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Title: The New Jersey Law Journal Jan. 1922
Vol. XLV. No. 1. Jan., 1922
Author: Various
Editor: A. Van Doren Honeyman
Release Date: September 5, 2019 [EBook #60238]
Language: English
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THE
NEW JERSEY LAW JOURNAL
PUBLISHED MONTHLY
VOLUME XLV JANUARY, 1922 No. 1
EDITORIAL NOTES.
At least three decisions of nation-wide import were made by the United
States Supreme Court in December. The first, American Steel Foundries v.
Tri-City Trades' Council we give, probably in full, elsewhere, as taken
from the "New York Times." It is on the subject of strikes and
picketing, and speaks for itself. Another tested the law of Arizona,
which made picketing, etc., that tended to destroy an employer's
business, lawful, and the law was held to be unconstitutional, although
by a divided Court, 5 to 4. Among the dissenters was Mr. Justice Pitney.
The main opinion was lengthy and explicit, and we think, fair and just.
The third was on the subject of the "open competition" plan by which
members of the National Hardwood Manufacturers' Associations believed
they were getting around the Sherman Act, but are now told by the Court
their practices are in restraint of trade. The Association was
prosecuted by the Government in the Federal Court at Memphis, and a
permanent injunction was obtained against continuance of the practices
of filing by hardwood concerns of reports of business operations with a
central organization, such reports being open to all other members of
the organization. The opinion holding the conduct of the members of the
Association to be illegal was delivered by Justice Clark. As usual, of
late, there were dissents, this time by Justices Holmes, Brandies and
McKenna. The meetings of the members resulted in concerted action,
Justice Clarke stated, to raise prices regardless of conditions, and the
plan was termed by him "misleading and a misnomer" and "an old evil in a
new dress and a new name." He added that instead of a plan to promote
open competition it operated to restrict competition. It was futile, he
said, to argue that the plan was merely to furnish information which
could not be otherwise obtained. The secretary of the Association,
through an expert statistician, utilized replies to questionnaires and
other information furnished by the members of the Association as the
basis for bulletins and advices. These replies also were utilized in
predicting and promoting advances in prices, by withholding of products
from the market, awaiting higher prices.
* * * * *
In the second case referred to in the preceding paragraph the United
States Supreme Court thus laid down the rule as to the "secondary
boycott": It is to be observed that this [the case in hand] is not the
mere case of a peaceful secondary boycott, as to the illegality of which
courts have differed and States have adopted different statutory
provisions. A secondary boycott of this kind is where many combine to
injure one in his business by coercing persons against their will to
cease patronizing him by threats of similar injury. In such a case the
many have a legal right to withdraw their trade from the one, they have
the legal right to withdraw their trade from third persons and they have
the right to advise third persons of their intention to do so when each
act is considered singly. The question in such cases is whether the
moral coercion exercised over a stranger to the original controversy by
steps in themselves legal becomes a legal wrong. But here the illegality
of the means used is without doubt and fundamental. The means used are
the libelous and abusive attacks on the plaintiffs' reputation, like
attacks on their employers and customers. Threats of such attacks on
would-be customers, picketing and patrolling of the entrance to their
place of business and the consequent obstruction of free access
thereto--all had the purpose of depriving the plaintiffs of their
business. To give operation to a statute whereby serious losses
inflicted by such unlawful means are in effect made remedyless, is, we
think, to disregard fundamental rights of liberty and property and to
deprive the person suffering the loss of due process of law."
* * * * *
It is with deepest regret that an announcement in our obituary columns
in this issue includes the name of ex-Justice Bennet Van Syckel as a
deceased member of the Bar and jurist. Those who practiced under him in
the Circuits in former years, or who knew him as the bright,
fully-equipped ornament of the Supreme Bench, well understand that his
passing cuts off the last link between the Supreme Court of a few
decades ago and the Court as constituted to-day. Justice Van Syckel was
approaching 92 years of age, and many were the hopes that he would
retain his health and vigor of intellect until he reached an even
hundred years. The Courts wherein he sat, and the present older members
of the Bar will see to it that his merits are officially pronounced; we
can only say now that no eulogy to be given to his memory will do him
over-justice. His dignity, fairness and sound legal judgment on the
Bench were such that he deserved even greater honors than he received
and his private life was immaculate. An excellent portrait of the
Justice as he appeared in 1905 will be found in the Law Journal of that
year (Vol. 28, facing p. 6).
* * * * *
The following seems almost an impossible propaganda to come even from
Germany at this time, but especially from one of the sources named. The
"Pathfinders League," of Stuttgart, we assume to be a Social
(practically Soviet) organization, but the "Christian Young People's
Societies," must be at least a quasi-religious body. A circular sent out
and published by these organizations on July 22 last says:
"War is the most exalted and holiest expression of human activity. Some
day the hour of battle will strike for us, too, when we, as officers, go
forth against the enemy. The people, which is a minor politically, will
then fall into line of itself. In the days of secret, happy expectation
there then goes from heart to heart the cry: 'With God for King and
Fatherland!' Still and deep in German hearts there must live the joy of
battle and a longing for it. So, let's laugh to scorn those old women in
men's breeches who fear war and wail that it is horrible and criminal.
No and again, No! War is beautiful, and it is glorious to die for the
Fatherland and the hereditary ruling house. Our great ally above will
lead us splendidly."
In New York City there is a municipal ordinance requiring landlords, who
are to give tenants under a lease hot water, to furnish it or be
arrested, fined and, if thought wise by the magistrate, imprisoned.
Recently a landlord in the Bronx was found guilty of failure to supply
hot water, and it appeared that the landlord and tenant had somehow
become on unfriendly terms; that there was a special valve in the house
which permitted hot water to go to one apartment and to be shut off from
another; and that the landlord closed down the valve to shut off the hot
water of the complaining tenant. Thirty days in prison and a fine of
$250 was the penalty imposed by the Justices in Special Sessions.
* * * * *
Among the important decisions in the Court of Errors and Appeals in this
State on Nov. 14th last was one unanimously confirming the conviction of
the negro, George Washington Knight, for the murder of Mrs. Edith
Marshall Wilson, the church organist at Perth Amboy, in March last,
which murder the prisoner had confessed. (See N. J. L. J., April, 1921,
p. 102). Although the Court was unanimous in upholding the conviction of
Knight, three of the Judges, Chancellor Walker, Justice Kalisch and
Judge Black, differed with the view of the majority as to the
constitutionality of the Mackay Act of 1921 (Laws, Ch. 349), empowering
the Court of Errors and Appeals to review the sufficiency of the
evidence in criminal cases, where the defendant elects to take up the
entire record. Mr. Justice Kalisch wrote a minority opinion, concurring
in the affirming of the conviction but differing with the majority as to
the constitutional question involved. Chief Justice Gummere, in the main
opinion, said that the statute of 1921 was not novel, but is similar to
an Act passed more than twenty years ago, but subsequently repealed,
under which the Court of Errors set aside a conviction for murder in the
first degree. The first ground of attack was that the Mackay Act
violates the provisions of the Constitution relative to trial by jury,
which provides that the guilt or innocence of a defendant shall be
determined by an impartial jury. The Court said, however, that the
question of the verdict being in accordance with the weight of the
evidence cannot be raised by the State, but only by the defendant.
Therefore, the Court held, the constitutional protection afforded by a
jury trial is not lessened by the law under which the accused may elect
to have the evidence reviewed. The Court also held that the right given
the Court of Errors to order a new trial where the evidence seemed
insufficient was not a novel proposition, but was rather extending to
the reviewing tribunal a power now existing in the trial Court; that
such an extension of power, provided it does not trespass upon the
inherent powers of any other Court, is not unconstitutional. Having
decided the legal questions involved, the Court reviewed the testimony
upon which Knight was convicted and concluded it was sufficient to
justify the jury's verdict of murder in the first degree. Later, Mr.
Justice Bergen, before whom the Knight trial was held, resentenced the
prisoner to be electrocuted.
* * * * *
At the Convention of the Real Estate League of New Jersey in Newark
recently, Mr. Frank B. Jess, of Haddon Heights, whose experience on the
State Board of Taxes and Assessment has made him an authority on the
subject of taxation, its inequalities and shortcomings, stated with
positiveness that the personal property tax is a failure and always will
be a failure. "It is obvious," he added, "that if all the taxable
property in the State should be assessed at its true value, or at a
uniform percentage of true value, the burden of taxation would be
apportioned with exact equality. The chief objective of the assessing
system of the State, therefore, is uniformity of valuation. It would be
foolish to suppose that this ideal can ever be wholly attained. But it
is more foolish not to aim at its attainment. The scheme of assessment
should be devised with that end in view and so framed as to facilitate
its achievement. The prevailing scheme provides as many assessors as
there are taxing units. Even if each assessor were an expert the grand
result inevitably would be a great variety of valuations. As so many
assessors are not experts the absence of uniformity is all the more
conspicuous." Mr. Jess said that each assessor or assessing body is now
a separate machine, functioning independently in a particular territory.
He declared that an assessor should be a part of a system having a
central power plant functioning for the entire State.
* * * * *
After three days of argument by lawyers in the Federal case in New York
City concerning the intent of and Court decisions on the Sherman law
against trusts, Judge Hand imposed fines of $3,000 each on the seven
corporations and ten individuals who had pleaded guilty to violating the
Sherman Act. The defendants were those of the Terra Cotta Trust, and
included companies in New Jersey, at Perth Amboy and Rocky Hill. Nearly
at the same time Judge Van Fleet, so well known as a jurist of
California, but descended from an old New York and New Jersey family,
did better as to real justice with four members of the Tile and Mantel
Trust, who also had pleaded guilty to violations of the Sherman law, by
sentencing three of them to pay a fine of $4,000 each and to spend four
months in prison, and the fourth to pay a fine of $2,000 and to spend
two months in prison. There were also fines on others. The fines on all
members of the combine aggregated nearly $170,000. It is clear that only
by heavy fines with imprisonment added can the Sherman law against
widely-extended and injurious trusts be made to act as a deterrent of
such trusts in the future.
* * * * *
The Attorney-General of the United States, in an address at the last
meeting of the American Bar Association in Cincinnati, gave, as
suggestions, six rules for the handling of labor disputes. They were:
"First--It is an undisputed fact that the public have a right to know
what the quarrel is about in every actual or threatened strike or
lockout and similar controversies.
"Second--There should be some definite agencies in government for
ascertaining these facts fully and making an impartial finding by those
specially qualified both by temperament and training to do this
particular kind of work; and such finding should be reported so that it
will be a reliable source of knowledge to which students and publicists
and statesmen can resort.
"Third--Compulsory jurisdiction over these two factors to compel them to
submit to an inquiry of this sort is not only desirable but just.
"Fourth--At present our study of this question has not been sufficiently
thorough to warrant legislation compelling the acceptance of such
findings by the parties thereto. Therefore, the jurisdiction of the
proper agency should be obligatory upon the parties to submit to the
investigation; the acceptance of the finding by the parties should be
voluntary.
"Fifth--The experience of the past shows that in most cases full,
accurate, reliable publicity has been sufficient to compel an adjustment
of these cases. Public sentiment is a controlling factor and it is
important, in justice to both of the parties, that it should depend upon
something more accurate than successful propaganda.
"Sixth--In the course of time knowledge of the nature and causes of
these controversies derived in this way may crystallize public sentiment
to the extent that laws can be enacted making such controversies
impossible."
It will thus be seen that Mr. Dougherty does not favor obligatory
arbitration in the case of labor disputes, his view being that public
sentiment will decide them. But we have always been clear in our own
mind that there must be compulsory acquiescence in the findings of
whatever tribunal hears such disputes; otherwise one party or the other
will, too often, not acquiesce.
* * * * *
In a recent Chancery case, where an injunction had been ordered by the
Court restraining a corporation from doing anything while the matter of
a permanent receivership was under consideration, a voluntary petition
in bankruptcy was filed. In proceedings against certain officers of the
corporation for contempt in thus disobeying the injunction, Chancellor
Fielder suspended sentence upon the ground that, as a mitigating
circumstance, they had been badly advised, and said: "I think that the
conduct of counsel in the case was absolutely reprehensible. Counsel was
bound to know the law, and if he did not know the law, he ought to have
had common sense enough to know that an order of this Court restraining
any act of the corporation was sufficient to forbid the filing of a
voluntary petition in bankruptcy. If the order to show cause had been
directed to counsel I think I would find him guilty of contempt of
Court, and I don't think that any mitigating circumstance could be
offered in his behalf."
* * * * *
Our readers are receiving this month, in addition to the usual charming
article by former Judge Frederic Adams, a Fourth of July oration
delivered by Mr. Justice Parker of our Supreme Court in the Church of
St. Mary's-by-the-Sea, Northeast Harbor, Maine, two and a-half years
ago. Because this address is not recent gives special reason for its
publication now. We only learned recently of this address and, after
seeing it, requested of the Judge the privilege of publishing it in the
Law Journal, a request finally granted. It seemed to us not only that
the general matter and fine, clear statement of facts and elevated
American sentiments warranted the preservation of this address, but also
that our readers might be interested to compare what some of our best
minds thought of events at the close of the Treaty at Versailles and
what has really happened since in American and world affairs.
SOME REMINISCENCES, MOSTLY LEGAL.
BY HON. FREDERIC ADAMS, LOS ANGELES, CAL.
III. ANECDOTES OF THE HARVARD LAW SCHOOL AND OF ITS FAMOUS
TRIUMVIRATE.
I have on my shelves a beautiful book. "The Centennial History of The
Harvard Law School," 1817-1917, published by The Harvard Law School
Association, 1918. This work, of about four hundred pages, has been
written and compiled by the Faculty, with the assistance of graduates.
It is admirably printed on excellent paper and liberally illustrated.
The whole story of the great School is spread before the reader: its
modest beginning; its Golden Age of Story and Greenleaf; the sedate and
conservative era of the Triumvirate, Parker, Parsons and Washburn, in
which my own lot fell; and then Langdell, the apostle of a new idea, and
his many brilliant and interesting followers. The centre of gravity has
been shifted from the text-book to the case and this is philosophical,
for evidently the cases are the original evidences of the law. But the
idea of taking up what Thackeray calls "the vast legend of the law" as a
direct subject of study was so revolutionary that it won its way very
slowly. I quote from the "Centennial History" a spirited sketch of
Professor Langdell's opening, and of the early history of the new
system:
"The day came for the first trial of the new method of study and
teaching. The class gathered in the old amphitheater of Dane Hall--the
one lecture room of the School--and opened their strange new pamphlets,
reports bereft of their only useful part, the head-notes! The lecturer
opened his.
"'Mr. Fox, will you state the facts in the case of Payne v. Cave?'
"Mr. Fox did his best with the facts of the case.
"'Mr. Rawle, will you give the plaintiff's argument?'
"Mr. Rawle gave what he could of the plaintiff's argument.
"'Mr. Adams, do you agree with that?'
"And the case-system of teaching law had begun.... Consider the man's
courage.... Langdell was experimenting in darkness absolute save for his
own mental illumination. He had no prestige, no assistants, no
precedents, the slenderest of apparatus, and for the most part an
uncompromising _corpus vile_. He was the David facing a complacent
Goliath of unshaken legal tradition, reinforced by social and literary
prejudice. His attempts were met with the open hostility, if not of the
other instructors, certainly of the bulk of the students. His first
lectures were followed by impromptu indignation meetings. 'What do we
care whether Myers agrees with the case, or what Fessenden thinks of the
dissenting opinion? What we want to know is: "What's the law?"'
"A controversy at once sprang up as to the efficacy of this method of
instruction. To most of the students, as well as to Langdell's
colleagues, it was abomination. The students cut his lectures; only a
few remained. But these few were the seed of the new School. They
included several men who afterward attained national reputation: James
Barr Ames, his greatest pupil and successor; Franklin G. Fessenden,
member of the Superior Court of Massachusetts; Austen G. Fox, a leader
of the New York Bar; Edward Q. Keasbey, of New Jersey; James J. Myers,
Speaker of the Massachusetts House of Representatives and one of the
leaders of the Boston Bar; and Francis Rawle of Philadelphia, a
President of the American Bar Association. Working out his cases with
these enthusiastic young men, patiently and thoroughly as he always
worked, Langdell did nothing to force upon others the acceptance of his
system. In a few years Ames was appointed to the Faculty, and brought
youth, fire, virility into the contest; but for many years the two were
alone in their use of the new method. It was ten years before others
acceded to it."
The fact was that something had to be done. The School was on the down
grade. I state this no more strongly than the History does at pages 21
to 25. This was the natural result, I think, of an extremely inefficient
method of instruction. Nothing could be less effective than a series of
lectures which no one was bound to attend, without recitations or
examinations, so that it was possible for a student to receive his
degree after a year and a half of residence without learning any law.
Such a system might do for very zealous and ambitious students, but not
for a large class. That the School held up its head as long as it did
was due to two things: the _genius loci_, which counted for a good deal,
and the personal influence and example of the professors, who were
superior men.
I write with the reserve proper to one who is considering an educational
policy of which he has had no personal experience, but it seems to me
that, in the last analysis, Professor Langdell's new idea was this: to
rouse, develop, discipline and cultivate the judgment, and so, as far as
possible, to equip each student with that valuable attribute, easily
recognized but hard to define or describe, which is called a legal mind.
It is judgment that does it. A mechanic of good judgment is already half
a lawyer; an attorney of poor judgment will always remain in the
apprentice class.
I am reminded how I first saw Langdell's name. After I left the Law
School I was for a time a member of the New York Bar. As I went upstairs
to my office at No. 16 Wall street, I would see above me, at the top of
the next flight, the sign of a law firm, Pierrepont, Stanley & Langdell.
I knew about Pierrepont, who was a Yale man of the class of 1837, and I
somehow got the idea, perhaps unjust to Mr. Pierrepont, that one of the
junior partners was an erudite man who acted as purveyor of legal ideas
to the head of the firm, somewhat as Sydney Carton did for Mr. Stryver
in "A Tale of Two Cities." The selection of Mr. Langdell as a professor
was due to the sagacity of President Eliot.
An interesting and valuable part of the History is a biographical list
of the ninety-one men who were teachers in the School during the century
covered by the book. One of the names is that of Justice Francis J.
Swayze, of the New Jersey Supreme Court, who began in the Centennial
year, 1917, a course of lectures on Legal Ethics, which he continues.
I now go back to my own time at the Law School. There was a small Jersey
group there. Nehemiah Perry, Henry Young, Job H. Lippincott, Abram Q.
Garretson and John R. Emery were men who, like Othello, "have done the
State some service." When Vice-Chancellor Emery passed away, I became
the only survivor of the little company.
Professor Joel Parker, as I knew him, was a courteous gentleman of the
old school, sixty-nine years of age, _tenax propositi_ public-spirited,
courageous and combative, who had established a high reputation as a
jurist by his opinions as Chief Justice of New Hampshire for fifteen
years. As a conservative Whig he had supported the Compromises of 1850,
but presided over a meeting of the citizens of Cambridge, held June 2,
1856, to denounce the assault on Senator Sumner. The conclusion of his
speech on that occasion showed the mettle of the man. "For myself,
personally, I am perhaps known to most of you as a peaceful citizen,
reasonably conservative, devotedly attached to the Constitution, and
much too far advanced in life for gasconade; but, under present
circumstances, I may be pardoned for saying that some of my father's
blood was shed on Bunker Hill, at the commencement of one revolution,
and that there is a little more of the same sort left, if it shall prove
necessary, for the beginning of another." The Professor had a true
instinct. The attack on Senator Sumner was the first act of civil war;
the John Brown raid the second; the firing on Fort Sumpter the third.
Professor Parker, when Chief Justice of New Hampshire, had a memorable
struggle with Judge Story, who held the United States Circuit Court,
over a question under the Bankrupt Law. The facts are stated on pages
245 and 246 of the History of the Law School. In my time it was thought
that Professor Parker did not like Story, or Story's rather showy law
books. He probably would have agreed with the following remarks on page
12 of the History: "Story was the kindly master who, in his lectures,
smoothed the rough places and was profuse with instruction and help. We
may suppose his lectures, like his books, to have been learned, fluent,
often original and profound, sometimes, however, dodging a difficulty
rather than trying to overcome it." I have heard it said that Story
stands higher as a writer of opinions than as a legal author.
There was in my day a student named Stevenson who was assigned to argue
one side of a Moot Court case before Professor Parker, sitting as Judge.
Stevenson, who knew and well understood the Professor, in the course of
his argument read a few sentences from one of Story's books and then,
pausing and looking at the Judge, said: "May it please your Honor. There
follows this passage about half a page of Latin. I have not read it, but
it looks as though it were on our side."
Professor Parker, during the War for the Union was _pro_ the
administration _saepe_; _pro lege, pro republica semper_. He had, of
course, profound reverence for the writ of habeas corpus. A student once
stated a strong case of treasonable conduct and asked him if he would
not suspend the writ in such a case. "No, sir," said the Professor, "I
would not suspend the writ of habeas corpus, but I would suspend the
corpus."
Professor Theophilus Parsons was a son of the great Chief Justice of
Massachusetts of the same name. He was sixty-six years of age when I
knew him, a man of the world who had touched life at many points, a
voluminous writer of law books and an instructive and entertaining
lecturer. There was a side to his nature which he did not show to his
class. I used to have among my books a small volume of sublimated
Swedenborgian doctrine written by him. It was difficult to associate it
with the genial and jovial man you saw in the lecture room. I have tried
to assimilate this message from the New Jerusalem, but have failed, no
doubt because of some invincible ignorance and innate incapacity of my
own.
Professor Parsons saw something of Europe after graduating from Harvard
in 1815, and I think was at St. Petersburg with William Pinkney, then
American minister, when the Grand-duke Nicholas, who was afterwards
Emperor, was married to a Prussian princess in July, 1817. He described
Mr. Pinkney as coming in from the ceremony in a real or affected huff,
and complaining, as he tore off his gloves, that a beggarly Grand-duke
had obliged him to get up at eight o'clock in the morning. "But, Mr.
Pinkney," said Parsons, "the wedding was not until twelve o'clock."
"True, sir," said Pinkney, who affected to be a man of fashion, "but can
a gentleman dress in less than four hours?"
Professor Parsons wrote an interesting life of his father, who was an
old-fashioned colossus of the common law. Indeed, the Chief Justice took
pretty much all knowledge for his province, and was a classical scholar
and good mathematician. I moved, or was moved, at the early age of three
months, from my birthplace in New Hampshire to the parish of Byfield,
Massachusetts, near Newburyport, and lived there for seven years. The
father of Chief Justice Parsons was a Congregational minister and pastor
of the church in Byfield for more than forty years. When I visit
Byfield, as I love to do, I read upon a tablet on the parsonage lawn
"Birthplace of Theophilus Parsons." The Chief Justice had an
extraordinary knowledge of the early history, laws, institutions,
manners and local usages of the settlers of New England. I had among my
law books one that used to remind me of him. A young lawyer once asked
him what was the best law dictionary. "Kinnicum's is the best," was the
answer. A few days later, the young man said to him, "I have asked
everywhere for 'Kinnicum's Law Dictionary' and cannot find it." The
Chief Justice laughed and said: "Ask for Cunningham's." The book which I
had was Cunningham's "Law Dictionary," in two folio volumes. A similar
incident is told of Judge Story, who was also a 'longshore man, born in
Marblehead, a place which abounded in local peculiarities, as we know
from Whittier's version of "Flud Oireson's Ride."
Judge Story was opening the Circuit Court of the United States at Salem,
and the clerk, as he went over the panel, called "Michael Treffery." No
answer. "Michael Treffery!" No answer. "That is strange," said the
clerk, "I saw the man here a few moments ago." "Let me see the list,"
said the Judge. He glanced at it and said, to the clerk, "Call Michael
Trevay." The clerk: "Michael Trevay." "Present," said a juror. The
clerk: "Why did you not answer?" "You never called my name."
Mr. Parsons, before he became Chief Justice, was sitting in his house at
Newburyport one Sunday morning, when a client and friend, who lived at
Salem, was announced and said: "Mr. Parsons, I beg your pardon for
making a call on Sunday. I would not do it if it were my own matter, but
the case is that I am guardian for some minor children and a matter of
importance to them is coming up in the Probate Court at Salem to-morrow
morning. I have had no opportunity to get advice and so I have taken the
liberty to ask your counsel." "Never practice law on Sunday," said
Parsons. "Why, of course I understand that," said the other, but I
thought that perhaps, under all the circumstances, you might be willing
to aid me." "Never practice law on Sunday," said Parsons. "Good day, Mr.
Parsons, I am sorry to have troubled you." "Stop a minute," said
Parsons, "do you want advice as to the moral aspect of the case or as to
the legal aspect of it?" "Why, as to the legal aspect, of course. I am
satisfied that my position is fair and right. I want to know whether it
will stand law." "Well, now, I will tell you," said Parsons, "I don't
know anything about your case and I don't want to hear anything about
it, but I know you, and if you think that your position is fair and just
you may go ahead on that and I will be responsible for the law."
Someone asked him, when he was Chief Justice, if it were true that he
never lost a case while he was at the Bar. "Yes," said the Chief
Justice, "that is true. I never lost a case, but my clients lost a great
many."
Chief Justice Parsons, because of his preoccupation with his thoughts,
was sometimes careless about his dress. He was a clubable man, to use
Dr. Johnson's phrase, and some of his intimate friends thought that in a
genial hour a useful hint might be given him. So it was arranged that
Mr. Harrison Gray Otis should invite the group to dinner and manage the
matter. Mr. Otis was the one to do it, for he was a man of taste, quite
"the glass of fashion and the mould of form," of great personal elegance
and public distinction, and a graceful entertainer. Accordingly, the
plan was carefully staged, and during the dinner the conversation took a
natural turn toward social customs, usages, modes of dress and the like,
and finally Mr. Otis, in a natural way, but with some distinctness,
said: "For my own part, I always put on a clean shirt every day." The
Chief Justice, who had apparently been giving his undivided attention to
his dinner, here looked up and said: "Why, Otis, what a confoundedly
dirty fellow you must be! I can wear a shirt for a whole week."
Jeremiah Mason told of a professional conference between himself, when
quite a young man, and Mr. Parsons before he became Chief Justice. Among
the elements in the case was a conveyance of parish land by a clergyman,
and its nature and effect were under discussion. Mr. Mason suggested
that it might be held to be a covenant to stand seized. Mr. Parsons
turned to him quickly and said: "Mason, I like that; that is a good idea
of yours; in the relation between a clergyman and his parish there is
some analogy to that between a man and his wife." Mr. Mason, in telling
the story, said: "I didn't know, or had forgotten, that a consideration
of blood or marriage was necessary to support a covenant to stand
seized, but I said nothing, and as soon as I got home I took down my
books and began to study the subject, and found the blood spurting out
between the very lines of the page."
It is grateful to recall the remaining member of the Triumvirate,
Professor Emery Washburn, for he was an enthusiast, an indomitable and
joyous worker at the age of sixty-three. I do not say that Parker and
Parsons were not enthusiasts in their own way. They must have been so to
accomplish what they did, but neither Parker nor Parsons manifested and
imparted the contagious enthusiasm about their daily work which carried
Washburn and the class with him along the arid path of the law of real
estate. He was always busy and always accessible and perhaps, on the
whole, the most useful member of the Triumvirate. He had been a leader
of the very able Bar of Worcester and Governor of the Commonwealth, and
was the author of valuable law books, with which the profession is
familiar. I had a piece of good luck with him in my first and only Moot
Court case. As I stood up to open the case, Professor Washburn, sitting
as judge, said: "Mr. Adams, instead of reading the printed case, suppose
you just state the facts in your own way." It happened that I was about
to ask him to let me do that and was already prepared. So I came off
with flying colors and probably got more credit for readiness than I
deserved.
I quote from the "History" at page 285:
"In describing his first official visit to the Law School, late in 1869,
President Eliot speaks of knocking at the door of Washburn's room and,
entering, received the usual salutation of the ever-genial Governor
Washburn. 'Oh, how are you? Take a chair,' this without looking at me at
all. When he saw who it was, he held up both his hands with his favorite
gesture and said, 'I declare, I never before saw a President of Harvard
College in this building. Then and there I took a lesson from one of the
kindest and most sympathetic of teachers.'"
There is, however, historical proof that on at least one prior occasion
a President of Harvard was in Dane Hall. John Quincy Adams one day
mounted his horse at Quincy and rode over to Cambridge to see President
Quincy, who greeted him and pretty soon suggested that they call on
Judge Story in his lecture room. The two distinguished visitors were
gladly welcomed and were installed by Judge Story, one on each side of
him, and he, at their request, proceeded with his lecture. Both of these
eminent gentlemen were Stoics. President Quincy went through the New
England winters without wearing an overcoat, and Mr. Adams, when at
Washington, used to swim in the Potomac and light his own fire in winter
and, I believe, read a chapter of the Old Testament and a chapter of the
New Testament and wrote in what Henry Clay (who had been tripped up by
Mr. Adams on some question of fact) called "that infernal diary of his
in which he has put down everything that has happened since the adoption
of the Federal Constitution"; and all this before breakfast. As Judge
Story proceeded with the rapid and even flow of his lecture, he became
aware of a smile upon the faces of his class. A quick glance to either
side of him explained it, and, with a cautionary gesture and in a
confidential tone, he said: "Young gentlemen, you see before you two
melancholy examples of the evil effect of early rising. Always remember
that it is of a great deal more importance to be awake after you are up,
than simply to get up early."
There is another story which does not relate to the Law School, but
which I will venture to tell, both as a picture of early Cambridge
days, and as a manifestation of Harvard scholarship under adverse
circumstances. There was then no Harvard Bridge and no horse-car line,
and, when the culture of Cambridge went to Boston to hear Emerson
lecture in the winter evening, the best available vehicle was a large,
open, four-horse sleigh, owned and driven by a liveryman named Morse. On
one such evening the lecture was over, and the return trip was on and so
was a fine, powdery snowstorm. The sleigh proceeded across the Cambridge
bridge and then through East Cambridge and so to Cambridge, stopping now
on one side of a street to discharge passengers at a small house, and
now on the other side at a big house, and so on, and the fine snow kept
sifting down and Morse, perched high up in front, was growing more and
more ghostly, when out from the sleigh rose the voice of James Russell
Lowell, intoning a fragment from Horace, adapted so as to embrace the
charioteer of the sleigh:
"_Pallida Mors[e] pulsat pede pauperum tabernas
Regumque turres_,"
which Conington translates:
"Pale Death, impartial, walks his round; he knocks at
cottage-gate And palace portal."
I have found both pleasure and profit in reviewing these associations,
especially the memories of our wise and friendly teachers, and of
fellow-students who were soon to be entrusted with the grave interests,
the sacred issues of life, liberty and property. As experience and
observation widen, one realizes how thin is the crust which separates
civilized society from the elemental fires below, and comes more and
more to value influences which preserve and institutions which
stabilize. Such an influence, such an institution is the Harvard Law
School. Such an influence, such an institution is the Brotherhood of the
Bar, indissoluble save by death or dishonor.
[_To be Continued_]
OUR THIRD BIRTH OF FREEDOM.[1]
BY JUSTICE CHARLES W. PARKER.
[1] Fourth of July Address at the Church of Saint
Mary's-by-the-Sea, Northeast Harbor, Maine. Published
herein by request of the Editor of the Law Journal.
See "Editorial Notes."
The exercises of to-day are a revival, temporary perhaps, but still a
revival, of the good old custom of celebrating the anniversary of the
Declaration of Independence by public meetings, with prayer and song,
the reading of the Declaration, and a patriotic address. It was a good
custom, though it tended to foster some erroneous ideas, particularly
that England as a nation was blameworthy in Revolutionary times, rather
than the political machinations of George III, the politician king. But
it was a good custom for all that, and it is regrettable that it gave
place to noise and fireworks.
In the more recent years the date has been significant of other great
crises in our history than that of Revolutionary times. That was, of
course, the greatest of all, and never to be forgotten, as it marks the
definite transition of thirteen colonies into thirteen States, organized
for war purposes as a nation. There had been over a year of war,
beginning with the skirmish at Lexington and the British retreat,
followed quickly by Ticonderoga, Bunker Hill, and the investment of
Boston. During the fall and winter there were the episodes of the
burning of Portland; the capture of Montreal (later relinquished); the
capture of Norfolk in December; Arnold's heartbreaking expedition to
Quebec through Maine forests in the dead of winter; the battle of
Moore's Creek, N. C., early in 1776, called the "Southern Lexington,"
and, to crown all, the evacuation of Boston. These events and their
concomitants, say the historians, made inevitable the Declaration of
Independence, though the struggle began only as one for greater colonial
self-government and modification of the taxing system. It was our first
"birth of Freedom," which has been re-born more than once since.
I said the date marked other great crises in our history, and take time
to mention two of them, both in the memory of living men. The first, and
the greater, was in the midst of our Civil War, when the news of the
twin victories of Gettysburg and Vicksburg flashed over the land. Dark
days were still to come, and men were still discouraged; the war was to
be proclaimed a failure by a great political party, but the power of the
Rebellion was broken, and, after July 4, 1863, the setbacks to the cause
of nationality were but temporary and comparatively insignificant. A
second great crisis was safely passed.
The third great Independence Day, great for what it brought to others
than ourselves, was thirty-five years later, when the tremendous news
came that the Spanish squadron, practically all remaining efficient of
Spain's navy, had been destroyed off Santiago. That day marked the
downfall of Spanish power on this continent, and the liberation of
oppressed peoples in both hemispheres; the culmination of a righteous
war against a civilized and honorable foe, whose principal shortcoming
was a hopelessly antiquated point of view and inability to deal
intelligently with modern conditions.
These great anniversaries all marked the definite passing of crises; the
present one rather falls within a protracted period of crisis than marks
the passing of one. If we were to celebrate the anniversary of the
greatest crisis of recent times, I should name July 18th, 1918, when, as
most of those here will remember, the glad peals of the bell above us
sounded the news that the great allied offensive had opened. Of this
more in a few minutes.
But July 4 as a date does not even mark the signing of the peace treaty.
It is suggestive, however, of two things to be borne in mind at this
time: the genius of our country as a lover of liberty and fair play, and
the relation of that genius concretely to the problems of the recent
past, and the present, and the immediate future.
The announcement of such a subject gives me pause, for it is one for
mature consideration and careful discussion by the best of statesmen.
But there are some considerations, rather obvious perhaps, but still
worthy of inclusion at this time, which I should like to present.
I mentioned a moment ago our love of liberty and fair play. With these
goes a constitutional tendency to mind our own business, let other
people's business alone, and to avoid interference until convinced of
its necessity. Until 1914 we felt secure on our own continent, gave no
offense and sustained none. Fearing no war, we deemed preparation a
waste of money and time; we were not disposed to pay expensive insurance
premiums when our house was too far removed from others to be in danger
of conflagration; against internal incendiarism we thought ourselves
guarded. The warnings of Manila Bay in 1898 and Venezuela a few years
later made no impression. Confident of our ultimate resources, we
assumed no one would attack to court ultimate defeat; and above all,
fair-minded ourselves, we were utterly incredulous of unfair-mindedness
in others. Wise and farseeing men gave warning from time to time, but
the impressions were momentary.
And so, when in 1914 the assassination at Serajevo was quickly followed
by an impossible ultimatum, and this in a very few days developed into a
general European war, while our minds and souls revolted at a great
injustice, our continental habit of thought resisted the suggestion that
we should interfere to right that wrong. We did not see far enough;
there were those who did; and I heard two wise men, summer residents
here, agree in this very town in August, 1914, that this nation should
take part, and at once. But public opinion did not run in that channel;
nor was it led into it by our chosen rulers. These also were
shortsighted, however their vision may have been clarified subsequently.
We were told that a people should be neutral in thought as well as in
deed; and so we stood by and watched Belgium, a neutral country, ravaged
and pillaged; France invaded and destroyed; Serbia depopulated; Russia
crushed. A great crisis like the battle of the Marne stirred men's
souls, but without bringing home to us as a nation the ultimate danger
to our liberty. The consummate outrage of the "Lusitania" made an
impression never effaced, but the rising indignation of the country was
met with the caution that "a man may be too proud to fight," and this
crisis passed over also.
But the great giant was stirring in his sleep. Trumpet calls came from
men high in public esteem, among whom it is sufficient now to mention
Roosevelt and Leonard Wood. "Preparedness" was their reveille. Our young
men heard it, and in 1916 at Plattsburgh, and I think elsewhere, sprang
up the training camps. The colleges offered their facilities; and
although in the fall of 1916 there was still, as in 1860 and 1861, a
large proportion of "peace-at-any-price" men, so large in 1916 as to
permit the election of a President on the party slogan "He kept us out
of war," the time was fast growing ripe. Infatuated Germany, confident
of victory in Europe and of later victory on this continent, or risking
all on the submarine issue, went a step too far, and the giant woke up.
Woke up,--yes; but about as helpless as Gulliver on the Island of
Lilliput. The "man mountain" was tied fast with the cords of
unpreparedness, red tape, departmental inefficiency, official jealousy
and hostile intrigue. As in 1812, in 1847, in 1861 and in 1898, there
was little or nothing ready; all had to be created. The lowering of the
thunder-cloud had been unheeded. We had some destroyers and battleships
and cruisers; these were sent at once where most needed. But to our
shame, be it said, we had no trained men except the little regular army;
no great guns; no appreciable number of field pieces; no machine guns;
no small arms even, although our .30 cal. Springfield rifle is justly
pronounced the best small arm in the world. I have shot it and know it
well. They cost at that time about fifteen dollars apiece. A million of
them would have cost 15 million dollars, a sum which in these days makes
us laugh at its insignificance; it is one-half of one per cent. of our
first Liberty loan. We had not even the special tools to make barrels
for these small arms in quantity, and actually had to use English tools
to make English type rifles, greatly inferior to our own, to get any at
all for our men. The other day I saw it announced with pride in the
newspapers that our rifle had won in competition over all others; but we
did not have them when wanted, and probably have not made them yet. We
had no field pieces to use abroad, and our artillery was equipped with
the French .75. A few naval guns were landed and mounted toward the
termination of hostilities. The aeroplane scandal is known of all men.
And it was a year after we declared war before we entered Europe in
force, and equipped then with English rifles and French field guns; and
our men were transported to Europe mainly on British ships.
But in this trying period several things stand out clear and bright, and
as inspirations for the future. Two are psychological: the spirit of
Americans of alien descent, and the participation of our great
educational institutions; one, official as well as psychological, the
selective service draft. The patriotism of the native American of the
old stock goes, of course, without saying.
The true ring of our heterogeneous population of foreign extraction was
to many a joyful surprise. That so many who had never seemed to
amalgamate with our customs, were largely uneducated, and did not even
speak our language, should respond so willingly and gladly to the call
to the colors, was a source of some amazement. Not being in their
confidence or intimacy, many of us little realized their loyalty: which
reminds me of an Italian bootblack who in conversation told me that he
wished to travel. I spoke of the beauties of Naples and Sorrento and
that neighborhood, and was rather abashed when he said: "Yes, but I
would rather see my own country first." I hope that lesson will always
be fresh in memory.
The same spirit of Americanism marked all nationalities, not excepting
the German. The lists of draft registrants from, let us say, the east
side of Manhattan Borough, reminded one of the Epistle for Whitsunday:
"Parthians, and Medes, and Elamites, and the dwellers in Mesopotamia,
and in Judæa, and Cappadocia, in Pontus, and Asia, Phrygia, and
Pamphylia, in Egypt, and in the parts of Libya about Cyrene, Jews and
proselytes, Cretes and Arabians," all heard, and, with the deep
realization of newly liberated peoples, showed themselves proud to
answer the call.
A recent war or Liberty loan poster is most suggestive. You read on it a
list of men's names, mostly unpronounceable, and suggestive, in the
language of the same Scripture just quoted, "of every nation under
heaven," and this is summed up in the phrase, "Americans all." Truly, a
fitting tribute to our adopted citizenry, equal in loyalty, bravery, and
self-sacrifice to the best of the old Americans. Among them, as just
noted, the German names stand out boldly. They are so numerous, in fact,
as to attract less notice in this country than they deserve; let us hope
that they will be noticed and taken to heart in the misguided country
where such names originated. I would that our American army, made up in
large part of such men, could occupy Germany for a time as it formally
occupied Cuba, for its own good, and give a much needed object lesson in
the theory and practice of free institutions.
These men, as I have said, were largely uneducated. I turn now for a
moment to those in our great seats of learning, and to the heads and
faculties and trustees of those institutions. Their stand was doubtless
one to be expected, but is still worthy of remark. That the best blood
in England suffered the most losses I think is conceded. That would have
been the case with us if the war had broken on us as it did on Great
Britain. As it was, our boys courted the posts of danger--aviation;
submarine chasers; balloon observation, and so on. Some left college to
enter the service; others stayed at college awhile, but in order to
train and perfect themselves in the art of war. The colleges themselves
became military schools; the dormitories barracks. For a short time some
anxious mothers held back, and it is little wonder that they did. But it
was not for long, and soon the woman who could wear a pin, with one,
two, or more stars in it on her bosom, gloried in it, while she who wore
a star of gold, in all her grief still cherished the solemn pride, as
Lincoln called it, of having laid so costly a sacrifice upon the altar
of her country. Whether the son was a student or ploughboy, a bootblack
or factory hand, or the son of a millionaire, the feeling was the same.
In fact, there was a tendency at first among the people at large to
suspect the well-to-do and moneyed classes of holding back their sons.
This soon wore off; and one of the most inspiring as well as instructive
sights I ever saw was on this very island; the parade of war mothers on
the Bar Harbor fair grounds; women in all walks of life, some with gold
stars on their badges.
College presidents who encouraged the entry of students into military
service came in for adverse criticism, but that soon passed, and now
that college, the largest percentage of whose students and graduates
went into the service, points with the greatest pride to its record in
that respect.
I think, however, that the greatest achievement of the war, and the one
that makes most for the future safety of our country, is the success of
the selective service draft. All the books ever written, all the
lectures ever delivered, attacking the pacifistic tendencies of our
people, fail to accomplish anything of consequence in comparison with
that achievement. Whether our people have undergone a great psychologic
change I know not. It is certain that at no time previously had they
submitted willingly to be drawn into service. For a century and a
quarter militia and volunteers were the basis of the armed power on
land. During the Civil War drafting meant riots. During all our prior
history bounties for enlistment were an accepted fact.
Some of us may have looked into General Upton's great book called the
"Military Policy of the United States." Until recently it was withheld,
for some reason, from general publication. It is the basis of a later
work by another author, "The Military Unpreparedness of the United
States," which appeared about 1916. Both exhibit in startling fashion
the fundamental evils of volunteering and bounties. But not until the
stress of this great war did the old theories give way. We had a real
man as Provost Marshal General, and his name is Enoch H. Crowder, and my
own University (Princeton) and others as well, honored themselves
recently by conferring the LL.D. degree on him. I care not whether he
evolved the draft machinery himself or whether it was suggested by
others. Probably it was a result of both processes; at least he knew a
good thing when he saw it, and, like other large men, was unconcerned
about whose idea it was. Here was the problem: several million men of
age 21 to 31 to be listed, with particulars about them; those available
for military service to be selected; from these, a certain number to be
drawn by lot. The system used in the Civil War was hopelessly
inadequate; army officers could not be spared to supervise the lists;
how were the names to be obtained? How recorded? How drawn?
The origin of the fundamental plan was told me by General Crowder
himself on the day when he received his Princeton degree. He said that
he was in his office racking his brain for a method of registry that
would not take a year to operate, when a Congressman came in, and to him
he told his difficulties. The interview terminated much like that of
Alice in Wonderland and the Caterpillar, who told her how to change her
height as it crawled off through the herbage. As the anonymous
Congressman was going out through the door, he said over his shoulder:
"If they can elect a President in one day, they can register in one
day." Let us thank God that the General had good ears, and excellent
communication between them and an active brain. "Elect in one day"--48
States; each with so many counties; each county having so many
municipalities; each municipality so many election districts; civil, not
military, officers for all of them; officers known to and knowing the
people; Governors; mayors, election boards. _Why not_? Here is the
machinery ready made, and at hand! All that is needed is to get it
going. Forty-eight Governors responded enthusiastically; all forty-eight
kept the great secret ready to pass it on to local officials; the result
we all know.
Two other things were needed; the willingness of those that were of
draft age to come and say so; and the confidence of the public in a fair
drawing. The latter was secured by the use of master numbers applicable
to every district; the former came naturally as a result of the system
itself. Every man of draft age became qualifiedly a volunteer, and
marched to the polling place, saying: "Here I am when wanted." To this
the abolition of bounties and substitutes, the curses of the old system,
largely contributed.
These are three of the great things for which we should give thanks on
this Fourth of July: the solidarity of Americanism; the leadership of
our Universities, and a practical and popularly acceptable method, now a
precedent for all time, of calling up the man power of the nation. A
fourth is the resultant of them all: a great army of young men (as has
been said many times), future leaders in political life, keenly alive to
the real freedom of our American system and determined to uphold it and
to stand no nonsense about it. But for the consciousness of our
possessing this element, and but for our faith in it, we might well look
with most anxious foreboding at many troublesome and dangerous questions
now uppermost in our national life.
For in the midst of triumph sounds the note of anxiety--many discordant
notes in fact. Will the treaty finally be ratified? Will peace last?
Will the Germans respect their promises and fulfill them? Or will they,
already talking again of a scrap of paper, straightway begin to prepare
for a fresh coup twenty-five years or so hence? Must the peace-loving
peoples of the world still apply themselves to that most distasteful of
all tasks, the invention and manufacture and practice of means of
destroying life and property in war? And what about internal affairs?
Are individual enterprise and talent to be smothered by rule? Is the
Constitution of the United States a worn-out old one-horse shay, ready
to drop to pieces all at once? Is the Senate a back number? Is the
peaceful rule by majority to be exchanged for Bolshevik dictatorship? Is
our transportation industry to be ruined by taxes and rate control at
one end and cost of labor at the other? Should we take an active part in
the affairs of the Eastern hemisphere, and invite European and Asiatic
powers to help regulate our continent; in short should the national
policy called the Monroe Doctrine be abolished?
These and many similar questions are pressing for solution. They are not
mere fancies; they are not partisan issues, though many stentorian
shouters proclaim them such; they are live and vital questions which
must be solved and will be solved, doubtless at great cost in treasure
and perhaps at some cost in blood. That they will be rightly solved in
the end I have no doubt. Nothing is settled, said someone, I forget who,
until it is settled right. It is for you and me and all of us to bear in
mind that our work is only half done: that our sacrifices and labors and
efforts during this great war that is just closed, I hope forever, are
but the beginning, and that we owe it to our country and our children to
do what we can to encourage sanity, deliberation and temperance of
thought, speech and action in all classes of the people.
Mild as that sounds, it is a stupendous task to perform. There rarely
was a time when unthinking people were not more inclined to listen to a
demagogue rather than a statesman; and few people think at all; still
fewer think straight. It is a rebellious people, saying "Prophesy not
unto us right things, speak unto us smooth things, prophesy deceits." It
is a time of epithets rather than of logic, of lying epigrams rather
than solid truths. All the wealthy, it seems, are corrupt; all money in
large amounts is tainted; even the scales of justice are accused of
falsity. Ebullitions of this kind often indicate an undercurrent little
suspected.
I realize that I am saying little or nothing that is new, and I have no
new methods or theories to offer for meeting the situation. One thing is
certain; before we can teach other people to think clearly, we must be
able to think clearly ourselves; to formulate and make others realize
the real issues; to perceive the fallacy or confusion in the opposing
line of thought, and point it out without offense. It is a maxim among
lawyers that a case well stated is half argued, and nothing can be more
to the point at this time. We still have real statesmen; let us listen
to them with attention and take care not to hurry too much in deciding.
Impulse leads to irretrievable error much oftener than does
deliberation. Sober second thought is usually the better.
But, notwithstanding this anxiety, let us rejoice in the great victory
of Liberty over autocracy and militarism. As we look back over the last
five years we see many a vision; some dreadful nightmares, others with
the seeming of the good God taking direct part in the affairs of men.
The rape of Belgium, the miracle of the Marne, the tedious deadlock in
the trenches, the ghastly failure at Gallipoli, the collapse of Rumania,
the tragedy of Russia, the debacle in Italy, the heroism of Ypres and
Passchendaele and Verdun; then the ever present dark shadow of the
submarine; the agonized cry of exhausted England and France for men,
men, men, as one offensive broke towards Calais, another towards Amiens,
another straight for Paris by way of Chateau Thierry, while our brave
boys seemed to be training interminably; the halting of the Hun at
Belleau Wood and Chateau Thierry; the crouch of the American wildcats
for their spring; until, as men's hearts seemed to fail them, and the
cry went up, "How long, O Lord, how long?" the little bell of St.
Mary's-by-the-Sea rang as it had never rung before. Peal after peal:
some good news: what is it? "The Allies have attacked; the front between
Soissons and Chateau Thierry is all crumpled up: the Germans cannot hold
the salient."
Smash after smash: it is our turn now; in Flanders, in Picardy, in
Champagne, in Lorraine: by Britain, by France, by America, singly,
doubly, and all together; each day a new victory headlined; the military
lines approaching the French boundary; the thumbtacks moved each day on
the war maps; St. Mihiel salient wiped out; Rheims freed of bombardment;
Argonne Wood, our present day battle of the wilderness, takes time and
its awful toll of human lives, but yields, for the first time in
history, to an attack by American troops; Grand Pré and open country
beyond. Forward again, until a great railroad line is cut, and Sedan,
the catastrophe of 1870, becomes the final triumph of 1918. How we
watched the telegraphic bulletins! How we studied the maps! Until, after
one false report of an armistice, the real armistice came, and our
peace-loving people, joint victors in the greatest war of all time,
turned into a horde of lunatics.
What a day it was, that eleventh of November! I was in Boston to attend
the wedding of a nephew, a Colonel of Artillery, who had commanded his
regiment at Cantigny and had later been ordered to this country in
connection with organization and training of troops. The guests had to
walk, as no vehicle could thread the crowd. Late editions of the papers
contained the armistice terms in full, and, as our somewhat numerous
family was gathered for five o'clock tea, one member was deputed to read
the terms aloud, and there were attentive listeners. After he had
finished, no one spoke for a moment; and then a voice said, "That seems
to cover the ground."
Truly we have much to thank God for, this Fourth of July. We have left
undone some things that we ought to have done, and we have done some
things that we ought not to have done; but I cannot say now that there
is no health in us. Once again we have had a new birth of freedom; once
again we highly resolve that our dead shall not have died in vain; once
again we resolve, and I think that we have shown by deeds our
determination, that "government of the people, by the people, and for
the people shall not perish from the earth."
AMERICAN STEEL FOUNDRIES v. TRI-CITY TRADES COUNCIL.
(U. S. Supreme Court, Dec. 5, 1921).
_Strikes--Picketing--The Clayton Act--Circumstances to
Be Considered in Injunction Case_.
[NOTE--The following case on picketing is so important, being the latest
and a final decision of the highest Court in the United States on a
matter which has been treated differently by various Courts, that we
reproduce the opinion here, as published in the "New York
Times."--EDITOR].
TAFT, Ch. Justice: This is a picketing case. Only two men in the employ
of the Foundries had responded to the calling of the strike by the
Tri-City Council. They were picketers, were defendants, and were
enjoined. Only one of them was a member of a union of that council. The
case involves, as to them, the application of Section 20 of the Clayton
Act, of which the provisions material here are those which forbid an
injunction in behalf of an employer against, first, persuading others by
peaceful means to cease employment and labor; second, attending at any
place where such person or persons may lawfully be for the purpose of
peacefully obtaining or communicating information; third, peaceably
assembling in a lawful manner and for lawful purposes.
The Act emphasizes the words "peaceable" and "lawful" throughout the
phrases which were used. We do not think that these declarations
introduced any new principle into the equity jurisprudence of the
Federal Courts. They are merely declaratory of what was the best
practice always.
Congress thought it wise to stabilize this rule of action and to render
it uniform. Its object was to reconcile the rights of the employer in
his business and in the access of his employés to his place of business
without intimidation or obstruction, on the one hand, and the right of
the employés, recent or expectant, to use peaceable and lawful means to
induce prudent principles and would-be employés to join their ranks, on
the other.
If, in their attempts at persuasion or communication, those of the labor
side adopt methods which, however, lawful in their announced purpose,
inevitably lead to intimidation and obstruction, then it is the Court's
duty--and the terms of Section 20 do not modify this--so to limit what
the propagandists do as to time, manner and place as to prevent
infractions of the law and violations of the right of the employés and
of the employers for whom they wish to work.
In going to and from work, men have a right to as free passage without
obstruction as the streets afford, consistent with the right of others
to enjoy the same privilege. We are a social people and the accosting by
one of another in an inoffensive way and offer by the one to communicate
and discuss information with a view to influencing the other's action,
are not regarded as aggression, or a violation of that other's right.
If, however, the offer is declined, as it may rightfully be, then
persistence, importunity, and following do become unjustifiable
annoyance and obstruction which is likely soon to savor of intimidation.
The nearer this is to the place of business, the greater the
interference with the business and especially with the property right of
access of the employer. Such an attempted discussion attracts the
curious, or, it may be, interested bystanders. They increase the
obstruction as well as the aspect of intimidation which the situation
quickly assumes.
In the present case, under the conditions which the evidence discloses,
all information tendered, all arguments advanced and all persuasion used
were intimidation--they could not be otherwise.
It is idle to talk of peaceful communication in such a place and under
such conditions. The numbers of the pickets in the groups constituted
intimidation. The name "picket" indicated a militant purpose,
inconsistent with peaceful persuasion. The employés were made to run the
gauntlet. When one or more assaults or disturbances ensued, they
characterized the whole campaign, which became effective because of its
intimidating character, in spite of the admonitions given by the leaders
to their followers as to lawful methods to be pursued, however sincere.
Our conclusion is that picketing thus instituted is unlawful and cannot
be peaceable, and may be properly enjoined by the specific term of
"picketing" because its meaning is clearly understood in the sphere of
the controversy by those who are parties to it. We are supported in that
view by many well-reasoned authorities, although there has been
contrarity of view. A restraining order against picketing by that name
will advise earnest advocates of labor's cause that the law does not
look with favor on an enforced discussion of the merits of the issue
between individuals who wish to work and groups of those who do not,
under conditions which subject the individuals who wish to work to a
severe test of their nerves and physical strength and courage.
But while this is so, we must have every regard for the Congressional
intention manifested in the Act to the principle of existing law which
declares that ex-employés and others properly acting with them shall
have an opportunity, so far as is consistent with peace and law, to
observe who are still working for the employer, to communicate with them
and to persuade them to join the ranks of his opponents in a lawful,
economic struggle.
Regarding as primary the rights of the employés to work for whom they
will, and to go freely to and from their place of labor, and keeping in
mind the right of the employer incident to his property and business to
free access of such employés, what can be done to reconcile the
conflicting interests?
Each case must turn on its own circumstances. It is a case for the
flexible, remedial power of a Court of equity which may try one mode of
restraint, and if it fails or proves to be too drastic, may change it.
McGANN CO. v. LABRECQUE CO.
(Essex Circuit Court, Jan., 1922).
_Action of Trespass--Lease and Sale of Property--Limitation
of Term--Jurisdiction of District Court_.
Case of Joseph F. McCann, trading as The McGann Company, against
La Brecque Company. Action at law. Trespass.
Mr. Milton M. Ungur for Plaintiff.
Messrs. Burnett, Sorg, Murray & Duncan for Defendant.
(CONCLUSIONS).
DUNGAN, J.: This is an action of trespass brought by the plaintiff
against the defendant for the wrongful removal of plaintiff's goods from
the defendant's premises under the following conditions:
P. Ballentine & Sons, a corporation, demised the premises in question to
defendant by lease dated August 1st, 1917, for a term commencing
November 1st, 1916, and terminating April 30th, 1926. The lease
provided:
"It is further understood and agreed between the parties hereto that a
sale of the property by the party of the first part shall terminate this
lease upon six months' written notice to the party of the second part;
and, in lieu of compensation, it is hereby agreed that the rent shall be
waived during the six months notice to vacate."
By deed dated October 15, 1918, proved October 30, 1918, and recorded
October 31, 1918, P. Ballentine & Sons conveyed the premises in question
by warranty deed to the plaintiff, subject to the above tenancy. By
endorsement dated April 30, 1918, made upon the lease, P. Ballentine &
Sons assigned said lease and all of the rights of the lessor thereunder,
to the plaintiff.
October 30, 1918, there was served personally upon defendant a notice,
dated on that day, signed by both the grantor and the grantee in the
deed last mentioned, as follows:
"You will please take notice that the premises leased by you from P.
Ballentine & Sons by written lease dated the first day of August, 1917,
have this day been sold to LaBrecque Company, Inc., and notice of the
cancellation of your said lease is hereby given you pursuant to that
clause of your lease reading as follows: 'It is further understood and
agreed between the parties hereto that a sale of the property by the
party of the first part shall terminate this lease upon six months'
written notice to the party of the second part, and in lieu of
compensation it is hereby agreed that the rent shall be waived during
the six months' notice to vacate.'"
The defendant did not remove from said premises at the expiration of six
months and the statutory demand for delivery of possession was
personally served on defendant. After the expiration of said period, he
refused to vacate the premises, and thereupon the defendant here
instituted and prosecuted summary proceedings in the Second District
Court of the City of Newark, in which Court judgment for possession of
the premises was rendered May 23, 1919, and the removal of plaintiffs,
being the alleged act of trespass for which this suit is brought, was,
by virtue of the order of removal, made by that Court upon said
judgment.
There is no contention that there was any irregularity in the
proceedings of that Court, if the Court has jurisdiction; but the
plaintiff here insists that the provisions of the lease above quoted
constituted a condition, or covenant, and not a limitation of the term,
and that consequently the District Court did not have jurisdiction.
The parties hereto have entered into a stipulation to submit this suit
to the Court for judgment upon the complaint, answer and reply, which
correctly sets forth the facts as above stated, and adds:
"If the Court is of the opinion that the plaintiff is entitled to
recover, judgment is to be rendered in favor of the plaintiff and
against the defendant, and there is to be an assessment of the damages
by a jury drawn for that purpose, reserving however all questions of law
as to the measure of damages; and, if the Court is of the opinion that
the plaintiff is not entitled to recover, judgment shall be entered in
favor of the defendant as if said cause had been tried and a verdict in
favor of the defendant had been rendered"; both parties reserving the
right to appeal from the judgment to be entered.
It is admitted on behalf of the plaintiff that, if the said provision of
the lease constituted limitation of McGann's terms, then the District
Court had jurisdiction and the plaintiff cannot recover in this suit.
The jurisdiction of the District Court in such cases is confined in its
application to the instant case, to "When any such person shall hold
over and continue in possession ... after the expiration of his ...
term," etc. Admittedly the decision of this case rests upon whether or
not the sale of the premises and the notice given by the lessor and
LaBrecque Company to the plaintiff ended the term of the McGann Company.
If it did--if this was a limitation of the plaintiff's term,--the
jurisdiction of the District Court was complete.
The case of Quidort v. Bullitt, 60 N. J. L. 119, is very much in point.
In that case it appeared by the affidavit filed with the Justice that
the defendants, in May, 1885, leased to the prosecutor a seaside cottage
at Cape May for five years, which lease was extended for two successful
periods. The lease contained the following provision: "Lessors are to
have the privilege of terminating the lease at any time upon giving six
months' notice of their intention to do so, prior to the first day of
July or any year during the lease.". On October 19, 1895, the defendants
caused to be served on the prosecutor a written notice, which, after
reciting the terms of the lease stated:
"We have determined to avail ourselves of the privilege of terminating
the lease. We now give you notice of the exercise of our privilege and
of our intention to terminate the said lease on the first day of May,
1896, and demand that you surrender us possession of the leased premises
at that time, in accordance with the provisions contained in the lease.
This right to terminate the lease is exercised in accordance with the
lease and the several extensions thereof. We shall expect you to deliver
to us, on the first day of May, 1896, the cottage and bath houses
mentioned in the said lease, and also the articles mentioned and set out
in the inventory annexed thereto."
The tenant refused to deliver possession and, on the 6th day of May,
1896, instituted proceedings before the Justice, which were the subject
of review by certiorari in that case.
It is insisted on behalf of the plaintiff that whether or not the quoted
provision of the lease and the giving of the notice constituted a mere
condition or covenant or was a limitation, was not decided in that case;
but, while it is not expressly so stated, it seems to me a decision of
that question was absolutely essential to a decision of the case. Chief
Justice Gummere, in delivering the opinion of the Supreme Court (page
120) said:
"The question for determination is whether the Justice had jurisdiction
of the cause; if he had jurisdiction, then the writ in this case should
be dismissed, but, if he had not, then the proceedings before him should
be set aside."
Again on page 122 he said:
It is alleged by the prosecutor that the facts above recited did not
bring the case within the jurisdiction of the Justice for the following
reasons: 1. That the privilege of terminating the lease was not a term,
condition or limitation of the original lease, but a special privilege,
reserved to the lessors, of ending the original term."
Thus it is plain that the precise question in issue in this case was
before the Court, and that it was necessary for the Court, in order to
reach the decision it did, to decide that the quoted provision would
constitute a limitation upon the term fixed by the original lease.
The case of Miller v. Levi, 44 N. Y. 490, is also applicable to this
case. In that case Miller demised to Levi, reserving the right to sell
the demised premises and to limit Levi's term thereon to the expiration
of sixty days after notice of sale. The sale and notice specified in the
lease was made. It was insisted that the Justice had no jurisdiction of
the summary proceedings, because this can only be resorted to where the
term of the lease of the lessee "has expired by lapse of time," which it
was said was not the fact in that case. The Court said:
"Immediately upon sale by Miller and notice thereof to the tenant the
limitation attached to the estate of the latter, without further act on
the part of Miller. There then arose a limitation of his term, to wit,
its expiration on the first of May following. The act itself, in the
lease contemplated, to wit, a sale without notice, created the
expiration. Nothing further was necessary.... The 'term' of the lease
must therefore be taken to have 'expired' on the first of May, 1864."
I think, therefore, that when the leased property was sold, and the
notice of sale given to McGann on October 30th, 1918, the term of McGann
under the terms of the lease expired six months thereafter; that the
sale and notice constituted a limitation of his term; that the Second
District Court of the City of Newark, before which proceedings to remove
McGann were instituted May 2nd, 1919, had jurisdiction to hear and
determine the matter before it; and that, therefore, the defendant is
not guilty of the trespass alleged against him.
Judgment is given, therefore, against the plaintiff and in favor of the
defendant.
* * * * *
One hunting on Sunday, in violation of statute, is held to be answerable
for injuries accidentally inflicted upon a bystander by the voluntary
discharge of his gun, in the Vermont case of White v. Levarn, 108 Atl.
564, annotated in 11 A.L.R. 1219, on violation of Sunday law as ground
for civil action for damages.
* * * * *
The keeping of high explosives in a public highway in a populous
community, without guard or signal, to the terror, alarm, and great
danger of the citizens, is held to be a common nuisance, indictable at
common law, in Kentucky Glycerine Co. v. Com. 188 Ky. 820, 224 S. W.
360, annotated in 11 A.L.R. 715.
* * * * *
False swearing by a witness is held to be such an obstruction of justice
as to constitute a direct contempt of court, in Riley v. Wallace, 188
Ky. 471, 222 S. W. 1085, annotated in 11 A.L.R. 337.
* * * * *
A petition filed against a partnership by one partner alone must, under
section 5a of the Bankruptcy Act and General Order No. 8, conform to the
requirements of an involuntary petition and must, therefore, allege
insolvency and that an act of bankruptcy was committed by the
partnership. Matter of Ollinger & Perry. 47 Am. B. R. 203.
* * * * *
A parent who takes a deed from his child soon after it reaches majority
and while it is living under his roof is held to have the burden of
clearing the transaction of every suspicion, and establishing its
fairness and good faith, in the Arkansas case of Shackleford v.
Shackleford, 223, S. W. 561, annotated in 11 A.L.R. 730.
* * * * *
Giving a broker the "exclusive sale" of a parcel of real estate is held
not to preclude the owner from selling to one whom he had reason to
believe had not been procured by the broker, in Roberts v. Harrington,
168 Wis. 217, 169 N. W. 603, annotated in 10 A.L.R. 810, on whether an
ordinary broker's contract excludes right of sale by owner.
MISCELLANY
SOME STATE NOTES.
On Dec. 11 Mrs. Mary J. Rellstab, wife of United States District Court
Judge John Rellstab, died at her home in Trenton. She had been an
invalid for many years. Before her marriage, in 1905, she was Miss Mary
Johnston Whittaker, daughter of the late George R. and Mrs. Mary
Whittaker. Besides her husband, two sisters, Mrs. J. F. Clement of
Philadelphia and Miss Emily Whittaker of Trenton, survive. Mrs. Rellstab
was for many years active in church and charity work.
On Nov. 25 the Supreme Court suspended three lawyers charged with
unprofessional conduct: Mr. William M. Rysdyk, of Jersey City, for one
year; Mr. Charles Sloff, of Passaic, for one year, and Mr. Charles K.
Richmond, of Passaic, for two years. In the first two cases the cause
was financial misappropriation, and in the last case an endeavor to
influence a juryman.
NEW JERSEY BAR EXAMINATIONS,
NOVEMBER TERM, 1921.
ATTORNEY'S QUESTIONS.
1. A party in a proceeding in the Orphans' Court appealed from the
decree of said Court to the Court of Errors and Appeals. Was this
proper?
2. A held in trust for F certain lands and also certain bonds. He died
intestate, leaving two sons B and C, B being the elder. C was appointed
administrator. To whom did the title to the land and to whom do the
bonds descend?
3. W being under indictment by a Federal Grand Jury, applied to the
Court for compulsory process for the purpose of obtaining witnesses in
his behalf. His application was denied. Was the Court right?
4. A railroad company made a mortgage upon its lands, chattels and
franchises. It was duly recorded as a real estate mortgage but it was
not recorded as a chattel mortgage. Was it valid as to the chattels
against creditors of the company?
5. S went to work for B and took two flags with him. He allowed B to use
one of them and helped put it on B's building. Subsequently a hail storm
destroyed it. He then sued B for the value of the flag. Should he
recover?
6. G agreed to sell and deliver to J certain goods on or before the 15th
of July. Instead of delivering the whole of the goods he attempted to
deliver the same in instalments, the last instalment to be delivered on
July 15. J refused to accept the goods. Was he bound to do so?
7. Where there is a plain repugnancy between the provisions of an
original contract, and those of a supplemental one between the same
parties relating to the same subject matter, which one controls?
8. S, being indebted to a number of persons, advertised and sold at
public sale all of his stock to one person. Was this contrary to the
Bulk Sales Act of 1915?
9. One member of the firm of W & Co. which was still in existence,
without the authority of the other member, confessed a judgment to Y, a
creditor of the firm. Was the judgment binding upon the firm?
10. An agent acting within the scope of his authority, did certain
fraudulent acts. Was the principal liable for these acts of the agent?
11. What are the requirements to make an instrument negotiable?
12. John Smith made a will, wherein he gave his son, Thomas, a legacy of
$5,000, adding that the legacy should be void if Thomas married any one
of the daughters of Robert Jones. Thomas having married one of Jones'
daughters, demanded the legacy, claiming that the condition was void.
Was his claim good?
13. (a) How soon after the death of a testator may his will be admitted
to probate? (b) How soon after the death of an intestate may
administration of his estate be granted?
14. What is the difference between the relief granted in equity in cases
of mutual mistake and of the mistake of one party?
15. A made a conveyance of real estate to B for the purpose of
defrauding his creditors. A having died intestate, his heirs brought
suit in Chancery to compel B to convey the property to them. What should
the Court do?
16. B made a will leaving all his property to D, whom his (B's) mistress
had fraudulently represented to him to be his child. C, the heir at law
of B, filed a bill in Chancery to set aside the will on the ground of
fraud. D moves to strike out. What should the Court do?
17. B sued A for slander. A pleaded that he was intoxicated at the time
he uttered the slander. B moved to strike out this defence. What should
the Court do?
18. A sued the City of N for damages. He showed that he had been run
over by an ash-cart owned and operated by the City by reason of the
driver's negligence and that the driver was drunk at the time and was
drunk to the knowledge of the City's foreman when the latter sent him
out with the cart. The City moved to nonsuit. Should the motion be
granted?
19. A sued B for damages by reason of injuries caused by the joint
negligence of B and C. He recovered a judgment which B paid. B then sued
C for contribution. Could he recover?
20. A was indicted for murder of B. On the trial it was shown that A
killed B while B was trying to rob him on the highway. The prosecutor
contended that A could not be acquitted unless it appeared that he could
not have rendered the attempt to rob abortive by any means less radical.
The Court overruled this contention. Was the ruling correct?
21. A husband decided to move from New Jersey to New York. His wife
refused to go with him and filed a bill for maintenance. Could she
succeed?
22. How many incorporators must there be to incorporate a company in New
Jersey? What facts should appear in the certificate and how should it be
executed?
23. A witness at a trial desired to use his own memorandum to refresh
his memory. Could he do so?
24. A promissory note on its face was made payable in money. Parol
evidence was offered to prove it was payable in stock and that interest
on the note was equivalent to the amount of dividends on such stock.
Should this evidence be admitted?
25. A landlord and tenant were joined, as defendants, in an action for
trespass arising out of the same act. An objection was made for
misjoinder. Is the objection good?
26. In a civil action against a husband and wife for damages resulting
from an atrocious assault committed by the wife with the encouragement
of the husband, an order was made to hold both to bail. Was this legal?
27. A sued the State of New Jersey on a book account. Could he maintain
his action?
28. At the hearing of a suit in Chancery, defendant set up the statute
of limitations, but this defense did not appear in the answer. Could the
defendant avail himself of it?
29. A bill in equity failed to state any equitable cause of action. What
would you advise your client to do?
30. A and B came into the office of C, an attorney, to have him draw a
deed from A conveying property to B. Before the deed was drawn, C
discovered that the title to the property was defective. Should he
divulge this fact to B, who has had nothing to do with his employment?
COUNSELORS' QUESTIONS.
1. A final judgment in the Circuit Court was brought by writ of error
directly into the Court of Errors and Appeals. Was this legal?
2. A widow, whose dower had not been assigned to her, remained upon the
homestead of her deceased husband and took to her own use the crops
growing thereon. Was she entitled to the same?
3. The Board of Aldermen of the City of J passed an ordinance that no
one should conduct a grocery store in the city unless he was a citizen
of the State of New Jersey. A, a citizen of New York, having been found
guilty of violating this ordinance, certioraried his conviction to the
Supreme Court. What should the Court do?
4. A mortgagee in a chattel mortgage held the same for ten days after
the delivery of the mortgage and then recorded it. In the meantime a
judgment was recovered against the mortgagor, execution issued and a
levy made upon the goods and chattels named in the mortgage. Which has
priority?
5. S agreed to take the automobile of T to a shop to be repaired and to
return it after it was repaired. He took it to the shop, but failed to
return it. It was later destroyed by fire while in the shop, and T sued
S because of his failure to return the automobile. Was he liable?
6. A purchased an automobile from an infant and sold it to B in good
faith for value, neither A nor B having notice of the infancy of A's
vendor. Was it a valid sale?
7. R was indebted to S and the latter started a suit to recover the
amount due. Thereupon G agreed with S that if he would discontinue his
suit and wait for three months before again suing, he would be
responsible for the debt. This was done. At the end of the three months
was G liable?
8. L agreed to do certain work, part of it to be done on Sunday. T
subsequently agreed to pay L for such work. Was he liable?
9. An agent received the instructions of his principal, knowing that in
order to carry them out he would have to commit a nuisance, and did
actually commit such nuisance. The person injured sued the agent. Was he
liable?
10. The partnership accounts between D and M were unsettled, although
they had dissolved partnership. D alone could settle them, but refused
to do so. What kind of action could M institute against D?
11. Smith purchased a horse from Jones, giving him in payment a check on
a bank which he (Smith) had had certified. Smith having learned that
Jones had no title to the horse stopped payment on the check. Jones sued
the bank which answered, setting up want of consideration for the check.
Could it do so?
12. A died January 1, 1915, leaving a last will wherein he bequeathed
$5,000 to his son, John, then aged 18, and $5,000 to the A hospital, and
the residue of his estate to his daughter, Jane. The legacies remaining
unpaid on January 1, 1918, John and the hospital sued the executors for
them, claiming also interest. From what date should interest be allowed,
if at all?
13. Mary Jones died June 1, 1921, leaving a husband, Peter Jones, by
whom she had never had children, and three children by a prior marriage.
She left a will devising her real estate to her children, but made no
disposition of her personal estate. To whom did her real and personal
estate go on her death?
14. B, a creditor of the insolvent firm of J. & S., agreed to sell and
assign his claim to D for the sum of $2,000. B thereafter refused to
make the assignment. D thereupon filed a bill in Chancery against B for
specific performance. Could he maintain his action?
15. A was in possession of a house and lot. B, his neighbor, insisted
that A's house was over his line by a foot. How could A test his title,
B refusing to bring an action?
16. Brown, as executor of Smith, filed his final account in the Orphans'
Court of Salem County, and gave notice of settlement. Grey, one of the
residuary legatees, desired to have the accounting in Chancery. Was this
possible? If so, how should he proceed and what must he show?
17. In the trial of an action for libel wherein plaintiff claimed
compensatory damages only, defendant offered in mitigation of damages
evidence that the publication was made in good faith and with honest
belief in its truth. The Court excluded the offer, and this ruling was
attacked on appeal. Was it correct?
18. Plaintiff, aged nine, who was struck and injured by an automobile
while crossing a street, brought suit. The defense was contributory
negligence. The Court charged that a child of that age could be charged
with contributory negligence, but that in considering that question it
was for the jury to consider whether the plaintiff had exercised the
caution which would reasonably be expected from one of his years. Was
this charge correct?
19. A, an owner of a dwelling house, brought an action against B, who
had a tannery in the next block, alleging and showing on trial that
noxious fumes from B's tannery had made plaintiff's house untenantable.
B moved to nonsuit on the ground that these fumes injured a large number
of houses, were a public nuisance and the only remedy was by indictment.
The court refused to nonsuit. Was this ruling correct?
20. In what case and under what circumstances can a writ of error issue
directly from the Court of Errors and Appeals to the Court of Oyer and
Terminer?
21. At common law what right had a husband in personal property acquired
by the wife during coverture? What is the rule in New Jersey?
22. The treasurer of a corporation died. There was no provision in the
by-laws for the election of his successor. How can the place be filled?
23. On a bill for the construction of a will, evidence was offered of
declarations made by the testator at the time of making the will as to
his meaning and intention. Should this evidence be received?
24. In a suit involving an account, it appears that the defendant had
admitted that a certain sum was due. The defendant, however, demanded
the production of the plaintiff's books and on refusal moved for a
nonsuit. Should the motion be granted?
25. How is an issue of fact created in a lawsuit?
26. Where may the venue be laid in a transitory action?
27. How should service of summons and complaint be made in a case where
an affidavit of merits is desired?
28. X in a bill against Y in his prayer asked for answer without oath. Y
answered under oath. How should the answer be construed?
29. A filed a bill in Chancery and failed to pray for general relief.
Can he succeed if the special relief prayed for fails?
30. A, clerk in a law firm, not yet admitted to the Bar, receiving a
regular salary, had his friends retain his employers. Should the firm
divide its fees with the clerk?
NEW JERSEY BAR ADMISSIONS,
NOVEMBER TERM, 1921.
The following were admitted as attorneys by the Supreme Court of this
State at the November Term, 1921:
ELIZABETH.
Bender, Albert C., 714 Elizabeth Ave.
Eisenberg, Henry M., 39 Third St.
Liotta, Eugene A., 95 Broad St.
Weiner, Frank S., 128 Broad St.
HOBOKEN.
Capelli, George A., 227 Madison St.
Greenberg, William, 84 Washington St.
Levenson, Jay M., 51 Newark St.
Stover, Harriet C., 1037 Bloomfield St.
JERSEY CITY.
Blumberg, Leo, 139 Magnolia Ave.
Ewald, Henry, Jr., 587 Summit Ave.
Hoagland, Inez, City Hall.
Kelly, James Francis, Lincoln Trust Bldg.
Kriegel, Louis J., 665 Newark Ave.
Kuebler, Carl S., 75 Montgomery St.
McCarthy, James J., 15 Exchange Pl.
Pforr, Arthur, 75 Montgomery St.
NEWARK.
Brown, John S., Central High School, New and High Sts.
Citret, Harry, 790 Broad St.
Dorgeval, Harold F., 164 Market St.
Eisner, Mortimer, 585 High St.
Eppston, Joseph G., 20 Clinton St.
Federici, Christine A., 1025 Kinney Bldg.
Kinkelstein, Milton J., 828 Broad St.
Giordano, John C., 226 Hunterdon St.
Halpin, Julius H., 133 Somerset St.
Merz, Charles D., 324 Hawthorne Ave.
Padalino, Frank P., 216 Camden St.
Pollard, Robert S., 164 Market St.
Potoker, Benjamin, 40 Beacon St.
Reid, Alexander F., Jr., 296 Mulberry St.
Schneider, Louis, 790 Broad St.
Thiele, Richard Hardie, Prudential Ins. Co.
Vanderbilt, Leslie L., 14 N. 9th St.
TRENTON.
Cella, G. Andrew, 345 Hamilton Ave.
Heher, John L., 301 Commonwealth Bldg.
Josephson, Leon, 1009 Greenwood Ave.
OTHER PLACES.
Bremer, Philip M., 41 Paterson St., New Brunswick.
Colver, Frederick B., Tenafly.
Dart, William A., 201 Sheen Bldg., Atlantic City.
DeYoe, Willard L., U. S. Trust Bldg., Paterson.
Fuller, Ernest, 60 Fairview Ave., So. Orange.
Galanti, Benjamin P., Main St., Hackensack.
Greenberg, Victor, 153 Grove St., Passaic.
Gottko, Anthony A., 37 E. 26th St., Bayonne.
Hahn, Harold H., 120 Broadway, N. Y. City.
Hendler, Louis L., 165 French St., New Brunswick.
Hendrickson, Frank A., 117 Main St., Mt. Holly.
Jackson, George T., 706 N. Ohio Ave., Atlantic City.
Loder, William W., 107 E. Commerce St., Bridgeton.
Lore, Harry T., Section of Surety Bonds, Treas. Dept., Washington, D. C.
McDonough, Peter J., Jr., Babcock Bldg., Plainfield.
McElroy, Leon E., 115 Main St., Woodbridge.
Plympton, George F., 117 Clinton Pl., Hackensack.
Preston, Joseph A., 224 Park Ave., Cliffside.
Ridgeway, S. Paul, 1 N. Iowa Ave., Atlantic City.
Thompson, Rufus B., 505 Federal St., Camden.
Visscher, Barent L., 84 William St., N. Y. City.
Warsinski, Carl H., 50 Burnside Ave., Cranford.
Woods, Elmer B., Glassboro.
Zirpoli, Anthony P., 126 Market St., Paterson.
* * * * *
The following were also admitted
as Counselors-at-Law:
COUNSELORS.
Bergen, Francis L., 2nd Nat. Bk. Bldg., Somerville.
Bowne, Edward A., South River.
Braelow, Joseph C., 800 Broad St., Newark.
Buchanan, Jessie C., 40 W. State St., Trenton.
Deegan, Joseph F., 415 Raritan Bldg., Perth Amboy.
Fleming, Russell, 790 Broad St., Newark.
Gunther, Edward C., Hudson Tr. Bldg., W. Hoboken.
Handford, James L., 790 Broad St., Newark.
Hirschberg, Samuel L., 84 Washington St., Hoboken.
Isaacs, Lionel, 143 Summit Ave., W. Hoboken.
Kaplan, Joseph D., 200 S. Broad St., Trenton.
Kepsel, Julius A., 243 Montgomery St., Jersey City.
Krohn, Herman, 763 Broad St., Newark.
Lesser, Louis B., 9 Clinton St., Newark.
Matthews, John A., 31 Clinton St., Newark.
McCloskey, W. Durward, Thompson Bldg., Lakewood.
Miele, Philip J., 75 Montgomery St., Jersey City.
Morrison, George R., 190 College Ave., New Brunswick.
Praissman, Maurice L., 537 Arch St., Camden.
Rauch, Sylvan J., 53 Penna. Ave., Newark.
Reussille, Leon, Jr., 34 Broad St., Red Bank.
Satz, David M., 763 Broad St., Newark.
Schroth, Godfrey W., Jr., 412 Broad St., Trenton.
Schultz, Vincent, 790 Broad St., Newark.
Seiler, Isaac W., 472 Broadway, Bayonne.
Silberman, Paul R., 776 Broad St., Newark.
Simandl, Harold, 790 Broad St., Newark.
Stiles, Harry A., 95 River St., Hoboken.
Stover, Charles W., 84 Washington St., Hoboken.
Sullivan, James A., 15 Exchange Pl., Jersey City.
Tepper, Harry L., 800 Broad St., Newark.
Varbalow, Joseph, 540 Federal St., Camden.
Waldman, Herman, 19 Clinton St., Newark.
Zimmerman, Thomas L., Jr., 232 Rider Ave., N. Y. City.
Zucker, Maurice J., 790 Broad St., Newark.
OBITUARIES.
EX-JUSTICE BENNET VAN SYCKEL.
On Dec. 20th last, following a brief illness of bronchial pneumonia,
Supreme Court Justice Bennet Van Syckel, almost ninety-two years old,
the oldest alumnus of Princeton University, died at his home in Trenton.
Judge Van Syckel was the son of Aaron Van Syckel, and Mary Van Syckel,
of Bethlehem, Hunterdon county, and was born there April 17, 1830. His
father and his grandfather were country merchants, whose ancestors came
with the old Dutch settlers to that part of New Jersey. His father was
considered wealthy in those days and was able to give his four sons an
excellent education. When Bennet was nine years old he was sent to a
boarding school at Easton. At the age of thirteen he completed his
preparatory studies and entered Princeton in the Sophomore class. Three
years later he was graduated with high honors and for one year was
resident graduate Assistant Professor to Joseph Henry, who occupied the
chair of Natural Philosophy.
Bennet next took up the study of law in the office of Alexander Wurts of
Flemington, and was prepared to take his law examination some time
before he was of age, but as he could not be admitted to the Bar while
under twenty-one was forced to wait. On the twenty-first anniversary of
his birthday, at the April Term of the Supreme Court, 1851, he was
admitted to the Bar, and became counselor at the June Term, 1854. He at
once opened office in Flemington, and practiced there with unusual
success until February, 1858, when Governor Randolph appointed him
Justice of the Supreme Court. At that time he was the youngest member of
the Court. His Circuits were in the counties of Salem, Cumberland,
Atlantic and Cape May. When the number of Supreme Court Justices was
increased from seven to nine and the districts were readjusted, Justice
Van Syckel was assigned to Union and Ocean counties, where he presided
twenty-nine years. He was five times reappointed. Only a few months
after his last appointment in 1904 he resigned because of ill health and
increasing age.
After his retirement Justice Van Syckel was made the guest of the New
Jersey Bench and Bar, at Trenton, upon which occasion a portrait of him
painted in oil was presented to the State, to be hung on the wall of the
Supreme Court room at the Capitol. A few months later another portrait
was hung in the new court house in Union County, in honor of the Justice
who had presided there for so many years.
During his term of service Justice Van Syckel delivered some of the most
important opinions of the Supreme Court and of the Court of Errors and
Appeals. In the prosecution of the Linden and Elizabeth race track
gamblers in 1893 he proved a terror to poolsellers, bookmakers and
evildoers. It was Justice Van Syckel who wrote the opinion of the
Supreme Court when an effort was made to challenge the majority cast in
favor of the anti-gambling amendment to the State Constitution, and his
opinion upholding the adoption of the amendments was sustained by the
Court of Errors and Appeals.
At the time of his death a membership in the directorate of the
Prudential Life Insurance Company was the former Justice's sole business
affiliation. His activity in connection with this post caused his
associates to marvel. He attended all the meetings and was as alert as
the youngest of his colleagues. At the Princeton alumni reunion in June,
1920, he led the Parade around the baseball field and got a big ovation
from the throng in attendance. In his automobile he arose repeatedly and
raised his hat in acknowledgment of the applause.
In 1911, Woodrow Wilson, when Governor, appointed him and former State
Attorney General Edmund Wilson, of Red Bank, as a commission to study
the proposed abandonment of the Morris Canal. The report was adverse to
the State taking over the canal. The Justice aided in the drafting of
the "Seven Sisters" Acts, passed during the Wilson administration, which
were designed to curb the activities of the trusts in New Jersey.
Justice Van Syckel was a lover of outdoor sports. In his younger days he
played town ball and football and later was a great admirer of baseball.
He rode horseback, played golf and was a fine wing shot. In politics he
was a Democrat, but politics had no place with him while he sat on the
Bench.
Mr. Van Syckel married Miss Mary Elizabeth Sloane, daughter of Mr. and
Mrs. William Hand Sloane. He is survived by two sons, Charles S. and
William S., and a daughter, Bessie.
JUDGE WILLIAM R. FRANCIS.
Former New Jersey State Senator and former Supreme Court Judge of
Dakota, William R. Francis, died in the City Hospital in Newark, this
State, on Dec. 15th last, aged 82 years. His death was the result of a
fall in the bedroom of his home, 324 S. Orange Ave., Newark.
Judge Francis was born in Connecticut. He was a graduate from Oberlin
College and then came to Newark, where he became a member of the law
firm of Titsworth, Francis & Marsh. He served as city counsel of Newark
from 1871 to 1875 and in the State Senate from 1879 to 1881. In 1882 Mr.
Francis went to Dakota. At that time the two Dakotas were united in a
territory of the United States. After completing his term as Supreme
Court Judge there he became attorney for the Northern Pacific Railroad.
About twenty years ago he returned to Newark. Mr. Francis was a Master
in Chancery and had offices with Scharringhausen & Hartpence, 800 Broad
street. Mr. Francis is survived by a widow, who was Miss Annie Yeomans
of Newark. He is also survived by a niece, Mrs. C. L. Bryant of Danbury,
Conn., and a cousin, Miss Mary Francis, of Newark.
Transcriber Notes:
Passages in italics were indicated by _underscores_.
Small caps were replaced with ALL CAPS.
Throughout the dialogues, there were words used to mimic accents of the
speakers. Those words were retained as-is.
Errors in punctuations and inconsistent hyphenation were not corrected
unless otherwise noted.
On page 9, "migh" was replaced with "might".
On page 22, the term "plaintiff's term" was obscured by a Google logo.
On page 23, "provsion" was replaced with "provision".
On page 27, the phrase "committed by the wife with the en-" was moved to
the top of the page, since it seemed to be put in the wrong line
initially.
On page 28, the question mark after "B thereafter refused to make the
assignment" was replaced by a period
On page 32, "Prinecton" was replaced with "Princeton".
End of Project Gutenberg's The New Jersey Law Journal Jan. 1922, by Various
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