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certain acts in the line of his official duty. The
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In the case of Treasurer of Amer. Tract Society v. Atwater, 30 Ohio St. 77, a testator bequeathed a sum of money in trust, the trustee being directed "to apply the same so that it may be used for the interests of religion and for the advancement of the kingdom of Christ in the world, as follows, to wit": Certain religious societies were named, to whom the money was to be paid in certain specified amounts. It was claimed that the bequest was void for uncertainty, the uncertainty consisting in this, that in the opinion of men the modes of advancing the kingdom of Christ are as various as the numerous sects ostensibly engaged in accomplishing that object. The court held that it was not void, the object being
stated and the societies named being specified as the means by which to accomplish the object. If there had been simply a devise of property to a trustee named to be used "for the advancement of Christ's kingdom in the world," it would not have been sustainable. In Chamberlain v. Stearns, 111 Mass. 267, a devise for "benevolent " purposes was held void, because too general in its meaning. In Holland v. Peck, 2 Ired. Eq. 255, executors were directed to pay over and deliver for the benefit of the Methodist Episcopal church in America, the sum of $5,000 "to be disposed of by the conference, or the different members composing the same, as they in their godly wisdom judge will be most expedient or beneficial for the increase or prosperity of the gospel." This was held void for uncertainty. So, in Ruth v. Oberbrunner, 40 Wis. 238, was a devise of land to trustees "to hold the same in trust for the use and benefit of the order of St. Dominican and St. Catharine's Female Academy, and for no other purpose." See, also, Heiss, exr., v. Murphy, 40 Wis. 276; Beekman v. Bonser, 23 N. Y. 298; Grimes, exr., v. Harmar, 35 Ind. 198; Holmes v. Mead, 52 N. Y. 332. See, however, as sustaining the principal case, Miller v. Teachout, 24 Ohio St. 525; Board of Education v. Ladd, 26 id. 210.
In the case of City of Chicago v. Meker, decided on the 14th inst., in the Criminal Court of Cook county, Illinois, the court passed upon and held un
lawful, an ordinance of the city of Chicago, regulating the sale of fruits and berries and providing a standard of weights and measures, and declaring that whoever, in buying any of the articles mentioned, "shall take a greater number of pounds thereof to the bushel, or in selling shall give less, with intent to gain an advantage thereby, "shall be liable to a penalty prescribed, except when authorized to do so by a special contract to that effect. The ground of the decision was that there was no grant of authority to the common council to regulate the trade in berries in the manitself reasonable, but was in restraint of trade. The ner mentioned, and that the ordinance was not in court hold that municipal corporations are like courts of inferior and limited jurisdiction, and, like such courts, must, for all the purposes of jurisdiction, show the power given them in every case. This Dunham v. City of Rochester, 5 Cow. 465. doctrine was adopted by the Supreme Court of Wisconsin, in Hayes v. City of Appleton, 24 Wis. 544. In Bosling v. West, 29 Wis. 315, the court said: "It is a perfectly well-established principle of law, that a municipal by-law or ordinance must not be inconsistent with or repugnant to the Constitution and law of the United States or the State; that it must be reasonable and in harmony with the principles of the common law. See Austin v. Murray, 16 Pick. 121; Mayor of Mobile v. Gulille, 3 Ala. 137; Taylor v. Griswold, 14 N. J. Law, 254.
SUMNER'S REMINISCENCES OF THE ENGLISH BAR.
THE affection and favor which young Sumner met from the English bar and bench were quite remarkable. Judges made him sit at their side on the bench,—a distinction which he was loth to accept, deeming that "the Queen's counsel row is surely enough." He usually sat in the Common Pleas with Talfourd and Wilde, or in the Queen's Bench with Pollock and the Attorney-General. He writes: "I will not quit the Bench and Bar without speaking of the superior cordiality, friendliness and good manners that prevail with them in England as compared with ours. They seem indeed a band of brothers. They are enabled to meet each other on a footing of familiarity, because all are gentlemen. The division of labor sets apart a select number, who have the recommendations, generally, of fortune or family, and invariably of education, and who confine themselves to the duties of a barrister. In social intercourse the judges always address each other by their surnames, without any prefix; and they address the barristers in the same way; and the barristers address each other in this style. Thus, the young men just commencing their circuits addressed Taunton, the old Reporter, who was on his seventy-fifth circuit, simply as Taunton. I believe I have already written you that I was received as a brother, and was treated with the same familiarity as the other barristers."
Of Talfourd, the author of "Ion," we get some interesting views. We see him stopping at the Garrick Club (of which Sumner was made an honorary member), to get his "negus" on his way to Westminster Hall in the morning, and his midnight potation with a grilled bone and Welsh rare-bit, on returning from Parliament. Sumner calls him a "night bird." Of a dinner at Sir William Follett's he writes: "Talfourd outdid himself; indeed, I have never seen him in such force. He and Pollock discussed the comparative merits of Demosthenes and Cicero; and Talfourd, with the earnestness which belongs to him, repeated one of Cicero's glorious perorations. Pollock gave a long extract from Homer; and the author of 'Ion,' with the frenzy of a poet, rolled out a whole strophe of one of the Greek dramatists." When Sumner spoke to Talfourd of Mr. Montague as a person whom he liked, Talfourd replied, "He is a humbug; he drinks no wine." Whereupon the correct young Charles remarks, "Commend me to such humbugs!" As an advocate, Sumner says of him, "He is a good declaimer, with a good deal of rhetoric and feeling. I cannot disguise that I have been disappointed in him."
Pollock "is deemed a great failure" in the House of Commons, although he was leader of the Northern Circuit. "He has a smooth, solemn voice," but
"is dull, heavy, and they say, often obtuse at the bar." At dinner on one occasion Sumner sat between Follett and Pollock. "To the first I talked about law, and his cases; to the latter about Horace, and Juvenal, and Persius, and the beauty of the English language." Sumner gives us no account of Pollock's personal appearance, but the author of "The Bar" has a few lines on it:
"Pale Pollock, who consumes the midnight oil,' And plies his task with unremitting toil, Till, as the life-drops from his cheeks retreat, He looks as though he had forgot to eat." Follett, Sumner says, is "a consummate lawyer," "the best of all," "a delightful man, simple, amiable, and unaffected as a child." 'He has extended the hand of friendship to me in a most generous way. His reputation in the profession is truly colossal, second only to that of Lord Mansfield; in his manners he is simple and amiable as a child; he is truly lovable." Brougham said in 1838 there were no good speakers at the bar except Follett and Pemberton. Talfourd's first acquaintance with Follett was when the latter was a student, or just after his call to the bar, in getting him released from arrest early one morning for scaling the walls of the Temple. Follett's perception of legal principles and reasoning was intuitive, apparently almost without effort. "With all the praise accorded to him from judges, lawyers, and even from Sir Peter Lawrie (ex-mayor), who thought him the greatest lawyer he ever knew, it does not seem to be thought that he has remarkable general talents or learning. They say he has 'a genius for the law;' but Hayward, of the Law Magazine,' says he is 'a kind of law-mill; put in a brief, and there comes out an argument,' without any particular exertion, study, or previous attainment. I have heard him several times. He is uniformly bland, courteous, and conversational in his style; and has never yet produced the impression of power upon me." Sumner attributes Follett's early success to his amiability. As a speaker he was fluent, clear and distinct, with a beautiful and harmonious voice. His business was immense— £15,000 annually—and many of his briefs he hardly read before rising in court. He was equally successful in the House of Commons, where Sumner often heard him called for. His early death prevented his probable elevation to the Lord Chancellorship.
Of Wilde, afterward Lord Chancellor, Sumner speaks as the most industrious person at the English bar, often working from six o'clock in the morning until two the next morning; a man of great power, but harsh and unamiable, with an immense practice; supreme in the Common Pleas, with a great influence over Chief-Justice Tindal; in person short and stout, with a vulgar face; his voice not agreeable, but his manner singularly energetic and intense; reminding Sumner of Webster; his language
having none of the charms of literature, but correct, expressive, and to the purpose; in manners, to his friends, warm and affable; entertaining very elevated views on points of professional conduct. He told Sumner that he should not hesitate to cite a case that bore against him, if he thought the court and opposite counsel were not aware of it. Early in his career he had taken advantage of a trust relation and purchased for himself, and in consequence was banished from the circuit table, and afterward did not mingle with the bar, or if he did, it was with a downcast manner. Sumner predicted that the government, anxious to avail itself of his great talents, might overlook his offense, but that society would not. As to the government, Sumner was right, for Wilde afterward became Solicitor-General, Attorney-General, Chief Justice of the Common Pleas, and Lord Chancellor, with the title of Baron Truro.
Charles Austin, the great parliamentary lawyer, Sumner describes as "one of the cleverest, most enlightened, and agreeable men in London," and in his judgment the first lawyer in England; a fine scholar, deeply versed in English literature and the British Constitution; a more animated speaker than Follett, perhaps not so smooth and gentle, nor so ready and instinctively sagacious in a law argument, but immeasurably before him in accomplishments and liberality of views; the only jurist in Westminster Hall; in conversation very interesting, full of knowledge, information, literature, and power of argument; in politics a decided but rational liberal; brilliant and clever, all informed, and master of his own profession, take him all in all the greatest honor of the English bar.
Campbell, the Attorney-General, afterward Lord Chancellor, and author of the Lives of the Lord Chancellors and Chief Justices, gets a passing notice. A very powerful lawyer, laborious, plodding, with great natural powers, unadorned by any of the graces, able, dry, and uninteresting. His manner coarse and harsh, without delicacy or refinement, his accent marked Scotch. Not liked by the bar, all bowed to his powers. As to his politics, the best account is derived from one of Sumner's stories. Lord Plunkett inquired of him the meaning of "locofoco," and he defined it "a very ultra-radical;" whereupon Follett and Pollock both laughed, and cried out to the Attorney-General, Campbell, you are the locofoco!" Sumner tells us that the p in Campbell's name was enunciated, and not omitted, as with us.
Of the judges we have some sharp portraitures. Lord Denman he deemed quite an ordinary lawyer, but honest as the stars," and impartial. In person, every inch the judge, “he sits the admired impersonation of the law;" tall and well-made, with a grave voice and manner; somewhat impatient at we infer. On "Bland, noble Denman!
the bench he is the perfect model of a judge,-full of dignity and decision, and yet with mildness and suavity which cannot fail to charm. His high personal character and unbounding morals have given an elevated tone to the bar, and make one forget the want, perhaps, of thorough learning. In conversation he is plain, unaffected and amiable." He thought Brougham one of the greatest judges that ever sat on the woolsack. The wig he considered the silliest thing in England. He was trying to carry a bill through the Lords, allowing witnesses to affirm, in case of conscientious scruples, and asked Sumner what the American practice was, but said he should not venture to allude to it, for it would tell against his measure. We have changed all that, and now John Bull adopts our law reforms and eats our beef!
We have a graphic picture of Tindal, Chief Justice of the Common Pleas, the model of a patient man, who sits like Job, while the debate goes on; very quiet, bent over his desk, constantly taking notes; eyes large and rolling, stature rather short; manner singularly bland and gentle, deficient in decision; learning, patience, and fidelity of the highest order; one of the few judges who study their cases out of court; one of the kindest men that ever lived." The author of "The Bar" also gives us a glimpse of him:
"Tindal, beneath whose sleepy lurking eye
Would the King's treasury always did the same!" Then we have Park, the oldest judge on the bench, fifty-eight years in the profession, petulant, puritanical, a staunch Tory, who believed in wigs and hated Jack Campbell. He attributed Denman's dislike of wigs to his coxcombery, and desire to show off his person, and when a wig was invented to present the appearance of powder, without its dirt, he resisted its introduction as an innovation on the Constitution, and refused to recognize his own son when he appeared in one. And then comes Vaughan, who was made a judge, it was said, by George IV, at the instigation of his favorite physician, Sir Henry Halford, and hence was called a judge by prescription. With the smallest possible allowance of law for a judge, he abounded in native strength, sagacity, and freedom of language. He troubled himself very little out of court with his cases. Fond of sports, he showed Sumner four guns, and told him with great glee, how he per suaded Wilde not to make any motions on a certain day, got court adjourned at noon, went fifteen miles into the country, and before four o'clock shot four brace of pheasants, sitting on horseback, as from lameness he was unable to walk to any great extent. A great lover of Shakespeare, he would
often interchange notes with Sumner about the great poet's works, while Follett or Wilde was making a long argument, the spectators of course supposing that it was all about the case under discussion. Seventy years of age, rheumatic and gouty, beside being lame; tall and stout; plain, hearty and cordial in his manners; on the bench, bland, dignified, yet familiar, exchanging a joke or pleasantry with the bar on all proper occasions; less eminent for book learning than for strong sense, knowledge of practice and of human nature. The author of "The Bar" thus depicts Vaughan at the bar:
"Grisly and gruff, and coarse as Cambridge brawn,
In the Exchequer, we have Abinger, Parke, and Alderson described. The first was Scarlett, the greatest advocate of his time, yet never eloquent. Sumner calls him "the great failure of Westminster Hall." Too old to assume new habits when he reached the bench, he lacked the judicial capacity and was jealous of his associates. "Brougham says that Scarlett was once speaking of Laplace's 'Mécanique Céleste' at Holland House as a very easy matter; Brougham told him he could not read it, and doubted if he could do a sum in algebraical addition. One was put, and the future Lord Abinger failed; and as Lord B. said, he did not know so much about it as a 'pot-house boy.'" In politics a thorough Tory; in society cold and reserved; in person the largest judge on the bench. Sumner writes of Abinger: "I was not particularly pleased with him: he was cold and indifferent, and did not take to me, evidently; and so I did not take to him. Neither did I hear him, through a long evening, say any thing that was particularly remarkable; but all the bar bear testimony to his transcendency as an advocate."
To Parke, afterward Lord Wensleydale, Sumner says the palm for talent, attainments, and judicial penetration is conceded by the profession, who regard him as facile princeps. About fifty-six years old, above the common size, erect, "with the brightest eyes I ever saw;" dressed with great care, and in the evening wearing a blue coat and bright buttons; a man of society, "not a little conceited and vain." Not fluent, but with no particular want of words; a well-read lawyer, yet not a jurist. Alderson comes next. He was an excellent scholar, carrying off the highest mathematical and classical
honors at Cambridge. In person awkward, in voice abrupt and uneven, with light hair, and a high forehead. Hasty and crotchety, he was thought an unsafe judge. He had more enemies than any other judge in the Hall. Sumner says he heard from him a higher display of judicial talent than from any other judge in England. Elsewhere he says, in a letter to Story: "Baron Alderson is the first equity judge in the Court of Exchequer, and unquestionably a very great judge. I have sat by his side for three days on the bench, and have constantly admired the clearness, decision, and learning which he displayed. In one case of murder, where all the evidence was circumstantial, I sat with him from nine o'clock in the morning till six at night. His charge to the jury was a luxury. I wish you could have heard it. It was delightful to hear an important case, so ably mastered by one who understood his duty and the law, and did not shrink from laying before the jury his opinions. Alderson's voice and manner remind me of Webster more than those of anybody I have seen here; his features are large, but his hair, eyes, and complexion are light." The author of "The Bar" has a drive at Alderson, when young, pointed at his triumphs as senior wrangler at Cambridge:
Baron Maule was 66 a very peculiar person." Distinguished at Cambridge both in classics and mathematics, he kept up his acquaintances with those studies. He was confessed on all hands to be the first commercial lawyer in England, but his moral character rendered him in some respects a strange person for a judge. He always took porter before an argument, he said, "to bring his understanding down to a level with the judges."
Patteson, "the ablest lawyer in the Queen's Bench- some say the first in all the courts," was short and stout, his face heavy and gross, and was very deaf. "Little Johnny" Williams, an excellent classical scholar, had little legal talent, and was principally noted for early rising and for falling asleep in company.
It is curious to note how many of the legal celebrities described by Sumner were concerned in the trial of Queen Caroline-Brougham, Lushington, Wilde, Denman, Tindal.
Comparing the English with the American law yers, Sumner says: "The English are better artists than we are, and understand their machinery better; of course, they dispatch business quicker. There is often a style of argument before our Supreme Court at Washington which is superior to any thing I have heard here." In regard to the character of the bar and their relations to the bench in England
he says: "I know nothing that has given me greater pleasure than the elevated character of the profession as I find it, and the relation of comity and brotherhood between the bench and bar. The latter are really the friends and helpers of the judges. Good will, graciousness and good manners prevail constantly. And then the duties of the bar are of the most elevated character. I do not regret that my lines have been cast in the places where they are; but I cannot disguise the feeling akin to envy with which I regard the position of the English barrister, with the intervention of the attorney to protect him from the feelings and prejudices of his client, and with a code of professional morals which makes his daily duties a career of the most honorable employment."
LAWFUL ACT MADE CRIMINAL BY SUBSE-
SUPREME COURT OF THE UNITED STATES - OCTOBER TERM, 1877.
UNITED STATES, Plaintiff, v. Fox.
1. An act which is not an offense at the time it is committed cannot become such by any subsequent independent act of the party, with which it has no connection. Accordingly the statute of the United States which declares that every person respecting whom proceedings in bankruptcy are commenced, either upon his own petition or that of a creditor, who within three months before their commencement obtains goods upon false pretenses with intent to defraud, shall be punished by imprisonment, is inoperative to render the act an offense, because its criminal character is to be determined by subsequent proceedings, which at the time the goods were so obtained may not have been in his contemplation, and may be instituted against his will by another.
2. It is competent for Congress to enforce by suitable penalties all legislation necessary or proper to the execution of powers with which it is intrusted; and any act committed, with a view of evading such legislation, or fraudulently securing its benefit, may be made an offense against the United States. But it is otherwise when an act committed in a State has no relation to the execution of a power of Congress, or to any matter within the jurisdiction of the United States. An act having no such relation is one in respect to which the State can alone legislate.
ASE brought before this court on a certificate of division in opinion between the judges of the Circuit Court of the United States for the Southern District of New York. The facts appear in the opinion.
Mr. Justice FIELD delivered the opinion of the Court.
In November, 1874, the defendant filed a petition in bankruptcy in the District Court for the Southern District of New York. In March, 1876, he was indicted in the Circuit Court for that district for alleged offenses against the United States, and, among others, for the offense described in the ninth subdivision of section 5,132 of the Revised Statutes, which provides that "every person respecting whom proceedings in bankruptcy are commenced, either upon his own petition or that of a creditor," who, within three months before their commencement, "under the false color and pretense of carrying on business aud dealing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud," shall be punished by imprisonment for a period not exceeding three vears.
The indictment, among other things, charged the defendant with having within three months previous to the commencement of his proceedings in bankruptcy purchased and obtained on credit goods from several merchants in the city of New York, upon the pretense and representation of carrying on business and dealing in the ordinary course of trade as a manufacturer of clothing, whereas he was not carrying on business in the ordinary course of trade as such manufacturer, but was selling goods to some parties by the piece for cost, and to other parties at auction for less than cost, and that these pretenses and representations were made to defraud the parties from whom the goods were purchased.
The defendant was convicted, and upon a motion in arrest of judgment the judges holding the Circuit Court were opposed in opinion, and have certified to this court the question upon which they differed. That question is thus stated in the certificate:
"If a person shall engage in a transaction which at the time of its occurrence is not a violation of any law of the United States, to wit, the obtaining goods upon credit by false pretenses, and if, subsequently thereto, proceedings in bankruptcy shall be commenced respecting him, is it within the constitutional limits of congressional legislation to subject him to punishment for such transaction considered in connection with the proceedings in bankruptcy?"
The question thus presented does not appear to us difficult of solution. Upon principle an act which is not an offense at the time it is committed cannot become such by any subsequent independent act of the party with which it has no connection. By the clause in question the obtaining of goods on credit upon false pretenses is made an offense against the United States upon the happening of a subsequent event not perhaps in the contemplation of the party, and which may be brought about against his will by the agency of another. The criminal intent essential to the commission of a public offense must exist when the act complained of is done; it cannot be imputed to a party from a subsequent independent transaction. There are cases, it is true, where a series of acts are necessary to constitute an offense, one act being auxiliary to another in carrying out the criminal design. But the present is not a case of that kind. Here an act which may have no relation to proceedings in bankruptcy becomes criminal according as such proceedings may or may not be subsequently taken, either by the party or another.
There is no doubt of the competency of Congress to provide by suitable penalties for the enforcement of all legislation necessary or proper to the execution of powers with which it is intrusted. And as it is authorized "to establish uniform laws on the subject of bankruptcies throughout the United States," it may embrace within its legislation whatever may be deemed important to a complete and effective bankrupt system. The object of such a system is to secure a ratable distribution of the bankrupt's estate among his creditors, when he is unable to discharge his obligations in full, and at the same time to relieve the honest debtor from legal proceedings for his debts, upon a surrender of his property. The distribution of the property is the principal object to be attained. The discharge of the debtor is merely incidental, and is granted only where his conduct has been free from fraud in the creation of his indebtedness or the disposition of his property. To legislate, for the prevention of frauds in either of