« AnteriorContinuar »
nor will I detain him in custody, he being a subject of prosecutor, who had taken measures to have it reextradition, as has been heretofore stated; but when viewed by a Superior Court, withdrew all further proI say this, I do not mean to say that be cannot hereaf- ceedings. ter be tried for the offenses for which he stands in- ! I have quoted somewhat at length from the judge's dicted in this court. I hold that he is entitled to a opinion, not only on account of the principle of law reasonable time to return to the asylum from which he which it establishes that extradition treaties do not, was arrested. What is that reasonable time? Were I under our constitution, present, as in France, quescalled to define it I should say six months; because a tions for the political department of the government, man should be permitted to make necessary family ar but are to have applied to them the same rules of rangements, and it may not reasonably be expected interpretation as all other treaties, which, when not that he can do so in a less time than as aforesaid. inconsistent with the constitution, are to be deemed
“The United States government not being here to binding, as the supreme law of the land, upon all triclaim the custody of Hawes, and there being no power bunals of justice, as well of the individual States as in this court to compel the United States to return him of the United States. The opinion is also of great to the place from which he was extradited, the order interest as presenting, for the first time in the judgof this court is, that the cases of the Commonwealth ment of a court, a practical mode by which the proof Kentucky against Smith N. Hawes, for embezzle vision existing, either in terms or impliedly, in ment, and for uttering forged instruments of writing, | treaties to protect an extradited person, from being with intent, etc., be continued, and be not again placed tried for other than the offense of which he was surupon the docket for trial, and that said Hawes be not rendered, is to be made available to himn. The objecheld in custody until the further order of this court. | tion that it is not competent for a prisoner charged
“The logical deductions involved in this, the gravest with an offense, when arraigned before a court of the question ever presented to any court - and when I say country in which it is alleged to have been committhat, I mean that I have been unable to find any prece ted, to appeal to his right of foreign asylum, and which dent bearing upon the particular question under con was the proposition assumed in the cases decided in sideration - have embarrassed me, but I have found it the United States Circuit Court at New York (United an obligation to maintain the integrity of my country | States v. Caldwell, 8 Blatchf. C. C. R. 131; United in its plighted faith in a grave constitutional treaty. States v. Lawrence, 13 id. 290), as well as in Adriance I have regarded this case as not a case of Hawes, but v. Lagrave, 59 N. Y. 110, in the Court of Appeals a case involving the honor and integrity of my coun of that State, would not seem even to have been try. Some other judge than I must be selected suggested in Hawes' case, motions on his behalf being to violate the plighted faith of a solemn treaty. I entertained and decided by the court. It is, therehold, under the solemn sanction of my oath, that I fore, not necessary to show that, when the extradition cannot violate that by now proceeding to the trial of of an individual is granted by oue nation to another, Smith N. Hawes. I do not mean to say that he may the protection of the foreigu asylum to the accused not hereafter be tried; but what I mean to say is, party is only impaired to the extent expressed in the that, in the face of the treaty herein referred to, he is warrant, and that, for the cases not excepted or providnot to be tried until there is reasonable time given ed for in the convention, and for all other purposes, the him to return to the asylum from which he was taken. person surrendered is to be deemed still legally in the He may by his own act put himself within the juris country from which he was extradited; or, as stated diction of this court, and may hereafter be tried. in a recent treatise on extradition, “the fiction accordUpon that I now express no opinion.
ing to which, for every fact foreign to the extradition, "Of course, in the consideration of this question I he is still in the territory of the country of refuge, have read all the correspondence between bigh public must be completely respected; and if an offense is functionaries of my own government and that of Great brought to notice in the course of the proceedings, the Britain, especially as to the cases of Lawrence and result must be the same." Vazelhes Etudes d'ExtraWinslow, and, while it is not proper for me to reflect | dition, p. 155. upon the cunduct of my own government, I must be In France, extradition, whether granted independpermitted to say that the position taken by Great ently of treaty, or by treaty, is deemed a matter of Britain ou this treaty is more in consonance with hu high administration, the tribunals of justice having man liberty and international law than the preten no power to interpret or appreciate (apprécier) treaties, sions of my government.
but only the right and duty to apply them. A reason "Mr Webster, and it will not be denied that he was a assigned for this is the possible danger of international great statesman and publicist, in reference to the lead difficulties, if the matter was not within the control ing case of McLeod, used the remarkable language that
of the department of the government which regulates the opinion and decision of the court in that case was the foreigu relations. not respectable. It was not permitted to him to express There is no difficulty necessarily to be apprehended any opinion as to the decision of Judge Benedict. In by us from collision with foreign nations, on account the Lawrence case, whatever may have been the dip of the interpretation of a treaty being vested in the lomatic talk on judicial expressions, this great country judiciary. It is true that the executive cannot interinstructed the law-officers thereof not to proceed to | pose with a court to induce it to render a decision the trial of a noil-extraditable offense, and even in contrary to its interpretation of what the treaty the case at bar, the United States has had a dis demands. It could not, for instance, supposing it to tinguished representative asking for a postponement be prohibited by treaty, either expressly or impliedly, or evasion of the decision, whether Smith N. Hawes to subject an extradited person to be tried and concan be tried for offenses for which he was not extra victed for an offense for which he was not extraditdited."-Cincinnati Daily Enquirer, Sept. 2, 1877. able, compel the court to try and pass sentence on
It is understood that the decision, as above rendered, him for such offense; but it might arrest the proceedwas acquiesced in by the State authorities. The public lings by proper instructions to the public prosecutor, and such was distinctly stated to be the law by Judge cially discussed and decided, that decision must be in Benedict, in the case of the United States v. Lawrence. tbe courts of the United States, or else the tie which He there declared that the matter was "within the holds the government together would become a band power of the government, by reason of its legal con | of straw." Works of Daniel Webster, vol. v, p. 130. trol over the prosecuting officer.” In that case it would
By-the-by, we do not find the act, to which McLeod's seem that the imbroglio with the British government case gave rise, incorporated in the Revised Statutes. It was owing to the fact that the instructions of the at
was entitled “An act to provide further remedial torney-general were not followed by the district attor
justice in the courts of the United States," and was ney. In reference to the plea on behalf of the prisoner,
passed August 29, 1842. United States Statutes at that he was protected by the convention or agreement
Large, vol. v, 539. It is not supposed that it was inbetween the two countries, the court declares that
tentionally left out by the revisers. But its omission “all that need be here said is that such an agreement
does not affect its legal efficacy, inasmuch as it is can avail nothing to a defendant setting it up by way
provided by section 5596: “ All acts passed prior to of plea to the jurisdiction of the court before which
said last-mentioned day (1st December, 1873), no part his trial is moved by the government."
of which are embraced in said revision, shall not be In the absence of legislation on the subject, it might
affected or changed by its enactment.” be within the power of the governor of a State, if the
Is there any thing in the nature of this question, extradition was for an offense justiciable in a State which may arise in regard to extradition, which court, to occasion embarrassment by his refusal to
would prevent our being exposed to the same dangers order the proceedings to be arrested on the suggestion
in our international relations, as occurred in conseof the national executive, that such a course was de
quence of the McLeod affair. In the very case of manded by the public interest; or the State judges
Hawes, which we have been considering, it appears might interpret a treaty differently from what the
that the governor of Kentucky refused, at the intimaforeign power claimed to be its true construction, and
tion of the general government, to give necessary inin which the government at Washington concurred.
structions to arrest the proceedings before they came We have elsewhere shown from what occurred in an
before the court, and, supposing the court to have analogous case, that the remedy is within reach of
taken a view of its powers similar to those maintained Congress, and if so, it may be well asked if it ought
by the Supreme Court of New York in opposition to not to be applied in anticipation of any contingency.
the President in the McLeod case, the trial for embezIn the well-known case of McLeod, which arose in
element might have been permitted to proceed, and 1840, there was a direct collision between the Federal sentence been rendered in utter disregard, not merely and State authorities. McLeod had been indicted for
of the true interpretation of the treaty, but of the arson and murder, in connection with the destruction,
understanding in accordance with which its operation in the preceding year, within the jurisdiction of the
was provisionally revived. Besides the dishonor atState of New York, of a steamboat employed by the
tending the violation of an implied pledge, if no other Canadian insurgents. The Federal government de
consequence ensued, the carrying out of the declaracided to interpose, on the ground that the offense,
tion of the British government, communicated to ours which was the motive of the proceedings, was an act
by Sir Edward Thornton, in assenting to the provisin furtherance of the orders of the British govern
ional revival, was inevitable, and the extradition clause ment. Not only did Mr. Seward, who was then gov
of the treaty would, without further consultation with ernor of New York, refuse to order a nolle prosequi to our government, have been terminated forever. be entered, at the request of the President, but the The act of 1869, for the protection of a person extraSupreme Court of the State (The People v. McLeod, 1 dited under a treaty (Revised Statutes, $ 5275), I conHill, 378), before whom the matter was brought on
sider, despite of the opinion of the Court of Appeals habeas corpus, decided that “a subject of Great
in Adriance v. Lagrave, sufficient to meet the case of a Britain who, under directions of the local authorities
trial for an offense for which the prisoner was not surof Canada, commits homicide in this State in time of rendered. See Albany Law Journal, vol. iv, p. 95. peace, may be prosecuted in our courts as a murderer,
In Switzerland, whose institutions are not dissimilar even though his sovereign subsequently approved his to ours, by the Federal law of 27th of June, 1874, for conduct by avowing the directions, under which he “the organization of the Federal judiciary, in accorddid it, as a lawful act of the government."
ance with the new constitution of that year, the Fed. The difficulty in this particular case was terminated
eral tribunal takes cognizance of conflicts of jurisdicby the acquittal of McLeod by the jury. The conse tion between the Federal and Cantonal authorities, of quence, however, of that affair, which even menaced differences between the Cantons, of demands for erhostilities between England and the United States, tradition, and of complaints made by private individinduced Congress to pass an act that if such cases uals concerning (1) the violation of rights granted by should arise hereafter, they should be immediately the constitution of their Canton, and guaranteed by transferred to the courts of the United States. Refer the Federal legislature; (2) the violation of interring to this law, Mr. Webster, who was Secretary of Cantonal couventions and concordats, or of foreign State at the time, says: “This was a necessary and treaties. proper law. It was requisite in order to enable the I do not propose to return to any of the subjects government of the United States to maintain the discussed in my preceding articles on Extradition, peace of the country. It was perfectly constitutional, nothing having occurred to induce me to alter, in any because it is a just and important principle, quite a respect, the views therein expressed, and which have fundamental principle indeed, that the judicial power been sanctioned by leading law journals of London and of the general government should be coextensive with Edinburg by the reproduction of them in their colits legislative and executive powers. When the au- umns; while our eminent colleague, of the Institute of thority and duty of this government are to be judi- | International Law, Dr. von Bar, has made them, in
connection with the papers of Mr. Westlake, read be- well as others, must receive the sanction of the legisfore the National Association for Social Science, Trans- lature. actions, etc., 1876, p. 159, which differ from me on the M. de Vazelhes, in his recent Etude sur l'Extradition, points involved, the basis of his Etude in the Revue de 1377, p. 60, says, that the new treaty of 1876 had, at Droit International, vol. ix, p. 1-13, on the conflicting the time of the publication of his book, received the construction, by England and the United States, of approbation of the Senate, but had encountered some the treaty of 1842, of which we gave a resume in our opposition in the Chamber of Deputies. It has not letter on the proceedings of the Institute. Albany Law been as yet, so far as I am aware, promulgated. Journal, xvi, p. 133.
This treaty is, for the greater part, the reproduction Professor von Bar, while coming to the conclusion of that of 1852. According to its terms, in order that that the British government is formally right in refus extradition may be accorded, the offense must have ing extradition in the presence of the pretension of been committed in the territory of the party demandthe American government to reserve to itself the right ing the surrender. It will be remembered that in this to prosecute the extradited person for a crime or mis respect Great Britain and the United States differ from demeanor (crime on de'lit) other than that which was those continental States which take jurisdiction over the motive of the extradition, and while, moreover, their subjects for ordinary crimes committed abroad. he does not admit the suggestion of Mr. Westlake that The Franco-Belgian treaty of the 18th of August, 1874, the formal right should be replaced by a general clause, therefore, on the contrary, authorizes extradition in that “in no case shall there be a prosecution for a favor of the State, competent ratione persona, propolitical offense," and considers the government and vided that the legislation of the country from which the courts of the State obtaining the extradition as the surrender is demanded authorizes the prosecution wholly unsuitable to decide the question, whether the of the same offenses committed out of its territory. crime or misdemeanor is a political offense, he, how- | In the old Franco-English treaty, no mention is made erer, concludes, contrary to our views, that a person | as to the exclusion from its operation of the citizens extradited may, by the consent of the government or subjects of the respective countries; but France which made the surrender, be tried for another than ever denied the obligation under it of delivering up the offense for which he was extradited, and that, to her own people. The proposed article in the new await this consent, he may be provisionally detained; treaty is interesting, as being a recognition of the rights but he adds, if the consent is not obtained in the of naturalized citizens, as first established by the Act period indicated, the prisoner is entitled to claim to of Parliament of 1870, and by the treaty of that year be discharged without being tried. It is for the gov with the United States. Art. 2. The respective subernment from which the demand was made to decide jects, either by birth or by naturalization, are exempted whether the consent should be given, but Dr. von Bar from extradition. However, in the case of a person maintains that it should only be withheld for excep who, after the crime or misdemeanor, of which he is tional causes. This suggestion of our eminent friend accused or condemned, should have obtained naturaldoes not meet the objection to a trial for an offense ization in the country on which the demand is made, other than the one for which the extradition was this circumstance shall not prevent the arrest and exgranted. It deprives the prisoner of the right which tradition of such person in conformity with the stipuevery accused person has to be advised of the offense | lations of the present treaty. for which he is to be arraigned. To admit the pro To the report of the Royal Commission of 1868 we posed rule would be to allow an indictment for one have had frequent occasion to refer in our investigacrime to be used for the prosecution of another and tion of the history of extradition and its bearing on distinct offense.
criminal jurisprudence. It was announced some weeks The views of Dr. von Bar are not to be understood ago that a new commission had been created to conas an exposition of existing law, but as a proposition sider the laws and treaties relative to extradition. for insertion in future treaties.
This commission consists of the Lord Chief-Justice, Before closing this letter, I may mention, what I Sir Edward Cockburn, Lord Selborne (ex-Chancellor), have not seen noticed in any American journal, the Lord Blackburn (Lord of Appeals in ordinary), Sir conclusion of a new treaty, 14th August, 1876, be- Richard Bagallay, Sir William Baliol Brett (Lord-Justween Great Britain and France, to supersede that of tice of Appeal), Sir John Rose, Mr. Russell Gurney 1843, under which so few cases of extradition have (member of the mixed commission under treaty of occurred, that it can scarcely be considered to have Washington, which sat in this country), Mr. McGuleven been in force.
lagh Torrens, Sir William Vernon Harcourt, and A treaty made in 1852, as we have mentioned else James Fitz James Stephen. Does not this suggest where, was defeated after having been ratified by both the expediency of a similar measure on the part of the parties, in consequence of the refusal of the British United States, for which the time would seem most Parliament to admit the concessions to France, opportune? The common action of the two commismade in disregard of the recognized principles of sions would establish for all time for the Anglican English criminal jurisprudence; but as the act of race the principles of extradition. 1870-3 – which would seem to have entirely changed, in I am not aware that the principle of extradition or other respects, the policy of England, besides extend the details connected with its application have ever ing extradition to cases of convietion as well as of received any extended discussion in either House of accusation, and applying it to every conceivable misde Congress. Mr. Webster's defense of the treaty of meanor,-authorizes tbe Crowd to carry such treaties Washington, being confined, so far as respects extrainto effect,with the sanction of the Privy Council, it is dition, to the coterminous intercourse with the British presumed that no difficulty could have proceeded from | American provinces. England. Under the present constitution of France | The motion of Mr. Morrill, of Vermont, made on the it has been understood that treaties of extradition, as 13th of December, 1875, with a view of having a provision made by general law for extradition of fugi- | appreciation of the honors and achievements of our tives from justice, seems to have been attended with associates at the bar, and a just pride in the profession no action on the part of the Senate.
which has been irradiated by the learning and genius I am, my dear sir,
of the bench and the bar, to which every city and Yours, very truly,
county in the State has made, from time to time, its W. B. LAWRENCE.
Hitherto the influence of the bar has been mainly ADDRESS OF PRESIDENT PORTER TO THE
incoherent, individual and personal. It has been STATE BAR ASSOCIATION.
wielded by the leaders, rather than by the great body
of the profession, who could have used it with more GENTLEMEN :- It gives me great pleasure to comply power and effect for the general good. And yet, how with the request of the committee of arrangements beneficent that influence has been, even within these in saying something as to our common purposes and limitations. How much has been done for the mainaims. A formal address to my professional brethren tenance of the constitution and the laws for the Finwould be regarded by me and by them as an act of dication of public and private rights, for the preservainexcusable presumption. I feel assured, however, tion of the administration of justice in its purity, its that you expect from me a few words, and they will be dignity and its authority, by those who have achieved brief. Ours is an undertaking by practical men, and for themselves a prouder and nobler reputation in the it is designed to be of practical benefit to the profession legends and traditions of the bar, than even in the and to the community at large. In all such matters, historic records which identify them with our State brevity is of primary importance. In the convention and national prosperity, at Albany which led to the American revolution, and Proud as we justly are of the names of our great over which Benjamin Franklin presided, no speaker statesmen, we are not less proud of their peers at the occupied twenty minutes, and few over five, though bar, some of equal and some of more commanding the words they spoke were of vital interest to the genius, who have left upon the pages of our jurisprucountry. Let us prove in this association that lawyers dence, a less conspicuous but more enduring record of can speak briefly, if not always effectively, and that effective labor and intellectual power. they can direct what they say to the promotion of | If the dead could be recalled to life, what a roll-call useful practical results.
we could make from the State capitol. We might I gratefully appreciate the honor of being called upon begin with Albany. The first name would be that of to preside at the organization of the association, and | Alexander Hamilton, whose residence here was brief, its first annual meeting, and beg leave on the surrender but entitles us to claim him as an Albanian. We could of the trust at the close of the present session, to re- follow it up with the names of Chancellor Kent, turn to you my warmest acknowledgments for this Ambrose and John C. Spencer, Chief Justice Savage, mark of your confidence and regard, and to exchange Martin Van Buren, Samuel A. Talcott, Benjamin F. congratulations with you on the establishment of an | Butler, Abraham Van Vechten, John V. Heury, Daniel institution, designed for noble ends, and which, if we | Cady, Deodatus Wright, Samuel Stevens, Marcus T. and our successors are true to our duty, will elevate Reynolds, Nicholas Hill, Greene C. Bronson, Ira Harthe standard of professional excellence and honor, and ris, Rufus W. Peckham, John H. Reynolds, and a host advance the interests and prosperity of the great State | of others among the dead and the living, whom it in whose capitol we are convened.
might seem invidious to name. We might proceed If, as we trust, this association shall be permanent, with the roll-call and include names from other poreach of us who are concerned in its organization, will tions of the State, like those of Joshua A. Spencer, have in its record a place of honor to which our de- | B. Davis Noxon, Elisha Williams, Thomas Addis scendants may refer with no unworthy pride; and we Emmett, Thomas J. Oakley, Lewis B. Woodruff, may all claim a title to the remembrance of our breth Hiram Denio, Ogden Hoffman, James T. Brady, Daniel ren in aftertimes, as among the founders of an insti Lord, and in view of his having been already within tution, identified with the development of jurispru the gates of death, I may be pardoned for adding the dence, and with the permanent interests and prosper great name of Charles O'Conor. Not only could we ity of the State.
call all these, but behind them is a constellation of great Ours should bave been the first of the three learned | jurists and advocates which no man can number and professions, as they were formerly classified, to form a no lawyer cau forget. State organization. Not only is it the last of the three | We may well feel a sense of honorable pride in hapto discharge this public duty, but meantime another ing our names associated in some degree with theirs, great profession, the growth of the present century, in that which concerns the honor of our profession has placed itself in our van, and the journalists have and the advancement of the cause of public justice. taken precedence of the bar in that community of Do we, in our day and generation, owe any duty to the action which we all owe to the commonwealth.
profession and to the State? The leading characterI trust that we shall all work together in a kindred istic of the age is growth, development and expansion. spirit for the advancement of noble ends, tending to Is it not our duty to add to the effective forces of the our common prosperity, and to the general benefit of State in all the agencies of human progress and imthe community. And yet, it is only a just tribute to provement? Is it not in our power to exercise our predecessors at the bar to say, that without the | healthful influence upon each other? Can we not 00 existence of such a bond of association a spirit of something in our collective capacity to cause goog unity and harmony has prevailed in our profession | men to be in good repute, and bad men in bad repule. which has made us brethren in the noblest sense, and All human institutions are flexible. They are being which, notwithstanding the antagonisms of political | molded, from generation to generation, into better opinion and the collisions of forensic strife and pro- | and more effective forms. Can we do nothing to come fessional emulation, has fostered in us all a generous I tribute to so noble an end? The influence of our prva
fession in the next generation depends, in a large should yield to the general growth and development degree, on the manner in which we fulfill our duty. of jurisprudence. It is not to be denied that the How better, or how otherwise, can we discharge our Code of 1848, though many of us did not favor its personal obligations to the profession than by advanc- | adoption, has proved to be beneficial, and has coming its interests in all after time, and impressing upon manded the general approval of the bench and the our State legislation the well-considered convictions bar. of the bar on questions affecting the individual rights Whether the changes which have been recently inof their clients and the general good of the commu augurated are entitled to the like approval, is one of nity?
the questions which demands your most serious conIn considering the question whether it is our per sideration. sonal duty to advance a work of such public import I may be pardoned for saying that the bar has alance, it should be remembered, first of all, that we ways been conservative-that it is only upon the fullest are clothed with a trust which, under our system of deliberation that we would change the laws, and that jurisprudence, no lawyer can disregard; and the obli it is sometimes better to reject what we do not fully gations of that trust reach far beyond the present gene concur in than to acquiesce in what we can neither ration.
heartily approve nor entirely condemn. It should also be remembered that there are many of Our responsibility is greater, perhaps, than we would our number who have more of life behind than before | be 'willing to assume. If all our forests were conus; who must do now, whatever we propose to do, for verted into ships, if all our minerals were transmuted the benefit of our profession, or for the advancement into gold, it would not compensate us for the loss or of the general good — who see before us the lengthen the serious detriment of a system of judicature, which ing of the shadows and the going down of the sun. makes property secure, and every personal right in
But there is the further and more controlling con violate. sideration, that while we have eachour personal client But we have higher and nobler aims. We deal, not age, the State, which rises above them all, with its with the questions of the hour, but with those which paramount authority, with its vast interests and its reach into aftertime. grand system of jurisprudence, is the common client While our interests are interlaced with those of the of us all; and in the discharge of every minor profes- whole community, we have a special department of sional obligation, we are to see to it, that through no labor in which we can most aid the common weal, wrong or neglect of ours shall any wound be given to by co-operating in whatever tends to the elevation of the authority of the courts of justice, or any detriment the profession, the successful administration of the come to the Commonwealth.
laws, and the growth and development of our civilizaWe live in times when the fall of a throne moves tion. men scarcely more than the fall of a leaf. The bar has Men die, but the institutions they unite in foundalways been the most conservative element of civili- | ing often live after them. Let us trust that this aszation. Here, and everywhere, it should prove its sociation may endure, and that it may exercise a colfealty and loyalty to the common cause of public lective and permanent influence. We are strengthorder, equal justice, constitutional law and individual ened by association with each other. The standard liberty.
of professional integrity and honor is elevated by muIt would dishonor us as a profession, if any member tual intercourse, and by the consciousness that our of our body should fail in any conceivable exigency, own status is determined by the enlightened judgment to maintain the rights of the citizen under the ægis of of our brethren. The weight of the profession in the the State or the Federal Constitution. It would be community and its influence upon public affairs are equally a dishonor to our profession, if any member of
greatly increased, when it is known that the ends they the bar should fail to assert, in behalf of the humblest aim to promote are not those of personal ambition or client, every right guaranteed to him by the laws. individual rivalry, but such as are identified with the
The tribunals of justice, State or National, have general good, the advancement of the highest internever yet failed to protect the rights of the citizen ests of society, the perfecting of our system of juriswhen the members of the bar have been true to their prudence, the maintenance of public order and the trust. If there have been seeming exceptions in stability of private rights. troubled times, they have ceased to exist. With our knowledge of the courts as they are to-day,
APPEAL BY PARTY NOT INJURED BY we may confidently affirm that we can look to them
DECREE. for justice with the same undoubting faith with which the seaman looks to the north star, which never breaks
IN the case of Ex parte The N. & S. Alabama Railfaith with the mariner.
T road Co., recently decided by the Supreme Court It is proper to say, what I know you will all ap- of the United States, one Strang brought an action in prove, that if there are defects in our State Constitu- the United States District Court to foreclose a mortgago tion - and nothing human is free from defects - it is upon a railroad. Subsequently the N. & S. Alabama not our purpose to propose any change in what we all Railroad Company was, upon its own application, made recognize as the supreme and ultimate law of the State. a defendant in the foreclosure suit, it claiming to That Constitution, amended as it has been, from time hold a mortgage prior to that of Strang. Thereafter, to time, by the people, stands like a noble arch which one Young, holding a statutory lien upon the same has proved its strength by every weight imposed upon property, commenced an action in the United States its structure.
Circuit Court to enforce the statutory lien, and Strang, Our system of judicature, inherited from our An the trustees under the Strang mortgage, and the glo-Saxon ancestors, and improved from generation to | North and South Alabama Railroad Company were generation, should be preserved and perpetuated in made parties, and the latter, by answer, claimed its essential elements. Its forms, like all mere forms, priority to the other incumbrancers. Subsequently