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In the discussion of the question of insanity the the policy is voided, although at the time he was judge, aiter remarking that the causes of insanity incapable of judging between right and wrong, and are as varied as the varying circumstances of man, did not understand the moral consequences of breaks into a strain of poetry which he remembers what he was doing.” The same question here from Armstrong's book on Health (Book 4, v. 84): passed upon was also decided in 1874 in the 34 Some for love, some for jealousy,

Wis. 389. For grim religion some, and some for pride,

In the 95 U. S. 433 will be found the case of Have lost their reason; some for fear of want

Charter Oak Life Insurance Company v. Rodel. Want all their lives; and others every day,

It was provided in the policy of insurance that it For fear of dying, suffer worse than death.

should be void in case of death by the hand of the

assured. It was admitted that the assured died In summing up the opinion of the court he from the effects of poison administered by his own says:

“We hold the rule on the question before hand. There was evidence going to show his inus to be this. If the assured, being in the posses-sanity at the time of committing the suicidal act. sion of his ordinary reasoning faculties, from anger, Justice Bradley, in approving the charge given to pride, jealousy, or a desire to escape from the ills the jury in the trial below, which was in the very of life, intentionally takes his own life, the proviso words of the Terry case, said: “It is not every kind attaches, and there can be no recovery. If the

or degree of insanity which will so far excuse the death is caused by the voluntary act of the assured, party taking his own life as to make the company he knowing and intending that his death shall be insuring liable; to do this, the act of self-destructhe result of his act, but when his reasoning facul- tion must have been the consequence of insanity, ties are so far impaired that he is not able to and the mind of the deceased must have been so understand the moral character, the general nature, far deranged as to have made him incapable of consequences and effect of the act he is about to

using a rational judgment in regard to the act commit, or when he is impelled thereto by an in- ' which he was committing. If he was impelled to sane impulse which he has not the power to resist, the act by an insane impulse, which the reason such death is not within the contemplation of the that was left him did not enable him to resist, or parties to the contract, and the insurer is liable." if his reasoning powers were so far overthrown This is a valuable case to read. It is the foundation by his mental condition that he could not exercise of all the later decisions of the Supreme Court on

his reasoning faculties on the act which he was this question and has been consistently followed.

about to do, the company is liable. But if the In the case of Bigelow v. Berkshire Life Ins. Co. deceased, although excited or angry or disturbed (93 U. S. 918), Bigelow, the insured, shot himself in mind, formed a determination to take his own with a pistol. The defendant pleaded this and the life, because in the ordinary exercise of his reasonplaintiff answered by saying that at the time of ing faculties he preferred death to life, then the committing the act the assured was insane. The company is not liable, because he died by his own policy contained the provision that if the assured hand within the meaning of the policy.” should die by suicide, sane or insane, the policy In Life Ins. Co. v. Broughton (109 U. S. 878), would be avoided. The addition of the words one Israel Ferguson procured $10,000 of insurance

sane or insane" was an attempt by this company, upon his life and thereafter proceeded to hang himas it was on the part of many others, to eliminate self. In the policy was a provision against suicide. the question of insanity from the field of argument. ' The plaintiff set up the insanity of the assured at The court, after alluding to the replication of in- the time of the commission of the act. In approvsanity, said: “Such a man could not commit fel- ing the decision in the Terry case, Justice Gray ony; but he could take his own life, with a set went on to say that at the time there was a remarkpurpose to do so, conscious of the physical nature able conflict of opinion in the courts of England, of the act, but unconscious of the criminality of it. in the courts of the several States, and in the CirAs the line between sanity and insanity is often cuit Court of the United States, as to the true intershadowy and difficult to define, this company pretation of such a condition. All the authorities thought proper to take the subject from the domain agreed that the words 'die by suicide' or 'die by of controversy and by stipulation exclude all liabil- his own hand' did not cover every possible case in ity by reason of the death of the party by his own which a man took his own life, and could not be act, whether he was at the time a responsible held to include the case of self-destruction in a moral agent or not.

For the purpose of blind frenzy or under an overwhelming insane imthis suit it is enough to say that if the assured be pulse. Some courts and judges held that they conscious of the physical nature of the act he is included every case in which a man, sane or incommitting, and intended by it to cause his death, sane, voluntarily took his own life; others were of



the opinion that any insane self-destruction was couraging, to find so little harmony of opinion. not within the condition.” See, also, Conn. Mut. And yet when we remember that the first adjudiLife Ins. Co. v. Lathrop (111 U. S. 536).

cated case, that of Borradaile v. Hunter, arose only The late decision handed down by the Supreme a little more than half a century ago, we should Court of the United States is of Ritter v. Mut. Life not be surprised at the contrariety of opinion on Ins. Co. (169 U. S. 693), traverses again the field this question. To build up and establish a sysof controversy on the question. There was the tematic body of law upon any subject takes much usual provision avoiding the policy in case of death time, and the argument and adjudication of numby suicide. It seems that at the time Runk, the berless cases; and all the more does this become assured, took his own life, there was on his life true where unsettled psychologic questions are to an aggregate of about $500,000 insurance, most of be considered. Circumstances may be delightful which had been taken out not long prior to his things to conjure with, but who can tell when a suicide. It was not all involved in this suit, how- man is dead, and death came by reason of an act

There was evidence that his income was not of his own, what it was that prompted him to large enough to pay the premiums on his insurance, do the act, what motive he had, if any, whether that he was heavily in debt, that the day before his he knew right from wrong, and appreciated the death in a letter to his partner he avowed that his inoral quality of his act, or even its physical effect, debts must be paid, and that they could only be who will sit in judgment on the power of his mind paid with his life; that on the day before his suicide or the volition of his will? It is on these questions he wrote his aunt, to whom he was heavily in that juries disagree and judges differ. debted, asking her forgiveness and saying it was We may remember, however, in conclusion, that the only way he could pay his indebtedness. He as a rule the English courts have held quite unileft also for guidance of his executor a memoran- formly that if a man takes his own life, knowing dum of his business affairs. Here there was a ver- the physical consequences of his act, and knowing dict for the company, which the plaintiff sought and intending that the act shall cause his death, to reverse on appeal. Justice Harlan, after con- the policy of insurance shall be void. It matters siderable reasoning and discussion of adjudicated not that he may not be able to appreciate the moral cases, said there could be no reversal, and that in wrong in the commission of the suicidal act. The the face of the facts presented the act of Runk Supreme Court of the United States has uniformly must be held to be that of a sane man and that held that to be conscious of the physical conseto allow recovery would be a fraud upon the quences of the act of self-destruction and intending company.

that the act shall terminate life, is not sufficient to It has not been deemed wise to cite a large num- avoid the policy. The deceased must have appreciber of cases on the various phases of the question ated the moral wrong of what he was doing, and under discussion for the simple reason that if any have comprehended fully as a sane man would the one should wish to find additional authorities, they physical and moral consequence and effect of his may be found in the cases here discussed. It is act to himself and others. In the State courts of believed that the cases presented are leading cases the various States there has been considerable conworthy of the attention here given them and that Aict of opinion, but there has been more of a they fairly present the law as the respective courts tendency to construe the provision against suicide have the light to see the law.

according to the literal meaning of the word. Their It may not be out of place before concluding to decisions have been more favorable to the insurance say that the law presumes all men to be sane and companies. A large number of them have given to have died natural deaths, and any one alleging decisions quite in harmony with the first English otherwise must bear the burden of proof and over- decisions. In other words, they have been prone come the prima facie presumption of the law to hold that if a man understands the physical conagainst them (Grand Lodge I. O. M. A. v. Wieting, sequence of his act and willfully takes his own life, 168 Ill. 408; Blackstone v. Ins. Co., 74 Mich. 592). his moral discrimination does not enter into the

Neither must we forget that while juries are question, and there can be no recovery from the instructed that because a man commits suicide he company.

not be considered insane, yet the fact of The writer is led to believe that the true test is suicide having been committed may be used in not so much whether the insured was conjunction with other circumstances to determine insane at the time of taking his own life, as whether the sanity or insanity of the deceased.

the act was committed voluntarily or involuntarily, After going over so many decisions and exam- consciously or unconsciously. Insanity is largely ining the reasoning of the respective courts it is a relative term — there are many degrees of insanrather disappointing, and one may well say dis. lity. Many minds are not well balanced and few






minds are rational on all questions, hence the wide wide-learned and even great judge, when all the scope for controversy in testing the sanity of a time he is prostituting his office and outraging jusmind. It may not be easy to determine whether an tice for his own personal advancement.

Such a act of suicide was involuntary, but it entirely limits judge is a perfect scourge to the poor or unfortuthe inquiry as compared with the word insane, and

A man of this kind always makes strong

alliance with the officers of his court, because these is a much more logical test. It raises much

officers may act as heralds, sounding his praises. directly the question of mental power and mental

It has been for generations the effort and purpose power at the time of the commission of the act of

of English-speaking races to place their judges self-destruction is certainly the crucial test of the above sinister influences. At first the effort was to provision under discussion.

guard the judiciary against the influence and power of the king (1).

All danger of this kind has long since passed DEFECTIVE ADMINISTRATION OF THE

away in England and never did exist in this counLAW.

try. In this country - we, like our ancestors have We hear a good deal said now and then about tice. In some States our judges (State) are elected

attempted to secure the pure administration of jusofficial corruption and bribery in the administration by the public; in other States the federal system is of the law. Such broad, sweeping charges are very followed, of a nomination of the judges by the misleading and in the main untrue. Of out and out chief judiciary, with a power in the senate of conbribery it is exceedingly rare, and general corrup- firming or rejecting such nomination. tion along that line is also rare. But there is that

And here it may be remarked that in the south, which does as much practical harm as out and out where in the main we have only one political party, bribery, and that is, the regarding the persons of this nonination of judges by the chief executive mnen in judgment.

amounts in effect to an appointment of the judiciary To illustrate this: Take a case wherein Ais

by such cxecutive. Because, there being only one plaintiff and B defendant. Now, the defendant in

political party, the nomination of the governor is this case is a man of great personal popularity, has

generally confirmed as a matter of course. a large following, or he is a man of great wealth and consequent influence, whilst the plaintiff A is been applied, there still remains full scope for the

After all these safeguards of the judiciary have a man who has no particular popularity, on the con- abuse of judicial power, if the judiciary regard the trary, is rather unpopular, or he is poor. When this case is called in court for trial, the plaintiff appears their judgments to the public sentiment prevailing

persons of men in judgment, or seek to conform in court, attended by his unpopularity and justice, at the time of the rendition of such judgment. or right, on his side. The defendant appears with Against this evil no restrain has been imposed, exhis great personal popularity, friends and wealth.

But Now, many judges are too prone to peep under cept that of impeachment in outrageous cases.

we have just stated that actual bribery is so rare the skits of a case, and see who is the plaintiff, and

as practically not to exist, so that a judge might go what are his surroundings, and who is the defend

on for years perverting justice and putting down ant, and what his surroundings.

right and setting up wrong, and yet not technically So in the case in hand, the judge looks at the lay himself liable to an impeachment. parties, and takes in the situation, or if this is not

And it may be said that in a country like ours, apparent to open vision, he learns the same by in- where politics and office seeking is almost a trade quiring from the clerk or sheriff. Having obtained and where the humblest boy may possibly rise to this information, the judge is fixed accordingly. He be president, there is great temptation to scheme, knows that every decision he makes in favor of the wire-pull and work every art and trick by which defendant will fall on appreciative ears, and on

a man may be advanced to position and power, so those who, when they go on the street, will speak that there is with us more need than in other counin the highest terms of his rulings. And, from their tries of less free government, to safeguard the adsocial position or wealth, what they say will be ac- ministration of law, and what we want is not laws cepted „y the community, whilst what the plaintiff says or thinks of the judge's rulings is a matter of of the law, but laws and systems which will insure

and systems which may insure a just administration small moment. Because the plaintiff is either so

a just and righteous administration of the law. poor and insignificant as not to be admitted to the

It is not safe to intrust inen with power subject company of influential men to say anything, or else

to only an indefinite and uncertain accountability. he is so unpopular that his enemies rejoice in his

What class of men have greater power intrusted misfortune and commend the court without knowing anything of the facts.

Blackstone's Com., vol. 1, p. 98: Entick v. King's It is really surprising how an artful judge can, by Messengers. 19 How. St. Fr., 1029; Bayard v. United

States, 116 U. S., 616; May's Const. History of Engwatching the drift of public sentiment, and by ob

land, vol. 3, c. 11; Cox's Institutions of the English serving the character and quality of the suitors in Government. 437: Brown's Const. Law, 558; Munn v. his court, build up for himself a reputation of a Setinois, 94 U. S., 317.



to them than the men composing our judiciary? Such is not the universal custom, but such things Why, the judges of our Superior Courts have well do take place. nigh full power over our lives and property — they Now, with cnly one court in the entire county, almost have the power of life and death.

meeting only once a month, these foolish negroes And what is their actual accountability ? Practi- would forget their little differences and be friends cally nothing. Because no judge would continue to again before the next court met. be guilty of such open wrongdoing as to subject These monthly courts would remove the complaint himself to an impeachment. But he may under the of delay in the administration of the law, since one forms of law pursue a continued system of helping term would be the pleading term, and the second the strong and turning away the poor and unfortu- term, at the first of the next month, would be the nate without subjecting himself process of trial term. impeachment.

We have had County Courts, but the trouble was There is nothing that so effectively prevents we had at the same time a Circuit Court, so that the wrongdoing as the knowledge that the wrongdoer County Court was rendered unnecessary. is being watched, and, if detected in wrongdoing, I see no reason why there should not be in each speedily punished. Why this government cannot county in the State one court, and only one, with afford to turn over her post-offices and mail bags authority and power to dispose of the four dockets, to her employes without at the same time providing and to sit until it had disposed of all of said numerous secret post-office inspectors who continu- dockets. This, of course, would not interfere with ally and all the while have their eyes on these em- a Mayor's City Court to punish violators of city ployes. And who knows how many postmasters ordinances. We certainly and most assuredly need are kept in the performance of their duty by the such a court in the negro section of the south. knowledge that they are watched by the post-office

LINTON D. LANDRUM. inspectors ?

Columbus, Miss., July, 1902.
Now, our judges have to do with much more
important matters than do our postmasters.
The conclusion of the whole matter is that our

judicial system, our administration of justice,
should be continuously and carefully inspected. And

In the discussion of an institution like the jury, it should be so provided that conduct on the part it is well to preface with an inquiry into its origin, of a judge, which would now go unpunished, would and in some manner at least, trace its growth. The cause his removal from office. The effect should right of trial by jury arose out of the necessities of be, not so much to punish judges who were guilty the people and of the times. Trial by battle and by of derilections of duty, as to remove them from ordeal, aided by superstitious interpretation of their office and get good men in their places — to purify results, determined all contested questions of fact. the administration of the law.

The gradual development of civilization brought Again, we have too many inferior courts. It

to the minds of the people a realization of the fact would be best, in the south at least, if we had one

that these contests did not settle matters of abstract court and only one in every county. This court right and wrong. Trial by wager of law and by the should have the plenary jurisdiction of a Superior country became a substitute in certain cases. Court of law and equity. There are four natural

The jury, as an element of English jurisprudence, jurisdictions, necessitating four dockets — first, the was introduced by William, the Conqueror. Being common law, civil docket; second, the criminal law, drawn from the vicinage, these primitive jurors were criminal docket ; third, the equity docket, and fourth. originally witnesses, and being supposed to know the probate docket, including under this head the the truth of the matter, were sworn to return a versettlement of estates, orphans' business, idiots, etc.

dict, based upon their own knowledge, as to whether

the plaintiff or defendant had the better right. Now, this County Court should meet on the first

The next step forward that we can trace was that Monday of every month, and dispose of first the of “adjoining " witnesses to the jury, to inform them common law civil docket; then the criminal docket : of some fact which, from its nature, was not likely after that, take up and dispose of the equity docket, to be known to them. These “adjoined ” witnesses and, lastly, dispose of the probate docket.

had no right to participate in the verdict. Thus These inferior Justices' Courts in the south are began the gradual separation of the jury from those a curse to the negro population. The negroes are who were purely witnesses, and from this time began attracted to these little courts somewhat like they the change which ultimately made jurors “judges.” go to a circus — so that every little family matter, With the increase in power of the English judges, every little quarrel between two neighbors is taken the common people came to look upon this system to these courts; and after the court has convicted this trial by the tribunal of their number — as the the defendant and got all his money, it frequently great safeguard of their liberties, and as their only makes the defendant make an affidavit against the protection against the constant encroachments of the former plaintiff, and so the court gets all the ready judges upon their natural rights. The years of its cash of both parties before they leave the court. ' early history therefore, were times of constant struggle with the courts. Attempts to dictate de- judgment dictated. The people of the United States cisions of contested fact, starvation, confinement for framed such a government for the United States indefinite periods, every means that the ingenuity as they supposed best adapted to their situation, and of the courts could invent, was used to coerce and calculated to promote their interests. The powers mold the minds of the jury in conformity with the to be conferred on this government were to be exerjudge's will. But the people were triumphant, and cised by itself, and the limitations on power, if for centuries, the right of the jury to decide ques- expressed in general terms, we think necessarily tions of fact arising in cases at common law, has applicable to the government created by that instrubeen undisputed.

ment.” This interpretation has been affirmed by The denial of their natural rights had driven many both the federal and State courts in innumerable of our forefathers from their native land. Oppression cases. and denial of inalienable rights had brought on the The Constitution says that the trial of all crimes Revolution and sown the seeds of liberty, and instilled “shall” be by jury. That the word “shall” in this in the hearts of the people that love of natural jus- provision is mandatory has never been questioned, tice which was destined to ripen into the greatest of nor the wise policy disputed. The lives and liberties American republics. It is but natural, therefore, of men are held sacred, and the principle that the for us to find, that in framing for themselves a sys- right to their enjoyment shall not be violated or tem of government, and establishing for it a founda- denied by the judgment of one man has been held tion in the Constitution, they should be careful to inviolate. incorporate in it every precaution for the security of What was meant by “The Jury?” At common those principles.

law, it was a tribunal of twelve men whose verdict The first mention of this right in the organic law was required to be unanimous, and, in the absence of is in article 3, section 2, paragraph 3. In the con- express statements to the contrary in the Constitustruction of this clause, it has been held that the tions, this has been held to be its meaning still. In word “crimes” is to be construed in the light of several of the States constitutional changes in the the principles which at common law, determined number composing the jury have often been upheld. whether or not an accused person was entitled to be A provision of that sort in the Constitution of Utah tried by jury. This construction includes not only was sustained by the United States Supreme Court in felonies, punishable by confinement in the peniten- a late case (Maxwell v. State, decided in March, tiary, but also some classes of misdemeanors, the 1900). punishment of which means a deprivation of personal The argument has been advanced that this mandaliberty. This was decided in Callan v. Wilson (127 tory provision for trial by jury in criminal cases, by U. S., 540). The exception in cases of impeachment its own force, makes the jury the judges of the law is made because, by a previous provision (article 1, as of the facts. This contention is supposed to be section 2, paragraph 5, and section 3, paragraphs 6 supported by the fact that a verdict acquitting the and 7), the power to try such cases is vested in the party of the crime charged, has aļways been held senate of the United States, upon charges preferred to be final, and that the court could not set such by the house of representatives.

a verdict aside, and subject the party to a new trial. In the construction of the constitutional provisions Such action, however, is based on the fifth amendrelative to the right of trial by jury, many questions ment, which declares that no person shall be subnecessarily arise. Are the limitations and guarantees ject for the same offense to be twice put in jeopardy enumerated, applicable to suits in the courts of the of life or limb,” it being held that on a verdict of United States only, or do they apply equally to pro-acquittal, the party has been put “in jeopardy" ceedings in the courts of the States? Are they privi- within the meaning of that clause of the Constitution. leges that may be waived, or mandates which courts The fifth amendment provides that “no person and suitors are bound to obey? What do the words shall be held to answer for a capital or otherwise "trial by jury” mean? In the absence of any more infamous crime, unless on the presentment or indictdetailed description of “the jury,” can the legislative ment of a grand jury.” The trouble encountered in power determine its composition and its duties and the construction of this clause has been the deterpowers? These are vital questions, which it will be mination of what was an "infamous crime” within a part of our purpose to attempt to answer.

the meaning of this clause of the Constitution. We proceed to the consideration of the first ques. While there have been several decisions from the tion. In an early case (Barron v. The City of Balti- circuit courts of the United States on the subject, the more, 7 Pet., 243), Chief Justice Marshall said, in qustion first came directly before the Supreme Court holding that the provisions applied alone to the in Ex Parte Wilson, decided March 30, 1885. Jusfederal courts: “The Constitution was ordained and tice Gray there said: “No person can be held to established by the people of the United States for answer, without the presentment or indictment of a themselves, for their own government, and not for grand jury for any crime for which an infamous punthe government of the individual States. Each State ishment may be assessed by the court.” The question established a Constitution for itself, and in that Con- is whether the crime is one for which the statutes stitution provided such limitations and restrictions outhorise the court to award an infamous punishon the powers of its particular government as its' ment actually inflicted is infamous. What is an in

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