Gambar halaman

the lace handkerchief in his hand shows not the slight-One mahogany bureau...

$15 00 est quiver. This is his first circuit, probably his first One bay mare.....

75 00 murder case, and his hard self control does much to One half-barrel flour......

5 00 explain his personal unpopularity with the bar.

One cord wood, split for use..

5 00 But why does the keen and zealous B. down there, Cash....

50 00 who as magistrate's clerk has been the main instrument of conviction, bite his moustache and look any

$150 00 where but at the dock? We know his kindly nature too well to have suspected him of gratification at the

And under the further provisions as follows: success of his well arranged proofs, but we did not ex

One pair sorrel horses..

$100 00 pect that such success would cause him positive dis


50 00 quiet. Perhaps the prisoner's demeanor and appear

$150 000 ance have impressed him, as they have ourselves, and he regretfully thinks of those little circumstances

Perhaps the practice varies from the statute. Expointing to insanity which no one followed up, be

planation is requested. cause in fact no one was paid to do so. However, the

Yours respectfully, strain of the present moment will soon pass off, and

J. B. DALEY. when we dine together at the “Hop-pole" this evening

PRATTSVILLE, N. Y., October 14, 1884. our friend will be himself again.

Look now during this interval of hushed attention, when even the “irresponsible frivolity" of the junior SUPERSEDING JUDGMENT FOR MANDAMUS. bar is silent, at the expression of all these faces whose

Editor of the Albany Law Journal: eyes converge upon the prisoner. If instead of an Euglish court of justice, the scene were a Roman am

Can a judgment awarding a peremptory mandamus phitbeatre, the act, a gladiator's death, the general ex

be superseded ? Appeal will lie from such judgment, pression of animal excitement might be more intense,

but if the writ may be superseded, does it not inevitabut it is still sufficiently prominent to be painful. The bly destroy the efficacy of the writ, and in substance same passion is being ministered too, and we feel it

effect a repeal of the remedy? See Pinckney v. Hennewith the rest. Two persons only have their thoughts Edm. Sel. Cas. 505-569. Are there any modern cases

gan & Jones, 2 Strob. (8. C.) 256; People v. Steele, elsewhere. That young and handsome barrister, gazing abstractedly at the skylight, is the prisoner's coun

on this point ? sel, who his duty done, has at his tongue's end hosts


GEORGE W. JOLLY. of brilliant expressions and striking appeals which come unbidden, now they are no longer needed, and

OWENSBORO, Ky., October 7, 1884. that poor woman weeping bitterly in the distant corner, who can speak her griefs ? At length the judge has finished his formal sentence

COURT OF APPEALS DECISIONS. and not less formal platitudes. The convict, passionless to the last, is hustled down the trap door to the


day, Oct. 21, another trap door and “justice will be vindicated!” How the account will stand in better balanced books

Judgment reversed, new trial granted, costs to abide

the event-William McKinley and another, appellants, than ours, nor you nor we can tell, but the general rush from the court room scatters our dissatisfied

v. Peter Bowe, sheriff, etc., respondeut; Daniel N. reverie, and we return to the civil side where our in

Crouse and others, respondents, v. Laura Frothivgterminable mining suit is dragging its slow length ham and others, appellants. — Judgment affirmed along. No danger that these slight indications in the

with costs—People ex rel.Mills Water Works Company, evidence will be left unworked, for that is an issue in appellant, v. John G. Forrest and others, respondents; volving money!

Jacob Stroher, respondent, v. Philip B. Elting, appellant; Frederick Diederick, respondent, v. John Keon,

appellant; Henry Bamber, receiver, etc., appellant, F. CORRESPONDENCE.

City of Rochester, respondent; Bronson C. Ramsay

and another, respondents, v. City of Buffalo, appellant; EXEMPTION FROM EXECUTION.

Archibald M. McPherson, respondent, v. George SandEditor of the Albany Law Journal :

rock, appellant; Jules L. Redmond, appellant, v. Jas. In addition to certain'enumerated articles in the in- T. Eaton and another, respondents; Wells A. Bingventory set apart, but not appraised, for the widow ham, survivor, etc., appellant, v. Richard C. Harris and minor children, they are also entitled to "other and others, respondents; Charles B. Perry, appellant, household furniture, which shall not exceed $150 in v. Cyrus Strong and others, respondents; Samuel M. value." And by a still further provision they are also Pettengill, appellant, v. Alfred S. Barnes, respondent. entitled to “necessary household furniture, provisions -Judgment affirmed-People, respondent, v. John or other personal property, in the discretion of said ap- McKeon, appellant. — Appeals dismissed with costspraisers, to the value of not exceeding $150, in addi. Marion Hovey et al., appellants, v. William E. Dodge tion to the personal property now exempt from ap- et al., respondents; People ex rel. Board of Superripraisal by said section."

sors of Chenango County, appellant, v. Board of State Under the last provision $150 in cash is sometimes Assessors, respondent.-Order modified and affirmed allowed, or other property than household furniture. without costs—Marion G. Washburn (formerly Catlin), But the question is whether, under the former clause, respondent, v. William . Catlin, appellant. — Order “other household furniture which shall not exceed affirmed with costs—Stephen C. Johnson, appellant, v. $150 in value," any thing but strictly household fur- | New York, Ontario and Western Railroad, respondniture can be set apart and appraised in lieu thereof.ent; People ex rel. Willard Van Houton, appellant, v. It would seem not by the strict letter of the law; and Ambrose Sadler, superintendent, etc., respondent; In yet McClellan's Surrogate's Court Practice (2d ed.), at re Claim of Receiver of Guardian Savings Bank, repages 377-8, in giving the form of an inventory filled spondent, v. 8. F. Knapp, receiver, etc., of Bowling out, enumerates under this provision as follows: Green Savings Bapk, appellant.

cells below. In three weeks time he will pass through The Lollowing decisions were handed down Tues

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lawyer,” and that he is either too modest or too The Albany Law Journal.

censorious. As for the rules which the writer in

the Century lays down, they are mere truisms. Of ALBANY, NOVEMBER 1, 1884. course "a lawyer onght to be a gentleman;

'ought not to lie; ” “ought not to sell his services for CURRENT TOPICS.

promotion of injustice and knavery.” But to assert

that the typical lawyer does either of the two latter (R. THEODORE BACON seems to have taken things is to beg the whole question. And as for the

the morals of the legal profession in charge. clergyman who put the "troublesome question” to We are not going to find fault with him for this,

the association, whether it is not the most highly nor to call him a pharisee or a hypocrite. But we

educated attorneys who “prove the most facile and may be allowed to say that we think he exagger- unscrupulous instruments as the advocates of large ates, as most reformers do, at least ff he is correctly corporations and monopolies,” we would simply rereported in the Century for November as having mark that the most unscrupulous examples of thick said to the Social Science Association that the and thin advocacy, and the most disgusting exhitypical lawyer is not the type of honesty.” We bitions of injustice which the world has ever seen, think that lawyers are the honestest class of men

have been and still are in church councils. on earth. We think this is so intrinsically, and by reason of their position. Intrinsically, as a class, The ideal lawyer seldom has been better porthey are much more honest than merchants, so trayed than in the following, by Judge Cassoday, many of whom cheat and lie; than people who of Wisconsin, in a recent address to the law class gamble in stocks; than clergymen, so many of of the University of Wisconsin: “But remember whom preach creeds that they do not believe — and the true lawyer is not, as some suppose, a skilled we may add, to congregations which pretend to be magician, engaged in the business of winning lieve them but do not; than physicians, many of causes by withholding, suppressing and manufacturwhom practice methods in which they have no ing evidence and perverting law, but an honest man faith, and hold out hopes which they know to be who makes his client's cause his own, and then false; than editors, many of whom sell their opin-wisely counsels and ably maintains, regardless of the ions, and change them from day to day according effect upon his personal interests. Such a man will to the exigencies of party demands, and advocate be broad, generous, benevolent, forgiving, ready to men whom and measures which they know to be spend and be spent, to sacrifice and be sacrificed, in unworthy, at the dictation of the caucus. By rea- order that his convictions of right and justice may son of their position they are honest, because they be triumphant. His purpose will be to build up are called on to make no profession of belief, and rather than to pull down — to heal wounds rather make none, in the justice of their clients' causes. than to make wounds - to praise others rather than They are simply the mouth-piece of their clients, to traduce others a peace-maker rather than a presenting their causes for what they are worth, peace-breaker. He will be thoroughly master of himand leaving the responsibility of decision with the self — master of his temper — master of his disposiproper tribunals. Mr. Bacon is quite right in say- tion --- master of his will — master of all his faculing that the lawyer generally believes he is right ties. He may sometimes lose his cause, but will and his client is right. At the worst, he cannot never lose himself. He will always be loyal to the know he is wrong until he hears the evidence on truth and the law as well as his client, to his conboth sides, and even then it is his duty to see that science and his country as well as himself. He will the court does not apply a wrong rule of construc- be a minister of justice – called by the good, because tion or discretion. So the writer in the Century on he is wanted — retained by the wise, because he is this topic of “Lawyers' Morals" is far astray when useful — trusted by all, because he is honest. he says “there must be many dishonorable lawyers,

In the common law we must ever look to for undeniably there is a vast number of civil cases the great English lawyers and judges who took the in which one side is palpably in the wrong.” This as- law in its infancy and reduced it to a philosophical sertion we deny. We undertake to say that the science. We are not however to blindly worship, writer of it does not know any thing of what he is but to wisely discriminate, for while we are always talking about. Any lawyer could make him be- to admire all noble qualities of head and heart, yet lieve either side by turns of any case.


we are to reject as unworthy, all hate, arrogance, cases in which a lawyer can or ought to see envy and jealousy, even in men like Coke — all corat the outset that his client is wrong

are ruption, even in men like Bacon - all superstition, extremely few. The cases in which the event even in men like Hale — all coarse vulgarity and shows that one side is palpably wrong are those de profanity, even in men like Thurlow — all abnormal pending on facts which can only be known after ambition and conceit, even in men like Loughbortrial. As to questions of law it is extravagant ough — all prejudice and malignity, even in men to say that any one is ever palpably in the wrong, like Burke — all deceptive plotting, even in men for the courts themselves are not harmonious with like Eldon — and to spurn with contempt all cruelty each other, nor with themselves for any length of and wickedness in men like Jeffreys — all vacilation, time. In short, we think Mr. Bacon is the “ typical | knavery and profligacy in men like Shaftesbury –

Vol. 30 - No. 18.





and to withhold our praise not only from the vast these images is pretty and touching, but the first number of dull, weak and ignorant, but from the two savor of the stump, and remind us of the writ. brilliant and eccentric, whose usefulness is destroyed ings of another American wbo does not profess dig. by lack of judgment and good sense.”

nity, and mocks at sentiment. Bursts of eloquence,

such as this, are best unwritten.” And elsewhere Mrs. James Bennett sends us two copies of a pam: the bounds of moderation.” It will amuse Mr.

the writer speaks of Mr. Field as “eloquent beyond phlet, entitled “ An appeal for Woman Suffrage,' an address delivered by her, with an injunction on

Field to learn that he is considered an “eloquent the title page in her own valuable autograph, to

man at all, to say nothing of being immoderately "votė for Blaine,” because a vote for Cleveland, eloquent. We confess that the above quotation is

rather livelier reading than most British eloquence; wliether the accusations against him are true or false, will amount to a vote “ for the destruction of

and yet we never heard the British find any fault woman, body and soul, for whom Jesus shed his

with the figure of the New Zealander sitting on the blood.” It is greatly to be feared that Mrs. Ben

broken arch of London bridge and sketching the nett lacks the logical faculty which should char

ruins of St. Paul's, rendered famous by Macaulay, acterize the statesman and the lawyer. Governor

but by no means original with him, but used before Cleveland certainly should not be made to suffer

him by several English authors. What would the on false accusations. We are grossly ignorant of

Times say of Daniel Webster's apostrophe to the politics, and take no pleasure in them, but

National flag floating over the same dome, or rather we do not understand that the Republicans

its more humble predecessor? We think Mr. Field's

figure of speech fine and appropriate, but we are favorable to woman suffrage than the Democrats. We cordially concede that Mr.

able to take a little of the poetry out of it. That Blainc is a handsomer man than Governor Cleveland.

statue, so far from being raised with “returning Some years ago we got ourselves into a terrible

peace,” stood there, we believe, before the civil scrape by writing of a reiguing prima donna, that

At all events its form was decided on by so long as she wore high heels, painted, powdered,

Jeff. Davis, while secretary of State, and it is amuspinched her vitals by tight lacing, and squirmed and ing. to note the changes from the artist's original wriggled in her gait she would not be fit to vote.

design, as explained in Hicks' memoir of the artist

Crawford. Now we will venture under our breath to say that we do not think that if women are generally such fools as to be liable to be seduced, as Mrs. Bennett

We venture to give the following extracts from a

letter from a Maine lawyer: “From my standpoint seems to think they would be if Governor Cleveland should be elected, they are not fit to vote. Nor

of construction a sermon could be written on that do we see how the elective franchise is going to save

little poem that so charmed Judge Folger. He them from seduction. With one remark in Mrs.

must have drunk in its sweetness. That 'sofo come

in' was to him like the voices of the shining ones Bennett's screed we heartily concur : "God


in Bunyan's Pilgrim's Progress, who met Christian he takes no pleasure in fools.” If the sensible

at the end of his grand fight, in the land of Beulah, women want to vote we should say, let them. We

and whispered their sweet invitation to go up with have seldom known a sensible woman who did.

them to the mountains of God. I want to thank Most of such women prefer to stay at home and rear

you for the many pleasant hours your editorial work men to do the voting. This however Mrs. Ben

has given me. Instead of sending us a dull, cold nett seems to think “a crucifixion afresh."

law-book, merely, the sparkles of editorial humor

have brightened its face into a most cheerful and The British idea of eloquence differs quite widely welcome weekly visitant.” from our own, and British eloquence, compared with ours, is heavy. In a very complimentary notice of Mr. David Dudley Field's recently published

NOTES OF CASES. works, in the London Law Times, speaking of his argument in the Milligan case, the writer says: N Stevenson v. Phænix Ins. Co., Ky. Ct. App., “We confess that we admire, but do not altogether Sept. 16, 1884, 6 Ky. L. Rep. 196, it was held like, Mr. Field's poetical fervor of expression. that where one has taken out a policy of fire insurSpeaking of the weight of the judgment about to ance containing a provision making it void if the be pronounced by the court, he says: “It will stand insured should take out other policies, and he subwhen the statue, which with returning peace we sequently takes out another policy, having a similar have raised above the dome of the Capitol, shall provision against his then holding or afterward have fallen from its pedestal, its sword broken, and taking out other insurance, he cannot recover on its shield scattered (quære shattered) in pieces; nay, the first policy on the ground that the second forwhen the dome itself, which though uplifted into the bidding other insurance was void ab initio by reaair, seems immovable as the mountains, shall have son of the existence of the first, and was therefore crumbled; it will stand as long as that most imper- | in reality no violation of the first. These provisishable thing of all, our mother-tongue, shall be ions against other insurance are for the benefit of spoken or read among men.' Now the last of the insurer, and are not void but voidable at the


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latter's option. The court said: “The question | Am. Rep. 625; Landers v. Watertown F. Ins. Co., 86 presented by the amended replies has heretofore N. Y. 414; S. C., 40 Am. Rep. 554; Fireman's Ins. been passed upon by this court in the case of Lugg8 Co. v. Holt, 35 Ohio St. 189; S. C., 35 Am. Rep. v. Liverpool, London and Globe Ins. Co., MS. opin- 601; Allen v. Merch. M. Ins. Co., 30 La. Ann. 1386; ion. In that case the court in rendering the S. C., 31 Am. Rep. 243; Hubbard v. Hartford F. opinion used this language: 'Appellant contenda Ins. Co., 33 Iowa, 325; S. C., 11 Am. Rep. 125; that the last insurance was absolutely void, and Thomas v. Builders' F. Ins. Co., 119 Mass. 121; S. C., left the first in full force. He is wrong in any as- 20 Am. Rep. 317, and note, 319; Lindley v. Union pect of the case. First, the second insurance was Ins. Co., 65 Me. 368; S. C., 20 Am. Rep. 701; Suthnot void, but voidable only at the option of the in-erland v. Old Dominion Ins. Co., 31 Gratt. 176; Gee surer; and second, if it were void ab initio that fact v. Cheshire Co. M. F. Ins. Co., 55 N. H. 65; 8. C., would not relieve appellant from the forfeiture re- 20 Am. Rep. 171. The principal authority is against sulting from a violation of the stipulations in the the decided weight of authority, but it is in accord first policy against additional insurance.' It is thus with the rule in this State. obvious that if the opinion in that case is to be adhered to, the judgment sustaining the demurrer to In the Matter of Jacobs the General Term of the the amended replies must be affirmed. Counsel for Supreme Court, for the first department, have held appellant refers us to several authorities holding a that the act of our Legislature, passed last May, doctrine opposite to that announced in the opinion prohibiting in cities of over 500,000 inhabitants the referred to by this court, and perhaps the weight manufacture of cigars in tenement houses, is unof authority in this country may sustain him. But constitutional. The decision is unanimous, Davis, on the other hand the decision of this court is sup- P. J., delivering the principal opinion. He says: ported not only by the Supreme Court of the “It may be stated as a legal and political axiom, United States and several State courts, but by prin- that since the great laboring masses of our country ciple and reason. In the case of Baer v. Phænix have little or no property but their labor, and the Ins. Co., 4 Bush, 242, where the question arose as free right to employ it to their own best interest to the proper construction to be given to a similar and advantage, it must be considered that the concondition contained in a policy of fire insurance, stitutional inhibition against all invasions of propthis court said: “The object of that condition was crty, without due process of law, was as fully into assure the underwriter against over-insurance, or tended to embrace and protect that property as any insurance equivalent to the entire risk, whereby the of the accumulations it may have gained. It is not insured, relieved of all risk, might be tempted to constitutionally competent therefore for the Legisprocure the loss, or to take no care to prevent it. ture to deprive by any arbitrary enactment a laTo make it the interest of the insured as well as borer in any lawful avocation of his right to work the insurer to avoid loss, no prudent underwriter and enjoy the fruits of his work, in his own resiever insures for the full value of the property, but dence and in his own way, except for the purposes leaves the owner so far interested in preventing the of police or health regulations, as hereinafter conloss as to assure his fidelity and vigilance in proper sidered. It is equally true also that when an articare to avoid it.' This precaution on the part of san or laborer has rented a tenement for the resiinsurance companies is not only justifiable, but in-dence of his family, with the right to carry on his dispensable to their success, if not existence. For trade or occupation therein, he has thereby acwithout such provision against cumulative insur. quired certain rights of property in the use and enance, fraud and bad faith on the part of the in-joyment of his tenement, of which he cannot be sured would be encouraged, and the legitimate and deprived without due process of law. An arbiuseful purposes of fire and marine insurance to a trary law for the mere purposes of such deprivation great extent defeated. A contract of insurance, is absolutely dead at its birth by force of the Conlike any other which the law sanctions, should be stitution of the State.

* In this case the enforced by the courts according to its terms and appellant while in the exercise of a perfectly lawconditions. In this case a plain and vital stipula- ful right to use and enjoy the property of his own tion, which the insurer had the right to insert in labor by conducting a manufacture in the line of the policy, and which the assured understanding, his avocation quietly and peaceably, in his own or having the opportunity to understand, agreed hired house,' suddenly finds his business declared a to, has been deliberately violated by the latter. crime, and himself absolutely prohibited from carryAnd he now seeks to avoid the forfeiture which re- ing it on in his own house under severe criminal sults from such violation, and is now claimed by penalties, by an act of the Legislature which takes the insurer upon the ground that the two subse- effect immediately.

A careful study of quent policies being rendered invalid by like breach the act has satisfied us that its aim was not ‘to imof contract and of faith on his part, the first one is prove the public health by prohibiting the manunow valid and enforceable by either party to it.” facture of cigars and preparation of tobacco in See Emery v. Mut., etc., Ins. Co., 51 Mich. 469; S. any form in tenement houses in certain cases, and C., 47 Am. Rep. 590; Funke v. Minnesota, etc., Ins. regulating the use of tenement houses in certain Ass., 29 Minn. 347; 8. C., 43 Am. Rep. 216; Jersey cases,' as declared in the title, but to suppress and City Ins. Co. v. Nichol, 35 N. J. Eq. 291; S. C., 40 restrain such manufacture in the cases covered by

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who live not independently but in promis- MARCH 2, 1979

, was a memorable day, in parlia

the act, for the purpose of preventing successful presented But in the form in which it comes becompetition, injurious to other modes of manufac- fore us it is so unjust in its inequalities, so harsh turing the same article. We think we find abund- and oppressive upon the labor of poverty, so keenly ant evidence of this object on the face of the act. discriminative in favor of the stronger classes enFirst, it selects for its field of operation from the gaged in the same occupation, that it certainly general and numerous tenement houses of the city ought not to have been enacted; but being enacted a limited class, to wit: such as are occupied as the ought to be held invalid, because it deprives the aphome or residence of more than three families liv- pellant of his right and liberty to use his occupaing independently of one another, and doing their tion in his own house for the support of himself and cooking upon the premises.' The result of this se- family, and takes away the value of his labor, lection is that all tenement houses having more which is his property, protected by the Constituthan three, or more than twenty families living in tion equally as though it were in lands or money, common, or not doing their cooking on the prem- without due process of law." ises, are not within the act. Certainly, if health were the object all such tenements would be em

OLD CASES REVIVED. braced, for they are especially within the professed mischief. It is the thronged and overcrowded

THE CASE OF THE NINE MEMBERS. tenements which swarm from cellar to attic with


tene- mentary history. ments, but from hand to mouth in the streets and Finch, vainly endeavoring to leave the chair in purgrog shops, or as beggars at houses for food, whose suance to a royal command, was forcibly held health most needs the protection of police regula- therein, whilst an exasperated Commons passed tions; but they are not included within the act. resolutions against “Popery and Arminianism, Again, by the third section the first floor of the Tonnage and Poundage," and Sir John Elliott, in designated tenement is exempt from the operation tumultuous debate, declared that “whosoever goeth of the law, if in addition to the manufacture there about to break parliaments, parliaments will break be a store for selling cigars and tobacco on that him!” Thus we find that the first attempt at that floor. That fact, if health were the object, should systematic obstruction with which the Irish party be a reason for more stringent restriction instead of have lately been so vehemently reproached, was exception, because it would cause that floor to be made by a servile speaker, and was nipped in the the resort of more persons whose health might be beginning by a resort to physical force. A similar exposed; but one nuisance to health is in the the expedient was clearly out of the question on the ory of the act cured by another. It is of no con- later occasions, it being one thing to effect a forci. sequence that on the same floor there may be a half ble detainer on the person of an ancient lawyer, dozen families each carrying on the manufacture of and quite another to carry out a forcible ejectment cigars or tobacco in their living rooms, where they against some forty lusty Hibernians. The king eat and sleep and cook. They are not subject to however in his turn resorted to vis major," and the law, while the head of a family on the next or nine of the most prominent members of the House, any other fivor of the same tenement is a criminal to wit, the said John Elliott, and Hollis, Hobart, for carrying on his occupation of manufacturing Hayman, Selden, Coriton, Long, Stroud and Valencigars in any room of such floor. * It is tine, speedily found themselves ensconced in prison. impossible, we think, to hold that this act is a po- In due course they sued out their writs of habeas lice enactment to preserve public health, because it corpus, to which their jailor returned & his authorclearly fails to accomplish that purpose to any rea- ity for their imprisonment, two warrants, one sonable extent. It does on the contrary quite an- signed by twelve lords of the Privy Council, and other thing. It strikes with unjust and cruel sever- alleging no cause, and the other under the king's ity a class of humble manufacturers, too poor to sign manual. The latter specified tbeir incarceralive elsewhere than in crowded tenement houses; tion to be “for notable contempts by them comunable to have a store on their premises or to rent mitted against ourself and our government, and for a shop outside of their residences in which to do stirring up sedition against us." their work, but constrained by the necessities of In Easter Term the first writs, those taken out by their families or themselves to use a part of their Long and Stroud, came on for argument before a rooms to carry on their daily occupation. They are full court of King's Bench, presided over by Hyde, singled out with keen discrimination, and their in- C. J. Ask appeared for Stroud, and had little dustry is made a crime, unless they submit to aban- trouble in disposing of the Privy Council warrant, don it or find employment outside of their homes. the want of cause therein being clearly against the If the act were general and aimed at all tenement petition of right. Upon the seconds, his preliminhouses, and prohibited, for sanitary reasons, the ary contention was that the king himself could not manufacture of cigars and tobacco in all such build imprison any man, and in support of this he cited ings, or if it prohibited such manufacture in the Markham and Fortescue, De Laudibus Legum living rooms of all tenants, another case would be Angliæ." His pretension was that every man im


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