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Nor was Mr. Butler's public spirit and usefulness plunging the bare arm to the elbow in boiling water, unielt in the city of New York, where he was con- an escape from injury being taken as a proof of stantly connected with important philanthropic innocence, or by casting ihe accused person, bound work. He was, for instance, an active member for hand and foot, into a river or pond, when, if he many years, of the board of trustees of the Lenox floated, it was an evidence of guilt, but if he sunk, library, and, after its consolidation with the Astor
he was acquitted. and Tilden libraries, and until his death, of the of crime were forced to eat the seeds of a plum-like
In ancient times in Madagascar persons suspected board of trustees of the New York public library.
fruit, and criminals were put to death by being Mr. Butler's life, with that of his distinguished pricked with a lance dipped in the juice of the seeds. father, cover a period which connects the present
There was a superstitious notion once exceedingly with the far different kind of professional life and prevalent regarding the discovery of the murderer work in the early years of the past century. During by the touch of the dead body. In Germany this the many years which he devoted to his profession experiment was called “bahr recht” or law of the he was a marked figure. It is no disparagement bier, because the murdered body being stretched of others to say that from the beginning his position upon a bier, the suspected person was obliged to was in the very front rank. Following upon the put one hand upon the wound and the other upon renown which by his name he inherited, his posi- the mouth of the deceased, and in that posture call tion might in a special sense be described as
upon heaven to attest his innocence. If, during the unique. The members of his profession have ceremony the blood gushed from the mouth, nose thought that in his case it was exceptionally suitable in the course of shifting or stirring the body, it was
or wound, a circumstance not unlikely to happen that there should be inscribed upon the records of held sufficient evidence of the guilt of the party. the court some reference to his career, and the due The same singular kind of evidence was adexpressions of regret, when at last, full of years and mitted in the Scottish criminal courts at the short honors, he passed away.
distance of little more than a century. Fountainhall relates a most dreadful instance of this perversion of jurisprudence.
was that of Philip ANCIENT MODES OF DETERMINING GUILT Stanfield, tried upon the 30th of November, 1687, OR INNOCENCE.
for cursing his father (which, by the Scottish law,
was a capital crime (Act, 1661, chap. 20]), and for The nieans employed by the ancients to ascer- , being accessory to the murder. Sir James Stanfield, tain the guilt or innocence of an accused person the deceased, was a person of melancholy temperawere many and varied. Briefly enumerated, they ment, so that when his body was found in a pond were the trial by wager of battle, and the trial by near his own house of Newmilus he was at first ordeal, which consisted of tests given by fire, and generally supposed to have drowned himself. But hot and cold water.
the body having been hastily buried, a report arose The trial by wager of battle consisted in the 'that he had been strangled by ruffians, instigated by giving of a gage or pledge for trying a cause, his son, Philip, a protligate youth, whom he had formerly allowed in military, criminal and civil disinherited on account of his gross debauchery.
Upon this rumor the Privy Council granted warIn writs of right, where the trial was by cham- rani to two surgeons of character named Crawford pions, the tenant produced his champion, who, by and Muirhead to dig up the body and report the throwing down his glove as a gage, or pledge, thus state in which they should find it. Philip was waged or stipulated battle with the champion of the present on this occasion, and the evidence of both demandant, who, by taking up the glove, accepted surgeons bears distinctly that he stood for some the challenge. Wager of battle, long obsolete, was time at a distance from the body of his parent, but, abolished in England in 1819, by a statute passed being called upon to assist in stretching out the in consequence of the defendant's having waged his corpse, he put his hand to the head when the mouth battle in a case which arose about that period. and nostrils instantly gushed with blood.
Trial by ordeal was an ancient form of test to This circumstance, with the evident symptoms of determine guilt or innocence, by appealing to a terror and remorse exhibited by young Stanfield, supernatural decision. In England ordeal by fire seems to have had considerable weight with the and ordeal by water were used, the former was con- jury, and is thus stated in the indictment: That his fined to persons of rank and the latter to the com- (the deceased's) nearest relatives being required to mon people. The ordeal by fire was performed lift the corpse into the coffin after it had been either by handling red-hot iron or by walking bare- inspected, upon the said Philip Stanfield touching it foot and blindfold over red-hot plough-shares laid (according to God's usual mode of discovering at unequal distances. If the person escaped unhurt, murder) is bled a fresh upon the said Philip; and he was adjudged innocent; otherwise he was con- that thereupon he let the body fall and fed from it demned as guilty.
in the greatest consternation, crying, “ Lord, have The ordeal by water was performed either by mercy upon me."
The prisoner was found guilty of being accessory no authorities contrary to this doctrine in any part to the murder of his father, although there was of the Union except where the statutes have made little more than strong presumptions against him. a different rule, as in Louisiana and California. It is true he was at the same time convicted of The most interesting part of the subject of the having cursed his father and drank damnation to succession of the Fair estates is with respect to the the monarchy and hierarchy.
effect of a possible conflict of laws. If the victims His sentence, which was to have his tongue cut of this accident were domiciled in California, the out and hand struck off previous to his being statutory rule in that State will raise a presumption, hanged, was executed with the utmost rigor. He unless there is evidence or reasonable inference to denied the murder with his last breath.
the contrary, that Mr. Fair survived his wife. This It is, says a contemporary judge, a dark case rule, however, would certainly have no force or of divination, to be remitted to the great day, effect in respect to any real property which either whether he was guilty or innocent.
of those parties may have owned in other States. Superstitious die hard, according to some people, with respect to the distribution of any personal but to the writer's mind, they are immortal. They property that either of them may have owned in seize and take hold of our weak and sentimental other jurisdictions, there may be much difficulty in natures, and at the present day they permeate our determining whether it goes to the representatives whole social fabric. Judges, juries and verdicts are of the husband or of the wife; and, since the rule is affected by superstition; fictions of the law, in many chiefly one of burden of proof, the defendant may instances, owe their origin to superstition, and, succeed by reason of the failure of the plaintiff to to-day, on the threshold of the twentieth century, make any proof on the subject. The disposition of even in this age of enlightenment and literary ad-courts in many cases to protect the rights of the vancement, we see hordes of fortune-tellers, card residents of their own State may also be factor and horoscope readers, astrologers and palmists under some circumstances, as for instance, in case doing a thriving business in enlightened (?) America of ancillary administration when the turning over and making an easy livelihood on the credulity and of the assets in the State to a foreign administrator weaknesses of superstitious humanity.
is contested by a resident who asserts some right in JOSEPH VI. SULLIVAN. them. No such question as this may arise in respect Of the Suffolk (Mass.) Bar.
to these estates, but questions of this kind are suggested on which it would be difficult, if not impossible, to find any precedent.-- Case and Comment.
MISTAKE AS TO RULE OF SURVIVORSHIP.
VALUE OF TRAINED EARS. The succession to the property of Mr. and Mrs. Fair, who were both killed recently in an automobile accident, has greatly interested some of the public Court STENOGRAPHERS Good JUDGES OF VERACITY OF journals. The question as to the presumption of
WITNESSES. survivorship in such cases being new to some of the newspaper writers, they have discoursed upon it as a “nice" point of law. One of the daily papers has "Any shorthand man who has been doing court acquired legal erudition enough to discover that reporting for a long time can tell almost infallibly this is by no means a rare question, and has pro- by his sense of hearing whether a prisoner or a witceeded to correct its contemporaries on that point. ness is telling the truth or lying," said a Washington But, unfortunately, while it has discovered that court stenographer, according to the Washington - there have been many suits based on this question Post, who has grown gray in making and transcribof survival,” it proceeds to announce the law to be ing pothooks in civil and criminal cases. “It comes exactly what it is not. Its declaration is that “the from experience, combined with the abnormal delaw presumes, in cases of shipwreck and other fatal velopment of hearing, which all first-rate court and accidents where a number of people perish together, parliamentary stenographers possess. that the strongest live the longest, that the grown “You know how abnormally the remaining senses people survive the children, and that the men sur- of blind folks are developed, particularly their sense vive the women." But according to the common- of hearing. Well, it's the same way with the court law doctrine established in England and in nearly all shorthand man after he's hammered away at that sort the United States, differing from the civil law, there oí work for a good many years. His ears become as is absolutely no presumption on the subject, and sensitive to the slightest inflections and intonations the whole question is one upon which any one who of the human voice as a phonograph roller. There's claims survivorship of a particular person has the a certain tremulous quaver in the tone of a man or burden of establishing that fact. The cases on this woman who's lying in a court room that the stenogsubject were carefully collected and analyzed in 51 rapher catches when the shrewdest judges, lawyers L. R. A., page 863, where it is shown that there are or jurors quite fail to catch it. When he has his
head bent over his note book he feels the jarring false THE STUDY OF LAW BY WOMEN. note in the voice of the liar every time, no matter how plausible or convincing the testimony in itself
The woman's law class of New York University may sound. So frequently have I tested this idea in the last fifteen years that I have come to accept it as opened October 20th at 11.30 a. M., for its thirteenth certain, when that almost indistinguishable false scholastic year, at the University building, Washtremolo is absent from the tone of a prisoner's or a
ington square. Addresses were delivered by Mrs. witnesses' voice, that the testimony is true. John P. Munn, president of the Woman's Legal
"A few years ago, before I left Chicago for Wash-, Education Society, and by Dr. Clarence D. Ashley, ington, I reported the trial of a young chap who was dean of the law faculty and senior lecturer to the accused of having sandbagged a south side jeweler woman's law class. in his store and of looting the establishment. The Prof. Isaac Franklin Russell, LL. D., who has young fellow was good looking and intelligent, with been at the head of this work ior ten years, retires a face as frank as an eight-day clock, and an easy, this year to resume practice at the bar. But the candid, winning manner. I looked him over before introductory address on “The Study of Law by the trial began, and I decided that the accusation Women," was given by him. Dr. Russell began against him was outrageous. When witnesses testi
his address by congratulating the university on the fied that they'd seen him coming out of the robbed jewelry store I strained my ears to catch the false accession of Dean Ashley to the teaching faculty intonation in their voices, but it wasn't there. When of the woman's law class, on the continued interest the defense opened the young man was permitted to of Mrs. Munn and Miss Helen Miller Gould in go on the stand in his own behalf.
the prosperity of the school, on the completed en"I was stupefied to find that his voice had the dowment and the evident purpose of the new adlying quaver in it right from the beginning of his ministration to follow along the pathway of past story. His words vastly impressed the jury and as progress with such few changes as Dean Ashley vastly chagrined the prosecution. But I knew that mig find necessary as the result of his large exhe was lying, nevertheless. He undertook to prove perience in teaching law to women both at Bryn an alibi. In corroboration his married sister testi- Mawr and the New York University. fied that her brother had been at her apartment from
Continuing, Prof. Russell spoke in substance as 3 o'clock in the afternoon until 10 o'clock at night of
follows: the day of the crime, taking dinner with her and keeping her company in the absence of her husband. “Within the last ten years at least four bold Well, she was lying too. She had that tell-tale false authors have written books treating of law for ring in her voice that convinced me of this, despite women; and academic classes for legal study comher fine, frank face and her obvious respectability. posed exclusively of women, have been organized
The court adjourned for luncheon at the conclu- | at such great centers as Washington, New York, sion of her testimony. I took luncheon with the Brooklyn, Philadelphia, Bryn Mawr, Buffalo and attorney for the prosecution.
San Francisco. Colleges for women are now giv“Well, what do you think of this case?' he asked ing attention to law as a proper part of a curriculum me when we sat down. 'I guess we don't land him, of scholastic studies framed to meet the demands eh?'
of general culture rather than the needs of pro“'He's guilty,' I replied briefly. He was lying,
fessional training. Women are now admitted to and so was his sister.'
“The attorney for the prosecution looked me over the highest honors of forensic advocates at Paris, out of the slits of his eyes, but I didn't say any more. and to doctorates in the law at many universities on When court reconvened he asked for an adjourn the mainland of Europe. In America women pracment until the next day, and the judge granted it. tice at the bar of the highest courts in almost all On the following morning the prosecuting attorney of the States of the Union. had in court the janitor of the apartment house in “A new era in university training has been inwhich the prisoner's sister lived. The janitor testi- augurated and the old culture is fast breaking fied that the prisoner's sister had not been in her down. Harvard and Yale, like Oxford and Camapartment from noon until late at night on the day of bridge, were organized to provide an education the robbery.
suitable for a priestor missionary. Clergymen “The janitor was still on the stand when a
have long been in control of the chief seats of detective walked into the court room with the loot from the jewelry shop. He had found it in a search learning, and have only been dislodged in our day of the prisoner's sister's apartment that morning. by men of science and scholars of administrative That settled the case, of course. The prisoner's
talent and knowledge of affairs. Latin, Greek and sister broke down, and confessed that she had been Hebrew, with some rhetoric and moral philosophy, endeavoring to shield her brother, who got ten years have long been the main staples in the college for assault with intent to kill and robbery."
curriculum. Woman, who could not aspire to priestly functions, was overlooked entirely and the justice alms are a mockery. Bread and fuel, doled secularization of learning was left to the present out by the millionaire, in ostentatious philarithropy, generation. The value of law in a scheme of from his store accumulated in fraud of others, only study framed with a view to a polite and general embitter the lot of the poor. The tyranny of labor culture has been nobly exhibited by Blackstone in leaders may be worse and more unrelenting than the introductory lecture to his commentaries. But the tyranny of capital. Organized labor owes juswhat was true a century and a half ago in England, tice to its fellows and to toilers who may not beunder the rule of its landed gentry, is doubly true of long to its brotherhood. For the right to sell one's America to-day, with its more popular institutions labor freely in the open market is an established of government and its traditions of equality before and constitutional right; and to molest an honest the law.
workman at his task, or threaten his home and “ Law, as viewed by the general public, presents family with torch or dynamite, is to organize a a most unattractive field for exploration; for it is reign of terror and dissolve civil society in stubbornly regarded as a body of rules regulating anarchy. the procedure and sittings of courts, the language “ Special occasions may call for feminine eloof written instruments, and the order of judicial quence beiore the court and jury. A woman as inquiry and determination. It is hidden deep down counsel on one side, or a female witness to be under a mass of forms and technicalities, and sus- cross-examined, may compel the employment of a tains a terrible burden of pedantic erudition and woman lawyer to equalize conditions between the recondite and mystic learning, bewildering and dis- parties to a cause. But forensic eloquence, or forheartening to the student. Women, in particular, mal speech-making in open court, is a very small have no interest in a miere war of words. But when part of the daily employment of a successful lawyer. once law properly appears in its scientific and Of the 11,000 lawyers in this city, not one in ten philosophical relations, as akin to ethics, as affect- I appears regularly in the courts; the rest support ing conduct, as inculcating a lofty morality and I themselves by office practice and non-litigated busiexhibiting an exalted standard of right, as teaching ness. The amount of invested capital in New York us to look into the face and hear the voice of God, city has become incalculable; the fabled fortunes of then the dignity and nobility, we may say the di- Croesus and Monte Cristo seem ridiculously small vine nature of jurisprudence evokes the reverent when compared with the more than princely revenues contemplation of all intelligent men and women. of Carnegie and Rockefeller. The incorporation and Some considerable knowledge of law, then, should reincorporation of capital, the administration of be sought by every human being who aspires to real trust estates in land and personal property, the diseducation.
tribution of inheritances and the guardianship of “The range and variety of legal rules are limited infants, make up a volume of business that is only only by the activities and relations of human so- mildly characterized as immense. ciety. Law has its message of authority, its word "Loans and conveyances, and the searching of of counsel, its sharp rebuke, its threatened ven- titles to real property, with occasional suits of foregeance, as well as its bulwarks of defense, its closure and partition, constitute a distinct branch munificent endowments and its inalienable rights; ' of legal business, usually apart from court conand these must be read by the intelligent citizen tests and furnishing an army of attorneys with between the lines of history, romance and financial profitable employment. quotations, must be seen in all the encounters of "The successful conduct of litigation demands violence and crime, the intrigues of passion and untiring labor in the accumulation of testimony, the battles of markets and exchanges. The bride written and oral, the careful preparation of the at the altar, the widow in her quarantine, the babe record in case of appeal, the writing of briefs and unborn, the assassin of the President, are all within the incidental research through volumes of digests the merciful protection of the law. The desperate and reports in order to bring out the points of an man may not take his own life, the gambler may not argument in the shape of statutes and precedents stake his liberty, the prodigal may not waste his which have to be cited as authority. This has inheritance, and the outlaw, so-called, an exile and necessarily to be done in the office, and apart from fugitive, cannot be denied the equal protection of the noise and confusion of the court room; in fact the laws.
it has to be done before the term of court opens. “We all owe justice to our neighbors. Without “The clerical force of a law office is generally justice we live under a hopeless and debasing composed of women in large part. Similarly, tyranny. But if we accord this priceless boon to the places in the public civil service at custom houses ignorant and laboring poor we can easily reduce and post offices, and in State and municipal departour charitable contributions by one-half. Without ments of executive administration, are stations
where women may advantageously be placed. For The defendant Friederich was also a lienor. In the such functions, not merely clerical, but often con- spring of 1898 the appellant entered into negotiations fidential, woman has the highest qualifications in for the lease of the premises, which consisted of a her great conscientiousness, her neat habits and tract of about twenty-one acres of land, to the deconstant devotion and regularity. Her presence,
fendant corporation, The Rochester Exhibition Com
pany These negotiations culminated in a written too, radiates refining power through all her surroundings, and if it does not always sanctify the executed by the appellant on the twentieth day of
lease bearing date the tenth day of April, which was room where she sits, it at least insures a dignity April, and by the exhibition company on the twentyand gravity of demeanor on the part of her male eighth day of April. The work for which the plaintassociates that must always enhance the efficiency iff's lien was filed consisted of plumbing work and of the office as a whole.
material, and was furnished under a contract be“The instruction of women in the elements of tween her and the exhibiton company, dated April the law has enough to support it, aside from pro- twenty-seventh. The work was begun on April viding qualification for forensic advocacy or for the twenty-eighth. The lien of the respondent Friedlarger sphere of office practice as an attorney. erich was for grading the premises and clearing them Woman has now absolute control of her property.
of trees. It was also performed under a contract real and personal, and is admitted by the law to with the exhibition company. The work was begun the grave responsibilities of executor, trustee and about the fourteenth day of March. The lease from
the appellant Culver to the defendant exhibition guardian. She needs legal knowledge, not to enable her to be her own lawyer, but to qualify her to with the privilege of an extension. It provided that
company, was for a term ending December 31, 1902, appreciate and act upon legal counsel understand the lessee should not use the premises or permit the ingly. If woman is to continue to figure as a capi- same to be used "for any other purpose than the talist, taxpayer, litigant and, perhaps, voter, on a construction, use and maintenace of a general athmore and inore liberal scale, she ought certainly to letic field, with appurtenances; the holding of general make herself master of the rudiments of legal athletic games and events, and public amusements science."
and enterprises.” It further provided that the lessee
should, at the termination of the lease, deliver up the MECHANIC'S LIEN.
premises in as good condition as when taken, except
the trees necessarily removed by the lessee in preWHAT CONSTITUTES CONSENT WHICH WILL CHARGE paring the property for its use. The lessee was given OWNER.
the right to remove at any time during the lease all
buildings, erections and improvements which it might NEW YORK COURT OF APPEALS.
at any time erect or place on the land. On obtaining (Decided October 7, 1902.)
the lease the exhibition company erected extensive
buildings and structures on the premises. For that Teresa Rice, Respondent, v. MARVIN A. Culver, work other liens were filed besides those of the Appellant; JULIUS FRIEDERICH, Respondent.
plaintiff and the defendant Friederich. The trial court found that the appellant did not consent, within
the meaning of the statute, to the improvements In order to render the owner of leased premises
made by the lessee and rendered judgment in his liable, under the Mechanic's Lien Law, for improve
favor aginst all the lienors, From that judgment ments upon the premises ordered by the lessee, he must have actually and expressly consented or re
the plaintiff and the defendant Friederich apquired that the work be performed. It is not enough pealed to the Appellate Division, where the judgthat he knew it was going on and passively acqui- ment of the Special Term, so far as it affected their esced in it; but he must have been, either an affirm- claims, was reversed, and a new trial ordered. From ative factor in procuring it to be done, or, having that order the appellant Culver appeals to this court.
The Appellate Division reversed the judgment of possession and control of the premises, assented thereto in the expectation of reaping the benefit of the Special Term both on the facts and the law, and, the improvement.
therefore, if there was any evidence in the case from
which the court might find that the appellant conAppeal from a judgment of the Appellate Division sented, within the meaning of the statute, to the of the Fourth Department, reversing a judgment performance of the work for which the respondent entered upon a decision of the court at Special Term claims liens, the order of the Appellate Division in favor of the defendant, Marvin A. Culver.
must be affirmed or the appeal dismissed, as we Charles M. Williams, for appellant; John H. Hop- have no jurisdiction to review questions of fact. If, kins, for plaintiff-respondent; W. H. Sullivan, for on the other hand, there was no evidence to support respondent Friederich.
a finding of consent by the appellant, then the order Cullen, J.— This action is brought to enforce a of the Appellate Division was erroneous and the mechanic's lien filed by the plaintiff against certain judgment of the Special Term should be reinstated. lands in the city of Rochester owned by the appellant. 'We think that there is no evidence in the case which