Gambar halaman
PDF
ePub

con

OF

tallization of the same idea. It is one of the neces- of preserving inviolate, the peace of society and the sary restraints upon natural rights.

security of property rights. It is but one of the Authorities are not entirely lacking to show that many instances where abstract principles must be this underlying principle has been recognized in subordinated to concrete needs. That, here, as in cases of unilateral mistake. One of the ablest of the the case of executed contracts, the basic principles text-writers (Poll. on Cont., p. 400), has said, cannot be fully worked out, is because of those sent is essential to the creation of a contract, and if restrictions, which in the interests of the state, it is wanting, it matters not whether its absence is place upon the fullest development of the “ natural due to the error of one party only or both;” and law” in every system of jurisprudence. It is not yet, upon the same page, he says of mutual mistake the less necessary on this account that they should itself, “it seems hardly too artificial to say that be understood. there is no real agreement.” The courts. have in St. Louis, Mo., March 1, 1902. several notable decisions shown a disposition to make unilateral mistake a ground for relief when

HOW THE BANKRUPTCY LAW WORKS. ever it could be done with certainty of not doing injustice. Paget v. Marshall (28 Ch. Div. 255) is

PARTICULARLY OF ITS PRACTICAL OPERATION IN one of the most striking examples of the working out of this principle. This was a case where the

THE UNITED STATES DISTRICT Court, OFFICE

THE CLERK FOR THE SOUTHERN DISTRICT plaintiff offered the whole of the building at a cer

OF NEW YORK. tain rental, intending to reserve a part, but failed to do so. The defendant accepted the offer as made. Here the court decreed recission of the In this office all papers are filed relative to procontract for unilateral mistake, giving the defendant ceedings in bankruptcy, and the present clerical the option of submitting to reformation. The de- method of conducting such business calls for a fendant submitted, and the court preserved inviolate searching and thorough investigation. Ordinarily, the ancient rule of never reforming a contract save the newspapers, generally foremost in the criticism for mutual mistake. In its decision the court said: of official misdoings inaugurate this investigation “A common (i. e., mutual) mistake, the court has without much prompting, but they are not always power to rectify. The other class of cases is one proof to the influence of utilitarianism; and where of what is called unilateral mistake, and there, if the patronage from this branch of legal machinery the court is satisfied that the intention of one of amounts to thousands of dollars in the course of the parties was to do one thing, and he, by mistake, a year self interest is paramount to the mere voice signed an agreement to do another, that agreement of conscience or public interest. Their clamorings will not be enforced against him, but will be treated are loud enough, sometimes unbidden, but a bone as if it had never been entered into."

tossed to them will cause them to lie quiet as any This rule that equity courts will refuse a decree lamh. It cannot fail to suggest an analogy to the of specific performance when convinced that the diffidence of the singers mentioned by Horace, who contract was entered into by one of the parties were ever and only ready to utter melody when through mistake, is as well established in this coun- the same was not in demand. try as in England. Thus, in a leading decision in

Omnibus hoc vitium est, cantoribus inter amicos Maine (Mansfield v. Sherman, 81 Me. 365, 370), it Ut nunquam inducant, animum cantare rogali,

Injussi nunquam desistant. was said: “The court when appealed to in an action at law, can only consider whether there was a valid

But to the purpose nd the facts: contract and a breach. The mere mistake of one The bankruptcy law was primarily enacted in the party, however great, will not excuse him from interest of the entire country. The compensation making full compensation. When, however, appli- of clerks, referees and trustees is a matter merely cation is made to the court not to determine and incidental to the proper eníorcement and operation enforce legal rights, but “to do equity" between of the same. In the case of a genuine bankrupt, the parties, the court will be careful to do only and the pauper, impoverished through financial misequity, and will not aid one party to take advantage fortunes, the law contemplates the absolute immuof the mistake of the other party." It is thus that nity of the bankrupt from the payment of fees. equity courts, recognizing the effect which an uni- Section 51 of the law expressly exempts the banklateral mistake exercises upon a contract, strive to rupt who begins his proceedings by an affidavit of do justice by refusing to enforce an agreement i inability to pay the fees of the referee, clerk, etc., which by its very nature is void. That this is the in other words, who sues“ in forma pauperis," as only in which such a mistake is recognized as a the phrase runs. Now, how does the case of a real ground of relief, is due, to the imperative necessity petitioner who begins his case “in forma pau

66

peris " work? Simply thus: From the testimony country — the preliminary “jusjurandum of adof a good many lawyers who have learned by sad 'mission to the bar. experience, and who can vouch for the truth of The average court subordinate may laugh at the these facts, as soon as the unlucky petitioner files burning words of Cicero, the champion of the his affidavit of inability to pay court fees, his doom oppressed, nos ad justitiam esse natos, neque is sealed. All sorts of objections, real, fanciful – opinione, sed natura constitutum esse jus," but mostly the latter, and unsound are discovered by he may well pause upon the threshold of the twenthe clerk. “He has made a plot on his papers, tieth century and turn back. The adage, “it is somewhere, etc.” He has no legal right to do what? better to know the judge than the law,” is being Why come in without his pockets ready for de- metamorphosed by bitter experience. It is better mands from the clerk, and this in the face of the to know the clerk than the judge. The worm may express words of the law - certainly a constitu- turn at last. Carlyle says: “The brutallest black tional law — and one adapted to secure honesty and African cannot bear that he should be used unstraight-forward dealing on the part of bankrupts. justly. No man can bear it or ought to bear it. A The clerks by their methods of browbeating, and deeper law than any parchment law whatsoever, a insulting both lawyers and bankrupts are directly law written direct by the hand of God in the inencouraging fraud and concealment of facts. The most being of man, incessantly protests against it." bankrupts who pay go through, the poor devils

Sincerely yours, who in their poverty and probity cry out for redress,

ALEXANDER LEE HIRSCHBERG. as the law intended, are tortured and annoyed

Mt. Vernon, N. Y., April 8, 1902. beyond the peradventure of belief. Most of them abandon the attempt, in abject humiliation, because insult has been added to misfortune. I do not mean

JUSTICE IN THE PHILIPPINES. to imply that the bankrupt who has fortunately relatives or friends to provide the fees to win back “ Law is uncertain, and politics utterly vain," was business credit is necessarily dishonest, but I do the remark of America's greatest statesman, when say that the meritorious bankrupt who honestly in old age, wearied and worn with the contests and comes forward, and courts investigation under the vexations of the hustings and the courts. The latter law, standing like a true man upon his rights as sentiment will undoubtedly be found to a citizen, is entitled to something else beside con- abundantly apply to the Filipinos, after a few tumely and coals of fire from disappointed clerks months more of civil government. With the preand appointees. In most cases, the clerk refuses vailing judicial conditions in this country, however, to receive his papers an act amounting under it is proposed to treat on the present occasion. certain conditions to positive malfeasance in office. The course of justice in the Philippines is deThe manner in which they receive the attorney for cidedly uncertain. At the present time, as well as such a petitioner is a crying disgrace, and a per- in the immemorial past, the greatest of crimes is petual stigma upon the honorable profession of a to be ignorant and poor. “Forsake all hope, ye member of the bar a title which in any other who enter here," might have been written over the country in the world is a guarantee of respect and door of the prison that closes on the disappearing fair treatment. I stand ready to produce attorneys figure of the poor man. who will testify to the truth of these statements. “The law's delays," as well as the law's injustice, The gross quantity of autocracy that appointees have been, and to a certain extent, are still, a and clerks exercise in the handling of these cases marked feature of the administration of the Filipino would make a judge blush. The same was true law, which has continued from the days of the in the county clerk's office, and only now is a earliest Spanish governor general down to the days remedy forthcoming. There are few bankrupts that of Governor Taft. The injustice of the law is in could afford to stand out in a legal contest with its aristocratic tendency. Its disregard of the rights these appointees, and the latter knowing this prob- of the great mass of the population. Reference here ably think so meanly of the legal profession as to is made to the administration of the laws, not to take it for granted no attorney will fight for the the laws as written, in fact the Code of Spain, as mere honor and duty of exposing these practices; provided for the colonies, carefully protects the but the times are productive of marvelous develop rights of all classes of men. It provides that the ments in this twentieth century, and I for one am trial judge may take into consideration the fact of prepared to follow where any dare lead in the battle the defendant being ignorant, an Indian or a Chinaof justice for the poor man, and assuredly there man, as matter of extenuation before pronouncare others prepared to stand up for the oath of ing sentence. The law in its essential features is loyalty to the institutions and constitution of the tumane, and if administered in the spirit of its

most

As a

con

composition would prove a blessing to the people the support of himself and the younger children. of the colonies.

On being asked by the judge if he received any pay In the Philippines, as elsewhere in the world, it for his labor, the defendant took from his pocket is bad to be a murderer or a thief, or barn burner, two rings made from the horn of the caribou, saying but the fatal crime is to be a poor man, a common that after hours he made such rings, and from the Tow as called in the Visayan provinces, or an hom- sale of them, provided himself with clothes. His bre, to use the Spanish expression for the common liberation speedily followed the trial, there being no native, all over the islands.

evidence connecting him with the offense. Such has been the status of men in these islands rule the native Visayan comes before the court with during the past, and to a considerable degree, such a face like a graven image, and departs with the is the status of men to-day.

same bronze visage, whether acquitted or Recently in the American Court of First Instance demned. A weeping Filipino is a rarity before the in the Island of Negros, was completed the trial of court. The party alluded to, however, was an exa number of cases, involving many defendants, some ception; his voice broke, and he wiped away the men of position, with influence; some, and the tears as he answered the questions of the judge as greater number, belonging to the common class of to his family and future prospects. tows. The cases all arose from the same transac- On a previous occasion, of similar nature, equal tion, the theft of several thousand Mexican dollars sensibility was manifested by a native prisoner who from the Chino owners. Tle crime was committed had been in unjust confinement for many months. on the 15th of August, 190'). A few of the defend- When his long, lingering imprisonment was termiants have been in the public prison of the province nated by his being brought before an American for sixteen or seventeen months; most of them, judge, who promptly inquired into the cause of his however, had been released on bail, among whom incarceration and summarily liberated him, the poor were included, of course, the men of influence, and fellow shed tears as he realized that he actually was who were, as charged, by all means the greatest at liberty to join his wife and children. offenders.

The existing law is in a transition state, partaking The chief of the Ladrone band. who committed both of the old Spanish and new American systems. the theft, has been killed by American soldiers. A new civil code has been introduced which parThe presidente of Pueblo, where it was committed, tially supersedes the former code and partially suphas never been in prison; he was at once released plements it, leaving, as is unavoidable in such case, on bail. The councellor of Pueblo, one of the de- many points in doubt liable to give rise to much fendants, is on bail. They were men of official po- future litigation. sition and influence. The presidente was accused The Criminal Code has been unchanged by the of giving information to the chief of the Ladrones, commission, excepting as to procedure before jusas to the location of the silver, anil inciting the tices of the peace. In the days of General Otis, theft. The councellor was accused of following up however, a general order was issued modifying the thieves and participating in the plunder to the the existing criminal law to a certain extent, with the extent of 750 of the dollars. The testimony against intent of introducing the great principles of the both of the said officials taken in the previous ex- common law guaranteeing safety of liberty and peraminations was very strong; both, however, were son, providing that the accused shall be confronted liberated on bail, and during the seventeen months by the witnesses against him, which order, while since the commission of the crime have been at apparently making alterations easily understood, liberty.

introduces principles so alien to the pre-existing One of the accused, however, had neither money laws as to confuse the native practitioner as to their or official position. Shortly after the perpetration application, and in instances leave the American of the crime he was arrested and remained in prison judge or lawyer in doubt as to the procedure to be for the period of seventeen months. Last March followed. he was permitted to work in one of the military The confusion is worse confounded by the comdepartments, instead of working on the roads under position of the courts. The prosecuting attorneys a sentinel, and continued so working to the day of of the highest trial courts are all native lawyers. his trial, yesterday. During the seventeen months. These provincial fiscals, as they are called, are ignohe has been a prisoner, receiving no compensation rant of our laws of evidence, of pleading, and espefor his labor.

cially of the inherent spirit of the laws of the United His wife died three months after his arrest, as he States. The judges of the Supreme Court are stated, from grief. His little family of four are partly native, partly American. The chief justice living in the town from whence he came, supported being a Filipino. Several of the judges of the by the eldest, a boy of twelve, who peddles fish for Courts of First Instance, as the highest trial courts

of/

are called, are Filipinos. All justices of the peace plaintiff, and to make assurance doubly sure, the law are natives. Such is the constitution of the courts further provided that from the decision of his before which practice both American and native brother professionals there should be no appeal. lawyers. On the Supreme Court, where time is However unjust the demand originally, the referees taken for reflection, and where is considered the might augment it and there was no relief for the construction and interpretation of Spanish as well client who had the hardihood to dispute his lawyer's as American laws, native as well as American law- fee. yers may prove competent judges. On the bench of Such a system bears its natural fruit. The lawthe trial court, however, conditions are very differ- yers look upon the non-professional man as his ent, and it is patent to every one that it must be natural prey. Some time since a disputed lawyer's very difficult, if not impossible, for a judge trained fee was submitted to two lawyers as provided by under the Spanish system of judicature, to sit and i law. The American judge selected as arbiters the decide points of evidence as they arise in the fiscal of the province and the single American lawprogress of the trial of a case, without time for yer practicing at the bar. The native was in favor deliberation. In the courts of the States a very of allowing the total sum, the American considered large proportion of the cases reversed in the Su- it cxorbitant, and so reported, recomm

mending an preme Courts are sent back for a new trial on amount materially less. A prominent member of erroneous rulings on the part of the trial judge as the local bar made the remark, during the discusto the admission of evidence. If this be so in sion of the question, that there was an understandcourts presided over by men whose life has been ing among the lawyers to the effect that the amount passed in the practice of a system of law of which claimed should never be diminished when a disthe rules of evidence constitute a most essential puted attorney's fee was submitted, but that the principle, how inuch greater would be the number lawyer arbiters would either allow the full sum or of reversal of cases tried by judges trained in a increase it. system of law to which our law of evidence is In this country, among the common people, huunknown?

man life is held in slight esteem. In a case which Under the American Criminal Code, with a native came recently under my observation, one man killed judge on the bench and a native lawyer as prose- another by stabbing him with a wooden spear in cuting attorney, it will be well nigh impossible to the breast. The cause of the murder was a dispute avoid a complete failure of justice when the defense over a gambling wager of ten cents, Mexican, or half is conducted by a competent American attorney. a dime of our money. The clerk of the court tells The same remark applies to even where the pre- me that a man has been killed here for two duckles, siding judge is an American, unless the court turns or about one cent American in value. In the great public prosecutor. The native lawyer, trained in majority of cases coming before the court, life is the past system of Filipino-Spanish law fails to taken in a quarrel, generally in a reckless manner. comprehend the essential spirit of our laws; whether while the perpetrator of the offense is in a rage, or the present generation of practicing lawyers will his head is bad. Occasionally, however, the act is ever comprehend it is a matter of extrenie doubt. one of extreme wantonness, showing an utter disreThe political system of the past, as well as the gard of human life as well as diabolical wickedness. written law, is antagonistic to the essential spirit A case of the latter character is now pending senof the laws of the United States. So unlike, that tence in the Court of First Instance for the Western our laws cannot be administered in the spirit of our Province of this Island, in which the evidence institutions by judges and fiscals brought up under shows that the defendant killed a child of tender the political and legal institutions of Spain, as pre- years for the purpose of wreaking revenge on the existing in the Philippines.

boy's father, whom he claims refused to deliver his A brief reference to the provisions of the previous axe, or pay for the same the sum of one peso and Filipino law illustrates this point. The law was

a half. made for the classes and not the people, es- A case of somewhat similar nature, decided in pecially was the law made for the lawyers, wlio the court of oriental Negros yesterday, manifests were not subject to the ordinary operations of the the Malay spirit of revenge in a manner worthy courts in collecting their fees. In case a client of the old-time pirates who cut the throats of our objected to paying the fee demanded by his attor- grandfathers when navigating the Sulu seas a cenney, the matter in dispute was referred to two of tury ago. In the instance alluded to, the accused the practicing lawyers of the local bar. No matter had served a term in the public prison, or while how exorbitant the sum demanded, there was no serving sentence for killing a man, had been rerecourse for the client but to submit to the decision leased at the prison delivery following the uprising of a board composed of two fellow-attorneys of the against the Spanish government. After his release he asked a man named Pedro for his bolo, whom come. The party is an Igorote, an infidel, as it would appear had had possession of it before, termed here, or unbaptized person, or half-civilized or during the imprisonment of the accused. Pedro man of the mountains. Whether his imprisonment replied that the bolo was in possession of the au- will be for life, or whether he will live to be set free thorities, which answer enraged the defendant, but is as yet uncertain. who refrained from assaulting Pedro at the time,

W. F. NORRIS, as there were too many people present. He bided

Judge Special Court First Instance his time, however, and about a week later proceeded

for Island of Negros, P. I. to Pedro's house, taking his spear with him. The BACOLOD, P. I., March, 1902. houses of the common people are raised some six or eight feet above the ground, the floor is composed of strips of bamboo, so that one can walk THE WIT AND HUMOR OF LORD NORBURY. under the house and look up into the living room of the family. It was dusk when the defendant ar- The superiority of Irish wit is universally adrived; walking under the house, he saw the family mitted. Men renowned for wit have credit given at supper, gathered around the common dish, seated them for many funny sayings which they never on the floor or sitting on their haunches after the uttered. John Toler, Lord Norbury, was brimming manner of the natives. Inserting his spear under over with sparkling wit and pleasing humor. Many the one he supposed to be Pedro, the defendant a man has been immortalized as a wit on half the gave a thrust into the body of his victim and fled. capital he possessed. His wit was of the refined The man wounded was the father of Pedro, who and cultured kind, and never at any time coarse or died within two hours. The above statement is vulgar. It was ready wit, capable of quick undersubstantially as given by the murderer, who said standing, and unaccompanied by long introductions that he intended to kill, and not to wound, when he or explanations. No judge or lawyer in the history gave the thrust of the spear into the body of the of English jurisprudence ever surpassed him in man whom he supposed had refused to return his repartee. His levity never forsook him, and with bolo. The above statement is related substantially the black cap on his head he joked as freely as as confessed by the defendant, who apparently failed though he were the chief wit at a banquet. His to realize the enormity of his crime as judged by jests and puns were known and appreciated by the American standards. In fact, he sent to the judge shop keepers of Dublin. His powers of invective a request that he might be released, as had been were startling, and his sarcasm frequently led to numerous minor offenders against whom there was challenges and participation in duels. He often no adequate cause of detention in the prison. remarked that he would not seek shelter behind

In November, 1898, at the date of the revolt the bench, or merge the gentleman in the chief against Spain, the prisoners were freed. Previous justice. to that time Spanish judges presided over the Some of the newspapers kept the heading, “ Lord Courts of First Instance. For several months after Norbury's Last” in type, and under its shade issued Filipino judges, appointed under the authority of pleasantries he never dreamed of. When told one the United States, were supposed to administer jus- day that other judges were stealing his puns, Lord tice, till the appointment of the present judges Norbury remarked rather dryly, They are welunder the prevailing system inaugurated by the Fili- come to my weeds.” pino commission. During the Spanish sway the His relish for a capital conviction was undisadministration was said to be corrupt. During the guised; a reliable document before us mentions the interval between Spanish and the present judiciary almost incredible fact that at a single assize he the administration of justice was decidedly erratic. passed sentence of death on 198 individuals, of I am informed by a present court official that the whom 197 passed through the hands of Galvin, the judge left the matter of imposing sentences in hangman. criminal cases to the clerks or minor court officials. It was this bloody assize that the patriot Robert That the minor cases would be left unattended to Emmet referred to in his dying speech when he and sentences imposed without notification being said: “By you, too, although if it were possible given to the defendant. One particular defendant to collect all the innocent blood that you have liberated to-day was sentenced last March to four shed in your unhallowed ministry in one great months' confinement in the provincial prison. His reservoir, your lordship might swim in it.” sentence expired seven months since, during which But I fear I'm digressing. A few illustrations of time he has been suffering unjust imprisonment. his wit are herewith presented for the entertainWhen sent for to appear before the court it was ment of the reader. A wretched culprit brought ascertained that he was so sick as to be unable to before him for sentence after a capital conviction,

« SebelumnyaLanjutkan »