The Albany Law Journal.

MR.

ALBANY, DECEMBER 12, 1891.

CURRENT TOPICS.

R. ANDREWS, of Salem, Mass., who has recently so mercilessly criticised sentimental methods in the treatment of criminals, may find a pertinent fresh text in the "good old Thanksgiving custom," of his Commonwealth, of pardoning two life-convicts, which was observed this year by Governor Russell. It is said that only one newspaper in Boston criticized the action, and it seems to us that it showed good sense as well as independence. One newspaper says: "The systematic manner in which the pardons were issued showed that the matter was conducted in a business-like manner, and that sentiment and good sense went hand in hand." It will not be contended that an occasional pardon to a life-convict is not proper, but it ought to be exceptional and granted only for cogent and peculiar reasons. This practice of issuing two pardons regularly on a certain day every year, "whether or no," is in our judgment about as indefensible as it would be to pick out two innocent members of the community and incarcerate them for life on every annual Fast day. There is just about as much reason in the one case as the other. There would be more discretion in pardoning convicts sentenced for a shorter term than for life, for the latter sentence implies some peculiarly heinous crime which demands the punishment nearest in severity to death. We are inclined to believe that no good can come of such systematic blunting of the edge of the sword of justice. Send the lifeconvicts turkeys and mince-pies on Thanksgiving, by all means, but let mercy-if the pies may be considered a mercy-stop at that.

the Massachusetts Bureau of Statistics of Labor, in its eleventh annual report, and the result of certified reports of the clerks of all the criminal courts in the State ** ** * shows that the total number of sentences for all offenses for the twenty years is five hundred and seventy-eight thousand three hundred and forty-eight. Of these, three hundred and forty thousand eight hundred and fourteen were for drunkenness, including common drunkards; that is, sixty per cent of the total number of crimes in twenty years beloug to intoxicating liquor' offenses, and the percentage of increase in this class of crime from 1860 to 1879 was one hundred and fifty-five and nine-tenths. This same table shows that for the same period there was an actual decrease of twenty and one-tenth in what are known as high crimes, that is, those that have always been recognized as crimes. Another important factor to consider in comparing crime of fifty years ago with crime of the present, is the great growth of our cities. Horace D. Wadliu, chief of the Massachusetts Bureau of Statistics of Labor, states: The population in the territory now comprised within city limits in Massachusetts has risen from six hundred and twenty three thousand four hundred and forty-nine, at the close of the war (1865), to one million three hundred and seventy-two thousand three hundred, a gain of one hundred and twenty-two and eleven one-hundredths, while the State outside this territory has gained but thirty-four and sixty-six one-hundredths per cent.' It is a matter of common notoriety that crime is greater in urban than in country districts, and this remarkable increase in the growth of our cities, out of all proportion to the increase of the country, will account for the large increase in petty offenses and drunkenness. These very figures have been referred to and used to demonstrate crime on the increase in Massachusetts. *** A late census bulletin on convicts in penitentiaries in all the States of the Union, prepared by Dr. F. H. Wines, government agent and inspector for statistics of pauperism and crime, shows an actual increase of nine thousand six hundred and ninety-five in the number of penitentiary convicts. The popula tion of the country, according to the tenth census, was fifty million one hundred and fifty-five thousand seven hundred and eighty-three; the number of convicts in penitentiaries, including leased prisoners at that date, was thirty-five thousand five hundred and thirty-eight; the ratio of convicts to the population was seven hundred and nine in each million. The eleventh census shows the population to be sixty-two million six hundred and twenty-two thousand two hundred and fifty, and the number of convicts forty-five thousand two hundred and thirty-three, the ratio of convicts to the population being seven hundred and twenty-three, an increase of only thirteen to the million. Dr. Wines, who is regarded as the best authority in this country on criminal statistics, says that this growth is not

increase of population, and that the apparent increase, dwelt on by Mr. Andrews, is in petty offenses, particularly in the offense of drunkenness. We make the following extracts:

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"We are informed by Dr. Harris of Boston, now the commissioner of education of the United States, that in 1860 the cases of crimes against person and property in Massachusetts were more numerous proportionately than in 1885, and that in twenty-five years the crimes against person and property had decreased forty-four per cent, allowing for increase in population. * A table prepared by Mr. Carroll D. Wright, United States commissioner of labor, showing sentences in the State of Massachusetts for all classes of offenses, including drunkenness and liquor offenses, from 1860 to 1879, made from the official statistics as reported by VOL. 44 No. 24.

nation of it, or even in showing that crime of a serious nature is rather on the decline in this country than on the increase.' The result of an examination of statistics relating to juvenile reformatories, as compared with ten years ago, is still more encouraging. The total number in the United States in 1890 was fourteen thousand eight hundred and forty-six, the number reported in 1880 was eleven thousand four hundred and sixty-eight, an increase of three thousand three hundred and seventy-eight. In 1880 the ratio was two hundred and twenty-nine in each million of population; in 1890 it was two hundred and thirty-seven, an increase of only eight to the million. In 1886 there were confined in the various institutions in this country one thousand and twenty-seven United States prisoners; in 1887, eight hundred and forty-two; in 1888, one thousand one hundred and twenty-five; in 1889, one thousand and eighty-three; in 1890, one thou

* * *

sand and eleven. The arrests for drunkenness in New York city for the year 1890 were thirty-one thousand five hundred and thirty-four, in Philadelphia for the same year, twenty-four thousand six hundred and sixty-one; in Boston for the year 1889, twenty-four thousand; in Chicago for the same year, thirty-one thousand one hundred and sixty-four. It is estimated that three hundred and sixty-five thousand men are arrested annually in this country for drunkenness alone-an army greater than the arrests for all other offenses. ** * When we compare in any way the statistics of present crime with the apparent crime of fifty years ago, we must consider that our rapid growth and advancing civilization have caused hundreds of laws to be enacted, making offenses of those matters which were not then regarded as crimes. There are hundreds of prisoners serving sentences for violation of internal revenue laws, National bank laws and post-office laws, most of which offenses were unprovided for by legislation fifty years ago. Violations of municipal regulations now frequent were not recognized or provided for as offenses, even twenty years ago. Could we compare the arrests made in 1890 with those in 1840, for similar offenses, it would undoubtedly show a decrease rather than an increase in crime. * * *The increase of crime, as we have shown, is not in the serious class of offenses against person and property, known as 'felonies,' but in petty offenses or misdemeanors, which include the vast horde of drunkards that appear daily in our police courts, where is heard the monotonous sentence, thirty days.' But what about the ever-increasing army of drunkards? * If one-half the expense that is now annually incurred in protecting society from this class and their criminal offspring, was appropriated for the building of inebriate asylums, we would soon have the habitual drunkard in safe custody and under proper treatment.

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** This plan would only be carrying out and adapting to the habitual drunkard some of the last best thought of reform methods, as illustrated by the New York State Reformatory at Elmira, N. Y., the Massachusetts Reformatory at Concord, Mass., the reformatory at Huntington, Penn., and other similar institutions. Until this or some similar method is adopted for this numerous class of offenders, the 'reform system' cannot be made chargeable for their increase, for it cannot reform them until it has the place and opportunity to apply its methods, and until

then let no man talk of going back to the whip and

pillory."

This showing by Mr. Foster confirms us in our opinion that the true remedy is to strike at the traffic in strong drink, and that we are not extravagant in supposing that three-quarters of all crime springs directly or indirectly from that source.

The Washington Law Reporter works itself into a very unnecessary passion over the communication of "Lawyer" to this journal on the subject of Mr. Tilden's will, feels "ashamed and surprised" that we publish it without comment, and intimates to Mr. Tilden's niece that she would do well to sue us for libelling her dead relative. Our correspondent, whom the Reporter denounces as a "creature" and "fool hyena," is one of the most reputable and influential lawyers in this State, and doubtless will smile at the pious contortions of this penny dreadful. While the Reporter's hand is in, he would better "go for" the Chicago Legal Adviser also, which editorially expresses the same opinion as "Lawyer." If the W. L. R. writer lived in this State, he would find this opinion not uncommon. It is not at all

singular, considering the ease with which the testator could have set the matter beyond any doubt whatever. We do not entertain this view, however, for we find it too difficult to believe that he was not sincere. We thought the will would be supported, and expressed our regret that it was not. But professional men have a right to put their own construction upon Mr. Tilden's remarkable carelessness or self-sufficiency. As for the angry barrator who thus lashes himself in the little arena of the W. L. R., we assure him that his occasional opinions on any possible subject have never excited in us interest enough to produce either surprise or shame, and are of such infinitesimal importance or influence that he is not in the smallest danger of a libel suit by anybody on account either of the living or of the dead.

An interesting question of criminal law is raised by an item of news which comes to us through a Honeoye Falls newspaper, an account of the taking and carrying away of what is known in the firemen's circles in this State as the "Iron Man." This is the iron image of a running fireman, with a fire-hat and coat on. According to a rather rude cut at the head of the newspaper account, he strongly resembles that other and more famous fireman, commonly known as the Arch-Enemy, except that for the conventional pitchfork is substituted a speaking-trumpet. It seems that as some college societies recreate themselves by stealing tradesmen's signs, so the fire companies of this State steal the Iron Man from one another and erect him as a trophy on their roofs. Thus he was captured from a Rochester company by an Avon company, who held him until the Honeoye Falls firemen lately captured him. To do this they had to saw off an iron support one inch by an inch and a half in size. They say, "they came, they sawed," etc. Fearing reprisal, they have bestowed the Iron Man for the present in a bank vault. This we deem a mean advantage. They ought to hang him out on their outward wall, and give the others a fair opportunity to retake him, But are not these enterprising youth getting themselves into difficulty with the legal authorities, and if so, what? It is not burglary, for no essential part of the house was broken. It is not larceny, for the Man was real estate, and the acts of severance and asportation were simultaneous. It clearly is not kidnapping nor abduction. It seems to be malicious trespass under our Penal Code, § 640. Could the Honeoysians justify by showing that it was a custom to steal him? No, because larceny may not be justified by custom. Com. v. Doane, 1 Cush. 5. Could the Avonians sue in replevin? They might, unless the Honeoye Falls people previously should

tack him on their house and thus make real estate of him. Might they not sue for damages? Proba bly, for even a thief has title against another thief. Ward v. People, 3 Hill, 395. We should think the local attorneys might easily "make it hot" for the purloiners. We should not however have deemed ourselves justified in this last suggestion, were it not for the mighty example of the W. L. R. set forth above.

in the Graves Case the defendant is accused of having sent a bottle by mail more than half across the continent, from Massachusetts to Colorado, the bottle containing poison and being addressed to Mrs. Barnaby. That lady drank of the liquid contained in the bottle, which purported to be whisky, but was really a solution of arsenic, and died. The bottle, in the United States mail, passed through a number of States, so that this murder was probably committed at the longest range of any similar crime in history." We see nothing in the way of conviction as mere matter of law. It is as if the Doctor had possessed a gun of extremely long range, and standing in Massachusetts had fired at Mrs. Barnaby in Colorado, and there killed her.

That same Press has a column of answers to correspondents, "free of cost," in which we find the following:

"After a man is granted an absolute divorce from his wife in this State, can she go to another State and marry, to come back to this State to live, without laying herself liable to the laws of this State? The general rule with respect to marriages is that if they are valid where entered into they are everywhere valid, but this rule is by no means binding on the courts of different jurisdictions. The New York courts will however respect such a marriage as you speak of if the parties to it had an actual bona fide residence in the foreign State, but not if the residence was acquired in fraud of the New York statute. Therefore the wife in your question may return to New York and live with her second husband if she contracted marriage with him in good faith."

Nothing could be worse than this. The marriage would be perfectly valid, under our decisions, even if the parties resorted to the other State on purpose to evade the regulation of this State. But newspaper law is a fearful and wonderful thing. Even the inerrant Sun recently told its readers that a marriage, not intended by the parties to be in earnest, bound them because the celebrant turned out to be a notary public.

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NOTES OF CASES.

N Cerveny v. Chicago Daily News Co., Supreme Court of Illinois, October 31, 1891, it was held that it is libellous to falsely publish of a person that he is an anarchist." The court said: "An'anarchist' is defined by Webster to be: 'An anarch; one who excites revolt, or promotes disorder in a State,' and this we assume to be a sufficiently accurate definition of the word. It is moreover here alleged that at the time and place of the publication complained of, it was commonly understood and believed that the doctrines, opinions, beliefs,

teachings and tenets of said class, party or sect called 'Anarchists,' as aforesaid, and of the persons composing said class, party or sect, is that the law and order of society then, and ever since then, and now, existing should be overthrown by revolution and force.' It cannot therefore be correctly said that this is no more than charging the plaintiff with being a member of a certain political party; for anarchy, being the enemy of all governments, is necessarily the reverse of a political party, which is always in support of some form of government, and, professedly, of that which is the best. It seems to have been assumed, in the courts below, that it is not libellous to publish, falsely and maliciously, that one entertains principles merely which if carried into practice would be violative of law and destruc. tive of all government and of every right secured by it. It may for the present be conceded that an action would not lie for slander because of the speaking of words, orally only, which would amount to such a charge against an individual; but the rule in regard to libel is different. An action for libel may be sustained for words published which tend to bring the plaintiff into public hatred, contempt or ridicule, even though the same words spoken would not have been actionable. Folk. Starkie Sland., & L. §§ 155, 156; Newell Defam. 78 et seq.; Hare & W. Lead. Cas. 131; 3 Am. & Eng. Enc. Law, 298, and cases cited in notes. And it would seem so apparent that an individual may be brought into hatred, contempt or ridicule, within the meaning of the law, by professing vicious, degrading or absurd principles, and especially by professing them. and also confederating with others, alike professing them, to give them effect, that it can need no discussion. The following cases may however be referred to as illustrative of the correctness of this view of the law: Hoare v. Silverlock, 12 Q. B. 624; Wakley v. Healey, 7 C. B. 591; Williams v. Karnes, 4 Humph. 9; Duncan v. Brown, 15 B. Monr. 186; Stow v. Converse, 3 Conn. 325; Giles v. State, 6 Ga. 276. Since government is the only guaranty we can have for protection in the enjoyment of life, and of all that makes life desirable, it is inevitable that all good citizens must regard those who advocate its destruction either with feelings of hatred or contempt, in the same measure that they may regard them as powerful or impotent to carry out what they advocate."

proposition as an unsettled one, still the evidence shows that the individual who was with the deceased at the time of her death caused the body to be conveyed to the undertakers, entered into a contract then and there to pay for the services to be rendered by them, and subsequently did pay. But, if all that has been said before is erroneous or not sufficient to defeat plaintiffs' right of recovery, I still think that the evidence discloses circumstances which would warrant any physician in declining to issue a certificate designating the cause of death, and permitting burial without a post mortem examination. It is true that the physician may have had a belief as to the cause of death, but the circumstances under which death occurred warranted him in hesitating to give the certificate required by the ordinance of the city of Denver in this case. This being so, and the proofs conclusively showing that the body was not mutilated, and that the autopsy was performed in a decent and scientific manner, with due regard to the sex of the deceased and the feelings of all parties interested, I cannot conceive what damages could be proven to a jury. The testimony discloses much that might be commented upon in support of my conclusion that the plaintiffs ought not to recover in this case, and that the judgment of the court below must be affirmed, but respect for the dead and the living forbid it."

AN EXCEPTION TESTS THE RULE.

BY JOHN B. GALE, LL.D.

PROBABLY no other maxim is put to such false

or

uses as Exceptio probat regulam." Its meaning is not that an exception shows a connected rule; that would make it worthless: Nor that an instance within the rule, of which it is not true, proves its truth; that would falsify it. But what the maxim says and means, is that, An exception (the exclusion, what is excluded) tests the rule, i. e., shows, or proves, what it is. The exclusion from the general statement proves that what is excepted from that was within it, for otherwise it would not, and could not, have been excepted from it; and thus the exception tries, explains, is proof of, what the rule is-its meaning. E. g. In a law regulating the use of the State canals, except," a specified basin, the exclusion would prove (what else might be doubtful) that the term "canals included their basins. So in one concerning "all citizens except Indian women," the exclusion would prove that "citizens" included the excepted class, and also both Indian men and non-Indian women, for “Expressio unius, exclusio alterius." So always, an exception serves in some degree, to define the scope of the statement which it restricts; and what is thus true of a "rule," is equally true of every other statement that is likewise restricted. Accordingly, the maxim is an elemental truth of logic, of frequent use to lawyers for construing laws, agreements, etc., and having a yet wider range, and whose force is always resistless. But it by no means extends to an absolute rule or statement to one not thus qualified by a self-restricting exception, for it can be true of such a rule only in the sense, that a case within the rule of which it is not true, tests the rule and proves it false; and none use the maxim in that way. Indeed, the maxim limits itself to a rule that includes an exception, for its "excep

tio" can only be one that belongs to its " regulam," so that a rule not qualified by an exception, is beyond its purview.

The meaning thus accorded to the maxim is not however its popular one, nor is its general use that above illustrated. On the contrary, its most common use, (notably by a class of Biblicists who abjure Reason,) is for parrying valid objections to absolute propositions. So used, the actual maxim is not applicable, and if it were it could avail nothing, and so, in their extremity, the controvertists, either crafty or illogical, pervert the maxim as being that, An exception confirms the rule (i. e., proves its truth), and then they apply it, as if the venerable maxim were that, Whatever refutes a proposition, establishes it. E. g. (1) A. says, "All men are liars." B. answers, "No, some are not," and A. rejoins, “Oh! they are exceptions that only confirm the rule, according to the proverb Exceptio probat regulam." Now B. cannot understand, how the conceded fact that some men are not liars, proves that "all men are liars," but if not versed in Latin, and a modest layman, and A. is a divine, B. retires perplexed, and A. goes off triumphant. Likewise (2) this case: A., D.D., of wide repute, said to a lawyer: "Lev. xviii: 16 forbids marriage with a deceased brother's widow," the lawyer answered, No, you misread that law Thou shalt not uncover the nakedness of thy brother's wife' as relating to marriage, and the Levirate law (Deut. xxv: 5) which is in pari materia, and requires a surviving brother to take the widow, if she be childless, contradicts your reading of the other law," and the D.D. rejoined "that is an exception that only confirms the rule" (meaning his reading), and the lawyer retired, disgusted, from the discussion; and perplexed too, but only to conjecture how the D. D. could possibly think that the admitted contradiction of his reading confirmed that reading.

But instances of such perversion of the maxim are scarcely needed here-controversial literature abounds with them; and so persistent has been the perversion, and by such respectable controvertists, that it has come to pass that the popular acceptation of the maxim is that, An exception proves the truth of the rule. Indeed, a recent article in a leading religious weekly* not only so uses the maxim, but does not scruple to state that as being Exceptio confirmat regulam.

If this perverted use of the maxim had not gained such currency, and amongst men of education and ability, it would merit only ridicule; but in view of that fact, some serious considerations will be added to what has already been said, viz.:

(1) Every exception to a rule (or statement) is an instance within its scope, of which the rule is not true; is one that impeaches and destroys the rule as absolute, and leaves it only a general rule. If then only the pri mary proposition be taken as the rule, and the exception as outside of that, it is evident that the exception refutes the rule instead of confirming it; and to make the rule true, it is needful to qualify and restrict it by the exception, i. e,, to regard the primary proposition and its qualifying exception, as together forming the rule. But if that be done, the absurdity of having a part of the rule confirm the rule-the rule confirm itself-instantly appears.

N. B. It matters not concerning the true maxim (an exception tests the rule), whether only the primary proposition, or both that and the exception, be regarded as the rule.

(2) If one exception could confirm a rule, two would make it doubly sure, and so on until the rule were annulled, and the result reached, that exceptions which wholly vacate a rule completely establish it.

*"Christ's single exception to the Mosaic law. By Talbot W. Chambers, D.D.," in the Independent, Oct. 29.