The Albany Law Journal.

ALBANY, JANUARY 1, 1881.

CURRENT TOPICS.

E give place in another column of our present

WE Escape,

sen

Kentucky Law Reporter. The article is acute and ingenious, and written in a temperate and candid spirit. We shall not undertake at much length to justify our own article on the same subject, which called forth this. It is to be hoped, however, that we are not open to the charge of adducing a timental argument." Our plea was simply for common sense and bare justice. It seems to us that our critic begs the question when he asserts that "if the community has no right to punish a prisoner's desertion, it has no right to prevent such desertion by personal violence." The State has the right to prevent escape; it has no right to punish the prisoner for not lending his aid to the State in the execution of that right, or for defeating its execution. The State, for example, has no right to extort a parole from the prisoner, and to punish him for breaking it. It may keep the prisoner, if it can, but it is absurd to say that the prisoner owes any duty to the State to stay kept. We cannot compel a prisoner to be his own jailor. This is the "sentimental argument," it seems to us, that "where one is actually guilty of a crime, he owes it to the community to submit quietly to the penalty incurred." One might as well argue that one who is being flogged should have an extra dozen of the cat for struggling, and loosing his bonds, and troubling his tormentors to tie him up again. Such sentimentality as this can only be supported by precedents drawn from divinity and myth. The "Great Master would not escape" simply because escape would have defeated his beneficent purpose. As for Regulus, his story is now regarded by the best historical authorities as a myth. Granting that we might possibly agree with our critic that " even an innocent man ought not escape," we never can agree that he ought to be punished for escaping. We can heartily join with our critic in laughing at our mistake of Peter for Paul.

VOL. 23.- No. 1.

The

A curious point of criminal procedure has been raised in the Supreme Court of New Jersey. Certain indicted persons have challenged the array of the grand jury on the ground that the sheriff was hostile to them and maliciouly summoned only such jurors as also were hostile to the defendants. court have held the challenge valid, although made after indictment, and have directed an issue to be formed and tried thereupon. In the case at least of persons who have not previously been held to answer, there seems to be no good reason for holding that objection to the array must be made before indictment. This is Wharton's opinion. There is, however, a great difference of judicial opinion on this point. In our State, by statute, objection can be raised only before the jury is sworn, and only for the reason that a particular juror is the prosecutor or complainant, or a necessary or recognized witness, on the charge. On the one hand, the practice of challenging the array would cause great delay and obstruction to the cause of justice, and in the case of a prejudiced sheriff, might amount to a prevention of an indictment during his term, and in some cases to a total defeat of justice by the consequent bar of the offense by the running of the statute of limitations. On the other hand, as Wharton says: "It is a serious discredit as well as peril to a man to have a bill found against him; and if this is likely to be done corruptly, or through interested parties, he has a right to apply to arrest the evil at the earliest moment."

ter.

Our last London exchanges bring us notes of several singular cases. In Regina v. Salmon, Dec. 4, a crown case reserved in the High Court of Justice, A, B and C had been convicted of manslaughThey were all members of a rifle corps, and had been attending a rifle practice. After practice it was their duty to take the rifles back to the armory. Instead of this they fixed a target in an apple tree in a garden, and fired at it from a distance of 100 yards. One of the shots killed a boy who was in an apple tree in an orchard 400 yards beyond. There was no evidence showing which fired the fatal shot, but the conviction was affirmed on the ground that all joined in a dangerous act without taking proper precautions. They should

first have harvested the boys from all the orchards for a quarter of a mile around. The court did not consider the question whether the boy was not guilty of contributory negligence, nor whether the apples would not have killed him if the rifle had not. Mr. Justice Field however did doubt whether the prisoners owed any duty to a boy up a tree, which amounts to the same thing. The circumstances were strangely like those in Castles v. Duryea, 32 Barb. 280. In Hooper v. London & N. W. Ry. Co., in the same court, Dec. 2, says the Law Journal, “the plaintiff had purchased a through ticket issued by the Great Western Railway Company from Stourbridge, on their line to Euston, the terminus of the London & North-Western Railway Company. He travelled from Stourbridge by the Great Western Railway as far as Birmingham, where his portmanteau was transferred to the London & North-Western Railway Company, and where he changed into a London & North-Western Railway Company's train and proceeded to Euston. His portmanteau, however, was not forthcoming for three months, when — horribile dictu! — his clothes were ruined by a brace of pheasants which he had stowed inside. He brought this action instead of suing the Great Western Railway Company, and he obtained judgment in his favor. The decision is in conflict with Mytton v. Midland Ry. Co.,” but is in harmony with the later case of Foulkes v. Met. Ry. Co. In this case, again, there seems to have been no question made of the plaintiff's own negligence in putting the birds inside his clothes when he was not wearing the clothes. Again, are pheasants reasonable luggage?

In Chilcott v. Alexander, a tradesman sued a father for a great quantity of coats, ties, and gloves, supplied to his son while at an army tutor's. The father paid the bulk of the claim, but disputed £26 16s. on principle. The jury found for the tradesman, and Pollock, B., and Mr. Justice Stephen set aside the verdict. We have nothing to say against this, but it affords an excellent theme for some of our friends to say something more against the jury system.

The recommendations of Attorney-Genera. Devens, in regard to the transaction of business in the Federal Supreme Court, have called forth considerable remark from the legal profession, especially in the columns of The Nation. These gentlemen, as well as The Nation itself, emphatically express themselves opposed to any pecuniary limitation of appeals, and to making the right of appeal to the ultimate court in any case dependent on the discretion of an intermediate appellate court, especially when divided into ten branches and as many discretions. These arguments seem to us irrefragable. Some propose to overcome the arrears by strengthening the intermediate court; others by strengthening the ultimate court. It seems to us that both should be done. The former plan will doubtless cut off many appeals, but however strong the intermediate court, many suitors will not be satisfied short of the last

resort. The Supreme Court should therefore be doubled, at least, but it should also be divided. The best basis of such division, it seems to us, would be the character of the business. One division might be assigned to constitutional and public law, patent law, and equity law. There should unquestionably be an appeal in criminal cases. Sooner or later this plan must be adopted. The growth of the country will demand it, if it is not already imperative. No plan but the divisional will accomplish the object, for time is not economized by increasing the number of judges to hear the same appeals.

Our own Court of Appeals, after a heroic struggle, have substantially cleared their year's calendar at the end of the year—a feat never before accomplished by this court. They have heard every cause ready for argument, and have decided 583 of the 608 causes on the calendar. They have handed down 560 decisions during the year. This is a great work, and this statement does not include the myriad motions heard and decided. The court sit, in hearing and consultations, seven hours a day, five days in the week, and write their opinions in the evenings, on Saturdays, and in vacation. It is difficult to see where they get any time for reflection. The new calendar will number over 400, with an unusually large proportion of preferred causes. It is a serious question how long men can live under such a burden as the present, not to say how long, with the constantly increasing business, their decisions can continue to deserve the general approbation which they now receive.

In the Virginia Law Journal for December, Mr. Henry Hudnall has an article on Construction of the Married Woman's Act, in which he takes the ground that such acts are impolitic and unjust. Herein he follows Mr. John O. Steger, who wrote on the same subject in the same journal last February. Mr. Steger thinks that God meant that man should be the "head" of the woman; that the woman should love the man in any event; that the man by virtue of his headship should grab all the woman's property; and that legislative interference with this divine regulation is apt to breed unpleasantness. Mr. Hudnall's views are quite in keeping with Mr. Maury's on the privilege of the accused to testify, as recently published in the American Law Review, remarked upon by ourselves, and copied in this number of the Virginia Law Journal. Our esteemed southern contemporary is itself opposed to our Code, as we have before remarked. Altogether it seems that Virginia is not quite abreast of the times in matters of law reform. Change is not necessarily reform, but it seems to us that our brethren have picked out for animadversion three extremely just, beneficial, and necessary enactments. At all events it is quite too late to reverse the course or arrest the momentum of modern thought and legislation on these subjects.