The Albany Law Journal.

ALBANY, MAY 3, 1884.

WE

́CURRENT TOPICS.

zens from jury duty. We speak of a bill excusing presidents, vice-presidents, cashiers and tellers of banks from jury duty. These certainly constitute a numerous and highly respectable and intelligent class. What reason can there be for excusing them? They are no more essential to the affairs of banks than scores of other classes are to other kinds of business. Indeed, it seems that they form a class peculiarly adapted to take one another's places in their business in case any of them should be summoned on a jury. The vice-president is appointed to take the place of the president, and either can easily act as cashier, and the cashier can act as teller, if the occasion should arise. It is much more important to have such men liable to jury duty than it is to save bank officers trouble and annoyance. These rich corporations and these wellsalaried officials derive their safety and ease from the society which protects them, and they owe society some duty in return. One of the greatest defects in our jury system is 'the excusing of the better classes from the performance of jury duty. This practice has been growing insensibly, until a very large portion of the best material is unavailable for this purpose. This is a short-sighted policy. The community ought to excuse an entirely different class of men, and ought to insist on the services of the best. If the Berner jury at Cincinnati had been composed of such citizens as our struck juries are drawn from, there would have been no such verdict, and no riot, and Cincinnati would have been saved some millions of dollars, which the bankers will now be compelled to help to pay. We know it is very annoying to such gentlemen to be dragged from their comfortable chairs in their luxurious offices to sit in stuffy court-rooms, and to listen to the story of revolting or ignoble crimes or petty quarrels among their neighbors; and yet if these same gentlemen should have suits of their own they would think it very hard that their interests should be put to the arbitration of our average jurymen, and would wag their heads sadly over the corruptibility and ignorance of our juries, and the general degeneracy of our institutions. There are very few who ought to be excused from jury duty. We would excuse physicians because their places cannot well be supplied to their patients; we would excuse clergymen and lawyers and policemen because they are not fit, and we do not at this moment think of anybody else whom we would excuse, unless it may be firemen and teachers in public schools. We may depend upon it, the radical reformation that our jury system needs is to put a better class of men into the box.

VOL. 29-No. 18.

It is very gratifying to see that the recent Republican convention at Utica nominated Judges Andrews and Rapallo for re-election to the Court of Appeals. These gentlemen are the only remaining members of the court elected fourteen years ago. Four are dead and one has resigned. These two deserve re-election for every conceivable reason— excellent abilities, long experience, pure character, toilsome and devoted public service. They differ in politics, and this renders the action of the convention one of the most hopeful signs of the times. It looks as if politicians were earnestly desirous of freeing judicial nominations from party influences. Such was the design of the judiciary act under which this court was constituted in 1870, by which the party in the minority was represented by two judges. If these two nominees should be re-elected the bench would stand four Democrats to three Republicans, which certainly would not be an unfair proportion in any event. We believe that politics have had as little influence as possible upon this court from the foundation, and we rejoice that the party managers have had the grace to recognize the fact. It is taken for granted that the Democratic convention will do likewise. They could not decently do otherwise, and we shall not permit ourselves to doubt concerning their action.

We do not see that any scheme has been suggested to our Legislature for the relief of the Court of Appeals calendar. The court stand as much in need of relief as General Gordon does. Municipal reforms and codifications have perhaps cast this matter temporarily out of mind, but it is only a little less important than these measures. It is rather more important than the robe question. The court can no longer keep up with its business. It must be enabled to do so, or the public interests and the cause of justice will suffer great detriment. Whose business is it to attend to this matter? Where is the New York City Bar Association, so interested in codification and in robes? Here is an excellent opportunity for it to do something useful. Whatever measure is suggested will probably necessitate a constitutional amendment, and this cannot be acted on until it has been approved by two successive Legislatures. It is rather late, but still perhaps not too late for action this session. At all events there is no excuse for not maturing some scheme for action next winter. If we do not see

some signs of movement in the matter soon, we shall call Mr. Bergh's attention to it.

We had fondly hoped that we had heard the last about the robes, but a correspondent in another column desires to argue after decision, and as we believe in the greatest liberty to the greatest number, we give him place. The American Law Review says

a judge of long service on the Federal bench, whom we happen to know, and admit to the witness-stand the most ignorant and depraved negro that can be found on the deck of a Mississippi steamboat. When Garibaldi died, and his red shirt

was taken off, there were found upon his body the scars of thirteen wounds, every one of which had been received in fighting battles for the rights of The laws of England, of Canada, and of Pennsylvania, would have excluded that man from the witness-stand, and would, at the same time, have admitted to the witness-stand the most depraved scoundrel that had ever been turned out of a penitentiary. Such laws are a reproach to the age in which we live." This is a matter of serious moment, and we must postpone the expression of our own views.

The American Law Review says: "One of the Canadian law journals, the name of which has slipped our mind, is in ecstacies over the fact that the ALBANY LAW JOURNAL has admitted into its columns an article written by a Canadian barrister. The article in question was written by R. Vashon Rogers, Jr., on the subject of Upstairs and Downstairs Tenants.' It was reprinted in the Irish Law Times." The Review should also remember that Mr. John D. Lawson, of St. Louis, one of the best known and most excellent of the law writers of our day, a frequent contributor to this journal, and also to the Review, is a Canadian by origin. But doubtless the Review will say, as Johnson said of the Scotch, that much may be done with a Canadian if he is caught young.

We call attention to a striking article in another column, on the Abolition of Oaths, by Mr. Louis Claude Whiton. On this topic, the American Law Review, quoting some recent remarks of ours, observes: "The difficulty which surrounds the question lies deeper than the criticism of the ALBANY LAW JOURNAL. It is that bigotry and intolerance have excluded from the witness-stand a great many honorable and conscientious men, in whose minds an oath as administered amounts to no more than a declaration that the witness will tell the truth; and thereby the cause of justice is deprived of their testimony, and they themselves are denied the privilege of vindicating their rights by their own testimony, which privilege is accorded to the most superstitious and dishonest believer who is willing to take an oath. Take, for instance, such a state of the law as exists in Pennsylvania, unless it has been recently repealed. A judge in Philadelphia adopted a rule of excluding a witness on the ground of a want of religious belief, which rule would exclude

IN

NOTES OF CASES.

There is

'N Beardsley v. City of Hartford, Connecticut Supreme Court of Errors, 1883, 17 Rep. 520, it was held that open basement descents, being necessary to business buildings, the failure of a city to erect barriers in front of them is not negligence, and the city is not liable to a passer who without negligence. falls down such a descent. The court said: "Is a city bound to maintain a railing in front of the numerous basements and basement steps that line its business streets? Such basements are used in every populous city for business purposes of almost every kind. In a large city like New York the first story of almost every business block is reached by steps, that extend to the line of the street, while on each side of them are steps leading down to offices in the basement. What is the duty of the city with regard to them? no practicable way of perfectly protecting the public but by a railing in front of them. Can it be regarded as the duty of a city to maintain such a railing? Are we to apply to the case without qualification the same rule that would be applied to a pit hole, like the cellar of a burned building, adjoining a sidewalk, where a railing would cause no inconvenience to the owner of the property? It is a well-settled rule that the law varies with the varying reasons on which it is founded. This is expressed by the maxim, 'cessante ratione, cessat ipsa lex. This means that no law can survive the reasons on which it is founded. It needs no statute to change it; it abrogates itself. If the reasons on which a law rests are overborne by opposing reasons, which in the progress of society gain a controlling force, the old law, though still good as an abstract principle, and good in its application to some circumstances, must cease to apply as a controlling principle to the new circumstances. People collect in cities in large part for purposes of traffic, and to these purposes the central and most crowded streets of a city are almost wholly devoted. Must not the necessities of this business furnish the law that shall determine the action of the city in the matter of

barring cut the public, for the sake of the safety of travellers, from those places below the level of the sidewalk that the business of the city absolutely requires should be kept easily accessible? There are special dangers all along a city street, for an unwary foot passenger, that do not exist in country towns. The projecting steps against which a pedestrian can so easily stumble in the night and be hurt, the hitching-posts, posts for awnings, the very curb-stone over which he could so easily trip, with the lower level of the gutter into which he could so easily be carried by a misstep, the occasional necessary descent of a steep place by steps, the projecting buttresses of buildings against which he might run all needing but a slight deflection from the central part of the walk, which one would be very likely to make in a dark and stormy night — all these things, presenting dangers rarely found in a country village, and dangers to which the larger population makes the aggregate of exposure much greater, a city does not attempt, and is not expected, to provide against. They are necessary features of a city, and the peril a necessary incident of city life. The open basement descents are as necessary to the business of the city as the open and unprotected wharves of a seaport are to its commerce. The principle we are laying down is only the old established one, that the city must have been guilty of negligence in leaving a basement entrance unprotected, before it can be liable for an injury happening by reason of it. If the erection of a barrier in front of such an entrance is what the city has no right to do, or if, having the right, it is what it cannot reasonably be expected to do, then there is no negligence in the omission to do so. 8 R. I. 349; 35 N. H. 52; 4 Cush. 299."

In Louisville, C. & L. R. Co. v. Sullivan, Kentucky Court of Appeals, February 28, 1884, the plaintiff while drunk got on the defendant's railway train, and refusing or failing to pay his fare, was put off by the conductor in the snow, and by exposure to the cold was severely frozen and lost several of his toes and fingers. A recovery was maintained. The court relied on the doctrine of Isbel v. New York, etc., R. Co., 27 Conn. 393, where it is said: "A remote fault in one party does not, of course, dispense with care in the other. It may even make it more necessary and important if thereby a calamitous injury can be avoided, or an unavoidable calamity essentially mitigated. Common justice and common humanity, to say nothing of law, demands this; and it is no answer for the neglect of it to say that the complainant was first in the wrong, since inattention and accidents are to a greater or less extent incident to human affairs. Premature remedies must therefore always be proportioned to the case in its peculiar circumstances to the imminency of the danger, the evil to be avoided, and the means at hand to avoid it. And herein is no novel or strange doctrine of the law, it is as old as the moral law itself, and is laid down in the earliest books on

jurisprudence. A boy enters a door yard to find his ball or arrow, or to look at a flower in the garden; he is bitten and lacerated by a vicious bull dog; still he is a trespasser, and if he had kept away would have received no hurt. Nevertheless is not the owner of the dog liable? A person is hunting in the woods of, or crossing a pasture of, his neighbor and is wounded by a concealed gun. Is he in such case remediless because he is there without consent? Or an intoxicated man is lying in the travelled part of a highway, helpless if not unconscious; must I not use care to avoid him? May I say that he has no right to incumber the highway, therefore carelessly continue my progress regardless of consequences? Or if such man has taken refuge in a field of grass, or hedge of bushes, may the owner of the field, knowing the fact, continue to mow on, or fell trees as if it was not so? Or if the intoxicated man has entered a private lane or byway, and will be run over if the owner does not stop his team, which is passing through it, must he not stop them? It must be so that an unnecessary injury negligently inflicted in these and kindred cases is wrong and therefore unlawful. If assailed, a man may do what is necessary to defend himself against the assault, but he may not become himself the assailant. He may defend his property, but he may not in doing it make use of unnecessary violence, and cease to use all care as to the injury he inflicts. The duties which men owe to each other in society are mutual and reciprocal, and faulty conduct on the part of another never absolves one from their obligations, though such conduct may materially affect the application of the rule by which this duty is to be determined in the particular instance." The court also cited Johnson v. C., R. I. & P. R. Co., 58 Iowa, 348; Kline v. C. P. R. R. Co., 37 Cak 400; Wigmire v. Wolf, 52 Iowa, 533.

In Conkling v. Ridgely, Illinois Supreme Court, March 26, 1884, 18 Cent. L. J. 334, it was held that "vacation" means the period between the final adjournment of the court and the beginning of the next term, and does not apply to an adjournment even for a month in the same term. The court said: "Words and phrases in a statute, the meaning of which have been ascertained, are, when used in a subsequent statute, to be understood in the same sense. Potter's Dwarris, 274. If therefore the words "in term time and vacation" at the time they were incorporated into the statute had a well-known legal meaning it will be presumed that the Legislature intended that they should be used in that sense. In Jacobs, Dictionary, vol. 6, p. 323, the author defines vacation as follows: 'Is all the time between the end of one term and the beginning of another; and it begins the last day of every term as soon as the court rises.' Bouvier, vol. 2, p. 619, defines the word vacation' as follows: 'That period of time between the end of one term and beginning of another.' In speaking of the word' term' the same author says: 'The whole term is considered as but

one day, so that the judges may at any time during the term revise their judgments.' These definitions of the words used are in harmony with those given by other law writers; indeed no writer that we have examined gives any other or different meaning of the terms used, and we think it may be safely said that the words, at the time the statute was adopted, had a well-known legal meaning. But aside from this view of the question it seems to be well settled by decisions of courts that vacation when used in reference to courts is that time between the end or final adjournment of a term and the beginning of another. In Mechanics' Bank of Alexander v. Withers, 6 Wheat. 106, where the regular term began on the third Monday in April and continued until the 16th of May, when it adjourned to the fourth Monday of June, it was held that the adjournment from the 16th of May to the fourth Monday in June was but a continuation of the April term. The same doctrine was announced in Commonwealth v. Sessions of Norfolk, 5 Mass. 436, where it is said: 'It is well understood by the people generally that a court holden by adjournment is not a new term but a continuance of the former term of court, and it is not infrequent for courts of sessions to adjourn for the accommodation of persons having business in it.' In Leil v. Commonwealth, 9 Wall. 200, it was held that a day to which a court was adjourned is a part of the same term at which the adjournment was made. In Sanger v. Bryson, 10 Kans. 200 it was held that an adjourned term of court is in no proper sense an independent distinct term, but merely a prolongation a continuance of that already begun. In Smith v. Smith, 17 Ind. 75, an adjourned term was neld to be a part of the regular term. Under § 35 of ch. 37, R. L. 1874, the Circuit Judge had authority to adjourn from day to day or to any day not beyond the first day of the next term of court, and the adjournment shown by the record was authorized by this statute. But we are satisfied that the adjournment from December 27 to January 29 did not close the term, nor was the interim a vacation within the meaning of the statute. The interim could not be vacation, as the fall term of court had not ended, no final adjournment of the term had taken place, and hence vacation had not commenced. If there was a vacation here, and the clerk authorized to act because the court had adjourned for a period of thirty-two days, for the same reason and upon the same principle he might act if the adjournment was but for ten days or one day, or even one hour. We do not think the statute will bear such a construction."

ME

THE ABOLITION OF OATHS.

EN are by nature conservative. The principle upon which a Chinaman persists in using wooden ploughs, because what was good enough for his forefathers must be good enough for him, is the same principle that influences all of us more or less. We urge reform, we promise reform, but we hesitate to execute reform when the change is radical.

For this reason it is difficult for us to decide, free from prejudice, the question whether or not oaths judicial and extra judicial are useful in furthering the ends for which they were designed. The presumption which always, and indeed properly, exists in favor of a long-established custom must be combatted and

overcome.

THE HISTORY OF OATHS.

We find records of the administration of oaths in the Old Testament. Demosthenes swore a solemn oath by the dead of Marathon. The Athenians were accustomed to swear by their fathers' heads.

Grotius says in his work De jure belli et pacis: "Apud omnes populos, et ab omni avo, circa pollicitationes, promissa et contractus, maxima semper vis fuit juris jurandi."

To again quote from a Latin author: Cicero also lends his testimony to the utility of oaths in his day and generation by writing: “Nullum vinculum ad astringendam fidem jure jurando majores arctius

esse voluerunt."

Our Saviour in effect took a judicial oath when Caiaphas, having said unto him: "I adjure thee by the living God that thou tell us whether thou be the Christ, the Son of God;" without objection he made

answer.

We must remember that social and political questions to-day vary from the same questions yesterday. That which we are now to decide is whether oaths today serve the purposes for which they are employed. The forms of oaths have been many and varied. The oaths of the ancient Athenians and of Demosthenes amples of kings swearing by their sceptres. Some have been referred to. There are numerous exhave held only one particular form of oath binding, as Louis XI, who only considered himself bound when he swore by the golden image upon the hilt of his sword. Louis XII was "Le diable m' emporte." Charles VIII swore "par le jour Dieu," while Francis I bound his contracts with the dignified oath of "La foi de gentilhomme."

The favorite oath of

Thus in form and character oaths have varied from the delicate form of the oath of the boyish Rosalind, who swore "by my troth, and in good earnest, and so God mend me, and all pretty oaths that are not dangerous;" to the terrible form of the oath that is to-day so frequently administered in an irreverent and flippant manner, "So help me God."

The expression "So help me God" has been traced by some writers to the Roman oath, "Ita me adjuvet Deus," or the French, "Ce n' ait Diex." Others have claimed for it, as well as for the Italian and French oaths above referred to, a Teutonic derivation.

In the Scandinavian saga of Ulfliot, of the date of 925, we find the following oath: "Name I to witness that I take oath by the mighty law oath, so help me Frey, and Niördh, and Almighty Thor, as I shall this suit follow or defend or witness bear, or verdict or doom as I wit, rightest and soothest, and most lawfully." From this a Scandinavian derivation is claimed for the phrase. Whatever may have been its origin, this we know: that it was in very early use in Eugland, and in form hardly different from the form in which it is to-day administered.

What does this signify, if it signifies any thing? “So help me God!" Some have held that it is only a prayer to the Deity that He will assist the witness or jurator in speaking the truth. This explanation hardly seems adequate.

The idea and general theory of an oath is that the attention of the one thus swearing is called to his allegiance to the Deity, and to the fact that He will visit the perjurer with dire punishment in the after life;

If we adopt the theological distinction between a venial and mortal sin this exclamation is the announcement of belief on the part of the witness that perjury is a mortal sin. Such is the awful meaning of this phrase. How then is it employed? In the solemn

manner in which it was intended to be administered? How many men, even among Christians, stop and consider the terrible import of this oath?

The vigorous old writer, Jeremy Bentham, employs language in respect to this that seems almost irrevereut, but which he uttered no doubt in the most respectful manner. The modern oath makes “man the legislator and judge, God the sheriff and executioner, man the despot, God his slave."

THE INUTILITY OF OATHS.

Let us now consider the utility of oaths as administered to witnesses: The object to be gained by an oath is the truth. In the examination of this phase of the subject the question arises, what are the primary incentives to truth? These are four in number - natural, social, religious and penal. It is easier to speak the truth than tell a lie. One is a simple act of memory; the other requires the power of invention, and, in order that we may escape detection, a very careful exercise of that power. It has been said that the same arguments would tend to impede the discovery of the whole truth, because of the imperfection of human memory. This criticism is not perfectly true, owing to the difficulties of sustaining all the secondary falsehoods that follow as a natural consequence from the first untruth.

The second incentive to truth is the social sanction. The falsifier of the truth and bearer of false witness is viewed with contempt by all classes. "There is honor among thieves" is an old proverb. No matter how low down in the social scale a man may be, he respects the truth in his fellow men, and views falsehood with loathing and disgust.

The third incentive is the religious sanction; the feeling that we will be judged by our Maker if we bear false witness.

The fourth incentive may be called the legal sanction, or the penal incentive. It is the fear of punishment if we testify falsely.

Oaths, I have said, are administered to secure the truth in its purity. Let us examine their application in the foregoing cases. They do not intensify the first or natural incentive. In the second case a man is viewed with contempt by his neighbors, not because he breaks an oath, but because he commit a sin against society, and thereby an injury to his fellow men. The fourth, the penal incentive, may be administered as well-nay, better, without an oath, than by means of one, as we will subsequently show. The administration of oaths then has for its object the intensification of the religious sauction, and of that alone.

There are, says Max Muller, three kinds of wit

nesses:

First. Those who will speak the truth under all circumstances.

Second. Those who will, to attain their selfish purposes, lie whether sworn or not.

Third. Those who would lie if not bound by an oath, but speak the truth when sworn.

To the last class we must confine our considerations. Hogg, in Noctes Ambrosiana, thus speaks of an oath: "The power o' an oath lies, no in reason, but in the imagination. Reason tells us that simple affirmation or denial should be aneuch atween man and man, but reason canna bind, or if she do passion snaps the chain.

How can the State justify itself in appealing to the superstitions of the witness? You reply it does not do it; it appeals to the conscience of the witness. Then what right has the State to appeal to the religious scruples of the witness, and enforce its commands by spiritual penalties?

There was a time when the church enforced its spiritual obligations and beliefs by temporal punishment; but this is now viewed as a past barbarism; and we blush whenever we consider that such deeds were done in the name of religion.

"Why then," says a writer in the Fortnightly Review, "are we slow to recognize the corresponding truth that secular obligations cannot be enforced by spiritual terrorism?"

I will not attempt to answer these questions, but will pass to the consideration of the inquiry whether this appeal to man's conscience has the desired effect.

The university oath, recently abolished in England, bound every student who entered the university to obedience to all the statutes and laws of the same.

The statute books were full of obsolete, unrepealed laws, some of them ridiculous in their character, as for example, the law of Oxford, that Latin should always be spoken at table. None of the students who took the oath ever intended to keep it. There was the same appeal to the conscience in that case as in the case of a witness to-day in a court of justice, and yet because the natural, social and penal incentives were wanting the matriculating students carelessly swore that which they never meant to perform; and for this reason the majority of the curates of the Church of England are to-day foresworn. It is the spirit, not the letter of the law, to which we should adhere, you reply. What is the spirit of the law? Must each one decide for himself? Should the spirit of casuistry enter into such a solemn appeal to the Deity?

Let us take another example, that of the oath of allegiance. It is related that Talleyrand swore thirteen times to his allegiance under various governments. Why then is not the appeal to the conscience of man successful in these cases? Evidently because the social and penal incentives are wanting.

According to the old English formula, every attorney upon being admitted, swore that "he would doe no falsehood, nor consent to any to be done in the court, and if he knew of any to be done he would give knowledge thereof unto his lord chief justice, or other his brethren, that it might be reformed; that he would delay no man for lucre or malice; would increase no fees, but would be contented with the old fees accustomed; would plead no foreign plea, etc., and would not wittingly nor willingly sue, nor procure to be sued any false suit, nor give uide nor consent to the same." Will any one claim that the standard of the bar was elevated by these oaths? The penal incentive to keeping them was wanting, and so they were hur riedly taken and then forgotten.

This oath calls to mind the celebrated "et caetera oath" of 1640, which bound men to conform to the doctrines of the Established Church of England, and never to alter their opinions in regard to them. This oath, said "Sunset" Cox, recently in the House of Representatives, "led, as most oaths lead, to subterfuges, and reservations, prevarications and perjury. It raised up Baxter in religion and Pym in Parliament, and lost to the English church two thousand of its best ministers."

For another example consider the ridiculous enforcement of an oath in the case of custom house dec