LEGAL LESSONS OF THE SCANDAL TRIAL.

DURING the progress of the Tilton-Beecher trial

we refrained from making much comment on the matters involved or on the conduct of the case. We left all that sort of thing to the daily newspapers. But now that the trial is ended, it may be permitted us to glance at a few of the more obvious lessons which seem to us derivable from this great

cause.

Perhaps the most obvious reflection is that a unanimous verdict in a civil case ought not to be exacted. This is a topic on which we have repeatedly remarked, and we need not now to dwell upon it. The inconclusive result of this particular trial is probably a disappointment to no one. The plaintiff and his adherents on the one hand have long been hopeless of a result favorable to their hopes, and on the other hand the defendant and his sympathizers have indulged but faint anticipations of a verdict in accordance with their wishes. But yet the farce has been played out, and if either party demands it, must be played over again. Perhaps the peculiar nature of the cause and the public character of the litigants has had something to do with the result, for as it would be difficult to find twelve persons of the same mind in regard to it in any accidental gathering, so it is not strange that these twelve have differed. Really, regarding the case as lawyers, and merely in the light of the evidence, there ought not to be, and in a few months there probably will not be, much difference of opinion about it among our profession. Certainly no case of the same character was ever before set up in a court of justice, with any expectation of its standing, or indeed ever set up at all. A charge of adultery, supported by the mere alleged confessions of the defendant, unsupported by any direct testimony, or evidence of any suspicious association; and that portion of the confessions mainly relied on, at least so far as the public are concerned, not being conclusive in their nature, and not supporting the charge except by implication, nor indeed except by absolute assumption of the commission of the offense;

no case propped by such evidence merely, we say, was ever before submitted to a jury. The evidence certainly would not justify a divorce; why should it justify the action of crim. con.? But it would seem fair to the parties, satisfactory to the public, and conducive to good morals in the community, to allow a majority of three to one of the jury, if such a majority existed, to render a decisive verdict. It may be that on a second trial the jury would be able to agree. Still we think the chances are that at least one man might always be found who would fail to see the matter in the same light with his brethren. We therefore reiterate our fixed belief that nine out of twelve jurors ought to pronounce the verdict in a civil case.

The second lesson which we derive is, that perjury is very easily and unconcernedly committed in courts of justice. In this case we need not restrict the remark to the shameless and palpable exhibition of falsehood in the pretended newly-discovered evidence at the close of the trial. Perjury exists in higher quarters in this case. It is manifestly impossible that the discrepancies in the evidence should be the result of innocent mistakes. If the parties to this cause are in their right senses, one or the other must be a deliberate perjurer. It is not for us to say who the perjurer is. We leave that to the infallible daily press. But the most startling development of this case is the glibness, persistency, and cheerfulness with which some men will take a false oath upon their lips. This is nothing new to lawyers, but to the public it is somewhat of a revelation. Further, the fact does not seem to produce that impression on the community which one would naturally expect. It seems to be taken quite calmly for granted by the public that the witnesses on the one side or the other have broken the law of God and man. Even the eloquent counsel for the plaintiff --not of his own judgment, we trust-devoted considerable time in the endeavor to show that the defendant, a venerable christian clergyman and the most prominent preacher of the age, hitherto blameless, not only is the perjurer, but thinks it no great sin to perjure himself. Is it not quite bad enough that a jury should feel compelled to believe that this defendant had perjured himself, without asking them to believe that he thinks it no sin? Is not this a gratuitous attempt to degrade religion and weaken man's belief in its restraining power? We do not think so meanly of either party as to believe, that he who has forsworn himself is not conscious of his sin.

This

Again, we must remark on the uncertain and inconclusive nature of confessions in general. idea, insisted on by every writer on evidence, receives fresh authority from this trial. If evidence of confessions bore upon man's judgment with any but a gossamer weight, we might have looked for a verdict for the plaintiff here. Easily misunderstood, innocently mis-recollected, readily manufactured, falsely extorted, confessions have and ought to have but slight sanction in courts of justice. Our courts have uniformly forbidden the granting of a divorce on the defendant's confession alone. We cannot see why a similar rule should not be practically extended to actions of the nature of the one under review.

Again, this trial demonstrates the high respect in which the judicial office is held in this country. It is quite noticeable, that of all the actors in this legal drama - counsel, parties, witnesses, even jurors— the judge is the only one who has escaped adverse criticism. Judge Neilson has conducted himself with distinguished impartiality, courtesy, and dis

cretion, and has exhibited a degree of independence and firmness, and an amount of legal comprehension and learning, that give him a high rank among our judicial officers. It is an unusual and praiseworthy thing for a judge to ignore the opportunity of displaying himself in his charge in such an action as this, and to restrict his observations to the bare legal aspects of the case. In several points Judge Neilson shows to a greater advantage than the chief-justice of England in the Tichborne case, and he will have his practical reward, for mankind will read his charge, while reading that of the chief-justice is an occupation for which there is no opportunity this side of eternity.

OUR

"VINDICTIVE JUSTICE" AGAIN.

UR recent remarks under the title of "Vindictive Justice" have excited a good deal of animadversion in the Boston newspapers. We are glad at least to see that our eastern friends do us the honor to read us. We do not despair of eventually inducing them to hear reason. We have no fault to find with them for any criticisms on what we said; we only object to being blamed for what we did not say. Our readers outside of the radius of the "hub" will recollect that the key-note of our article was a protest against hanging the child-murderer Pomeroy, simply because of the subsequent and

The charge of the judge and the addresses of counsel demonstrate the inutility of long speeches. It is our professional opinion that each of the speeches of counsel would have been more effective if it had been only a quarter as long. Musical science has determined that monster choruses are no more impressive than those of moderate numbers, and so we believe that counsel would uniformly be more effective if they would be briefer. Our forensic addresses have been growing longer for many

years. This is perhaps the inevitable vice of extemporaneous speaking. We have no time to make our speeches short. While we may take delight in a ten days' oration if we are not compelled to listen to it, we cannot conceive that it can produce any other effect on the auditor than to stun him. Blows repeated on the same place after a while lose their effect. If counsel had a little time to prepare for these occasions, they would gain more by a forcible, broad, and brief presentation than they now do by a microscopic and exhaustive analysis.

In conclusion, we think praise is due to the counsel for the unexampled patience and forbearance with which they have borne themselves. No one but a lawyer, and not many lawyers, can know any thing of the mental strain of such a trial. We are glad to be able to record that this tremendous contest has been generally marked by a knightly courtesy on both sides. Even the few exceptions have only served to prove the rule, for when passion had cooled and reason resumed its sway, they furnished the opportunity for the display of rare manly candor on the part of the offender, and magnanimity on the side of the offended.

case exclusively on its own merits. The Boston Globe says: "The Law Times, published at Albany, in arguing against the justice of executing this boy, says that his death has been demanded in this quarter because of the crimes of Pemberton and Piper." Assuming that the Globe means us, despite the misnomer, there are two slight errors in the above. First, we know and said nothing about Pemberton. This must be still another murder of which we had not heard. Possibly this is the murder of Mrs. Bingham referred to by a correspondent of the Boston Transcript, to whom we shall allude hereafter. But what is still more important, we have not argued "against the justice of executing this boy." We only argued against executing him simply on grounds of policy, and because another like crime had afterward been perpetrated. There must be some grave doubt of the propriety of carrying out his sentence, or the council would not have hesitated so long-so long as to excite the wonder of the people, as the Globe says. The Globe says, "If a case was ever treated independently and on its own merits, it is that of Jesse H. Pomeroy." That remains to be seen. It has not been decided. It undoubtedly has been heard on its own merits, but there have been clamors for Pomeroy's execution on account of the Piper murder, and it does not yet appear whether the council have been or will be affected by them, or by the commission of that offense. It may well be, as is asserted by the writer in the Transcript, that there has been no hearing before the council since the commission of Pemberton's crime; the real question is, is the council going to allow itself to be influenced in its decision by these subsequent murders, or by the cries of the press or the undisguised feeling of the people in respect to them. The Transcript correspondent thinks us mistaken in saying that Pomeroy's plea of insanity was "scouted." He says that, on the contrary, it received careful attention. We did not intimate that it was not considered, but we still say, the jury scouted it. It seems that there must be some doubt of his sanity, for the council have delayed all these months to order sentence inflicted. Some of the

reasons adduced by the correspondent to show us that Pomeroy was undoubtedly sane, would themselves excite a suspicion in most minds that he was insane; as for example his telling two children that he meant to kill them, and his being frightened off by passers-by. But if Pomeroy was so clearly sane, why did the jury recommend him to mercy? Perhaps the correspondent will explain this. If Pomeroy was sane, and there was no doubt about it, and the jury were clear, the jury, if they made any recommendation, ought to have recommended him to instantaneous execution, as a monster too dangerous to live an hour. The truth cannot be disguised. There are some grave doubts about this matter. The jury felt it. The council feels it. All we asked for or now advocate is that the matter shall not be decided under this fresh excitement and public anger. We know nothing and care nothing of the comparative respectability and weight of the petitioners on the one side or the other. The council will see to all that. But we would not have the council swayed by the cry of "away with him!"

But the communication of the Transcript's correspondent bears ample internal evidence of the excited state of public feeling, and a determination to hang this boy as a mere example. He says: "We had been sufferers from his viciousness for nearly three years, during which time from ten to twenty, and nobody knows how many more bright little children have been almost murdered by him, and he told two of them he was going to kill them, but was frightened off by passers-by; and I am safe in saying that even in Albany they would have thought it about time his career was stopped." Certainly; the only difference between us is about the proper way of stopping it. If a man is really crazy, and in that state of mind has committed a murder, we would not hang him simply because he has threatened and frightened ten or twenty children, or even attempted to kill them, or even killed them. We would endeavor to satisfy ourselves of his moral responsibility, and determine what to do with him with reference to that point, and with reference to the particular crime of which he is charged.

The same correspondent finds fault with us for saying that the manifestation of public spirit in question is such as leads to the establishment of vigilance committees. He protests that he is on the side of law and order, but he concludes as follows: "It is not in the spirit of the vigilance committee that we cry for Pomeroy's blood, but to save us from the necessity for vigilance committees, and to save innocent blood." (The italics are his own.)

Now who will say, after reading the last paragraph, that our remarks were uncalled for or too strong? Here is a gentleman, a lover of law and order, who sits down in his study to write a letter to the newspaper, disavowing, for his city, any dispo

sition to usurp the regular functions of justice or take the law into their own hands; and yet, so strong is the pressure of the public feeling in his breast, that he concludes with a threat of doing exactly what he would disavow! We see in this, and our readers will see, fresh reason for fearing that Massachusetts is unduly excited on this topic. We do not believe it would be safe for the abductors of Charlie Ross to turn up in Boston just now. But we hope our neighbors will think better of this matter, not restrict their humanity and magnanimity to their recent southern visitors, and let justice be done by the regular authorities, uninfluenced by appeals to favor and unterrified by threats of violence.

Since writing the above, we have learned that the council have decided not to commute Pomeroy's sentence. Still we venture to think that what we have written may not be mis-timed. It will fit some other case, if not this, and is applicable to any other meridian than that of Boston. We find no fault with the decision; but we really should like to know why that jury recommended the prisoner to mercy, and we really should like to know if Pomeroy's sentence would not have been commuted had not Piper killed the Young child. Perhaps some of those Boston writers can satisfy our curiosity on these points.

THES

AN IMPORTANT POINT IN INTERNATIONAL LAW A QUESTION OF NATIONALITY. THE recent case of one Steinkanler, who, being a resident of Germany, was called upon to do military duty in that empire, but who appealed to the United States authorities for protection, on the ground that he was born in the United States, of naturalized parents, has excited much attention, and illustrates one of the most difficult questions in private international law. The facts of the case were as follows:

Mr. Steinkanler, a Prussian subject by birth, emigrated to the United States in 1848, became naturalized in 1854, and in the following year had a son born in St. Louis, Mo. Four years after the birth of his son, Steinkauler returned to Germany, taking his family, including this infant child, and became domiciled at Wiesbaden, where they have all continuously resided. Nassau, in which Wiesbaden is situated, became incorporated into the North German Confederation in 1866. This son has now reached the age of twenty years, and the German government has called upon him to report for military duty. Mr. Steinkanler thereupon invoked the intervention of the Legation of the United States at Berlin, on the ground that his son is a native-born American citizen. To an inquiry by Mr. Davis, our Minister at Berlin, whether the son would give an assurance of intention to return to this country within some reasonable period, to be fixed by himself, and to reside here and assume his duties as a citizen, the father, on his behalf, declined to give any such assurance. The question is, whether, upon the facts stated, it is the duty of the government of the United States to interfere in this matter.

The question was submitted to Attorney-General

"The status of young Steinkanler, and his right to protection from the government of the United States, depends primarily upon his nationality. Nationality is either natural or acquired. The one results from birth, the other from the operation of the laws of Kingdoms or States. Nationality by birth in some countries depends upon the place of birth; in others, upon the nationality of the parents. There is no uniform rule of international law upon the subject, nor is there any treaty between the United States and North Germany, or any statute or rule of common law, either in North Germany or the United States (so far as I can find), which solves the question submitted. In North Germany, as in the United States, the minority of a child continues until the age of twenty-one years, and minor children of naturalized parents, domiciled and living with such parents in North Germany, though such minor children were born in the United States, 'are made German subjects, with the rights of German citizens, much the same as minor children of naturalized parents (though the children are foreign born), are rendered citizens of the United States by the naturalization of the parents of such minors. In 1868 the Naturalization Treaty between North Germany and the United States was concluded. Article 4 reads as follows: If a German naturalized in America renews his residence in North Germany, without the intent to return to America, he shall be held to have renounced his naturalization in the United States. * * * The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country.' Section 1999 of the Revised Statutes of the United States reads as follows: Whereas, the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life and liberty, and the pursuit of happiness; and, whereas, in the recognition of this principle, this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and, whereas, it is claimed that such American citizens, with their descendants, are subjects of foreign States, owing allegiance to the government thereof; and, whereas, it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore, any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the republic.'

Under the treaty, and in harmony with the American doctrine, it is clear that Steinkanler, the father, abandoned his naturalization in America and became a German subject (his son being yet a minor), and that by virtue of German laws the son acquired German nationality. It is equally clear that the son by birth has American nationality, and hence has two nationalities, one natural, the other acquired.

"Difficulties like the one we are now considering, and which arise from doubt of nationality, have recently been disposed of in Ireland by statute 33 Victoria, A. D. 1870, chapter 14, section 10, subdivision 3: 'Where the father being a British subject, or the mother being a British subject and a widow, becomes an alien in pursuance of this act, every child of such father or mother who, during infancy, has become resident in the country where the father or mother is

country, become naturalized therein, shall be deemed to be a subject of the State of which the father or mother has become a subject, and not a British subject.' We have no such statute, and must, therefore, seek some other mode of solving this somewhat difficult question. Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become president of the United States; but the father, in accordance with the treaty and the laws, has renounced his American citizenship and his American allegiance, and has acquired for himself and his son German citizenship and the rights which it carries, and he must take the burdens as well as the advantages. The son being domiciled with the father, and subject to him under the law during his minority, and receiving the German protection where he has an acquired nationality, and declining to give any assurance of his intention of ever returning to the United States and claiming his American nationality by residence here, I am of opinion that he cannot rightfully invoke the aid of the government of the United States to relieve him from military duty in Germany during his minority; but I am of opinion that when he reaches the age of twenty-one years he can elect whether he will return and take the nationality of his birth, with its duties and privileges, or retain the nationality acquired by the act of his father. This seems to me to be 'right reason,' and I think it is law.

"Since reaching the above conclusion, I am gratified to find a measure of support in the great authority of the present Lord Chief Justice of England in his work on Nationality. He says at page 212: 'As regards the children, those born after the naturalization should of course follow the nationality of the father; of those born before, a distinction should be made between those who accompany the father to a new country and those who do not. The latter should retain their nationality of origin. As regards the former, a distinction is again to be made between those who have attained their majority and those who have not. Those who are still minors, and who, as such, are still subject to the authority of the father, and form part of his family, must be taken, at all events for the time, to follow his nationality; and, as it may fairly be presumed that they will in the future remain in the new country, and desire to become its citizens, they should be deemed to be such in the absence of any declarations to the contrary. But, inasmuch as by their birth they have acquired a right to the nationality of the country of birth, it ought not to be in the power of the parent to deprive them of it if, on arriving at full age, they desire to retain it, and a reasonable time should be allowed them to reject the nationality acquired by the father, and to claim that of the former country, without being subjected to the necessity of becoming nationalized in it.

"While the government of the United States with zealous care will protect its humblest citizen, wherever found, yet, in the opinion of the Attorney-General, it is not our duty to aid a young man of twenty years to escape from military service in a government whose protection he has enjoyed since he was four years old, and where he has an acquired nationality which he does not propose to give up, and, when interrogated by