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the probiems of free government and give the Con- “ Progress is the divine law of human life. Perstitution vitality; the Anglo-Saxons are such a fection as the goal of humanity and not its starting people.
point is the verdict of history and the injunction of The theories as to natural and inalienable rights, philosophy. Activity, not rest, is man's healthiest the right to life, liberty and the pursuit of happiness, condition. Man is unhappy where he cannot grow; are French in their origin, Rousseau having taken only sleep, suicide and oblivion are welcome there. them from the speculations of the Greek Stoics, who ** The assumption of human equality underlies conceived of an ideal state of nature as existing at much of the pseudo-philosophy of our own times. the dawn of civilization, to which we should go back Manhood suffrage, so-called, and the utilitarian through revolution rather than seek perfection as theory of ethics are both based on the postulate the goal of humanity through evolution. The that all men are created free and equal. Otherwise speaker attacked this theory of society and argued votes would be weighed, not counted; and the that the world owes no man a living, but that the highest advantage of the progressive elements of survival of the fittest is God's eternal law; that uni- , society would be the test of morality, rather than versal wealth cannot be divided among the units the greatest pleasure of the vulgar throng. The of the human race, and that, if attempted, equality manhood wage involves the same erroneous assumpwould not subsist during the minute of time devoted tion; this means, in substance, that a laboring man, to the division. Equality can never be secured by a man of family, representing as nearly as may be kuman law; nature abhors equality in the stars of the unit of toil, is entitled to a recompense which the heavens, the sands on the seashore and in the will provide a good living for himself and his deleaves of the forest. Even in court the rich man pendents. Conditions of competition in production with his learned counsel and his expert witnesses, are here ignored and the needs of the toiler alone with his debtors and pensioners in the jury box, on
are considered. Equal wages for unequal services the witness stand or even on the judicial bench, is is a gross offence against the dictates of equality and more than a match for his opponent, who is a man justice. of poverty in simple ignorance pleading his own “The great charm of life is found in its variety,
diversity and inequality; man's ill-advised attempts
to remove these have only disfigured the face of Dr. Russell continued:
nature and subjected human existence to hopeless Many vain attempts have been made to recreate and debasing monotony. Equality of opportunity the world, and build utopias where passion and to compete for the good things of life is all that the greed are to have no place, and where society is to individual can rightly demand of society. The right be founded on justice and equality. In France social to prosper and the pursuit of happiness secures to reconstruction has been wrought out in part, and the captain of industry the splendid rewards of civil and religious freedom advanced under the in- financial and mercantile genius, however great in spiring watchwords of “liberty, equality, and frater- millions the same may be. The right to labor innity.' 'Life, liberty, and the pursuit of happiness'cludes the right to sell one's labor in any market, are among the proud possessions of Anglo-Saxon and for any price which he is willing to take for it: freemen, to whom the equal protection of the laws' to molest an honest workman at his task, or to is guaranteed by the Constitution, and whose per- threaten his home with torch and dynamite, is to sons and estates cannot be seized or proceeded re-establish slavery, to organize a reign of terror against except under the appropriate forms of and dissolve civil society in anarchy. While the judicial inquiry, and in accordance with the law of rights of laborers to associate and to strike must the land.'
be upheld, whenever strikers assume to attack those “ Mr. Herbert Spencer, the apostle of the syn- who take up the work which the strikers themselves thetic philosophy, made his first important literary have voluntarily relinquished they levy war on civilventure in a work which treated of the conditions ization and human freedom. essential to human happiness. “Social Statics' was
“ The rights of mercantile corporations must be the name of the book, and it set forth the consti- distinguished from the rights of individual human tution of a perfect community where the forces oper- beings. A corporation is the creature of the Legisating on man in society were assumed to be in lature; it must remember its creator. Its corporate equilibrium. Here we find Mr. Spencer attacking franchises, its succession and perpetuity, its very life, the private ownership of land, opposing sanitary even, rest on legislative grant. For the public good legislation, advocating the private coinage of money, these artificial persons come into existence; they and urging the right of the individual to ignore the are, therefore, entirely at the mercy of the LegislaState. He reaches his conclusions by logical deduc- ture, which may limit their powers, withdraw their tion from the fundamental postulate.of equal liberty, franchises, control their conduct and end their very as the first and most far-reaching of the rights of existence. The economic freedom which an indi
But science knows nothing of so-called social vidual enjoys under constitutional guarantee may, statics, or the equilibrium of a perfect society. The for wise reasons, be denied to corporations.” living world vibrates with motion, and only what
Dr. Russell continuing, showed that equality is dead and inorganic rests in stable equilibrium.
before the law is found in Magna Charta in chapter
40, which reads: “To no one will we sell, to no prescribed to all for like offences (4). No person one will we deny, to no one will we delay, right or shall be singled out as a special subject for disjustice." It is found in the famous phrase of the criminating and hostile legislation (5). But the Declaration of Independence: “We hold these hardship, impolicy or injustice of laws is not necestruths to be self-evident, that all men are created sarily an objection to their constitutional validity (6). equal.” It is also found in the fourteenth amend- : The amendment is one of a series of constitutional ment, the new Magna Charta, which says: “No State provisions having a common purpose, namely, to shall deny to any person within its jurisdiction the secure an emancipated race, held in slavery through equal protection of the laws."
many generations, all the civil rights enjoyed by the The speaker then sketched the history of the superior race; it exempts them from unfriendly amendments to the Constitution, showing that that legislation against them distinctively as colored; historic instrument had been amended practically denying the right of being jurors because of color only three or four times; that the first ten amend- puts a brand upon them, implies legal inferiority, ments were substantially a part of the Constitution and lessens their security (7). But this does not at the start, a bill of rights freely conceded by the demand a mixed jury; nor does it mean that a friends of the Constitution from the beginning; that colored person may not be tried by a jury composed the eleventh amendment resulted from a single suit wholly of whites (8). Educational qualifications by an individual against a State; that the twelfth may be required of jurors, and they may be conamendment changed the method of choosing a presi- fined to males, freeholders or citizens; but no one dent to the present familiar plan after the alarming can be deprived of the right of participating in the controversy between Jefferson and Burr, and that the administration of justice because of color (9). But last three amendments sum up the constitutional women may be excluded from juries. A foreign results of the Civil War. Nevada was taken into corporation can be wholly excluded from a State the Union to accomplish this noble end; and, after without a violation of the equality clause (10). But the Southern planters had been vainly entreated to the States still hold the police power; and the laungrant suffrage to the negroes under a threat of dry business, (11) the slaughtering of animals and reduced representation in Congress, the fifteenth public prostitution may be confined with certain amendment was passed to express the unshaken limits prescribed by municipal ordinance (12). State resolution of the triumphant North. The amend-laws may require separate cars and schools for ments have been much misunderstood. Many of colored persons (13). Building and loan associathem limit simply the Federal power against arbi- tions may be exempted from the operation of the trary encroachments of governmental authority. usury law; corporations may be compelled to pay But the fourteenth amendment limits the State wages weekly; labor in underground mines may be authority also. Early cases seemed to confine its limited to eight hours; (14) and habitual criminals application to the emancipated blacks; but the may receive heavier penalties than first offendSupreme Court soon receded from this ground, and ers (15). now the fourteenth amendment is daily appealed to Many economists advocate a graduated or proas a shield and protection against State and Federal gressive tax on incomes, inheritance and property. authority alike by those who are unjustly deprived But others have criticised progressive discriminating of life, liberty, prosperity and equality.
taxation as socialistic and spoliative, as class legisThe speaker then proceeded to discuss a large lation, and thus calculated to equalize fortunes and number of decisions of the Supreme Court, applying force communism by law. The Supreme Court and interpreting this section regarding “the equal has approved the constitutionality of these enactprotection of the laws.” Among other things he ments (16). An inheritance tax law of Illinois was said:
sustained as not denying equality before the law “The clause applies to all persons, of any age, because it placed unequal burdens on persons insex, or race, native or alien (1). It operates against heriting different values. Such taxes are regarded all departments of government, legislative, judicial not as taxes on property, but on a privilege; hence and executive, and all subordinate agencies (2). It the Legislature may impose conditions like those stands as a shield against all unequal legislation, regulating the privilege of making wills (17). Corwhether directed against the most humble or the
(4) Barbier v. Connolly, 113 U. S., 27. most powerful; against the despised laborer from
(5) Pembina v. Pennsylvania, etc., 125 U. S., 188. China, or the envied master of millions (3). There
(6) Mo. P. R. R. v. Mackey, 127 U. S., 205. shall be no arbitrary spoliation of property; all are (7) Strander v. W. Va., 100 U. S., 303. equally entitled to pursue happiness and acquire
(8) Neal v. Delaware, 103 U. S., 370.
(9) Gibson v. Mississippi, 162 U. S., 565. property; all shall have like access to courts; no
(10) Orient Co. v. Waggs, 172 U. S., 557. greater penalty shall be prescribed for one than is
(11) Soon Hing v. Crowley, 113 U. S., 703.
(12) L'Hote v. New Orleans, 177 U. S., 587. (1) Slaughter House Cases, 16 Wall., 36.
(13) 179 U. S., 388.
(14) Holden v. Hardy, 169 U. S., 366. (2) Ex parte Virginia, 100 U. S., 339; C. B. & Q. R. R,
(15) Moore v. Missouri, 159 U. S., 673. v. Chicago, 166 U. S., 226.
(16) Plummer v. Coler, 178 U. S., 115. (3) Yick Wo v. Hopkins, 118 U. S., 356.
(17) Magoun v. Illinois, 170 U, S., 288,
porations, considering that they have privileges and is that the right of privacy does not legally exist. franchises from the State which individuals do not “ The rules," he says, "for the regulation of conpossess, may be taxed differently from individuals, duct with respect to the courtesies and proprieties and by a different process (18). Exemptions from of life, and that enjoin delicate regard for the feeltaxation are valid; and States are bound by such ings and sensibilities of others, are not to be found exemption laws, although government depends on in statutes or judicial decisions.” And he concludes, taxation and cannot live without it (19). A State not only that the young woman whose portrait was may tax government bonds going to legatees be used without her consent and against her wish to cause the inheritance tax is not a tax on property. advertise a brand of flour, or the other young Every now and then we hear the Supreme Court woman whose portrait was used to sell certain new'sbitterly assailed on the ground that it has decided papers, upon the occasion of the suicide of a young against the validity of all Federal income tax laws; man who had at one time been engaged to marry but the truth is the court has recognized the validity her, has not suffered any injury of which the courts of such a tax when apportioned among the States will take cognizance. as required by the Constitution. The power of Con- With respect to the former case, the case decided, gress to tax is plenary and absolute" (20).
Judge O'Brien says: “If the use of this young Dr. Russell concluded his address as follows: woman's picture was a legal injury at all it was an
“Finally, man can claim justice from his fellow. injury either to her person or to her character. We Without justice we live under a degrading despot- may discard entirely the suggestion that a lady has ism. If we but grant justice to the ignorant and anything in the nature of a property right in her laboring poor we can reduce our charitable con- iorm or features that is invaded by the circulation tributions one-half. Without justice alms are
of her picture against her will or without her conmockery. Bread and fuel, doled out by the mil- sent.” Oh, may we? It is tolerably well known lionaire, in ostentatious philanthropy, from his store that popular actresses have posed for photographers, accumulated in fraud of others, only embitters the and divided with them the profits of property rights lot of the poor. Justice, like life and liberty, cannot in their own forms and features. It is matter of be bought and sold as merchandise. A contract common gossip that professional beauties " have not to sue is void (21). The outlaw, so-called, an acquired pin money in the same manner. If a lady escaped convict and hunted fugitive, or a wretch has nothing in the nature of a property right in her who assassinates the president, cannot be denied the own form and features, who has a better right? Has equal protection of the laws. Justice, equal, impar- not the Court of Appeals in effect decided that tial, priceless and inalienable, ever abides, man's somebody has, to wit, anybody who chooses to make noblest and heavenliest heritage."
advertising use of them without her consent? Suppose that, after the manufacturers who embellished
their announcements with her portrait had been for THE RIGHT OF PRIVACY.
some time in undisturbed possession of the property
right which they apparently have, though she apJudge O'Brien of the Court of Appeals does us parently has not, in her form or features," and the honor to take some editorial remarks in this had for some years made her picture the trade mark journal, on the decision of that court respecting the of their business, the young lady herself should right to privacy, as a text for an article on “The decide to go into business on her own account and Right of Privacy," in the current number of The should decide to make her own portrait the trade Columbia Law Review. Judge O'Brien insists that mark of her own business. Then suppose the manuthe decision of the Court of Appeals by no means facturers who had pre-empted her portrait should went to the length of denying the right to privacy, apply to the equity side of the Court of Appeals to but merely set forth that the plaintiff, in the case prevent her from infringing their trade mark. submitted to it, “had not stated a case for the inter- Would not the court be forced to decide, either that ference of a court of equity by the writ or process her form and features were “ferae naturae," and of injunction."
that anybody who captured them with a kodak had With every respect for Judge O'Brien, it seems the prior right to them, as against herself, or else to us that his version of the scope of the decision that she really had a property right in them, which of the court and our own come, practically, to pre-lit was an offense to infringe? cisely the same thing. To say that an assumed right We observe with interest that the editor of The is not enforceable by the courts is surely tanta- | Columbia Law Review, in which Judge O'Brien's mount to denying that it is a legal right at all. And, remarks appear, makes some editorial remarks upon indeed, though the decision went onl so far as to them which indicate that the learned judge's reasondeny an injunction, Judge O'Brien's own argument ing by no means convinces him. The safest comi
ment upon the present aspect of the matter seems (18) Tel. Co. v. Mass., 125 U. S., 530.
to be that some legislation is needed. As Judge (19) New Orleans v. Houston, 119 U. S., 265.
O'Brien points out, it would be difficult to draw (20) Pollock v. Farmers' L. & T. Co., 157 U. S., 429. (21) Insurance Co. v. Morse, 20 Wall. 445; Doyle v.
such a statute without making more mischief than Insurance Co., 94 U. S., 535.
the statute could cure. And he cites one instance
of an attempt to protect the right of privacy by of law there is involved the most serious danger incistatute which covered the legislative attempter with 'dent to the contact with civilizations different from ridicule and never came to anything. That was our own. The training of the American lawyer is in largely because, on the face of it, the attempt was the common law. Little or no attention is given to to protect the shrinking sensibilities of those two the great body of civil or Roman law, which is at sensitive plants, Thomas C. Platt and Richard the root of the legal systems of continental Europe Croker. Naturally, “solutae sunt risu tabulae ;” and of the entire South American continent. This the project was dismissed with guffaws. But in this ignorance of foreign systems explains the feeling, matter of the right of privacy it seems to us that so prevalent at the bar, that any system other than the Court of Appeals of the State of New York has the common law is unable to meet the requirements missed a great opportunity, for which a lower court of justice We are not always mindful of the fact had prepared the way, to expand, in view of a new that the Roman law exercised a marked influence on contingency, the body of “ Judge-made law” so as the development of the common law, and that during to protect a private right and serve a public need. the last two centuries there has been a gradual The theoretical basis of the actual law of criminal approach of the two systems toward a libel, we believe, is only the exiguous assumption standard, especially in the law of commercial relathat to say malicious things about a man provokes tions.- From “The New Porto Rican Law Codes," him, or might provoke him to a breach of the peace. in the American Monthly Review of Reviews. Yet upon that narrow basis the courts have erected a body of decisions under which it is unsafe to publish malicious or impertinent things. Upon the
CONSTITUTIONAL LAW. equally slender basis of the property right of a man or a woman, in his or her own form and features, MAINTENANCE OF CHILDREN IN INSTITUTION UNDER a right which Judge O'Brien simply scouts, might PRIVATE CONTROL --- WHEN CHILD Not have been erected those bulwarks of the right of
A PUBLIC CHARGE. privacy against new and unforeseen modes of attack, which the Court of Appeals of the State of New
New YORK COURT OF APPEALS. York has ignored and broken down altogether.
(Decided October 7, 1902.) V. Y. Times.
In the Matter of the Application of the New YORK ROMAN LAW AND THE PORTO RICAN JUVENILE ASYLUM for a Writ of Mandamus. CODES.
No public moneys can be used by a city, town or As regards the system of private law, the recom- village for the maintenance and education of a child mendations of the commission possess a peculiar
in any asylum or institution wholly or partly under significance. In Porto Rico we have, for the first private control, unless committed to or placed therein time, come into direct contact with the Spanish by a magistrate, superintendent or overseer of the
other officer system. It is true, that in both California and New poor, commissioner of charities, or Mexico we find the Spanish law in force, but it soon
authorized by law to do so (State Constitution, art. gave way to the American system, and the influence 8, sec. 14, Laws of 1895, chap. 754; Laws of 1896, of the Spanish inhabitants was rapidly overcome by chap. 546; rule i of the State Board of Charites). the influx of immigrants from the east and north.
The provisions of the charter of the New York In Porto Rico, however, we have to deal with a
Juvenile Asylum (Laws of 1866, chap. 245, sec. 28), densely populated island which, because of climatic requiring the county of New York to pay to the conditions, will never
institution $110 a year for the support and education attract a large number of persons from the north. The system of law must,
of each child intrusted or committed thereto, were therefore, always remain in close harmony with the superseded by the rules of the State Board of Chariinherited ideas and traditions of a population essen- stitution and statutes above cited; and thereafter a
ties adopted pursuant to the requirements of the Contially different from that which we find in the States child placed in the institution merely on the consent of the Union. Both reports furnish ample evidence that the commission realized the danger of attempt
of the parents or guardian was not a public charge. ing to force upon the people of Porto Rico a new
Appeal from an order of the Appellate Division, system of law which would be certain to arouse a First Department, affirming the order of the Special feeling of distrust and resentment in the native Term denying the application of the New York Juvepopulation.
nile Asylum for a writ of mandamus. It is furthermore evident, from the commentary
Robert Goeller, for the Juvenile Asylum, Appelcontained in the report, that considerable pressure lant; George L. Rives, Corporation Counsel (Theowas brought to bear upon the commission to sweep dore Connoly of counsel), for Respondent. away the Spanish system at one fell blow, and to Haight, J.- On or about the 5th day of August, substitute for it the codes of one of the States of 1901, Mamie Schellberger, a minor of the age of the Union. In this attitude toward foreign systems thirteen years, was surrendered to the New York Juvenile Asylum by her mother as an ungovernable Constitution, shall remain in force until amended child. She was received by the board of directors or repealed by the legislature of the asylum and for the remainder of the month Section 14. “Nothing in this Constitution conwas retained therein, after which time the asylum tained shall prevent the legislature from making such in accordance with its custom, rendered a bill to provision for the education and support of the blind, the commissioner of public charities for the support the deaf and dumb, and juvenile delinquents, as to of the child in order to obtain a certificate that the it may seem proper; or prevent any county, city, child was a proper public charge, and that the asylum town or village from providing for the care, support. was entitled to its pay therefor by the comptroller maintenance and secular education of inmates of of the city of New York. The commissioner of orphan asylums, homes for dependent children or public charities refused to give the certificate called correctional institutions, whether under public or for, upon the ground that the child had not been private control. Payments by counties, cities, towns committed to the asylum in accordance with the rules and villages to charitable, eleemosynary, correctional established by the State Board of Charities; there- and reformatory institutions, wholly or partly under upon this proceeding was instituted to compel the private control, for care, support and maintenance, commissioner to give the certificate called for. I may be authorized, but shall not be required by the
The New York Juvenile Asylum was incorporated legislature. No such payments shall be made for by special act of the legislature in the year 1851, by any inmate of such institutions who is not received chap. 332 of the laws of that year. Its object was and retained therin pursuant to rules established by the reception of children between the ages of five the State Board of Charities. Such rules shall be and fourteen years, to provide for their support and subject to the control of the legislature by general to afford them the means of a moral, intellectual and laws." industrial education. The corporation was author- Pursuant to these provisions of the Constitution, ized to take under its care the management of such the legislature in 1895, chapter 754, authorized cities, children as should by the consent, in writing, of towns and villages in their discretion to appropriate their parents or guardians be voluntarily surrendered and raise money by taxation and to pay the same and intrusted to it; also such children as should be over to “charitable, eleemosynary, correctional and committed to its charge by order of any magistrate reformatory institutions, wholly or partly under priof the city and county of New York; and also such vate control, for the care, support and maintenance children as should be found in the streets, highways of their inmates, of the moneys which are or may and public places in the city in circumstances of be appropriated therefor; such payments to be made want, suffering. abandonment, exposure, neglect or only for such inmates as are received and retained vagrancy.
therein pursuant to rules established by the State By an amendment of the act of incorporation in Board of Charities," and again by the Laws of 1896, 1866, chap. 245, sec. 28, the board of supervisors chapter 546, section 9, subdivision 8, provided that of the county were required in each year to levy the said board of charities shall “ establish rules for and collect by tax and to pay over to the asylum: the reception and retention of inmates of all instituone hundred and ten dollars per annum, or pro- tions which, by section 14 of article 8 of the Constiportionately for any fraction of the year, for each tution, are subject to its supervision." child which, by virtue and in pursuance of the pro- Section 230 of the Greater New York Charter, as visions of the act, “shall be intrusted or committed annended by chapter 466 of the Laws of 1901, authorto the said asylum and shall be supported and in- ized the board of estimate and apportionment in its structed therein.” This section of the statute was discretion to annually include in its estimate, to be subsequently incorporated into the Greater New raised and appropriated, various sums of money for York Charter, sec. 230, which is the statute upon institutions therein specifically named, among which, which the petitioner bases its claim for support of by subdivision 14, is the New York Juvenile Asylum; the child Mamie Schellberger. Under this statute but by the concluding subdivision 24 of the section claims of this character have been paid for many it is provided that payments were to be made “only years, and unless it has been repealed, amended or for such inmates as are received and retained therein modified by the imposition of conditions, it furnishes pursuant to rules established by the State Board of authority for the payment of the petitioner's claim. Charities.” Again, by the same charter, section 658,
The Constitution of 1895, article 8, section 11, pro- a department of public charites was created, and the vides that “The legislature shall provide for a State head of the department was called the commisBoard of Charities, which shall visit and inspect sioner of public charities. Such commissioner was all institutions, whether State, county, municipal, in- given jurisdiction over all the hospitals, almshouses corporated or not incorporated, which are of a chari. and other institutions belonging to the city, with table, eleemosynary, correctional or reformatory char- power to commit children who may become a public acter
charge to any institution incorporated for charitable Section 13. “Existing laws relating to institu- furposes, and to reimburse such societies and cortions referred to in the foregoing sections, and to porations for the expense incurred in the support their supervision and inspection, in so far as such of such children (secs 60 and 664); but by section laws are not inconsistent with the provisions of the 661 it is provided that “No payment shall be made