executive assurances. The navy regulations provide: "Offenses shall not be allowed to accumulate in order that sufficient matter may thus be collectively obtained for a trial, without giving due notice to the offender;" and "Whenever an accusation is made against an officer, a copy of such shall be furnished at the time to the officer accused." trial. He replied that he was.' According to the very latest decision of the United States Supreme Court on courts-martial a sentence following such a record is void. Mc N. "There was at that time no statute of limita- Claughry v. Deming (186 U. S., 69) reads: “In order tions applicable to the navy." True. But such statutes were not being considered by J. This is apparent from the next sentence, which N. does not quote. J. "The other charge of disobedience of orders,' as charged, occurred in December, 1888, and prior to January 23, 1889. The accused was [in accordance with its order of said January 23, claimed by the navy department to have been] arrested about the 26th of January, 1889, and was confined to the ship at Mare Island from the 30th day of January, 1889, until the 28th day of March, 1889, without receiving any notice of any charges made or to be made against him." The point was that notwithstanding all the charges were known to B.'s superiors long "prior" to his arrest, these charges were withheld from him for two months of that arrest, in violation of art. 43, R. S., 1624. N. "This also was a matter of administration with respect to which the then secretary of the navy was clothed with discretion." P. 9. to give effect to the judgment of a court-martial it must appear affirmatively that all of the statutory requirements governing its proceedings have been complied with." In the above the J. A. G. seems to be trying to represent that a court-martial is convened, not by secretary or admiral, but by the accused, saying that supposed "readiness for trial" and docility by the sacrificial lamb authorizes naval officers to try. But the Supreme Court said, in Crain v. U. S. (162 U. S., 644): “In Hopt v. Utah (110 U. S., 574, 579) the court, observing that the public has an interest in the life and liberty of an accused person, said: 'Neither can be lawfully taken except in the mode prescribed by law.'" And in the court-martial case of 186 U. S., 68, the Supreme Court cited: “The party may be interested only that his peculiar suit should be justly determined; but the State, the community, is concerned not only for that, but that the judiciary shall enjoy an elevated rank in the estimation of mankind." J. The government of a ship at sea of necessity is vested in one man. His will, for the time of the voyage, must be the law of the ship and all persons on board. This is a necessity of the service, recognized by all nations. But that one man officers and enlisted men under him from injustice and oppression. The Congress has wisely enacted laws to that end. And these laws, designed to protect seamen from injustice and oppression, are not only wise, but they are absolutely necessary to secure to the United States the voluntary services of the best sailors. J. "The accused made many objections to the trial, and, among others, to the long delay in giv ing him notice of the charges and specifications." N. "He made this technical point, with a multi-is to act under fixed laws, intended to protect the tude of others, at the trial. The point rests on the provision of article 43 of the articles for the government of the navy (R. S., 1624), which reads: 'The person accused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest, and no other charges than those so furnished shall be urged against him at the trial.'" P. 10. See "The American Bastille" in the Boston Green Bag for November, 1902. The navy department then gives the sole courtmartial record as to whether article 43, R. S., 1624, was complied with in B.'s case: "But these wise laws are useless if they are not enforced." N. "It is understood that Mr. B. concedes he was furnished with a copy of the charges several days before the trial began; [No.] but he makes the point that under article 43 he should have been furnished with a true copy' at the time he was put under arrest." P. 11. "Articles 24, 43 and 44 contemplate two arrests; first, an arrest with a view to a preliminary examination [of the charges]; and, second, an arrest for trial." P. 12. (Only on the second does the accused get the charges.) N. "The record of Mr. B.'s court-martial contains the following entry: The accused was asked by the judge-advocate if he had received a copy of the charges and specifications preferred against him. He answered that he had received a paper [a short time before arraignment] and did not know whether it was a copy or not. The judge advocate offered the original charges and specifications to the accused for examination. The accused declined to receive them. The accused was then asked if he was ready to proceed with the jail. According to him Congress intended in article The J. A. G. thus adroitly says that Congress in these articles requires two successive arrests, the second arrest being the arrest of a person already in 43, not that a person deprived of liberty must be in- remained under arrest until he was tried. And on formed of the accusation against such, not that the record, then Captain, now Rear Admiral Watcharges must be furnished on arrest, but, con- son, and another member of the court, in recomversely, that an arrest must take place when charges mending clemency, state about the date and conare furnished. The delivery of these to the person tinuance of the confinement of the accused and then in jeopardy of them may be deferred how long state as follows: 'It was not until the last date, after imprisonment has begun? March 28, 1889, that the accused received any notification he was to be brought to trial, or any statement of the offense for which he was to be tried.' N. "A period of two years is allowed." P. 9. "This appears to be the natural and rational interpretation of the statute (art. 43). Some time must necessarily elapse after an offense before a determination can be reached whether or not a trial is to be had. It is reasonable, necessary and proper that the person accused be placed under sufficient restraint. The words at the time he is put under arrest' have been treated as having reference to arrest for trial and not to the original arrest." P. 11. J. "One of the most wise and efficient of all these laws for the protection of seamen is the law (art. 43, sec. 1624, R. S.), which requires that the accused shall have notice of the charges against him at the time he is put under arrest.' Referring to sections 106, 107 of those navy regulations of 1870 defined in 116 U. S., 180, 181 (copied in the succeeding later editions until they now appear as art. 1073, N. R. of 1900), the judiciary committee report: J. "The above navy regulation — which requires that the accused shall be furnished with the charges ['written statement' in order to make a 'counter statement'] at the time of the arrest was not new in 1870, but was, in substance, taken from the English law [British articles of war of 1765, sec. 15, art. 17, 18 and 19, Winthrop M. L., 2d. ed., pp. 1465, 1466] and from the [statutory] navy regulations of 1862 [36 C. Cl., 321]. And this regulation of 1870 was enacted into a law by the Congress [116 U. S., 180, 181, 183], and that act of Congress is still in force- Revised Statutes, sec. 1547 and article 43 is in the army regulations of 1895 (p. 127, par 908; p. 225, art. 67-71.) "So the Congress has commanded that in the navy the accused shall be furnished with the charges against him at the time of his arrest and that he shall be tried on no other charges, with the exceptions named in article 43, which have no application to this case. "If this article 43 can be disregarded by a naval court-martial, then an officer or seaman can be punished twice for the same offense, first by the order of his superior officer (art. 24, R. S., 1624), and, secondly, by sentence of the court-martial." (36 C. Cl., 311, 318, Navy Department's G. C M. O., 18 of 1897, pp. 4, 5.) "In this case the accused, as the record shows, was confined to his ship on January 30, 1889, and We think that all lawyers of impartial judgment must share the regret expressed by the Bar Association of New York that Judge John Clinton Gray was not nominated for re-election to the Court of Appeals by the Republican as well as by the Democratic party convention. And this in spite of the fact that there is nothing to be said against the character or professional standing of Judge Werner, the Republican candidate. The nomination should have been made by both parties in the interest of the people of the whole State. Judge Gray has served with distinction on the Appeals bench for fourteen years. He is as absolutely impartial, as free from partisan bias, as minutely and carefully just and faithful in the discharge of his duties as any man that has ever served in the courts of New York. There is no Republican or Democratic view now as to the conduct of a judge or as to the theory or application of the Constitution or the laws. If there were, we might be entirely sure that it would not remotely affect the judgment of Judge Gray, and that he would hold the scales not only evenly but with an exceptionally firm and delicate hand as between both parties, regarding solely and always the supreme obligation of his high office. Moreover, it must be said, with perfect respect to other judges, that Judge Gray has rare qualities, not, perhaps, essential but exceedingly desirable, in a member of our court of last resort. He has the mind of the scholar, with the scholar's training. capacity, refinement and force. A graduate of the University of Berlin, as well as of the University of the City of New York and the Harvard Law School, his study has been broad and patient and systematic as well as eager. Since the Court of Appeals of New York makes its influence and authority felt not merely in the Empire State, but throughout the Union and wherever the law of English-speaking people runs, it is no slight advantage that a mind like Judge Gray's should be employed in reaching its decisions and in expressing its opinions. It should be plain to all that these unusual and valuable qualifications are enhanced by the experience of their possessor on the bench. Through that experience he is able to do with great ease and certainty much that a judge less familiar with the duties of the court must do laboriously and with less certainty, and to questions of new difficulty he can give closer and more fruitful attention. His service, moreover, recognized by the bar and by the public tends to add to the authority of the court, to confidence in its judgments, to consistency in those judgments, and to that stability and simplicity of final interpretation which it is the most important function of the Court of Appeals to establish. It is not easy to imagine any office in which ability and character tested and disciplined and developed by experience are more precious or should be so earnestly sought, so promptly chosen when the opportunity is offered. It is imprudent, wasteful, unintelligent, when a judge of the Court of Appeals with these eminent qualifications can be had, to take another, no matter what his present claims may be. On this general ground, we are persuaded that Judge Gray should have the support of all voters throughout the State who are capable of apprehending the real effect of his election. There are special reasons why he should have the earnest and systematic advocacy of the intelligent voters of this city. If he be not elected, the city will be left with only one of the seven judges of the Court of Appeals chosen from its bar. We do not hold that the city has any interest in the conduct of the court apart from, much less opposed to, the interest of the whole State. But it has nearly one-half of the population, it has much more than one-half of the business of the State. It originates probably more than one-half of the litigation which reaches the court. It is safe to assume that the court needs the assistance of judges familiar with the conditions prevailing in the city, with its judiciary, with its bar, with the complex and important dealings of this great and energetic community, the third in size in the world. This the court has had in very limited degree from its earliest stage. Under the Constitution of 1846, and until the amendment of 1869, but two New York men sat on the court. Since the latter date only three have been elected to the court. In all there have been but five New York men elected out of forty-five in fifty-five years. We will not say that this is unjust, but surely it is unwise. It would be better not merely for this city but for the entire State that more than one of the members of the court should possess the peculiar qualifications which, without lacking others, a judge from this city unquestionably would have. (Syracuse Herald, Ind.). There are two incidental reasons, both of them valid, why Judge Gray should be re-elected. Of the seven members of the Court of Appeals proper, three are Democrats, and the defeat of Judge Gray would leave the Democratic party less than onethird of the membership of the court — an unequal and unjust division. Again, the defeat of Judge Gray would leave the city of New York, containing about one-half the population of the State, only one judge of our highest court- Edward T. Bartlett. That would be an even more unjust division of representation. These considerations, while they deserve earnest attention, are, however, insignificant compared with the proposition that Judge Gray is entitled by a record of distinctly honorable and valuable service to the support and renewed confidence of the people of the State. That service extends over a period of fifteen years; for before he took his seat in January, 1889, as a judge-elect, for the full term of fourteen years, he had already served a year in the court as successor, by appointment, of the late Charles A. Rapallo. Thus he is eminently fitted by ripe experience for the further discharge of official duties in our highest court; but, beyond that, his judicial service has been of such a high order that not even his most reckless and unscrupulous partisan opponent can say a word in impeachment of it. There is not a prominent and at the same time fair-minded lawyer in the State who will not bear testimony to his impartiality, his learning, his high character - in short, his absolute fitness for the post which he occupies. Why, then, should Judge Gray not be re-elected by an immense majority? We do not know a single reason. His re-election will serve the double purpose of honoring and rewarding a faithful judge and of emphasizing the growing public desire to keep partisanship out of judicial contests. on that bench. Their only reason for not renominating him themselves, and for nominating Judge Werner, was that Gray is a Democrat and Werner is a Republican. The political fact weighed nothing with Republicanism, when it helped to re-elect Rapallo and Earl, and nothing with Democracy, when it twice contributed to the election of Charles Andrews. It should have weighed nothing against Judge Gray. a There will be no reflection on Mr. Werner in voting for Mr. Gray, an older and a better jurist. There will be a reflection on the principle of the re-election of good judges to the Court of Appeals by any vote cast for Judge Werner, whom defeat would only transfer to the Supreme Court, while defeat of Judge Gray would lose to the State his experience, his character and his abilities. Moreover, Judge Gray, as New Yorker, knows the laws and the rights affecting metropolitan cases, and Judge Werner cannot know them so well as Judge Gray does. The non-partisan Bar Association of New York has indorsed Judge Gray and, without reflecting on Judge Werner, has condemned the failure of the Republican party to renominate Judge Gray. This is a plain case, and intelligent voters in Kings county, no matter for whom they vote for Governor, should support Judge Gray for re-election. BRIEF WILLS. It is not without significance that for brief wills we must look to men who are most familiar with briefs lawyers and judges. But the shortest will ever made was that of a New York man, who in two words of three letters each, "Son all," contrived to put on record his testamentary wishes, which, being duly signed and witnessed, were validly expressed. In the brevity of wills there is wisdom, for when that great legal luminary, Sir James Fitzjames Stephen, died, his testamentary disposition consisted of the nine words: "I leave all my property to my dear wife." In almost as few words the late Lord Russell, of Killowen, disposed of his property, while on less than half a sheet of notepaper the Earl of Manseld, one of the late Lord Chief Justice's predecessors, settled the destiny of a large fortune. have no available property; I owe a great deal; the rest I give to the poor." The will of the late Col. Francis E. Rigby, who died in a Chicago hotel last April, was analytically described as consisting of "fourteen words, four figures, two fractions, three periods, one apostrophe and two commas." It read as follows: "1⁄2 of my fortune to Ann Rigby Fowler, of Leeds, Yorkshire. 1⁄2 to my wife. F. E. Rigby. Witness: C. P. Stringfield." This brief will was written by the hotel physician with an indelible pencil on a slip of paper four inches long and three inches wide. The tragic death of Mr. Borckhardt, of St. Albans, on the Matterhorn, a few years ago, brought to light a very short will. On a small piece of card, addressed to his sister, he wrote: "I am dying on Matterhorn. I leave all I possess to you, my dear sister. God bless you." The will of the late Mr. Alexander Moulding Grimond, a Dundee manufacturer, was a model of brevity. It was embodied in the words, "I leave to my wife, Victoria Gildea, or Grimond, everything I possess in this world, and she may do with it as she deems right. This note cancels any previous will signed by me.- - A. M. Grimond, 3rd May, 1900." Mr. George W. Childs, of Philadelphia, left a brief will, which not only disposed of more than £1,000,000, but was an eloquent tribute to his wife. It was expressed in these words: 'Having full confidence that she, knowing my plans and purposes, will, by gift during her life, or by testamentary writing, make such disposition thereof for charitable or other uses as will be in accordance with my wishes, I leave all my property, real and personal, to her, unfettered by condition of any kind." The following tribute to the late Hon. Horace E. Smith is from the columns of the Johnstown (N. Y.) Republican: The life of one of Johnstown's most distinguished and best known citizens, Hon. Horace E. Smith, came to a close at his home on South Market street October 19, 1902. For the past several years the deceased had been in feeble health, but he was able to be about the city to some extent and was well preserved for a man of his advanced years. attacked with serious illness and then his real conIt was not until Saturday morning that he was dition was not at first realized, but it became evident during the day that he had sustained a stroke of apoplexy. He grew weaker and weaker during the evening, becoming unconscious at about ten o'clock and peacefully breathed his last at the The will of the Chicago newspaper man, F. B. White, was comprised in the half-dozen words, "I give everything to my wife." Brevity was likewise the most conspicuous feature of the will of the late Matthew Arnold, who simply said, "This is last will. I give all my property to my wife." An older literary celebrity, Rabelais, the famous French humorist, contented himself with leaving the following testamentary confession and bequest: "I hour above stated. my For many years Mr. Smith had been prominent mands upon her wisdom, efficiency and maternal in legal and church circles in this section and he instincts. had been highly honored, both at home and abroad. Few men in this part of the State were better known and few had attained greater distinction than had he. His career had been an active and useful one and he was the stamp of man whose influence meant the betterment of mankind. Throughout this city and county he was held in the highest esteem by all, and looked up to as a mental and moral example worthy of imitation. No one had a wider circle of professional and personal friends and his death is the cause of deep and widespread sorrow. Horace E. Smith inherited in happy combination the literary qualities of his father and the executive ability of his mother. While pursuing his studies he spent considerable time in teaching in common schools, select schools and academies. This experience he ever regarded as greatly beneficial to him in after life. He studied law at Broadalbin, N. Y.. with Abram P. Demarest, Esq., a thoroughly educated lawyer, and was admitted as an attorney of the Supreme Court of the State of New York January 12, 1844. After practicing as an attorney three years, as the rules then required, he was admitted as counsellor of the same court, both degrees being awarded on a thorough examination. In March following he was admitted to the Court Horace E. Smith, LL. D., was born in Weston, Vt., and obtained his early education in the common schools, Chester Academy, Vt.; Franklin Academy, Shelburne Falls, Mass., and by private of Chancery by the last chancellor, Hon. Reuben instruction and study. So well had he improved his time and opportunities that on application for admission to the Supreme Court of the State of New York, under the then existing rules, which required seven years of preparatory study, four of classical study and three of law, he was allowed for the four years of classical study, the same as credited to a graduate of a college or university. H. Walworth, on examination and recommendation of the late Judge Amasa J. Parker, of Albany, then circuit judge and master in chancery. Subsequently he was admitted to the Supreme Court of the United States, the United States Circuit and District Courts of the northern and southern districts of New York, and also to all the courts of Massachusetts, State and federal. In all these courts he had more or less practice, and in some of them his practice was extensive and varied, including cases of large interest. From his admission to the bar in 1844 to the spring of 1847, Mr. Smith practiced law at Broadalbin, Fulton county, N. Y., at first with the late Hon. James M. Dudley and last with Hon. Thomas L. Wakefield, both of whom were his early friends and schoolmates, and who afterwards became distinguished members of the profession. While practicing at Broadalbin, Mr. Smith achieved marked success for a tyro, and enjoyed the favor and counsel of Judge Daniel Cady, of Johnstown, who was widely known as a noble man and great lawyer. His father, Dr. Rogers Smith, of English parentage, was a native of Massachusetts; but in early life he removed with his parents to Mt. Vernon, N. H., where he studied and practiced medicine until his removal to Greenbush, N. Y., as hereinafter stated. Possessing a fine literary taste, and an ardent passion for books, he achieved a broad and varied culture, ranked well in his profession, and, during his residence in New Hampshire, he was an active politician of the Jeffersonian school. In 1812 he was commissioned by President Madison as hospital surgeon's mate in the United States army, and was stationed at the general hospital, Greenbush cantonment, Greenbush, N. Y. After the close of the war he removed to Weston, Vt., where he died in 1845, leaving two sons and three daughters. The elder son, Asa D. Smith, D. D., LL. D., was for twenty-nine years a successful pastor of a Presbyterian church in New York city, and for the last thirteen years of his active life president of Dartmouth College. The younger son, Horace E. Smith, is the subject of this sketch. The wife of Dr. Rogers Smith, whose maiden name was Sally Dodge, was of English and Welsh extraction, in Broadalbin, the late Hon. Thomas L. Wakeand a descendant on the father's side from the field. While in practice there, Mr. Smith came in same original stock as the well-known philanthro- contact professionally with some of the most dispist of New York city, the late Hon. William E. tinguished members of the bar, among whom may Dodge. She was a woman of strong character, be mentioned Rufus Choate, Benjamin R. Curtis marked intelligence and indomitable energy. It (afterwards a judge of the United States Supreme seemed to her children, on whom she strongly Court), Charles Sumner and Benjamin F. Butler. impressed herself, that she was equal to all de- Among other important cases in which he was In the spring of 1847, Mr. Smith removed to Boston, Mass., and formed a partnership with the late Hon. Henry B. Stanton, whose wife was the celebrated Elizabeth Cady Stanton, a daughter of Judge Cady. After the.lapse of six months Mr. Stanton left Boston on account of his health and Mr. Smith succeeded to his extensive law practice. He was subsequently joined by his former partner |