitution. 'ment, and by the other clause of the fourteenth, next to be considered." The object of this state- Gilman v. Philadelphia, 3 Wall. 725, and The Uniment was to show that there are rights of United | ted States v. Cruikshank et al., 2 Otto, 542. States citizenship in distinction from those of State Moreover, the powers actually granted are so discitizenship, and that the former only were had in tributed among the three co-ordinate departments view in the clause which declares that “no State of the Government that they reciprocally act as reshall make or enforce any law which shall abridge straints upon each other. If the President exceeds the privileges or immunities of citizens of the Uni his powers, there is a remedy for the abuse. If ted States."
Congress enacts an unconstitutional law, the judiJudge Cooley, in his fourth edition of Story on ciary may render it inoperative. If Federal judges the Constitution, sec. 1937, comments upon this become corrupt and oppressive, they may by imclause as follows: “Although citizens of the Uni peachment be removed from office. The Constituted States are commonly citizens of the individual tion thus furnishes the means of arresting, without States, this is not invariably the case; and if it were, resort to revolutionary violence, any action of the the privileges which pertain to citizenship under the Government beyond its proper limits. The design General Government are as different in their nature is to protect the people of the United States against from those that belong to citizenship in a State as abuses of power by the Government itself. the functions of the one government are different | One of the departments of this Government is from those of the other. Indeed, it is a considera legislative; and in the grants of power made to it tion of the sphere of the governments respectively we find a prolific source of the rights of United which suggests the rights and privileges as citizens States citizenship. Rights thus created are directly of those entitled to their protection. A citizen of statutory, being provided for in the Constitution, the United States, as such, has the right to demand yet for their actual existence and definition, with protection against the wrongful action of foreign their legal remedies, dependent on the legislation of authorities; to have the benefit of passports for Congress. They are legislatively evolved from the travel in other countries; to make use, in common Constitution; and, when Congress acts within the with all others, of the navigable waters of the Uni limits of its powers, they are as real as they would ted States; to participate with others in the benefits have been if specifically enumerated in the organic of the postal laws, and the like. It would be use- | law. What they are we must hence look to constiless to attempt a general enumeration; but these few tutional legislation to ascertain. They may be postal may suffice as illustrations, and will suggest others. | rights, or commercial rights, or rights in respect to Such rights and privileges the General Government | bankruptcy, according to the special character of must allow and insure, and such the several States this legislation. Certain is it that a large body of must not abridge or obstruct; but the duty of pro- | these rights is traceable to this source. tection to a citizen of a State in his privileges and The treaty power is lodged with the President of immunities as such is not by this clause devolved | the United States, subject in its exercise to the upon the General Government, but remains with advice and consent of the Senate. Treaties of the the State itself where it naturally and properly United States, when they operate proprio vigore, withbelongs."
out the aid of legislation for their execution, are These statements, while giving particular illustra- | ipso facto supreme municipal laws, and, as such, tions of the rights of United States citizenship as equivalent to acts of Congress in their relation to a distinct political status, separate from that of State individual rights. Rights thus secured to citizens citizenship, do not by any means exhaust the whole of the United States have a constitutional foundaclass of such rights. They simply indicate by exam- | tion, and courts are bound to enforce them. See ples their general character. The Constitution itself | The United States v. The Schooner Peggy, 1 Cranch, is the basis of all these rights, whatever may be 103; Norwood's Lessee, 5 id. 344, and Foster v. Neiltheir specific form; and, hence, in it we must find | son, 2 Pet. 253. their sources and final authority.
The judicial power of the United States extends A fundamental principle in the interpretation of to all cases in law and equity arising under the Conthis Constitution is, that the Government of the stitution, laws, or treaties of the United States; and United States has no existence, and, of course, no for the purpose of vesting this power, Congress is power, beyond the limits of the grants which are authorized to establish tribunals inferior to the Sumade to it. It can act only as it is authorized to preme Court, and also to make all laws“necessary and act. It cannot protect the citizen of the United | proper" to carry it into execution. Such courts and States beyond the scope of its own powers, or act laws Congress has established; and, hence, the citiupon him or against him in the exercise of any power | zen of the United States has, under the provisions of not granted. It is the intention of the Constitu law, the right to seek in the Federal courts judicial tion to limit the Government to the grants of power relief in respect to any question affecting his intermade by it. What is not granted is in effect denied. ests, and arising under the Constitution, laws, or See Briscoe v. The Bank of Kentucky, 11 Pet. 317; ' treaties of the United States. These courts are