Gambar halaman

triumph in the seventeenth. And if perils await it in mainly in the Court of Passage, occupying himself the twentieth century, let us not fold our hands and also as a pamphleteer and journalist. In the former say, “Who are we that we should stem the tide?” capacity he wrote on The Catholic in the Work

house ; " in the latter he regularly wrote the London

letter for Mr. A. M. Sullivan's Irish paper, the LORD RUSSELL'S BIOGRAPHY.

Morning News, and also contributed to the Weekly The late Lord Chief Justice of England deserved Register, and once to the Dublin Review. In the well of a biographer, and he has met with his deserts. latter he reviewed the Irish secretaryship (1807-9) of Mr. Barry O'Brien's Life of Lord Russell, of Kill- the Duke of Wellington, then Sir A. Wellesley, in a

But he soon became too busy owen, is one of the most fascinating biographies very impartial manner. which has of late years been issued to the public. In for such occupations, which were not indeed to his externals it is all that could be desired; one volume taste, for he was not by inclination a reader or a of only 400 pages, light to handle, and printed in a

writer, but a speaker and an actor. Once indeed he large bold type, it offers every facility for digestion afterwards fell into the same work, but that was as to even the tired or short-sighted reader. And the a practical politician, when, to help forward the land substance needs no help from these externals; the legislation of Mr. Gladstone, he spent a vacation in style is racy, picturesque, brilliant, by turns playful, Ireland writing letters to the Daily Telegraph which serious and savage, bringing out in strong relief all

were afterwards republished in his well-known little the lights and shades of that strange and versatile book under the title of “ New Views on Ireland.” character; at once high-minded and short-tempered, Mr. Barry O'Brien admits to the full that Russell, strong-willed and affectionate, a paragon of industry I like Parnell, cared little for general reading. As a and a boy in recklessness, a violent advocate and a ' boy he learned by heart much fine poetry, which he just judge, a devotee of the card-table and the race- could effectively recite; and as a man he could always course, but withal a deeply religious man, playing a read and digest thoroughly any book which for any notable part on many stages, but dominated through- purpose, legal or political, he had to study. But he out by two overmastering motives — justice to Catho- found no recreation or delight in reading, still less in lics and justice to Ireland.

serious intellectual reading. Yet we are told that he From the days when, in 1854, he first appeared as always carried about with him on his journeys in his a solicitor advocate before the petty sessions in handbag two books - Thomas à Kempis' “ Imitation County Antrim defending the Catholic peasants at of Christ," and Locke “ On the Human UnderstandCushendall from charges of assault upon so-called ing.” The first is natural enough; but the second

Protestant days,” to the days when, in 1889, he at- is unintelligible for a non-reading man. We cannot tained his highest achievement as an advocate before help suspecting that the writer has made a mistake, the Parnell commission, we find the same earnest and that it was not the philosophical chef d'auvre motives, the same persuasive methods adapted to the on the human understanding which he carried, but same ends under similar circumstances. To fight an Locke's smaller essay, “On the Conduct of the Unapparently hopeless cause, which he believed to be derstanding," which is a gem of simple, condensed right, in the face of an adverse public opinion, which wisdom, and would well correspond in intellectual he believed to be wrong, seemed always to raise him I literature to the “Imitation of Christ ” in religious to a nervous tension which developed all his finest literature; being, in fact, a vade mecum with which qualities; and he strained every effort, not only to every layman, and a fortiori every lawyer, and above clear his clients, but to convince his adversaries. all, every judge, should be familiar. We may be misThe two cases, separated by an interval of thirty-five taken, but the alternative is hardly credible. It is as years, form a remarkable parallel, and both stories ! if he should be said to carry a copy of the Digest in are here told with great effect. Sir James Hannen’s his waistcoat pocket. comment on the latter is given in fac-simile, and There is one other strange error in the book. Mr.

Dear Russell,- A great speech worthy of a O'Brien is obviously unread in some archæological great occasion.— Yours, J. H.” So in one of the matters which have recently made some sensation. Antrim cases we find his Protestant adversary solici- , In the chapter on genealogy (which he admits would tor congratulating Russell and calling for three have made the chief impatient) he attempts to concheers for his client, a Catholic priest.

nect his hero with the Dukes of Bedford though When Russell, on the advice of two eminent common Norman ancestors, the De Rozels, who Protestants and the girl he was to marry, decided to “came over" as usual and went with Strongbow to abandon his position in Ireland and try his fortunes at Ireland. Now Mr. Horace Round has completely the English bar, be started with one great advantage, smashed the claims of the Bedford Russels to have he came with introductions which insured some sort any connection with the De Rozels, and has traced of success a reasonably competent man. He the imposture to a cooked genealogy of the Caroline never had reason to despair, and never did despair, period. Lord Russell, of Killowen, may have a betof his future. But that he turned this opportunity to ter claim to descend from the De Rozels; but we ob“glorious gain " was his own individual achievement. serve that, with the light heart of the amateur gene

Living in London, he began work at Liverpool, I alogist, Mr. O'Brien skips a century and a quarter




with the phrase "passing over his immediate de- New Rooms at Newmarket. We are able to share scendants; in any case the connection with the his simple and affectionate family life no less than Bedford Russells would be not proven.

the whirl of political excitement or a game of pitch These are, however, very trifling blots upon a work and toss in his chambers. which is without doubt a work of art in literary por

By the side of this, for these reasons, other exceltraiture. Here is told, as well as it could be told, lent one-volume biographies seem to pale. Leslie the story of his life – how he dominated the North Stephen's lives of Sir James Stephen or of Fawcett ern Circuit in spite of his irritable temper, so that become dull, Cunningham's life of Lord Bowen inan attempted boycott of him by angry solicitors help- effective, Tom Hughes' life of Bishop Fraser priglessly broke down; and this at a time when, outside gish. If they may be compared to portraits by Lawthe bar, people were yet asking in London “Who rence, Richmond, or even Millais, this is a Remis Charles Russell? ” how as attorney-general he brandt or Velasquez. Some may perhaps prefer that dominated the bar in London, and then the constitu- the tones should be softened, and the contrasts encies, and then the Parnell commission, and then diminished, by at any rate a lightening of the shades. the Behring sea arbitrational tribunal, and then the We would not alter one touch of this delicate and American public. Lastly, how on the bench he mas

effective brush, about which there is nothing sordid tered first himself and then the courts, and the or morbid, but all is trenchant and sympathetic. We Jameson prosecution, and then the Venezuelan arbi- have abstained from extracts; we would encourage tration tribunal; until in the few years he was on | perusal. And if anyone should be inclined to be the bench he seemed to be universally accepted as the pharisaical in his criticism, let us adapt for him the most painstaking, considerate and just of judges, words of the greatest artist poet of the nineteenth and to have set up a new standard of industry, up- I century, written upon another brilliant but erratic rightness and dignity, which if he had lived, must genius: have had far-reaching and important effects.

The strife and mixture in his soul are ours; Vr. O'Brien has been singularly fortunate in his

His glory and his genius are his own. materials and opportunities for this work. It was

Solicitors' Journal. seventeen years ago that he made up his mind that Russell's life would be worth writing; and for all

DEATH OF JUSTICE MCADAM. those years, and even more, he has kept a watchful eye on his hero and enjoyed his intimacy. This is Justice David McAdam, of the New York all the more remarkable because, on a first introduc- Supreme Court, died

December 22, IGOI, tion some years before, he was indignantly repelled at Dr. W. T. Bull's private sanitarium, folby the hard, offhand manner. A common friend, 'lowing an operation for cancer of the tongue. Patrick M'Mahon, was the peacemaker, and the death Throughout his life Justice McAdam had been of the latter brought the other two together by a known

hard worker. Last

June the bond of common sympathy. And during all Rus-trouble with his tongue began to manifest itself, but, sell's political career he looked largely to O'Brien for although he was not assigned to duty for the his detailed information on Irish history and political months of July and August, he sat through both questions, and notably on the occasion of the great months in Special Term for other judges. Early in speech before the Parnell commission. So there was December he sat in the Appellate Division. A little a close personal and political intimacy between biog- more than two weeks ago the doctors told him that rapher and hero. And both were Irish — the one the operation must be performed at once and asked a man of action of that strong and mixed and tem- him to submit to it. He said that he had duties pestuous character which all Irishmen love because to the public which must be performed first. He it makes a striking picture; the other a man of litera- then set about his tasks and completing all the cases ture, with all the brightness and wit and artistic feel- before him handed in his last decision on Friday a ing and fearlessness, not only to appreciate the char- week ago. At the same time he put all his personal acter, but also to catch all the lights and shades and affairs in order, finishing up everything that was paint it clearly and strongly. If there is nothing set pending, and then he said he was ready for the down in malice, so there is nothing kept back through operation, going under the operators' knife on the favor. If Russell electrifies the court by addressing third day following the completion of his last legal a respectable solicitor with “Damn you, sir, sit decision. down!” the words and the effect are reproduced; no David McAdam was born in New York of Scotch less than, if on his deathbed he performs an act of parents in 1838. His father, a tailor by trade, was contrition, the words and effect are set down. In his a native of Glasgow. He attended the public schools appeals to the highest human motives in favor of in- of the city until he was ten years old, when he enternational arbitration at Saratoga, the artist is in full tered the law office of F. F. Marbury. He became sympathy with him, no less than in his lawlessness in Mr. Marbury's managing clerk when seventeen years knocking down a porter in order to catch a train, or old, and four years later, in 1859, he was admitted in his courage in enforcing an ample apology through to the bar. Early in his career he took an interest the club from an insolent aristocratic member of the lin politics, and in 1871 he was elected a justice





of the Marine Court, now the City Court. He was had no effect on the prior will (Goodright v. re-elected twice, in 1879 and 1885. In 1883 he was Glazier, 4 Ban. 2512). The ecclesiastical courts, elected chief justice of the court by his associates. however, inclined to a different doctrine, holding It was mainly through his efforts that the jurisdic- that the question of revival depended wholly on the tion of the court was enlarged and the name changed. intention of the testator manifested in the destrucIn 1890 he was elected judge of the Superior Court, tion of the later will (Usticke v. Bawden, 2 Add. and in 1896 he became a justice of the Supreme Ecc. 116, 125). The Wills Act, in 1837, may be said Court through the consolidation under the new Con- to have settled the law in England that there can be stitution. He had been recognized as one of the no revival without a republication (Major v. Wilhardest working justices on the Supreme Court liams, 3 Curt. Ecc. 432). But in America, where bench, being noted for the rapidity with which he the Statute of Frauds is more generally adopted, was able to dispose of cases. A large proportion and where the influence of the ecclesiastical courts of the cases which he had to decide were divorce has been strong, the decisions are arrayed on differcases, and many instances are told of his having ent sides of the question ( Woerner on Administrasmoothed out matrimonial tangles for persons who tions, sec. 52). In a recent Vermont case a testator thought they wanted to be separated.

made a second will inconsistent with his first one, As an author of standard works on legal subjects, though containing no express clause of revocation. Justice McAdam was well known. Among his works He destroyed the second, later declaring to his son

McAdam on Landlord and Tenant," McAdam that he wanted the first to stand. On a careful reon the Stillwell Act," “ McAdam's Marine Court view of the authorities, the court holds that the Practice” and “McAdam on Names.” At the time first will is revived, laying down the rule that no preof his death he had in preparation a work on “ Negli- sumption arises from the mere act of destruction, but gence as Affecting the Relation of Landlord and that the revival depends upon the intention of the Tenant.” He was the author of several important testator (In re Gould's Will, 47 Atl. Rep. 1082). As legislative enactments, among them being the act to the question of presumption there is a hopeless which prevents landlords dispossessing monthly ten- conflict of authority. In some States mere destrucants in the city of New York without giving five tion raises a presumption of revival (Colvin v. Wardays' previous notice of their intention to pursue ford, 20 Md. 357); while in others the destruction the summary remedy; the Code provision authoriz- ipso facto does not revive the prior will (Pickens v. ing courts to discharge debtors detained in civil Davis, 134 Mass. 252). It is to be noted in the process, who were unable to endure the imprison- principal case that the second will was merely an ment, and the Code provision authorizing courts to implied revocation, and contained no express revogrant new trials in cases in which the complaint was

catory clause. A distinction has sometimes been wrongfully dismissed at the trial.

taken on this ground, a revival being held possible In politics he always was a Democrat, and was in the former case, while impossible without a reelected to the positions he occupied as a candidate publication in the latter (Cheever v. North, 106 on the Tammany ticket. In 1879, when he ran for Mich. 390; Scott v. Fink, 45 Mich. 241). The disjustice of the Marine Court for the second time, he tinction, however, it would seem, is untenable, as in was the only candidate on the Tammany ticket who general an inconsistent subsequent will has the was elected, his plurality being 15,000. He was a member of Naval Lodge, F. and A. M., Union Chap- clause. On principle also, whether the revocation

same effect as one containing an express revocatory ter of Royal Arch Masons; York Commandery, An- be express or implied, the mere destruction of the cient Order of United Workmen, and of the Bar

revoking will should raise a presumption of intesAssociation, Democratic Club, Caledonian Club, New

tacy. If, as some courts maintain, a subsequent will York Press Club, Twilight Club, Liederkranz, revokes absolutely a prior will, it necessarily folAuthors' Society and Society of Medical Juris- lows that there can be no revival without a repubprudence. He was also one of the original stock

lication. On the other hand, if according to the holders of the Law Institute. A widow and four

early English law the mere destruction animo Thomas, Edward G., Clarence and David

revocandi of the second will leaves the prior will survive Justice McAdam.

unaffected, it follows that the prior will must stand,

even in cases where the testator may have intended REVIVAL OF PRIOR WILL BY REVOCATION to die intestate. Both these views tend to an unOF ONE SUBSEQUENT IN DATE. desirable result in not giving effect to the intent of

the testator, and a via media accordingly is to be There is much confusion in the law as to the sought. The solution of the problem lies in a careexact effect of the destruction of a revoking will. ful study of the act of revocation of the second will. The English common law, before the Wills Act The second will has two effects; it makes new pro(1 Vict., ch. 26, sec. 22), was based on the theory visions in regard to the property, and it conditionthat all wills were ambulatory until the death of ally revokes the prior will. When the second will is the testator, and that consequently a revocatory destroyed animo revocandi, the new provisions obwill, revoked by the testator during his lifetime, viously are revoked, but it would seem that the


revocation need not be considered as revoked unless evolved last spring to avoid the unpleasant consethe testator so intended. In other words, whether quences of an inability to agree. After being out the destruction animo revocandi of the second will for eight hours they reported to the court who told revokes the revocation contained in that will is a tliem to go back and deliberate further, as they question of intent. It would seem, therefore, that would never be able to reach a common ground. The the result reached in the principal case is correct. court told them to go back and deliberate some more. The court states, however, that the mere act of de- A night in the jury-room was in prospect. That struction raises no presumption one way or the wasn't to the taste of the jurors. One of their numother. As the burden of proving the will is on the ber evolved a plan. They notified the court they proponents, this appears in effect to be saying that would hand in a sealed verdict. The “verdict” was there is a presumption of intestacy. The pro- duly handed in and the jurymen sent home. When ponents have to show that the revocation has been court convened on the following morning the sealed revoked, and in order to do this they must prove, envelope was opened, and, to the indignation of the as has been suggested, some fact other than the judge, the “verdict " was found to be a statement mere destruction of the second will animo revocandi. that no agreement could be reached. Beautifully as Harvard Law Review.

the plan had worked, it had unpleasant consequences, for the judge hauled the jurymen up, and after se

verely lecturing them inflicted a considerable fine JURY DECISIONS BY ODD METHODS. upon each and every man. The deliberations of juries after the door of the

How Old Dan Sullivan got a verdict, alone and jury-room has been closed are not always of that unaided, against eleven hostile jurors, is legal local calm and dignified character accredited to them by history in the city of Troy. For many years there popular opinion, says the Washington Times. Only

had been a conflict in that region between the on the rarest occasions does anything of what goes

farmers and the city folk, and this feeling never got

so bitter as when either side on in the jury-room become a matter of actual public

was engaged in knowledge, for the average juryman is as mum as an


The inevitable result of this condition of affairs oyster about the cases which he had been called upon to decide, but there are occasional leakages

was that whenever a mixed jury was drawn there from the jury-room, calculated to shake the faith

was trouble from the moment the key turned in the of the most conservative in the institution of the door of the jury-room. ' Disagreements always re

sulted, and there was just that much more expense "twelve good men and true.” On this order was a recent damage suit in an

to the county for a new trial of the action. Indiana towns, where the jury was called upon to

After a while some one who had something to do decide whether the plaintiff was entitled to damages with the drawing of men for the juries saw to it for injuries alleged to be due to the negligence of that there was no more mixing. Despite this prethe city, a telephone company and an asphalt cor- caution, however, old Dan Sullivan, who was always poration. Apparently the jury was of average cali- having queer things happen to him, managed to get bre. Like many other juries of all calibres, they | drawn on a jury to try a suit for $5,000 brought couldn't agree.

After they had been out forty- against the county by a farmer. The other eleven eight hours the status of opinion was seven to five jurymen were countrymen and friends of the plaintin favor of the plaintiff. Some eight hours later iff. Old Dan didn't make the slightest pretense of one of the seven changed his mind and the jury discontent over his position; on the contrary, he was stood evenly divided at six to six. There was every delighted and made no secret of the fact. The prospect of an indefinitely prolonged deadlock, when evidence was all put in and the jury retired early one of the pro-plaintiff jurors had a brilliant idea. in the afternoon.

“We'll never do any business this way,” he said. The eleven countrymen talked the matter over “Let's get a pack of cards and play for it, the losers and decided among themselves to give a verdict for to accept the decision of the winners."

the plaintiff, placing damages at $3,000. They didn't As a sporting proposition, this met with instant think it was worth while to consult Dan, but merely favor. As a scheme for adjusting differences, it notified him of the decision they had come to, and was hailed joyously. Seven-up was agreed upon said they would go through the formality of a ballot. as the form of arbitration. The jurors sent out for Dan calmly wrote out a decision for the county on cards and divided up into three sets of two pairs his blank, and when the result was made known the each, the side which should win two out of three eleven countrymen were very much surprised. They matches to be declared victor. Each side had won gave Dan a ine of stock arguments and warned him a game and the third quartet were just starting in that they would keep him out all night, if he didn't when the officer who had been sent after the cards yield. They took another ballot, but the result was reported to the judge. A bailiff broke up the game the same. Old Dan puffed away at his cigar and and the jury was discharged without reaching an smiled. He smiled his way through a dozen or more agreement.

ballots and an array of threats that might have That was a clever scheme which a Brooklyn jury haunted a less obstinate man.

He says:

At six P. M. the condition of affairs was made On the trial the action of the dogs in regard to known to the court, who ordered the jury to stay Moore and Dixon was testified to by a witness out until it reached a verdict. Then the court went against the earnest protest of the defendant's counhome and the jurors set about laboring with Dan. sel, who contended that the evidence was incomThey told him that he was an old man and that the petent, as the tracks of the dogs trailed had never strain of a night in a jury-room might result in been identified as the defendants' or proved that making him a sufferer for the rest of his life. Each they were made by them at the time of the larceny. and every one of the eleven countrymen declared The Supreme Court sustains this objection and dramatically that he would never recede from the orders a new trial for Moore and Dixon. position he had taken, and in other ways it was

The court holds that the trailing of the men's made clear to Dan that he would have to yield.

tracks and the baying of them by bloodhounds, unAfter an hour or so of this kind of talk another less the tracks are otherwise identified or the men ballot was taken. This time Dan took another posi- , connected by other evidence with the theft, are intion. He found for the plaintiff and fixed damages sufficient to convict. The opinion goes on to say at six cents. The enraged eleven informed Dan that that in this case there is no evidence to connect the they wouldn't take another ballot until he asked for circumstance of the baying of the men with the it, and the eleven disposed themselves comfortably making of tracks at the time the larceny was comaround the room, satisfied that before long old age mitted, nor is there any evidence that the dog scented would tell and Dan would give in. At midnight the

any tracks made by the defendants. eleven began to get a little less determined. Two The opinion is written by Judge Cook, who, in laid down on a bench, but they were too nervous

the course of it, discourses quite learnedly on dogs. to sleep in such quarters, so they sat up and swore. “ Whenever ye

come around to my way of thinkin' just let me know,” remarked Dan, as the

"It is a matter of common knowledge that there clock struck two. At three o'clock all eleven were

are many breeds of dogs endowed with special traits lying down and trying to sleep, but Dan even scorned and gifts peculiar to their respective kind — the his chair. At four o'clock two or three began to pointer and setter take instinctively to hunting birds; weaken, and at a few minutes after five o'clock : the hound to foxes, deer and rabbits, but we know of eleven hollow-eyed countrymen, very much subdued, no breed which instinctively hunts mankind. Yet came over to where Dan was standing and agreed if we do know that dogs are capable of running the he would find again for the plaintiff, they would fix tracks of human beings, as is frequently evidenced the damages at six cents. Dan, smilingly, accepted by the lost dog trailing his master's track long disthe proposition and the vote was taken.

tances and through crowded streets, and finally Afterward the defeated jurymen learned that for overtaking him, which demonstrates the further fact ten years their fellow-juror had been a sufferer from that the dog's distinctive peculiarity exists between insomnia, which rendered it utterly impossible for different persons which can be recognized and him to close his eyes in sleep from the time that known by a dog. And it is a well-known fact that the sun went down in the evening until it came up , the bloodhound can be trained to run the tracks of again in the morning.

strangers; and in this the training consists only in being taught to pursue the human track; the gifts

or powers or instincts being already inherent in the DOG LORE IN NORTH CAROLINA.

animal he is induced to exercise them under the

persuasive influence and protection of his trainer The North Carolina Supreme Court has decided or master. Once trained in this pursuit, we must its first dog case, and the dog lost, says the North assume that his accuracy depends, not upon his Carolina Law Journal.

training, but upon the degree of capacity bestowed The question it was asked to pass on was whether upon him by nature. Experience and common oba man can be convicted of theft on the uncorrobor- servation show that among dogs of the full blood ated testimony of a dog.

and full brothers or sisters, one or more may be The court, through Justice Cook, gives a negative highly proficient, while others will be inefficient,

unreliable and sometimes worthless; some may be A store was robbed in Pitt county early last acute to scent, while others will be dull to scent February. The thieves entered through a window and incapable of running a 'cold' track. Then, and left a basket. Next day, after the robbery had again, we may find the most reliable and favorite been discovered, bloodhounds were secured from hound taking the “fresher' track which crosses his Kinston, allowed to smell the basket and the window trail, or quitting the cold trail of a fox and followand then started upon the trial. Finally they went ing the 'hot' trail of a deer which he may strike. up to Amos Moore and bayed him, and then to Ash- Likewise the pointer or setter may abandon a 'cold' ley Dixon and bayed him. Thereupon they, with trail of a covey of birds and follow a 'warmer' one four other negroes, were arrested. Later one of upon which he may happen to run. Or the squirrel the four turned State's evidence and implicated all dog may leave the tree at which he has taken his the others.

stand and barked, and go to another, or quit en

[ocr errors]


« SebelumnyaLanjutkan »