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THE

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29

HE statute which it is reported that the California legislature is about to enact, prohibiting the owning of any land by an alien, aimed, it is said, at subjects of

the Emperor of Japan, would, according to the opinion of most lawyers, be of very doubtful validity. The provision of the treaty between the United States and Japan which apparently precludes such legislation is as follows: "The citizens or subjects of each of the high contracting parties shall have liberty. . . to own or lease and occupy houses, manufactories, warehouses and shops; to employ agents of their own choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established." This provision would seem too clear to admit of construction. And that the federal government has power to make such a treaty provision would also seem clear from the language of Mr. Justice Field in Geofroy v. Riggs, 133 U. S. 258, wherein he said: "That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries the residence of citizens of one country within the territory of the other naturally follows,

and the removal of their disability from alienage to hold, transfer and inherit property in such cases tends to promote amicable relations. Such removal has been within the present century the frequent subject of treaty arrangement. The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments and those arising from the nature of the government itself and of that of the states. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenworth Railroad Co. v. Love, 114 U. S. 525, 541. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country." That a treaty is superior to a state statute could not be questioned in view of the explicit language of the Federal Constitution, and indeed this is recognized by the California supreme court. Blythe v. Hinckley, 127 Cal. 431. The only reason for asserting the validity of the statute would appear to be found in the language of Mr. Justice Peckham in Blythe v. Hinckley, 180 U. S. 333, wherein he said, in concluding his opinion: "The question of the extent of the power of the United States to provide by treaty for the inheriting by aliens of real estate, in spite of the statutes of the state in which the land may be, does not arise in this case, and we express no opinion thereon." The language of the opinion preceding this excerpt would seem, however, to leave no ground for any argument founded upon the view that the federal government may not so provide.

Prohibiting Display of Foreign Flag.

A BILL introduced in the Massachusetts legislature at its present session provides that no flag, banner, or ensign, except that of the United States or of the state or any other state of the Union, shall be carried in a parade or displayed in public without the written consent of the mayor and aldermen of a city or the selectmen of a town. The bill is said to be designed to prevent the use of red flags in demonstrations, which has recently caused much disorder in cities of that state. A serious question arises as to the validity of such legislation. Of course the municipal regulation of parades is common, and perhaps the legislature has a right to prohibit the carrying of foreign flags in a parade without a permit, but it is questionable whether it may prohibit the "displaying in public" of all foreign flags in all cases, without a permit. Some of the language used by the Nebraska Supreme Court in Halter v. State, 74 Neb. 757, 105 N. W. 298, in upholding a statute prohibiting the use of the national flag for advertising purposes, might be so paraphrased as to support the proposed Massachusetts statute. Said the court in that case: "That the citizen resents any improper use of the flag of his country, and that his resentment is frequently carried to the extent of a breach of the peace, are matters of common knowledge. The state has the undoubted right to legislate in the interests of the public peace. As was said in Updegraph v. Commonwealth, 11 Serg. & R. (Pa.) 406: 'An offense

against the public peace may consist either of an actual breach of the peace, or doing that which tends to provoke or excite others to do it. Within the latter fall all acts and attempts to produce disorder, by written, printed, or oral communications, for the purpose of generally weakening those religious and moral restraints without the aid of which mere legislative provisions would prove ineffectual.' The doctrine announced in that case seems peculiarly applicable to the case in hand, and to justify the act in question as a valid exercise of the police power of the state." This might be considered as supporting the proposition that if the display of a foreign flag tends to incite a breach of the peace, it may be prohibited. Unless a strict and strained construction were placed on such a statute it is doubtful whether it could be sustained under the police power.

Concrete Examples of Avoiding Law's Delay.

HE Supreme Court of Louisiana continues to turn out TH concrete examples of the remedy for the law's delay which has so frequently received mention in these columns, namely, fixing the damages on appeal so as to avoid the necessity for a new trial. Taylor v. Louisiana, etc., R. Co., 129 La. 113, is one of such examples. In that case the court held that a judgment for two thousand dollars for the loss of a leg was inadequate, and increased the judgment to five thousand dollars. A similar case is that of Danna v. City of Monroe, 129 La. 138, wherein the court increased a judgment of two thousand five hundred dollars, for the loss of a leg by a child, to five thousand dollars, and made an award to the father, who had been denied relief in the trial court. Another case awarding an increase of damages is that of Cross v. Lee Lumber Co., 130 La. 66, wherein a judgment for three thousand five hundred dollars for the loss of a foot was increased to seven thousand five hundred dollars. The court also uses this power in reducing damages, as in Rogers v. Hiram J. Allen Lumber Co., 129 La. 900, Brannon v. Yazoo, etc., R. Co., 129 La. 916, and Bancum v. Pine Woods Lumber Co., 130 La. 39. Probably the most extreme application of this appellate power was in Weekly v. Louisiana Western R. Co., 129 La. 790, an action for damages for the wrongful death of the plaintiff's minor son. There a judgment was rendered for the defendant railroad company in the trial court. appeal by the plaintiff the court concluded that the defendant was negligent, and liable for the death of the plaintiff's son, and ordered a judgment for the plaintiff for six thousand dollars. A comparison of the amount of the judgments allowed in these cases, with the verdict and judgments in similar cases will disclose that the court was fair to both the plaintiff and the defendant. And inasmuch as it is the fact that awards in other cases are precedents (see Central of Ga. R. Co. v. White, (Ala.,) 56 So. 574) it would seem that a court has a fair guide to a just result. The saving to the parties, and to the state, in pursuing the course followed by the Supreme Court of Louisiana, would certainly be enormous.

Union Fee Scale for Lawyers.

A

On an

MASSACHUSETTS bar association is considering the adoption of a minimum fee scale for its members, and while the idea is not new, one item in the fee scale

deserves passing mention. "Consultation-not less than $5"-reads an item which, if carried out, would mean some protection to the attorney who is continually annoyed with requests for legal advice, without any expectation of pay. "The practice of giving advice upon legal subjects without study and examination, and without corresponding pay and a distinct retainer, is certainly a vicious one," said Chief Justice Redfield in Thompson v. Kilborne, 28 Vt. 750. "The practice of the profession of giving street advice misleads the general opinion in regard to the value and dependence upon such advice. It would no doubt be better for the profession, and their clients both, if all professional advice, in regard to the prosecution and defense of claims, were given in writing, as it is in many places, and both parties are thereby put under the proper responsibility in regard to it, the one to pay for it, and the other to make it hold good, or to show, at least, that it was not notoriously bad." While we might not be willing to go quite to this length, it would seem that a uniform practice of charging a fee for consultation is highly desirable. The gullible attorney when he employs a plumber not only pays for the "consultation" of that worthy mechanic with the water pipes, but also for the time required in going to and from the "consultation room." The doctrine "he who seeks equity must do equity" would seem to entitle an attorney, who receives no free service from physician, tradesman, or mechanic, to be paid for that which he is requested to give.

Color Line and American Bar Association.

THE

HE question of the admission of colored attorneys as members of the American Bar Association, which was generally supposed to be a closed incident after the action of the association at its last annual session, appears, from an open letter to the members of the association over the signatures of Hon. Moorfield Storey and a majority of the local council of Massachusetts, to be far from a dead issue. The resolution passed at the last meeting of the association reads as follows: "Whereas three persons of the colored race were elected to membership in this association without knowledge upon the part of those electing of this association-Resolved, that as it has never been them that they were of that race, and are now members contemplated that members of the colored race should become members of this association, the several councils have directed that if at any time a person shall recommend a person of the colored race for membership, they shall accompany the recommendation by a statement of the fact that he is of such race." The expressed intention of Mr. Storey is to strive for the repeal of the resolution, and to open the association to all colored attorneys. Thus a matter which has caused so much discord in the association is again opened, undoubtedly to continue as a thorn in the side of the association for some time to come. One paragraph in the letter deserves, possibly, a passing remark. It is as follows: "The Constitution of the United States, framed when the legality of slavery was recognized all over the country, contained no suggestion that any free citizen should be deprived of any political or civil right or any social privilege by reason of race or color, and indeed it would have been impossible for men. who had just declared in the most solemn manner that 'all men are created equal' to falsify their immortal declara

tion in so manifest a way." That statement is contra the Dred Scott Case (19 How. 393), and in his criticism of that case Abraham Lincoln went no further than to say: "I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity." On the whole it certainly is much to be regretted that a solution of the problem could not have been invented which would have closed the

Supreme Court to render a city liable for damages caused by a mob "irrespective of any question of the power of the city to have prevented the violence, or of negligence in the use of its power." The court mentioned what would seem to be another instance of liability without fault-the liability of "the hundred" in early times for robberies committed within its territory.

Libel of a Class.

OWEVER much one may wish success to the stenog

matter once and for all time to the satisfaction of all con- Hraphers who have recently sought to prevent the

cerned, at the last meeting of the association.

Compensation of Accused's Experts.

ONTRARY to the belief expressed in our last issue it

C appears that in at least one jurisdiction provision is made for the compensation of experts called by an impecunious defendant in a criminal case. It seems that the Superior Court of Massachusetts has decided that it has the power to grant such compensation, and has made rules governing allowances in such cases. The sixth and seventh standing orders of that court are as follows: "6. No allowance for the payment of the compensation of experts for the defense in a capital case will be granted hereafter, except for those experts whose employment shall have been authorized by the court, or some justice thereof in advance of such employment. 7. Application for permission to employ experts in any such case shall be made by motion in writing, stating the number and names of the experts whose services are desired; upon which motion notice shall be given to the attorney-general or to the district attorney of the district in which the case is pending. Expenses for counsel for defense in such cases shall be allowed only when an itemized statement of such expenses accompanies the petition for such allowance." Hedged about with these limitations a defendant's rights are well guarded, as they should be, and the state is protected against any abuse of power. Granting such aid to a defendant is a practical application of the theoretical principle that the primary object of a criminal prosecution is justice and not revenge.

Liability without Fault.

IN

N connection with the question of the validity of a statute imposing liability upon a person not in fault, which has been frequently discussed since the decision of the New York Court of Appeals in Ives v. South Buffalo R. Co., 201 N. Y. 271, and which was treated in an article in the March, 1913, LAW NOTES, the decision of the United States Supreme Court in the comparatively recent case of City of Chicago v. Sturges, 222 U. S. 313, is instructive. In that case Mr. Justice Lurton said: "It is a general principle of our law that there is no individual liability for an act which ordinary human care and foresight could not guard against. It is also a general principle of the same law that a loss from any cause purely accidental must rest where it chances to fall. But behind and above these general principles which the law recognizes as ordinarily prevailing, there lies the legislative power, which, in the absence of organic restraint, may for the general welfare of society impose obligations and responsibilities otherwise nonexistent." In that case the court held valid an Illinois statute which was construed by the Illinois

depicting of stenographers as chewers of gum and wearers of "rats," it would seem that their present task is a hopeless one. The general rule that an action for libel or slander of a class of persons cannot be maintained by an individual merely because he is one of the class defamed (8 Ann. Cas. 135) would seem to remove any hope of success. It has been facetiously suggested that members of the bar, following out a similar course of action, might seek redress for the publication and dramatic production of Uncle Tom's Cabin, owing to the black eye given the profession, typified in the book in Lawyer Marks. All hope of success in such a venture is foreclosed by Mr. Justice Van Ness in Summer v. Bull, 12 Johns. 481, wherein he said: "Suppose a man should publish a libel upon the bar of the state of New York, generally; now, as this would be a libel upon an order of men, no particular individual member of the order could maintain an action." The courts have never shown much disposition to depart from the holding in Rex v. Alme, 3 Salk. 224, that "where a writing which inveighs against mankind in general, or against a particular order of men, as for instance men of the gown, this is no libel, but it must descend to particulars and individuals to make it a libel."

Deaf Mute as Juror.

Τ

THROUGH some mischance it appears that a deaf mute recently succeeded in sitting on a jury in a Pennsylvania court, unknown to the parties until after a verdict, so the story goes. In all probability this is a "case of first impression," and yet the attorneys should have been able to sustain their contentions on the motion for a new trial, which was granted, by the citation of authorities pro and con. It is of course undeniable that a person whose hearing is so defective that he is unable to hear the proceedings in court is incompetent as a juror (Mitchell v. State, 33 Tex. Crim. 16), and this would seem to be the proper ground upon which to move for a new trial, as a deaf and dumb person could hardly be classed with idiots under modern educational conditions. It would seem, however, that contributory negligence should bar relief by way of a new trial in such a case. inquiry was made of the juror," says the Supreme Court of Ohio, "and thereby arose a want of reasonable diligence in ascertaining the qualification of the juror at the time of impaneling the jury, the party will be held to have waived all objection to the juror. This rule extends to each and every element that goes to constitute a qualified juror, save such as the statute requires the court, sua sponte, to ascertain. . . . To take a case out of this general rule, it is not a sufficient showing, on a motion for a new trial, that the party, at the time the jury was

"If no

impaneled, was ignorant of the fact of the incompetency of such person for a juror, and that he believed him to be competent. He must at the proper time have examined the juror touching his qualifications. Nothing short of such an investigation will furnish a showing of reasonable diligence. This right of personal investigation is in all cases presented to the party, and if he fails to make it by reason of his own negligence, at the proper time, he will be deemed to have waived all objections to the juror's competency he might and should have ascertained by such inquiry." At least one court has, however, granted a new trial because of the deafness of a juror, disregarding the question of negligence (Cameron v. Ottawa Electric R. Co., 32 Ont. 24), and new trials have been granted because of the inability of a juror to understand the English language, which is closely analogous. Shaw v. Fisk, 21 Wis. 373; Lafayette Plank Road Co. v. New Albany, etc., R. Co., 13 Ind. 90. And the Indiana court has considered a failure to discover the incompetence of the juror because of his inability to understand the English language as not amounting to negligence. Said the court in the case last cited: "One of the jurors could neither read nor write the English language, nor could he understand it when spoken to him upon subjects other than such as related to his particular business, farming, and then but imperfectly. The defendants were not aware of the fact till after the trial; and though they might have examined the juror touching this point before accepting him, we do not think the failure to do so can be considered negligence. The party might well presume that the officer had called a juror competent in this particular." Apparently lip reading, which has been much expounded in the press recently, has not reached that advanced stage which requires that judicial notice shall be taken of it.

Emotional Display by Witness as Misconduct.

THE

HE fainting of the plaintiff on the recent trial of a breach of promise suit in Massachusetts is but one instance of what is usually only a bit of stage play which undoubtedly has its effect upon the jury. Considering the numerous instances in which like incidents have occurred in breach of promise, seduction, alienation, and negligence cases, it seems strange that such conduct has not been made the basis of a motion for a new trial after a verdict for the plaintiff. In a breach of promise suit arising in Georgia it was held that "there was no error in refusing to grant a mistrial because the plaintiff's mother fainted during the argument of the case; especially in view of the instruction by the court to the jury not to allow this incident to influence them." Graves v. Rivers, 3 Ga. App. 510. From this it cannot be said, however, that like conduct on the part of the plaintiff would not have been ground for a new trial, for misconduct of a party to induce a jury to decide in his favor is dealt with more

case, an action for personal injuries, the plaintiff, after the adjournment of court, collapsed in the presence of jurors and required medical attention. While the action of the trial court in refusing a new trial was sustained, the court was divided, three judges voting for affirmance and two for reversal, and the majority opinion states that the conclusion was reached "with some hesitation." McLaughlin, J., dissenting, said: "The purpose of a trial is to do justice between the parties, and to that end verdict rendered by a jury must be based solely upon the evidence adduced upon the trial. Whenever the court can see that the jury may have been influenced in rendering a verdict by facts independent and outside of the evidence, or that they have been influenced by sympathy, prejudice or passion, it never hestitates, but invariably sets aside the verdict and orders a new trial. Here, what occurred not only might, but probably did (indeed, the jurors would hardly have been human if it did not), influence them in the plaintiff's favor. He claimed to have been seriously injured, and if he was in the physical condition which the sudden attack of illness indicated, it was a practical demonstration to the jury that the testimony offered upon his part was true." The collapse of the plaintiff in a breach of promise or seduction case is attended with the same consequences. In a breach of promise suit the plaintiff is entitled to be compensated in damages for the mental suffering resulting from the breach, and the jury may award exemplary damages, so that such conduct is as serious as in a negligence case, if not more so.

Logrolling as Bribery.

N discussing the thing given or received in bribery, in IN LAW NOTES for January, 1913, in connection with a conviction for bribery in shaping official action in consideration of a favor extended to a friend, the question was asked whether, if the conviction were sustained, logrolling would not fall within the definition of bribery. The Massachusetts legislature now has a bill before it which would place logrolling in the catalogue of crimes. The bill provides a penalty of a fine of five hundred dollars for any member of a legislative body who asks for the vote of another member for any measure in return for his own vote on any other measure. The same penalty is also provided for any member who promises to vote in comAlong the same line pliance with such an arrangement.

is the somewhat flimsy attempt to institute impeachment proceedings against the governor of another state on the ground that he promised, before election, that if elected he would sign a certain measure, which was not of a private, but was of a public, nature. All of these are certainly far afield from the common acceptation of bribery.

Private Practice of Attorneys-General.

strictly by the court in its refusal to allow the retention AN attempt is now being made in one of the states to

of benefits under a verdict so obtained than similar misconduct of a third party or a juror without the knowledge of either party. Aside from any question of simulation, it would seem that a new trial should be granted where the plaintiff's injured feelings are in a sense in issue and she collapses in the court room in the presence of the jury. McGloin v. Metropolitan St. R. Co., 71 N. Y. App. Div. 72, is good authority tending in this direction. In that

procure legislation to prevent the attorney-general from engaging in the private practice of law. The principal ground of objection stated to the private practice of law by the attorney-general is that his relation as attorney for public service corporations conflicts with his duties as state law officer. The problem of securing sufficient attorneys-general and judicial officers without selecting lawyers of past or present connection with great corpora

tions is becoming more and more difficult. The state with its great interests requires the best lawyers for its legal department, as also do the great corporations, and this naturally leads to a selection of corporation lawyers for state law officers, and a similar condition exists to some extent as to the judiciary. That it is no unusual thing for an attorney-general to engage in private practice appears from the decision that he may so practice, in the absence of an express prohibition. Masten v. Indiana Car, etc., Co., 25 Ind. App. 175. Of course where the private duties of an attorney-general conflict with his public duties, one or the other of his connections must be severed, for that no man can serve two masters is as well recognized in the law as in the Bible. An increase in the compensation of the attorney-general, as is advocated, could hardly be expected, however, to make up for the loss of a private practice. Aside from the impossibility of holding out a sufficient inducement, the whole theory of competing with great corporations in this manner is wrong. Very few accept such offices with a view to financial gain, and if an attorney-general is to be disqualified from engaging in private practice, an out-andout prohibition should be made and a person accepting the office should take it cum onere.

"MAN MADE LAW."

I NFANTS, idiots and women have been classed together since the beginning of time. They have been regarded, alike, as laboring under disabilities that unfitted them to engage in the rough and tumble contest for existence. Infant prodigies there have been, it is true; and women of unsurpassed acumen-women with "masculine minds," as the taunt goes nowadays. But who can say that women have not been less able than men to protect person and property and to discharge the duties of the citizen to the state? This at any rate has been the theory of man made law.

Quite recently large numbers of women have acquired the habit of asserting that by the aforesaid law they are denied a square deal. They loudly declare that they are discriminated against. Nor do they confine themselves to anything so pacific as verbiage. In their efforts to demonstrate their fitness for enlarged rights they have destroyed private and public property and jeopardized life itself. In view of this somewhat violent demonstration one naturally would expect to find from an examination of the offending "man made law" that women have been deprived of substantial rights. Let us see just what distinctions are made between males and females of full age.

Women have not the votes for which they sigh; nor are they permitted to hold public office as a rule. The disqualification to hold office does not seem to be a cause of complaint, so we may dismiss it from consideration.

The franchise is an estimable thing. Most men value it. It even may be turned to profit; but we do not suppose its pecuniary value is what causes women to hunger after it, even to the point of self-imposed starvation. Votes for Women-to sell, is out of the question. do women not many, at least-demand the right to vote with an unselfish view to the purification of politics and

Nor

the improvement of the economic condition of the state and nation. The real demand of suffragette and suffragist is a recognition of woman as man's equal.

Whatever the act may signify, the specific demand is for the right of voting-of taking an hour or so from one's regular occupation, marching into the polling place, making a few pencil marks on a printed form, depositing the marked form in a ballot box, and marching out again. This is all there is to it. You can't stop to visit with the neighbors. The election officers do not serve luncheon. No gowns or hats are on exhibition. Auction is not played. You come out no richer or better informed than when you went in. And when the ballots are counted you find that your vote didn't turn the political tide; not by hundreds or perhaps thousands. So inconsequential does the ballot appear that hundreds of thousands of men will not take thirty minutes of their time to cast it— or they go hunting on election day, with much profit to health and happiness. This, then, is what women would gain by a concession of the franchise. Let us see what she would lose, if she were put upon a perfect equality with man from the viewpoint of the law. What rights, privileges and exemptions must she sacrifice? So varied and multifarious are the special rights and privileges of women that one would never have done cataloguing them. Hardly a topic of the law fails to disclose some rule or principle that discriminates in favor of the weaker sex. Realizing the incompleteness of the results of our research, we offer it nevertheless-as a beginning and foundation for the investigations of others.

Woman, whether married or single, is exempt from the disagreeable duties of military and jury service. She is not required to give up going to the matinee because the poll tax took her spare change. Nor need she do her one or two or three days' work on the highway, as male inhabitants are required to do in some localities.

There are many special exemptions from execution on and sale of her property. She has in some states an extension of time for redeeming her property from judicial sales. And if she alleges fraud, duress, imposition, unfairness of dealing or what not, the courts always have been astute and zealous to let her rescind and repudiate her conveyances; frequently to the injury of innocent persons who supposed she would stick to her word and deed.

Again there are numerous special laws relating to the employment of females. The right of the wife to the exclusive control of her own wages is often protected by statute. Woman is exempted from arrest in civil actions, or is accorded special privileges where her incarceration is permitted. She may recover damages from a man who fails to fulfil his promise to marry her; but if she jilts him, he must nurse his broken heart without the panacea that is said to be universal. And she may sue for her own. seduction, however much she may have acquiesced therein!

When convicted of crime woman is not required to do the hard labor ordinarily imposed upon male offenders. She is not made a member of the chain gang that works on the roads in some sections of the country.

But it is not until after she has married one of these mere men whom she now accuses that we find her swaddled about with the tender wrappings of the law's seamless garment. Here she may be said in the phrase of the sporting page to be "in soft." Everything she has is her own, to squander if she pleases, while hubby may be stript

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