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in the sixteenth subdivision of that section the that a crime unknown to the Federal authoripower is granted to that body to "exercise ex- ties has been committed upon territory within clusive legislation in all cases whatsoever, over the exclusive jurisdiction of the United States such district (not exceeding ten miles square) can be held to oust the State tribunal or officer as may, by cession of particular States, and the issuing the habeas corpus of jurisdiction to proacceptance of Congress, become the seat of ceed further in the matter. If the mere insergovernment of the United States, and to exer

tion that such and such a crime has been cise like authority over all places purchased by committed and that the place where it was comthe consent of the Legislature of the State in mitted is “ within the exclusive jurisdiction of which the same shall be, for the erection of the United States " be alone sufficient to clothe forts, magazines, arsenals, dock yards, and other the Federal officers with absolute control over needful buildings." Therefore, in order to the matter, then, says Commissioner Ryan, " á vest exclusive jurisdiction in the Federal govern- United States commissioner can issue his warment, two things are requisite, namely, purchase rant reciting that one alderman has assaulted by the government and the consent of the Legis another in the city hall of the city of Milwaukee, lature of the State. According to the statutes county of Milwaukee and State of Wisconsin, of Wisconsin certain conditions are prescribed “being within the exclusive jurisdiction of the by which the State may yield its authority over United States," and such warrant would be an land to the national government. Having de- absolute protection to the marshal against all termined under what circumstances the Federal interference by the State courts, and the quesauthorities have exclusive jurisdiction, the question whether the Milwaukee city hall is or is tion narrows down to whether those circum- not within the exclusive jurisdiction of the stances existed at the time of the commission of United States can be decided only by the Fedthis crime by Kelly. Commissioner Ryan goes eral courts, the State having no voice whatever into the history of the organization of the Wis- in the matter. He does not believe that this consin Soldier's Home by the women of Mil case is controlled by Booth v. Ableman or Tarwaukee in 1865 and the transfer of the prop- bel's case (supra) and considers that the comerty to the National Asylum for Disabled mitment by virtue of which the marshal claims Volunteer Soldiers, its successors or assigns, to hold the petitioner, constitues neither authorbut he claims that in this act a transfer of the ity nor color of authority nor what purports to property to the United States was not contem- be the authority of the United States, but a plated, nor were the provisions of the State law mere attempt to exercise by force an authority complied with. In 1867 the Legislature of and jurisdiction not conferred by law and a Wisconsin sought to transfer jurisdiction over dangerous and unwarrantable invasion by the the Soldiers Home grounds to the Federal Federal authorities of the rights and powers of government, but this act was declared uncon the State. He, therefore, commands the marstitutional by the Supreme Court of that State, shal to produce the prisoner. So much for the the only authority competent to pass upon the habeas corpus proceedings. question. Therefore, since it is not claimed In the meanwhile United States Court Comthat the grounds were deeded to the United missioner Bloodgood, who had issued the warStates or that the title is held by the general | rant for Kelly's arrest, refused to recognize the government, it rests solely with the State Legis- proceedings carried on before State Commislature (the Federal laws being silent on this sioner Ryan. At the preliminary examination point) to provide in what manner and upon

before Commissioner Bloodgood, Rublee A. what conditions the consent of the State to the Cole, attorney for the prisoner Kelly, made the purchase by the Federal government must be same argument as he offered on the habeas corexpressed in order to subsititute the one juris- pus proceedings, that the Federal government diction for the other. From the fact that the had no control of the Soldier's home, and that United States does not possess jurisdiction over the Federal statutes provided no penalty for the place where this crime was committed, Com- the commission of this crime. Before pleadmissioner Ryan very sensibly argues that the ing, however, Mr. Cole denied the jurisdiction mere insertion in a complaint or committment of Commissioner Bloodgood's court in this mat


The United States district attorney, Mr. Another recommendation of the attorneyWigman, had promised State Commissioner general called out by recent dilatory proceedRyan that no further action would be taken in ings in the case of Dr. Buchanan, the New the Federal courts until the habeas corpus pro-York wife poisoner, and in a number of other ceedings had been disposed of. Thereupon notable murder cases, is as follows: Commissioner Bloodgood refused to recognize

"A growing abuse of the writ of habeas corpus the jurisdiction of the State court, and as the should be corrected which is wasting the time Federal officers refused to appear in the case, of the Supreme Court and bringing discredit on Mr. Bloodgood went on without them. After the administration of justice. Proceedings in hearing argument on the case he bound Kelly State courts are absolutely stayed by section over to the United States court for January, 766, Revised Statutes, pending appeals to the 1896, to await the action of the grand jury at Supreme Court from action of the Circuit Courts that term of the court. The result of this is on writs of habeas corpus, which may be taken that the sheriff will probably arrest the United as of right. By suing out successive writs and States marshal, whereupon the United States prosecuting appeals to the Supreme Court, perdistrict attorney will go before a Federal judge sons convicted in State Courts have succeeded and sue out a writ of habeas corpus on behalf of in securing repeated delays of execution. There the United States marshal. It is supposed that is no limit to this process, so long as prisoners the Federal judge will uphold the ruling of the

are able to secure counsel, I respectfully sugUnited States commissioner and the case will gest, as a cure for this evil, that the allowance immediately be brought to the United States of a stay by the Supreme Court, or a judge Supreme Court for final decision.

thereof, be required, at least on all appeals after

the first." The maiden report of Judson Harmon, as

The attorney-general adds: attorney-general, containing a review of the op “If the Supreme Court were relieved, as above erations of the Department of Justice for the suggested, its jurisdiction over cases arising unlast fiscal year, was laid before Congress De- der the revenue laws might, and should be, recember 7th. It treats at length of the business

stored. The United States has now no right of the Supreme Court of the United States and to a review by that court of any decision conrecommends that, except in capital cases, ap- struing a tariff or internal revenue law, although peals in criminal matters should not be taken millions of dollars may be directly or indirectly to the Supreme Court.

involved. A provision for appeals and writs of To accomplish this result he recommends an

error from the Circuit Court of Appeals in these amendment of the law so as to exclude the cases, similar to that contained in section 707 words“ other infamous crimes” from the cases

of the Revised Statutes with respect to appeals subject to appeal to the highest tribunal, and to from the court of claims would be highly beneremit minor cases to the courts of appeal.

ficial to the government.”

He points out that the words “infamous crimes

The number of cases on the Supreme Court have been given a very broad interpretation. docket at the end of the October term, 1894, is The definition, he says, includes all offenses stated at 649, in 1890 there were 1,190, and which may be punished by imprisonment at hard since that date the court has been gradually relabor, or for more than one year without hard ducing the amount of accumulated business. labor, whether they are actually so punished or

There are 9,000 cases on the docket of the If such punishment might have been in- Court of Claims, and it is increased by goo flicted the case may be taken to the Supreme cases per year. Discussing this point AttorneyCourt, even if the culprit has escaped with a General Harmon says: mere fine.

That high tribunal of nine judges is "The very diligent exertions of the present frequently required to review conviction of such force serve to dispose of less than 800 annually. offenses as passing $50 of counterfeit money, For the preparation of the claimants' side of charging over $25 for legal assistance to a pen-suits, there is a roll of more than one thousand sioner, and unlawfully cutting timber.

attorneys, of whom some hundreds devote their


whole time thereto. Against these is set a corps claims that it should follow the south branch. of seven assistant attorneys for the defense. In spite of proclamations by President ArWith such disproportion of force, its seems su thur in June, 1884, and by President Cleveland perfluous to state that the defensive prepara- in December, 1887, Texas has encouraged settion cannot be as thorough as it should be, even tlements in this territory, and if the decision in the cases tried. A single important judg- shall be in favor of the United States, the quesment incurred by reason of lack of time for tion will arise whether Congress should wholly proper preparation may involve many times the disregard the claims of settlers, as it will have cost of an adequate increase of force.

an undoubted right to do, or provide legislation “In my estimate for the next fiscal year I by which they may be protected upon making have included an increase of approximately reasonable payment for the land occupied." one-third, which it is belived will suffice to en: The attorney-general asks Congress to direct able the department to occupy the time of the him what to do in the Bell telephone litigation. Court of Claims. Until that is accomplished, The expense of this case, he says, is very heavy. it is not necessary for either Congress or the It will take six months to prepare rebuttal tescourt to consider plans for increasing the effi- timony. He favors continuing the case to a ciency of the court. The court is by present final decision, provided the expenses can be met, methods able to hear and decide many more and says: “If the people have been deprived cases than can be prepared.”

of their natural rights by the improper issue of Mr. Harmon gives a brief summary of the a patent, as the govenment avers, it would not celebrated Peralta-Reavis case, involving the be a proper course on its part to discontinue title to over 12,000,000 acres of land in Arizona litigation, which has probably been purposely and New Mexico, under an alleged Spanish protracted until the patents have expired, but grant, which was recently decided in favor of such litigation should be persisted in to estabthe United States, and says of it:

lish finally, for the sake of future action on its "The court, by unanimous decision, held part, its right to sue to annul patents." that every

title more had been manufactured and forged, in Union Pacific railroad and its branches to the whole or in part, and surreptitiously deposited government. He says: among the archives in the countries named. “The situation has been maintained as it was The case is remarkable as probably the great when the last Congress adjourned, so far as leest fraud ever attempted against a government gal proceeding are concerned, but large amounts in its own courts, and its decision removes a of subsidy bonds are about to fall due of those cloud from thousands of titles held by actual | issued to the Central Pacific as well as those issettlers.

sued to the Union Pacific company, and no as“Since the decision I have caused Reavis to surance can be given that the present situation be arrested and indicted for fraud and perjury, will be long maintained, and he is now in prison awaiting trial.”

“Action should be promptly taken toward Referring to the Greer County (Texas) boun-working out some solution of the problem predary case, now in the Supreme Court, Mr. Har- sented by the government's relation to these mon states:

properties. “The controversy depends on the meaning “As it may become advisable or necessary of the treaty of 1819, between Spain and the for the government to institute legal proceedUnited States, fixing the boundary line between ings against one or both of the companies above the two countries, which treaty in turn was named, I beg to call attention to the necessity adopted by treaties of the United States with of a law giving some proper court in the DisMexico and with Texas. The treaty describes trict of Columbia jurisdiction of the entire propthe line as running up Red river to the oneerty and of all the parties in interest. What hundreth meridan. Texas claims that when has been hereinbefore said as to the general nethe forks of the river are reached the line should cessity of giving one court full jurisdiction in follow the north branch. The United States such cases applies with special force here. Such

paper out of one hundred or Mr. Harmon discusses the relations of the

a provision was included in the bill prepared by


Attorney-General Olney at the request of the
last Congress.
It should now be put in the

To the Legisluture of the State of New York: form of a separate act, so as to be made inde

The Commissioners of Code Revision beg leave pendent of any particular plan of reorganization. to submit their first report.

By chapter 1036 of the Laws of 1895, the govUntil the passage of such an act, any attempt of the government to protect its rights by litigation the bar of this State who shall examine the code of

ernor was directed to “appoint three members of will be greatly hampered."

procedure of this State and the codes of procedure In regard to the Northern Pacific railroad, and practice acts in force in other States and his recommendations are as follows:

countries, and the rules of court adopted in con* The Northern Pacific Railroad litigation nection therewith, and report thereon to the next has called attention in a striking way to the ne- Legislature in what respects the civil procedure in cessity which has long existed of legislation to

the courts of this State can be revised, condensed

and simplified.” regulate the appointment of receivers and judi

On the 15th of June, 1895, we were appointed, cial sales of railroads, parts of whose lines are

pursuant to the provisions of this law, commissionin different circuits. Public, as well as private, ers to revise the Code of Civil Procedure, and iminterests require the preservation of the unity mediately entered upon the discharge of our duties. of such lines in their management pending the we have given the subject of civil procedure and foreclosure, and in their sale. This can now

code revision some attention, but have not been be accomplished only by harmony of action able to examine in detail all the provisions relating among the courts of the various circuits, but

to practice in force in other States and countries, as the appointment of receivers and the repetition tion of the codes and practice acts and rules of

required by the act. The comparative examinaof orders in each circuit cause a multiplication court affecting procedure in other States and counof trouble and expense which can well be tries requires more time than was given us by the avoided. When, however, the different courts act under which we were appointed, and it is imrefuse to co-operate, not only are public and practicable, if not impossible, within this time, to private interests in the property imperiled and submit to the Legislature a proposed draft of a costs more greatly multiplied, but there is con

Code of Civil Procedure, if one were to be recomstant risk of scandal from which the adminis-mended, or to state with much minuteness "in tration of justice should be kept free.

what respects the civil procedure in the courts of

this State can be revised, condensed and simpli“There seems to be a general demand for

fied." relief. It can readily be afforded by providing To answer this suggested inquiry, much time and that suits to foreclose mortgages or appoint re careful study will be necded. The civil procedure ceivers of such railroads shall be brought in the in the courts of this State is the product of many circuit where the principal operating offices are, years of slow and halting growth, and a revision, or in the circuit in which the chief terminals such as might be justified by the terms of this law, are situated, or in that containing the greatest should be the result of close study of principles and length of track, or full jurisdiction might be methods, and much deliberation; and a commission given to the court in which suit is first brought." | ure, historically and scientifically, but the com

should study not only the whole subject of proced

parative merits of different systems which are, or ADMIRALTY

have been, in force in different States and coun-A pile driver consisting of a floating

tries. We are unwilling to submit a revision which platform, carrying a derrick, engine, and pile-driv- does not embody substantially the result of such ing apparatus, and also furnished with a wheel by care and study, and hence, at this time, we deem it which it may propel itself about the way or harbor, i proper to suggest only general recommendations from one place of work to another, and which in with an outline of the changes proposed, together its present condition is not fitted for purposes of with a brief statement showing the development of transportation, is not a subject of admiralty juris civil procedure, and the systems of practice in use diction ; and contracts to furnish it with supplies in other States and countries. The civil procedure are not maritime contracts enforceable in the ad- in the courts of this state can, doubtless, be remiralty (Pile Driver E. (). A., U. S. D. C. [Mich.], vised, condensed and simplified, and the adminis69 Fed. Rep. 1005.

tration of justice thereby greatly improved,





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The members of the bar have such a vital interest that the subject of the organization and jurisdiction in the subject of a revision of civil procedure, as of the various courts, and the election and appointinterpreters of the law, “friends of the court,” and ment of various officers of the courts, is no part of "ministers of justice,” that we felt justified in try a proper system of procedure. It has also been ing to avail ourselves of their experience, and suggested that the code of practice should be conobtain their opinions, on the subject of revision in fined to the rules regulating proceedings in actions general, and also upon particular subjects which generally in courts of record, and that actions of a might need special attention. We accordingly pre- special character, and special proceedings, should pared and sent to nearly ten thousand lawyers, and be treated in an independent code. also to the judges, a circular letter, under date of “If these suggestions should be adopted, it would July 25, 1895, in which, after referring to the involve the separation of several subjects and secstatute, we said:

tions from the present code, and their incorporation “This appointment involves a possible revision in other statutes, but it need not necessarily involve of the code of civil procedure of this State, and also a revision or change in the phraseology of various a revision of the practice in all the courts, whether sections; it would require a rearrangement of the the rules governing such practice are included in law, without changing its language. We are not the Code of Civil Procedure, or in general and inde- unmindful of the uncertainty, if not positive mispendent statutes. But, before engaging in a chief, produced by frequent changes in the phrasegeneral revision of the code, we deem it important ology of a statute, especially where it has received to obtain an expression of opinion from the bar of judicial construction ; and the language of a statute the State, upon the general question of revision; which has become familiar to the practitioner whether such a general revision is desirable at this should be retained, unless a change will tend to time, and if so, upon what lines it should be made; make the law more clear. and if such a revision is not deemed desirable, then “In connection with our work as Commissioners what particular changes should be made in the de- of Statutory Revision we have found numerous intail or scheme of the code, in order to make it more stances of omissions either in general statutes, or in practical and less complex in its provisions.

the Code of Civil Procedure, and several subjects “An examination of this subject involves an in- of general or minor importance are included in other quiry whether everything relating even remotely to statutes, which, possibly, ought to be incorporated practice should be included in the Code of Civil in the code ; and in formulating plans for the Procedure, or whether the code should include only general revision of the statutes, in connection with those matters which deal directly with procedure in possible code revision, it seems to us that the subactions, leaving to other and independent statutes ject should be considered as a whole, and that code subjects like the organization of courts, the revision should be considered in connection with functions and fees of various officers of the court, its bearing upon general statutory revision, and and matters of substantive law. If the code is to vice versa.

Our statute law is now too fragmentary, include all matters relating to practice either in and we think that an attempt should be made to actions or special proceedings, then, even with its produce a harmonious system upon lines which may thirty-four hundred sections, it is incomplete, and be considered feasible and practicable, but we are several subjects now included in other statutes unwilling to engage in a general revision of the should be added to the code. If, on the other code, without first attempting to ascertain the hand, the Code of Civil Procedure should be limited opinion of the bar upon the subject. The deterstrictly to questions relating to practice in mination of this question of a revision of the code actions, from their commencement until their final will have an important bearing upon our work of determination, without regard to various subordinate general statutory revision.” and subsidiary matters that arise in the progress of

The responses to this circular show a very dean action, then some subjects that are now in the cided preponderance of opinion in favor of a gencode should be eliminated therefrom, in the in- eral revision of the code. terests of simplicity, and embraced in other statutes. THE DEVELOPMENT OF CIVIL PROCEDURE.

"It has been suggested that the practice in jus The methods of judicial procedure used in settling tices' courts and in surrogates' courts does not private controversies, and which seem so familiar to properly belong in the Code of Civil Procedure ; us, are not the spontaneous invention of any person, also, that the detailed rules of evidence in our nation or period. They have in large part come present code more properly belong elsewhere; that down to us from former generations, representing the various provisions of a local character should be and illustrating the customs and manners of people taken from the code and included in the charters of widely separated in history, in experience and in the municipal corporations to which they relate ; civilization; and it seems to us that in discussing

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