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certain acts in the line of his official duty. The stated and the societies named being specified as court held that the Governor is not answerable to the the means by which to accomplish the object. If courts for the manner in which he discharges the there had been simply a devise of property to a discretionary duties confided to him, nor are his trustee named to be used "for the advancement of subordinates or agents answerable to any one but Christ's kingdom in the world,” it would not have himself. The Court of Quarter Sessions, of Alle- been sustainable. In Chamberlain v. Stearns, 111 gheny county, had subpænaed the Governor and some Mass. 267, a devise for “benevolent” purposes was other executive officers to testify before its grand held void, because too general in its meaning. In jury in relation to certain acts performed by them, Holland v. Peck, 2 Ired. Eq. 255, executors were or under their orders, in suppressing the late labor directed to pay over and deliver for the benefit of riots. The parties subpenaed having refused to ap- the Methodist Episcopal church in America, the sum pear, attachments were issued, and the question of $5,000 “to be disposed of by the conference, or whether the attachments should be enforced was the different members composing the same, as they submitted to the Supreme Court, which decided in their godly wisdom judge will be most expedient against the validity of the attachments. The decis- or beneficial for the increase or prosperity of the ion is in harmony with numerous adjudicated cases. gospel.” This was held void for uncertainty. So, See Thompson v. German Valley R. R. Co., 22 N. J. in Ruth v. Oberbrunner, 40 Wis. 238, was a devise Eq. 111, where a subpæna duces tecum was issued to of land to trustees "to hold the same in trust for the Governor of New Jersey, requiring bim to pro- the use and benefit of the order of St. Dominican duce before the court an engrossed copy of a pri- and St. Catharine’s Female Academy, and for no vate bill signed by him. He refused to obey other purpose.” See, also, Heiss, exr., v. Murphy, the subpæna, and the Court of Chancery sus- 40 Wis. 276; Beekman v. Bonser, 23 N. Y. 298 ; tained him in his refusal. Also Gray v. Pentland, 2 Grimes, exr., V. Harmar, 35 Ind. 198; Holmes v. S. & R. 23. Here the refusal of the Governor Mead, 52 N. Y. 332. See, however, as sustaining and Secretary of State to obey a subpæna, or to per- the principal case, Miller v. Teachout, 24 Ohio St, mit their depositions to be taken at the State capital, 525; Board of Education v. Ladd, 26 id. 210. was sustained. In the case of Aaron Burr, a sub
In the case of City of Chicago v. Meker, decided pena of the same character was issued to the President of the United States, directing him to
on the 14th inst., in the Criminal Court of Cook produce a letter from General Wilkinson to him
county, Illinois, the court passed upon and held unself. The President refused to obey the subpæna,
lawful, an ordinance of the city of Chicago, reguand Chief Justice Marshall in regard to his refu- lating the sale of fruits and berries and providing a sal said (2 Burr's Trial, 536): “In no
standard of weights and measures, and declaring
case of this kind would the court be required to pro
that whoever, in buying any of the articles menceed against the President as against an ordi
tioned, “shall take a greater number of pounds nary
thereof to the bushel, or in selling shall give individual. The objections to such course are so strong and obvious that all must ac
less, with intent to gain an advantage there
by,” shall be liable to a penalty prescribed, except knowledge them.
In this case, however,
when authorized to do so by a special contract to the President has assigned no reason whatever for
that effect. The ground of the decision was that withholding the paper called for. The propriety of
there was no grant of authority to the common withholding it must be decided by himself, not by
council to regulate the trade in berries in the mananother for him. Of the weight of the reasons for and against producing it, he himself is the judge." itself reasonable, but was in restraint of trade. The
ner mentioned, and that the ordinance was not in
court hold that municipal corporations are like In the case of Treasurer of Amer. Tract Society v. courts of inferior and limited jurisdiction, and, like Atwater, 30 Obio St. 77, a testator bequeathed a such courts, must, for all the purposes of jurisdicsum of money in trust, the trustee being directed tion, show the power given them in every case. "to apply the same so that it may be used for the Dunham v. City of Rochester, 5 Cow. 465. This interests of religion and for the advancement of the doctrine was adopted by the Supreme Court of Wiskingdom of Christ in the world, as follows, to wit”: consin, in Hayes v. City of Appleton, 24 Wis. 544. Certain religious societies were named, to whom In Bosling v. West, 29 Wis. 315, the court said: “It the money was to be paid in certain specified is a perfectly well-established principle of law, that amounts. It was claimed that the bequest was void a municipal by-law or ordinance must not be inconfor uncertainty, the uncertainty consisting in this, sistent with or repugnant to the Constitution and that in the opinion of men the modes of advancing the
law of the United States or the State; that it must
be reasonable and in harmony with the principles kingdom of Christ are as various as the numerous sects
of the common law. See Austin v. Murray, 16 ostensibly engaged in accomplishing that object. Pick. 121; Mayor of Mobile v. Gulille, 3 Ala. 137 ; The court held that it was not void, the object being | Taylor v. Grisicold, 14 N. J. Law, 254.
SUMNER'S REMINISCENCES OF THE ENG
“is dull, heavy, and they say, often obtuse at the LISH BAR.
bar." At dinner on one occasion Sumner sat be
tween Follett and Pollock. "To the first I talked THE affection and favor which young Summer met about law, and his cases; to the latter about Hora
ace, and Juvenal, and Persius, and the beauty of the markable. Judges made him sit at their side on
English language.” Sumner gives us no account of the bench, ,-a distinction which he was loth to ac
Pollock's personal appearance, but the author of cept, deeming that “the Queen's counsel row is surely "The Bar" has a few lines on it: enough.” He usually sat in the Common Pleas with
"Pale Pollock, who consumes the midnight oil,' Talfourd and Wilde, or in the Queen's Bench with
And plies his task with unremitting toil, Pollock and the Attorney-General. He writes: “I Till, as the life-drops from his cheeks retreat, will not quit the Bench and Bar without speaking of
He looks as though he had forgot to eat." the superior cordiality, friendliness and good man- Follett, Sumner says, is “a consummate lawyer," ners that prevail with them in England as compared “the best of all," "a delightful man, simple, amiawith ours. They seem indeed a band of brothers. ble, and unaffected as a child.” “He has extended They are enabled to meet each other on a footing of the hand of friendship to me in a most generous familiarity, because all are gentlemen. The divis- way. His reputation in the profession is truly coion of labor sets apart a select number, who have lossal, second only to that of Lord Mansfield; in his the recommendations, generally, of fortune or family, manners he is simple and amiable as a child; he is and invariably of education, and who confine them- truly lovable.” Brougham said in 1838 there were selves to the duties of a barrister. In social inter- no good speakers at the bar except Follett and Pemcourse the judges always address each other by their berton. Talfourd's first acquaintance with Follett surnames, without any prefix; and they address the was when the latter was a student, or just after his barristers in the same way; and the barristers ad- call to the bar, in getting him released from arrest dress each other in this style. Thus, the young men early one morning for scaling the walls of the Temjust commencing their circuits addressed Taunton, ple. Follett's perception of legal principles and the old Reporter, who was on his seventy-fifth cir- reasoning was intuitive, apparently almost without cuit, simply as Taunton. I believe I have already effort. “With all the praise accorded to him from written you that I was received as a brother, and judges, lawyers, and even from Sir Peter Lawrie was treated with the same familiarity as the other (ex-mayor), who thought him the greatest lawyer he barristers."
ever knew, it does not seem to be thought that he Of Talfourd, the author of “Ion," we get some has remarkable general talents or learning. They interesting views. We see him stopping at the Gar- say he has “a genius for the law;' but Hayward, of rick Club (of which Sumner was made an honorary the · Law Magazine,' says he is a kind of law-mill; member), to get his "negus on his way to West- put in a brief, and there comes out an argument,' minster Hall in the morning, and his midnight pota- without any particular exertion, study, or previous tion with a grilled bone and Welsh rare-bit, on re- attainment. I have heard him several times. He is turning from Parliament. Sumner calls him a uniformly bland, courteous, and conversational in “night' bird.” Of a dinner at Sir William Fol- bis style; and has never yet produced the impreslett's he writes: “ Talfourd outdid himself; indeed, sion of power upon me.” Sumner attributes FolI have never seen him in such force. He and Pol- lett's early success to his amiability. As a speaker lock discussed the comparative merits of Demosthe- he was fluent, clear and distinct, with a beautiful nes and Cicero; and Talfourd, with the earnestness and harmonious voice. His business was immense which belongs to him, repeated one of Cicero's £15,000 annually — and many of his briefs he hardly glorious perorations. Pollock gave a long extract read before rising in court. He was equally sucfrom Homer; and the author of 'Ion,' with the cessful in the House of Commons, where Sumner frenzy of a poet, rolled out a whole strophe of one often heard him called for. His early death preof the Greek dramatists.” When Sumner spoke to vented his probable elevation to the Lord ChancelTalfourd of Mr. Montague as a person whom he lorship. liked, Talfourd replied, “He is a humbug; he Of Wilde, afterward Lord Chancellor, Sumner drinks no wine.” Whereupon the correct young speaks as the most industrious person at the EngCharles remarks,“ Commend me to such humbugs!” | lish bar, often working from six o'clock in the mornAs an advocate, Sumner says of him, “He is a good ing until two the next morning; a man of great declaimer, with a good deal of rhetoric and feeling. power, but harsh and unamiable, with an immense I cannot disguise that I have been disappointed in practice; supreme in the Common Pleas, with a him."
great influence over Chief-Justice Tindal; in person Pollock “is deemed a great failure" in the House short and stout, with a vulgar face; his voice not of Commons, although he was leader of the North- agreeable, but his manner singularly energetic and inern Circuit.
"He has a smooth, solemn voice," but | tense; reminding Sumner of Webster; his language
having none of the charms of literature, but correct, the bench he is the perfect model of a judge,-full expressive, and to the purpose; in manners, to his of dignity and decision, and yet with mildness and friends, warm and affable; entertaining very eleva- suavity which cannot fail to charm. His high perted views on points of professional conduct. He sonal character and unbounding morals have given told Sumner that he should not hesitate to cite a an elevated tone to the bar, and make one forget case that bore against him, if he thought the court the want, perhaps, of thorough learning. In conand opposite counsel were not aware of it. Early in versation he is plain, unaffected and amiable." He his career he had taken advantage of a trust rela- thought Brougham one of the greatest judges that tion and purchased for himself, and in consequence ever sat on the woolsack. The wig he considered was banished from the circuit table, and afterward the silliest thing in England. He was trying to did not mingle with the bar, or if he did, it was with carry a bill through the Lords, allowing witnesses a downcast manner. Sumner predicted that the gov- to affirm, in case of conscientious scruples, and ernment, anxious to avail itself of his great talents, asked Sumner what the American practice was, but might overlook his offense, but that society would said he should not venture to allude to it, for it not. As to the government, Sumner was right, for would tell against his measure. We have changed Wilde afterward became Solicitor-General, Attor- all that, and now John Bull adopts our law reforms ney-General, Chief Justice of the Common Pleas, and eats our beef! and Lord Chancellor, with the title of Baron Truro. We have a graphic picture of Tindal, Chief
Charles Austin, the great parliamentary lawyer, Justice of the Common Pleas, the model of a paSumner describes as “one of the cleverest, most en- tient man, who sits like Job, while the debate goes lightened, and agreeable men in London,” and in his on; very quiet, bent over his desk, constantly taking judgment the first lawyer in England; a fine scholar, notes; eyes large and rolling, stature rather short; deeply versed in English literature and the British manner singularly bland and gentle, deficient in deConstitution; a more animated speaker than Follett, cision; learning, patience, and fidelity of the highperhaps not so smooth and gentle, nor so ready and est order; one of the few judges who study their instinctively sagacious in a law argument, but im- cases out of court; one of the kindest men that measurably before him in accomplishments and
ever lived." The author of "The Bar " also gives liberality of views; the only jurist in Westminster us a glimpse of him: Hall; in conversation very interesting, full of knowl- “ Tindal, beneath whose sleepy lurking eye edge, information, literature, and power of argu- A fertile mind Lavater would descry, ment; in politics a decided but rational liberal;
A treasury filled with intellectual store,
From which, the more he takes, it grows the more, brilliant and clever, all informed, and master of his
A thing unheard of in historio fame, own profession, take him all in all the greatest Would the King's treasury always did the same!” honor of the English bar.
Then we have Park, the oldest judge on the Campbell, the Attorney-General, afterward Lord bench, fifty-eight years in the profession, petulant, Chancellor, and author of the Lives of the Lord puritanical, a staunch Tory, who believed in wigs Chancellors and Chief Justices, gets a passing no- and hated Jack Campbell. He attributed Denman's tice. A very powerful lawyer, laborious, plodding, dislike of wigs to his coxcombery, and desire to with great natural powers, unadorned by any of the show off his person, and when a wig was invented graces, able, dry, and uninteresting.
to present the appearance of powder, without its coarse and harsh, without delicacy or refine- dirt, he resisted its introduction as an innovation on ment, his accent marked Scotch. Not liked by the
the Constitution, and refused to recognize his own bar, all bowed to his powers. As to his politics, the
son when he appeared in one.
And then comes best account is derived from one of Sumner's sto- Vaughan, who was made a judge, it was said, by ries. Lord Plunkett inquired of him the meaning | George IV, at the instigation of his favorite phyof “locofoco," and he defined it “a very ultra-radi- sician, Sir Henry Halford, and hence was called a cal;” whereupon Follett and Pollock both laughed, judge by prescription. With the smallest possible and cried out to the Attorney-General, “ Campbell, allowance of law for a judge, he abounded in native you are the locofoco!” Sumner tells us that the p strength, sagacity, and freedom of language. He in Campbell's name was enunciated, and not omitted, troubled himself very little out of court with his as with us.
Fond of sports, he showed Sumner four Of the judges we have some sharp portraitures. guns, and told him with great glee, how he per Lord Denman he deemed quite an ordinary lawyer, suaded Wilde not to make any motions on a certain but “ honest as the stars," and impartial. In per- day, got court adjourned at noon, went fifteen miles son, every inch the judge,” he sits the admired im- into the country, and before four o'clock shot four personation of the law;" tall and well-made, with brace of pheasants, sitting on horseback, as from a grave voice and manner; somewhat impatient at lameness he was unable to walk to any great extimes, we infer. “Bland, noble Denman! On tent. A great lover of Shakespeare, he would
often interchange notes with Sumner about the honors at Cambridge. In person awkward, in voice great poet's works, while Follett or Wilde was abrupt and uneven, with light hair, and a high making a long argument, the spectators of course
forehead. Hasty and crotchety, he was thought an supposing that it was all about the case under discus- unsafe judge. He had more enemies than any sion. Seventy years of age, rheumatic and gouty, other judge in the Hall. Sumner says he heard beside being lame; tall and stout; plain, hearty from him a higher display of judicial talent than and cordial in his manners; on the bench, bland, from any other judge in England. Elsewhere he dignified, yet familiar, exchanging a joke or plea- 1 says, in a letter to Story: “ Baron Alderson is the santry with the bar on all proper occasions; less first equity judge in the Court of Exchequer, and eminent for book learning than for strong sense, unquestionably a very great judge. I have sat by knowledge of practice and of human nature. The his side for three days on the bench, and have conauthor of "The Bar ”thus depicts Vaughan at the stantly admired the clearness, decision, and learnbar:
ing which he displayed. In one case of murder,
where all the evidence was circumstantial, I sat with “Grisly and gruff, and coarse as Cambridge brawn,
him from nine o'clock in the morning till six at With lungs stentorian bawls gigantic Vaughan ; In aspect fearless, and in language bold,
night. His charge to the jury was a luxury. I *Awed by no shame - by no respect controlled,'
wish you could have heard it. It was delightful to Straight forward to the fact his efforts tend, Spurning all decent bounds to gain his end.
hear an important case, so ably mastered by one No surgeon he, with either power or will,
who understood his duty and the law, and did not To show the world bis anatomic skill,
shrink from laying before the jury his opinions. Or subtle nice experiments to try
Alderson's voice and manner remind me of Webster He views his subject with a butcher's eye, Nor waits its limbs and carcase to dissect,
more than those of anybody I have seen here; his But tears the heart and entrails out direct."
features are large, but his hair, eyes, and complex In the Exchequer, we have Abinger, Parke, and
ion are light.” The author of “ The Bar" has a Alderson described. The first was Scarlett, the
drive at Alderson, when young, pointed at his greatest advocate of his time, yet never eloquent. triumphs as senior wrangler at Cambridge: Sumner calls him “the great failure of Westmin
“Aspiring Alderson - a sessions 'star,' ster Hall.” Too old to assume new habits when he
Already 'cuts a figure' at the Bar, reached the bench, he lacked the judicial capacity
Maintains his academic honors past,
And every subject wrangles to the last." and was jealous of his associates. Brougham says that Scarlett was once speaking of La ce's Baron Maule was “a very peculiar person.” DisMécanique Céleste' at Holland House as a very tinguished at Cambridge both in classics and matheasy matter; Brougham told him he could not ematics, he kept up his acquaintances with those read it, and doubted if he could do a
studies. He was confessed on all hands to be the algebraical addition. One was put, and the future first commercial lawyer in England, but his moral Lord Abinger failed; and as Lord B. said, he did not
character rendered him in some respects a strange know so much about it as a 'pot-house boy.'” In person for a judge. He always took porter before politics a thorough Tory; in society cold and re- an argument, he said, "to bring his understanding served; in person the largest judge on the bench. down to a level with the judges." Sumner writes of Abinger: “I was not particularly Patteson, “the ablest lawyer in the Queen's pleased with him: he was cold and indifferent, and Bench some say the first in all the courts," was did not take to me, evidently; and so I did not short and stout, his face heavy and gross, and was take to him. Neither did I hear him, through a
“Little Johnny” Williams, an excellong evening, say any thing that was particularly lent classical scholar, had little legal talent, and was remarkable; but all the bar bear testimony to his principally noted for early rising and for falling transcendency as an advocate.”
asleep in company. To Parke, afterward Lord Wensleydale, Sumner It is curious to note how many of the legal celebsays the palm for talent, attainments, and judicial rities described by Sumner were concerned in the penetration is conceded by the profession, who re- trial of Queen Caroline - Brougham, Lushington, gard him as facile princeps. About fifty-six years Wilde, Denman, Tindal. old, above the common size, erect,
" with the Comparing the English with the American law brightest eyes I ever saw;" dressed with great care, yers, Sumner says: “The English are better artists and in the evening wearing a blue coat and bright than we are, and understand their machinery better; buttons; a man of society, "not a little conceited of course, they dispatch business quicker. There is and vain." Not fluent, but with no particular want often a style of argument before our Supreme Court of words; a well-read lawyer, yet not a jurist. at Washington which is superior to any thing I Alderson comes next. He was an excellent scholar, have heard here.” In regard to the character of carrying off the highest mathematical and classical 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 SUBSEQUENT INDEPENDENT ACT — LIMITS
OF FEDERAL LEGISLATION.
SUPREME COURT OF THE UNITED STATES - OCTO
BER TERM, 1877.
UNITED STATES, Plaintiff, v. Fox. 1. An act which is not an offense at the time it is commit
ted 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 bis will
by another. 2. It is competent for Congress to enforce by suitable pen
alties 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 di
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 bankruptoy 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 bankruptoy ?”
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
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 pot exceeding three years.