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The Albany Law Journal.

ALBANY, AUGUST 17, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

THI

HROUGH the kindness and courtesy of Judge Dillon, we are enabled to publish this week the proceedings and judgment in the case of Wright & Co. v. Hennessey, which was decided in the Queen's Bench Division late in July. Judge Dillon is taking a much needed rest at Karlsbad, and it is greatly appreciated by the JOURNAL that he took some of his leisure time to write us of the decision, which is most important. As Judge Dillon shows, there are three points involved in the decision.

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"You are the men who make the presidents and judges of this country, and you can take them from their high office by the ballot.'

"He was followed by Daniel De Leon, who said: The fight is on every day in the shops, and at the polls on election day. The judges of the Supreme Court are put on the bench by the capitalists, and they obey them. The capitalists control the judges.'

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First. Under the Common Law of England
no person or association of persons has a right
to boycott another; for example, to say to an-
other if you do not employ members of such
and such an organization we will injure you in
your business by inducing employers to
refuse to employ you or to break their contracting resolutions, which were adopted:
with you, or by inducing men employed by you
to strike.

Second. Such conduct, if done intentionally
and for the purpose of injuring the person so
boycotted, is in law malicious and is actionable
in damages.

Third. Under the existing procedure acts in England, such an action for damages may be brought, and their may be united therewith an application for an injunction restraining the defendants from inducing or endeavoring to induce persons to break the contract made with the plaintiff and from continuing to write or publish libels concerning the plaintiff in connection with his business.

There are, however, two phases of the decision which are specially pleasing and which if followed in this country will bring many beneficial results. Both parties to labor controversies and fights must realize that each have their rights which will be strictly enforced by competent and trustworthy courts. All talk of other tribunals is unworthy of notice and VOL. 52 No. 7.

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Several speeches to the same effect were made, and Patrick Murray offered the follow

"Whereas, nine cap manufacturers have locked us out for twelve weeks for the purpose of breaking our union and denying to us our constitutional right to organize into a lawful organization, and,

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'Whereas, The scheme was made and attempted to be carried out not for the purpose alone of reducing our wages to a point of starvation, but also for the purpose of increasing the prices of the hats and caps in the market, thereby misrepresenting the present difficulties to the community at large to draw the inference of a strike, the difficulty being only a lockout, and,

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Whereas, The manufacturers have employed different ways and means to utterly destroy our union, and, after taking legal steps, secured an order of injunction depriving us of the liberty granted us by the Constitution from walking in the public streets, persuading individuals, etc., and going to the extent of preparing false and defamatory charges of conspiracy, and yet have failed to

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hurt us or to discourage our ranks, although had renounced the old are pronounced bigathe courts have always supported the manu- mists. Not only this, but the ownership of facturers; then, be it property is involved in much litigation. consequences are too apparent and disagreeable to require to be commented upon.

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Resolved, To publish the names of manufacturers who have entered into the conspiracy and denounce them as tyrants. Further, be it Resolved, To stand firm together, one for all and all for one, until the unions shall receive recognition and our demands are granted; | and it is also resolved that all among us who are now employed by other manufacturers will assist our locked out brothers, paying them their wages, so as to enable them to stay out as long as it may be necessary, and further resolved to call the attention of the working classes of the city of New York to the fact that the highest court in the city, the Supreme Court, is assisting the manufacturers in their unjust and uncalled for battle against labor, and unless wage slavery be abolished such injustice will continue.""

On the one hand there appears the attempt to organize laboring people, while on the other the employers refuse to recognize any such body and attempt to disrupt it.

On the one hand the courts are bound to protect the rights of labor and on the other they must insure individuals from any injustice from any person or association. In this instance we believe the Supreme Court of New York city did its duty and we also can see the vast good that the Queen's bench did in Wright & Co. v. Hennessy. Perhaps, however, the pleasantest and least important result of the case in question will be to recognize the simplicity of remedies in joining them in one action. Our own code and practice has many instances of this kind but many others may be introduced with good results.

The unfortunate results of each State having statutes which differ from others becomes more and more apparent as time passes and decisions are made by various courts.

The recent decision of the Oklahama Supreme Court, invalidating a number of divorces granted in that territory within the last few years, has directed attention anew to the need of an uniform national divorce law. Under the decision of this court, many people who have assumed new marriage vows as lightly as they

The inconsistencies of our State divorce laws are so notorious and numerous that they have tended somewhat to discredit the marriage relation. In this State adultery only is accepted as reason for an absolute divorce, and only the party aggrieved may remarry within the State. But the party who is prohibited from remarrying in this State may go across the State line into New Jersey or Pennsylvania, remarry, return to New York State, and his marriage then be accepted as legal. More than that, couples who cannot obtain divorce in this State may go to other States for reasons the most trivial, such as incompatibility of temperament, which is a legal term for natural cussedness, may rid themselves of the old love to be on with the new.

The facility with which divorces are obtained in South Dakota, Oklahoma and Chicago has afforded a rich field for the humerous paragraphers, but they have a serious and scandalous side. The fact that couples thus lightly divorced almost always remarry has resulted in a sort of progressive polygamy.

America, the most enlightened and Christian country in the world, is scandalized and put to the blush before all Christendom by her divorce

laws.

The God-given and divinely sanctioned institution of matrimony was not intended to be entered into lightly or ill-advisedly. There are cases where great mistakes are made by innocent parties, but if divorces are difficult to obtain, there is likely to be a more mature consideration of marriage and all it involves before the words are spoken that should never be unsaid. The attitude of the Roman Catholic church in opposing all divorces may lead to some unhappiness, but taken as a whole it conforms more closely to the teachings of religion than that of any other church. If the Protestant body do not teach divorce, they at least tacitly sanction it.

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upon which depend the perpetuity and the sta- he had been compelled to go South on account
bility of American institutions.
of his rapidly declining health.

Mr. Jackson had the reputation of being very sensitive concerning any public discussion of his health. The other members of the court were poorly advised as to his condition, and this is said to have been the reason for the

Justice Howell Edmunds Jackson of the United States Supreme Court, who died at West Meade, Tennessee, on August 8th, was born in Paris, Tennessee, on April 8, 1832. He spent his school days in the town of Jack-equivocal character of the announcement of the son, and at the age of sixteen graduated from decision to grant a rehearing in the income tax case, which of necessity depended upon Judge the West Tennessee College. The next two years he spent in the study of law at the Uni- Jackson's presence. versity of Virginia, and in 1855 he attended the law school of the Cumberland University. the law school of the Cumberland University. He practised his profession in Jackson, and later in Memphis, where he was twice ap pointed judge of the State Supreme Court, and when the civil war broke out he entered the civil service of the Confederacy.

At the close of the war he established him-
self in Memphis again, and was quickly recog-
nized as a jursit of ability. In the Democratic
State Convention of 1878 he came within one
vote of being nominated for the office of Su-
preme Court judge, and two years later he was
a member of the House of Representatives of
his State. The following year he was sent to

the United States Senate on the combined
votes of Republicans and Democrats.
He re-
mained in this office until 1886, when President
Cleveland appointed him judge of the United
States Circuit Court for the Sixth Judicial Dis-

trict.

At the death of Justice Lamar, in 1893, Mr. Harrison, just as he was about to retire into private life, appointed Mr. Jackson, a Democrat, a justice of the Supreme Court.

As senator and justice of the Supreme Court, Mr. Jackson had resided in Washington about eight years. His associates here were confined largely to his colleagues on the bench and in the Senate chamber. By them he was universally esteemed, as was evinced in nothing so much as in his appointment to the Supreme bench by President Harrison and his confirmation by a Republican Senate, notwithstanding he was a Democrat.

The last time Judge Jackson was in Washington was on the occasion of the rehearing in the income tax case last May. He had been absent since the preceding fall, when, soon after the convening of the October term of the court,

He sat through the argument, which con

tinued for three days, took part in the consultation of the court, and when the day arrived for tion of the court, and when the day arrived for the announcement of the decision not only listened patiently to the opinions of most of the other members of the court, but delivered a vigorous opinion in support of the validity of the law. This was on May 20, and was his last public appearance.

The lawyer of the last at a court of equity, common law, and de

He had imbibed

The address of Judge Brown of the United States Supreme Court before the Yale Law School on "Twentieth Century" continues to be greatly discussed and we print the parts in relation to the character of litigation and municipal misgovernment which are particularly attractive. On these subjects he said: "The character of litigation has changed as much as the law itself. century looked askant brought his actions at manded a jury of his peers. the prejudices of Lord Coke against tribunals proceeding according to the course of the civil law, and thought his chances of success there were measured by the length of the chancellor's foot. But we have changed all that. The multiplicity of corporations, the enormous growth of the patent system and of the internal commerce of the country, have given rise to questions with which juries are incompetent to deal. The result is that the great litigation of the country is now carried on in courts of equity and admiralty. States juries have almost disappeared, except in criminal cases and actions for torts, where their well-known generosity still finds ample scope; in nearly all there is a large proportionate decrease. Forensic eloquence has declined, and the man who can state clearly a complicated series of facts has taken the place

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of the typical lawyer of the last generation, who could inove a jury to tears. Where there is a choice of remedies, the resort is usually to a court of equity; and large interests are treated as safer in the hands of a single upright, passionless judge, or bench of judges, than in those of the average jury. It is certainly a tribute to the purity of the American judiciary that this confidence is so rarely misplaced, and that their decisions are so seldom the result of fear, favor, affection or the hope of reward.

"I have thus briefly summarized the changes of the past century to emphasize the point that we are entering a more than usually critical period. Old things are rapidly passing away, and the question presses itself upon us, what will the twentieth century furnish to take their place? The problem whether the Constitution of the United States embodied a feasible plan of government is already settled. Weak spots have undoubtedly been developed, some changes seem almost imperative; but it still remains the most marvellous work of constructive genius that was ever created. It has grown with each decade in the affection of the people; the danger is, not that it will be changed, but that it will be regarded as too sacred to be changed, a product of superhuman wisdom, a mere fetish. If the power of the Federal government has been strengthened, that of the States has not been materially impaired. The country has survived the shock of a great war. The loyalty of the South is unquestioned, and there has never been a time when strife between different sections seemed less probable than at present.

"The man who should assume to prophesy what the twentieth century will bring forth is likely to be as far astray as the hypothetical writer I mentioned, who failed to take account of the inventions of the nineteenth century. At the same time. speculations based upon an existing state of things are not wholly useless. If they fail to anticipate every contingency, they may at least provide for some. If they are an uncertain guide for our future conduct, they may serve to point out to us our immediate duty. There are certain rules of human conduct which are obligatory at all times and under all circumstances. Of these are integrity, morality and industry. Let us hope the

time may never come when they will fail to receive their reward.

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It is one of the ancient maxims of the law that a state of things once proven to exist is presumed to continue. So we may safely assume that the tendencies which the last half of the nineteenth century has developed will be prolonged into the twentieth; that the great powers of Europe, which have already parcelled out among themselves almost the entire continent of Africa, will look for new fields of conquest in the extreme east; that the process of absorption will go on with the usual indifference to the wishes of the native populations; and that another hundred years may see the entire eastern hemish pere under their control. It will be your duty to see that their rapacity does not extend to the western hemisphere. The lust of conquest, like that of acquisition, knows no bounds.

"Municipal corruption has come upon us with universal suffrage and the growth of large cities, and in general seems to flourish in a ratio proportioned to the size of the city. Why a system of government which, upon the whole, works well in small towns, and even in States of considerable size, should break down so completely when applied to large cities, may seem strange at first, but after all is not difficult of solution. The activities of urban life are so intense, the pursuit of wealth or of pleasure so absorbing, as upon the one hand to breed an indifference to public affairs; while upon the other, the expenditures are so large, the value of the franchises at the disposal of the cities so great, and the opportunities for illicit gains so manifold, that the municipal legislators, whose standard of honesty is rarely higher than the average of those who elect them, fall an easy prey to the designing and unscrupulous. Franchises which ought to net the treasury a large sum are bartered away for a song; privileges which ought to be freely granted in the interest of the public are withheld till those who are supposed to be most immediately benefited will consent to pay for them; gross favoritism is shown in the assessment of property for taxation; great corporations are permitted to encumber the streets and endanger the lives of citizens; while every form of vice which can be made to pay for the privilege is secretly toler

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ated. The consequence of all this is thus de-
picted by a recent English writer who has made
a study of our municipal institutions:

"I have watched the rapid evolution of social
democracy in England; I have studied autoc-
'racy in Russia, and theocracy in Rome, and I
must say that nowhere, not even in Russia, in
the first year of the reaction occasioned by the
murder of the late Tzar, have I struck more ab-
ject submission to a more soulless despotism
than that which prevails among the masses of
the so-called free American citizens when they
are face to face with the omnipotent power of
the corporations.'

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Granting this to be overdrawn, for I am unwilling to believe that corporations are solely responsible for our municipal misgovernment,the fact remains that bribery and corruption are so general as to threaten the very structure of society. Indeed, we are being slowly driven to the conclusion that the best-governed city in the country I had almost said the only wellgoverned large city is administered upon principles which amount to a complete negation of the whole democratic system. Universal suffrage, which it was confidently supposed would enure to the benefit of the poor man, is so skillfully manipulated as to rivet his chains, and to secure to the rich one a predominance in politics he had never enjoyed under a restricted system. Probably in no country in

honesty in the use of its power, it will have no reason to expect moderation or discretion on the part of those who resist its encroachments.

The misgovernment of which I have spoken is so notorious and so nearly universal that it is useless to attempt to ignore it or to expect Whether the blame lies that it will cure itself.

chiefly upon him who gives or upon him who
receives a bribe, it is evident that the tempta-
tion must be removed, either by destroying the
inducement or by elevating the character of
those who are charged with the administration
of the government. The fault is not that of
one class alone. If the higher classes evade
their just responsibilities, the lower will not
fail to profit by their example. If the rich are
seen to escape taxation by bribing assessors or
by fraudulent removals from the city, the poor
will not hesitate to avenge themselves in the
coarser way of accepting bribes.
remedy for all this lies in raising the character
of the electorate by limiting municipal suffrage
to property-holders, or in government by com-
missions, is a question which will not fail to

Whether the

demand Our attentive consideration. The

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great, the unanswerable argument in favor of
universal suffrage is, not that it ensures a bet-
ter or purer government, but that all must be
contented with a government in which all
have an equal voice. If it be deficient in this
particular, if it fail to protect the poor against
the oppression of the rich, or the rich against
a destruction of their property by the poor,
in short, if the representatives of the people be-
tray their trusts, it is pro tanto a failure, and
another method of representation should be
adopted. If we cannot have government by
the whole people, let us have government by
the better classes and not by the worst."

the world is the influence of wealth more po-
tent than in this, and in no period of our his-
tory has it been more powerful than now. So
far as such influence is based upon superior in-
telligence and is exerted for the public good, it
is doubtless legitimate; so far as it is used to
secure to wealth exceptional privileges, to
trample upon the rights of the public, to stifle
free discussion, or to purchase public opinion
by a subsidy of the press, it invites measures of
retaliation which can scarcely fail to be disas-
trous. Mobs are never logical, and are prone
to seize upon pretexts rather than upon reasons
to wreak their vengeance upon whole classes of
society. There was probably never a flimsier
excuse for a great riot than the sympathetic
strike of last summer, but back of it were sub-assignments of error question the sufficiency of
stantial grievances to which the conscience of
the city seems to have finally awakened. If
wealth will not respect the rules of common

The rule by which a court of appellate jurisdiction is to test the sufficiency of a complaint when challenged for the first time after verdict and judgment was recently discussed and determined by the Appellate Court of Indiana, in the case of Harter et al. v. Parsons, 40 N. E. Rep. 157. The court said: “Of course such

the facts alleged to constitute a cause of action, not as we find them in the complaint as originally filed, but after they have been strength

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