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The Green Bag. 

VoL. XIV. No. 4. 


APRIL, 1902. 


By Francis R. JONEs. 

“"'T’ HERE is one glory of the sun, and an- 
T other glory of the moon, and an- 
other glory of the stars; for one star differ- 
eth from another star in glory.” And 
surely Mr. Chief Justice Chase differed 
vastly from his predecessors in office. A 
child of New England, a foster son of the 
new and golden West, he was a new type 
of Chief Justice. It may as well be said 
at once that he was not a better type. He 
was what was unanalytically and patrioti- 
cally called a true American. Jf that teri 
means a devotion to country and a greater 
devotion to self, a breezy self-centeredness 
and an elbowing, pushing ambition, then it 
must be conceded that it was rightly ap- 
plied to him. His ambition obscured his 
view of the just relations in which his posi- 
tions placed him. He seemed to have a 
strange disregard for the dignity of those 
positions, and an overweening sense of his 
own personal importance. He represented 
a new era in our politics. His accession to 
the Chief Justiceship marked a distinct deg- 
radation in the attributes and attainments 
previously considered requisite for that 
high position. He was an arrogant man 
without the saving sense of humor. He 
had an inflated conception of his own abili- 
ties. He was insistent upon the adoption 
by others of his own ideas and policies. He 
was always to the very end of his life an 
aspiring politician, whose great virtues of 
spotless integrity and unswerving adher- 
ence to the principle of freedom for the 
slave alone palliate his later rather devious 

political career. Again and again he 
sought the Presidency in vain. Yet he was 
a man of great parts, of great decision and 
firmness, of intense, unyielding industry, of 
tremendous persistence in accomplishing 
the work he had in hand. He was no time 
server Or opportunist or trimmer, but a res- 
olute man of action. He sought to com- 
pel events. His courage was almost 
truculent, although untinged by cowardice. 
His executive ability was remarkable, and 
his genius for organization unrivalled. His 
intellect was clear and his reasoning powers 
sound, although not quick or brilliant. His 
life was austere and his principles puritani- 
cal. His was a character which inspired 
rather admiration than friendship. Single- 
handed, by the very force of his personality, 
he accomplished great things and the nation 
owes him a deep debt of gratitude. 

Ohio was admitted to the glorious com- 
pany of the States in 1802. Then began, at 
first feebly, but with ever-increasing strength 
and grandeur the development of the great 
West. With ever-accelerating pace the 
western country grew until it became the 
centre of population and of political import- 
ance. But long before it reached that 
proud position it was a force that had to be 
reckoned with, an element that had to be 
considered, and, if need were, conciliated. 
With only the Ohio River, a tie to bind it to 
and not a barrier to separate it from slave- 
holding Kentucky, with many of its in- 
habitants emigrants from slave States, the 
slavery question early became of interest 


within its borders, until, earlier than else- 
where, it grew to paramount political im- 
portance. Ohio was the political hothouse 
of practical anti-slavery organization, and 
the first great anti-slavery leader and 
champion of the West was Salmon Portland 
Chase. Organized out of the territory sub- 
ject to the Ordinance of 1787, Ohio had a 

peculiar interest in and could speak with an | 
authoritative voice on the subject of the | 

constitutional import and extent of that act. 
As Mr. Chase said in his argument before 
the Supreme Court of the United States in 
the Van Zandt case: “Ohio in truth came 
into the Union not so much in virtue of any 
act of Congress consenting to her admission, 
as in virtue of a right secured to her by the 
Ordinance, and which could not have been 
denied to her without a flagrant breach of 
faith. The Ordinance itself provided for the 
erection of States within the territory. 

It was the right of the people 
within the limits thus defined to form their 
State government and come into the Union 
whenever the number of inhabitants should 
reach sixty thousand, and earlier, if con- 
sistent with the general interests of the Con- 
federacy. As it was then their right to come 
in under the Ordinance, and as it was by 
that instrument made their duty to frame 
their government and constitution in accord- 
ance with the articles of compact, it seems 
impossible to maintain that, by the act of 
entering the Union, any of those articles 
could be abridged, impaired or in any way 

It is perhaps impossible for one of the 
present generation to give successfully a cor- 
rect and vivid conception of the varied life 
of the West in the first half of the last cen- 
tury. The political questions which then 
agitated Ohio are buried, never to be ex- 
humed. The commercial interests have so 
changed that the original causes for the 
upbuilding of its wealth and population are 
well-nigh forgotten. The methods of bank- 
ing and finance, the money centres, and 

The Green Bag. 

even the money itself are so different, that 
they are unrecognizable. The social con- 
ditions were then amorphous. The society 
made up of so many and so diverse elements 
has since become amalgamated and fused 
into a coherency, bearing no resemblance to 
its parts. All these subtle influences must 
have had their power for good or bad over 
the individual living in their midst. Espe- 
cially powerful must have been their force 
upon a young and ardent man, who went 
with hopeful expectations from the East and 
entered upon the new and strange life with 
the zest of youth and the determination to 

The early life of Mr. Chief Justice Chase 
was full of incident. But its incidents were 
of the commonplace order, to which it is 
hard to give either color or interest. They 
were ephemeral. His life was that of a 
politician rather than of a lawyer. And 
although from 1837 on to almost the end oi 
his life he was valiantly struggling for one 
great principle, the freedom of the slave, 
the pitched battles of that struggle were few 
and undramatic. Until towards the end they 
were apparently evanescent. When success- 
ful at all, the success seemed only temporary. 
But he fought on, undismayed. At first he 
was in a pitifully small minority, despised and 
ostracized by nearly all classes of society. 
In the end he seemed to be literally lost 
among the great majority. This moral fight, 
so strenuously and tenaciously made, reveals 
the greatness of his character. It was he 
who pushed the anti-slavery principle on to 
the plane of practical politics, and organized 
the anti-slavery cohorts and led them again 
and again after defeat heaped upon defeat. 
It was due to his genius and intrepidity more 
than to those of any other, that success for 
the cause came at last in the election of 
Abraham Lincoln to the Presidency. Again, 
in his administration of the Treasury depart- 
ment, no just conception can be given of the 
magnitude of the work which he accom- 
plished, without going into the driest details 

Salmon Portland Chase. 


of finance and statistics and writing a history 
of the times from the point of view of the 
Treasury of the United States. These details 
and such a history are forbidden to the com- 
pass of this article. 

Mr. Chief Justice Chase was born at 
Cornish, N. H., on January 13, 1808. There 
the first eight years of his life were spent, 
“ambitious to be at the head of my class and 
without much other ambition,” as he said 
in a letter to Mr. John T. Trowbridge, “with 
old Ascutney looking down upon me every 
morning from his mists, and every evening 
from his royal panoply of gilded clouds, the 
old Connecticut River rolling by, and the 
Connecticut Valley meadows and New 
Hampshire hills over which to roam.” His 
was the ordinary childhood of the country 
boy of New England three generations ago, 
with plenty of work to do about the farm 
and the elementary instruction of the 
country school. When he was eight years 
old his father moved to Keene, and in a few 
months thereafter died, leaving a much- 
encumbered estate and a widow with a large 
family. Mrs. Chase seems to have been a 
typical New England woman, a self-sacri- 
ficing mother. She had a shrewd capability 
of getting large returns from a very meagre 
income. Apparently dissatisfied with the 
school of Keene she sent her son, Salmon, 
to Windsor, Vt., for the winter of 1817-18, 
where he was under the charge of a Colonel 
Dunham, who taught him Latin. Upon his 
return from Windsor to Keene the boy 
began Greek in 1819 with a Reverend Mr. 
Barstow, and also took up Euclid. His 
uncle, Philander Chase, was the Episcopal 
Bishop of Ohio, an able, energetic and de- 
voted clergyman, April, 1820, 
persuaded Salmon’s mother to allow him to 
take his nephew into his household at 
Worthington, O. There the twelve-year-old 
boy continued his school with earnestness 
and energy until 1822, when the Bishop was 
offered and accepted the presidency of Cin- 
cinnati College, the duties of which position 

who in 

he assumed in November of that year. 
Salmon Chase went thither with his uncle 
and entered the college as a freshman. But 
he soon conceived the idea that by a little 
extra study he could be advanced to the 
sophomore class. This he accomplished in 
a short time. The Bishop, grieving over the 
poverty of his diocese, concluded to resign 
his presidency of the college and go to Eng- 
land to solicit funds for a_ theological 
seminary. So in the summer of 1823 he 
went East, en route for London, taking 
Salmon with him. From Troy the boy 
walked home to Keene across the moun- 
tains. Soon after his return he was engaged 
to teach the school at Roxbury, N. H. His 
initial success in that position, however, was 
so small that he was discharged in less than 
a fortnight. In February, 1824, he entered 
the junior class of Dartmouth College, where 
he graduated in 1826, meanwhile ekeing out 
his scanty means by teaching school. He 
had a predilection for the ministry, but 
finally concluded to adopt the profession of 
the law. In December, 1826, he proceeded 
to Frederick, Md., where he intended to 
establish a school. But hope of success there 
vanished and he went on to Washington, 
where he advertised that he would open a 
select classical school for not more than 
twenty pupils. He had only one candidate 
for instruction. In despair he solicited his 
uncle, Dudley Chase, a senator from Ver- 
mont, to procure him a clerkship in one of 
the government departments. This applica- 
tion the Roman senator sternly refused. Mr. 
Chase, however, soon obtained a position to 
teach in Mr. Plumley’s school, which appar- 
ently was a fashionable one at that time in 
Washington, patronized by the sons of such 
men as Mr. Clay, Mr. Wirt and General Ber- 
nard. In September, 1827, he became a law 
student in the office of William Wirt, at that 
time Attorney General of the United States 
and in the maturity of his splendid genius. 
He also added to his income by writing, and 
was prosperous in a small way, although the 


The Green Bag. 

drudgery of teaching was extremely dis- 
tasteful to him. He was pleasantly received 
at the home of the Wirts and seems to have 
had more or less social success throughout 
his three years in Washington. There, too, 
he got his first insight into politics, and saw 
and heard the eminent men who were then 
in official life at the Capital. During 
years administration 


of John Quincy 
that of 
interesting to note that so early as 1828 
Mr. Chase was committed to the anti-slavery 
In that year he was one of those 


Andrew began. It is 


who drew up a petition to Congress praying 

for the abolition of slavery and the slave 
trade in the District of Columbia. This was 
his first public political act. He had great 
admiration and love for Mr. Wirt, who, in 
1829, wrote him a letter predicting for hira 
future distinction and proferring him advice 
and friendship. of that 
vear he was examined for admission to the 
bar by the venerable Judge Cranch, who 
would not have admitted him except for Mr. 
Chase’s pathetic plea: ** Please, your honor, 
I have made all my arrangements to go to 
the western country to practice law.” Evi- 
dently the learned judge considered that Mr. 
Chase had acquired a sufficient knowledge 

On December 21 

of the law to practice in the West. 

The three years of boyhood spent in Ohio 
largely determined the choice of his resi- 
dence. Yet, as at this time he wrote to a 
friend: “I would rather be first twenty years 
hence at Cincinnati than at Baltimore,” he 
apparently divined the future growth and 
importance of the West. He reached Cin- 
cinnati in March, 1830, and was admitted to 
the bar of, Ohio in the following June, anc 
at once entered upon the practice of his pro- 

His industry brought him a clien- 
Although its beginnings were small, 


it steadily increased. 
engagements which would consume his time 
he entered into the life of Cincinnati, then 
the largest city of the West, and soon be- 

Pending professional 

came well known. During the first three 
years of his residence there he compiled the 
statutes of Ohio, familiarly known as 
Chase’s Statutes. This was a work of mag- 
nitude, and gained him some distinction. 
The annotations and references are accurate 
and valuable, and the work called forth let- 
ters of commendation from Chancellor Kent 
But Mr. Chase’s 
legal attainments were not excessive. He 
was, as a friend said: “Not a great lawyer, 
but a great man who had a knowledge of the 
law.” His business was chiefly commercial. 
At one time he was counsel for the United 
States Bank, the business of which he lost 
in 1841, because his fees were considered too 
high. About that time, too, he became so 
engrossed in politics that ten years later his 
greatest cause in which he was engaged 
while at the bar was the celebrated telegraph 
case of O'Reilly 7. Morse, 15 Howard 62, 
which he successfully argued before the Su- 
preme Court of the United States in 1853. 
From the time that he gained a reputation 
as alawyer he attached to himself many 
young men, like George Pugh, at first his 
supporter and afterwards his political rival, 
Stanley Matthews and Edward L. Pierce. 
He had none of the arts of the orator. He 
appealed solely to the reason of his hearers. 
He was an effective speaker, although the 
impression made by his grand, imposing and 
dignified presence was marred by a hesitancy 
and thickness of speech, and his speeches 
read better than they sounded. His great 
strength lay in the preparation of briefs, and 
later, in the writing of political addresses 

and Mr. Justice Story. 

practice had decidedly diminished. 

and platforms. In this talent he much re- 
sembled his predecessor on the bench of the 
Supreme Court of the United States, the first 
Chief Justice, John Jay. 

The mob, which in July, 1836, at Cincin- 
nati, destroyed James G, Birney’s printing 
press, wrecked the office of his paper, “The 
Philanthropist,” and threatened personal 
violence to the subsequent candidate for the 

Salmon Portland Chase. 


Presidency, aroused all of Mr. Chase’s love 
of justice, of freedom of speech and of the 
press. He took part against the mob. In 
an autobiographical fragment he says: 
“From this time on I became a 
decided opponent of slavery and the slave 
power I differed from Mr. Garrison 
and others as to the means by which the 
slave power could be best overthrown and 
slavery most safely and fitly abolished under 
our American Constitution; not in the con- 
viction that these objects were of paramount 
importance. In 1837 I first publicly de- 
clared my views in respect to legislation 
under the Constitution.”” When once con- 
vinced that a cause was just and that it was 
his duty to advocate it, no power could turn 
him from it. To this trait of his character 
is principally due his noble espousal of the 
cause of anti-slavery. Consider what this 
meant. He was ambitious. Remember the 
hatred and suspicion that even almost every 
good man then heaped upon anyone who 
advocated humanity to the slave. Neverthe- 

less, with. seemingly nothing to gain and 
everything to lose, before he was thirty he 

threw himself with all the energy of his 
nature into the fight. He brought to it all 
his wonderful genius for organization, all his 
instinct for politics. For it he threw away 
his chances for political and professional 
preferment. For it he brooked the loss of 
friends and the abuse of enemies. For it he 
jeopardized any hope that he had for wealth. 
He antagonized both Whigs and Democrats. 
For twenty years he fought an apparently 
hopeless fight, without passion, with the per- 
sistence of pure reason. One cannot but 
give the most unstinted admiration and 
praise to his perfect poise, his insistent 
energy, his magnificent courage. He took 
the question out of the ddémain of mere 
vituperation and iconoclastic pessimism, 
where Phillips and Garrison had placed it. 

He made for it a working and tenable politi- | 

cal theory. He clothed the doctrine with the 
Constitution, and argued it until it could not 

be answered. He was not an abolitionist. 
He wanted to confine slavery to the territory 
where it then existed. He stated the doctrine 
in an address to the Liberty Party in July, . 
1845, as follows: “Against these infractions 
of the Constitution, against these departures 
from the national policy originally adopted, 
against these violations of the national faith 
originally pledged, we solemnly protest. Nor 
do we propose only to protest. We 
have the example of our fathers on our side. 
We have the Constitution of their adoption 
on our side It is our duty and our purpose 
to rescue the government from the control 
of the slaveholders ; to harmonize its practi- 
cal administration with the provisions of the 
Constitution and to secure to all, without 
exception and without partiality, the rights 
which the Constitution guarantees. 

We believe that its removal can be effected 
peacefully, constitutionally, without real 
injury to any, with the greatest benefit to all. 
We propose to effect this by repealing all 
legislation and discontinuing all action in 
favor of slavery, at home and abroad; by 
prohibiting the practice of slaveholding in 
all places of exclusive national jurisdiction, 
in the District of Columbia, in American 
vessels upon the seas, in forts, arsenals, navy 
yards; by forbidding the employment of 
slaves upon any public work; by adopting 
resolutions in Congress, declaring that slave- 
holding in all States created out of national 
territories is unconstitutional, and recom- 
mending to the others the immediate 
adoption of measures for its extinction within 
their respective limits; and by electing and 
appointing to public station such men, and 
only such men as openly avow our principles, 
and will honestly carry out our measures.” 
This extract is an excellent example of Mr. 

| Chase’s diction, clear, forcible, logical. It 

carries one on with a sweep that never lets 
the interest flag. 

Up to 1841 Mr. Chase had little to do with 
practical politics. In 1832 he had been a 
delegate to the convention that nominated 


The Green Bag. 

Clay for the Presidency. In 1836 and 1840 
he was still a Whig, and voted for Harrison. 
But in May, 1841, he took an active part in 
the county convention of the Liberty Party 
in Cincinnati. He had come to see that 
there was no hope from either of the two old 
parties for an anti-slavery policy. The 
Liberty Party at that time was feeble and 
discouraged. Chase built it up, shaped its 
policy, merged it first into the Free Soil and 
then into the triumphant Republican Party. 
His accession to the Liberty Party was a 
great joy to its adherents. There was plenty 
of work for him to do. He almost imme- 
diately became its leader. He organized its 
conventions, wrote its platforms and ad- 
dresses, planned its campaigns. Issues were 
plenty, the slave trade, the fugitive slave law, 
the Texas question, and after 1846 the 
Wilmot Proviso. The progress of the party, 

however, was slow. In April, 1847, Chase 

wrote to Senator John P. Hale: “I see no | 

prospect of greater future progress, but 
rather of less. As fast as we can bring public 
sentiment right, the other parties will ap- 
proach our ground.” Dissensions in the 
councils for the Liberty Party appeared in 
1847, and in the Presidential campaign of 
1848 Chase secured the call for a national 
Free Soil convention, and formally dissolved 
the Liberty Party of Ohio. He hoped to 
force the Democracy to adopt his ideas. To 
his influence was due the nomination of Van 
3uren by the Free Soilers. During all these 
vears, and after, Chase was engaged in 

litigation concerning fugitive slaves. 

accepted their briefs without fees and fought | 

the cases with all his energy and ability. So 
constantly was he employed in this work 
that he came to be called “the attorney gen- 
eral for runaway slaves.” 

In 1848 Chase’s reward 

The union 

pectedly. of Free Soilers and 
presidential election. 
was to be chosen. The Ohio Legislature was 

evenly divided. 

| slaught with undaunted front. 

unex- | 
| of the birth of the Republican Party. 
Democrats had been barren of result in the | it the Northern wing of the Whig Party 
But in Ohio a Senator | 
| nor could the Independent Democrats follow 

Two Independents held the | 

balance of power. By their combination 
with the Democrats Chase was elected, and 
took his seat in the Senate of the United 
States on March 4, 1849. Now had come his 
first great opportunity. He considered him- 
self as the representative of the anti-slavery 
forces of the West. But as a member of a 
small and despised party, elected by an acci- 
dent, he received very little consideration and 
was given no important committee appoint- 
ments. He sympathized with the Democrats, 
and said, in July, 1849: “The doctrines of the 
Democracy on the subject of trade, currency 
and special privileges command the entire 
assent of my judgment.” Yet for two years 
he stood almost alone. Hale, he said, was 
a guerrillist ; Seward, a Whig partisan. Wade 
and Sumner came to his aid in 1851, Hamlin, 
Fessenden and Everett in the conflict over 
the Kansas-Nebraska bill. Handicapped 
though he was Mr. Chase was a successful 
representative of Ohio. He was watchful 
over the expenditures of public money, 
impatient of delay, and secured Federal 
buildings and improvements for his Com- 
Yet he felt that his energies 
belonged to the cause of anti-slavery. For 
that cause he spent them freely. His 
speeches on the Compromise of 1850 and the 
KKansas-Nebraska bill had an incalculable 
effect throughout the country, and much 
added to his reputation. He became 4 
national character. The appeal of the Inde- 
pendent Democrats was written by him, and 
published on January 25, 1854. It unmasked 
the design of Douglas, who came into the 
Senate on the thirtieth, and attacked Chase 
The latter met the on- 
In this con- 
test he showed himself a bold parliamen- 
tarian, a sagacious and skillful leader. It 
was this debate that was the efficient cause 


with reckless fury. 

could no longer affiliate with the Southern, 

Douglas. Chase, more than any other man, 

Salmon Portland Chase. 


brought about this situation, which was so 
pregnant of results. In 1851 his assertions 
of his Democracy somewhat separated him 
from the Free Soil Party. But in 1852 he 
was compelled to return to it by the nomin- 
ation of Pierce to the Presidency by the 
Democrats. In the next year Chase made 
a strenuous campaign in Ohio, but the 
Legislature returned had a clear Democratic 
majority, and Pugh was elected to his seat 
in the Senate. Unlike Clay, Webster and 
Seward, on no phase of the slavery question 
had he yielded or compromised. He had 
made himself a power in the Senate. There 
was no one to take his place. 

Immediately upon the passage of the 
Kansas-Nebraska bill steps were taken to 
organize a new party. In this great move- 
ment Chase had a large share. In Ohio the 
State election showed a majority of eighty 
thousand for the Republican ticket. In the 
following year Chase was nominated by that 
party for the governorship and elected. Ohio 
had now become a pivotal State in national 
affairs, but its chief magistrate had very little 
power and no right of veto. With very few 
appointments and hardly any official prestige 
the Governor had small opportunity to 
affect the destiny of the State. Yet he was 
certain to be held responsible for the faults 
of subordinate officers over whom he had no 
control. Chase was not a popular Governor. 
He did what he could with his accustomed 

etficiency. He said of his administration: 

“T sought to promote all practicable reforms; | 

endeavored to reorganize the mili- 

tary system of the State, and omitted no | 

opportunity of making the voice of Ohio 
heard on the side of freedom and justice. At 
the same time I endeavored, as far as prac- 
ticable, to conciliate opposition founded on 
misapprehension, and succeeded finally in 
organizing a compact and powerful party, 
based on the great principles of freedom and 
free labor.” Meanwhile he began to look 
for a wider field. His position in national 
politics was eminent. He already saw the 




triumph of the cause for which he had so 
long and so ably fought. He believed that 
he had the qualities of a President, and that 
he stood for the principles of the Republican ~ 
Party. He entered upon a personal canvas 
for the nomination in 1856. The result is 
known. Again in 1860 he sought the Re- 
publican nomination to the Presidency, and 
it seemed to be within his grasp. In 1857 he 
had been triumphantly re-elected Governor 
of Ohio. In 1858 he went to New Engiand 
and to commencement at Dartmouth. This 
tour was apparently for political purposes 
only. He stirred up his old friends to work 
for him. He beguiled his old rivals to take 
the field for him with enthusiasm. It was 
important for him to keep his standing as a 
public man by showing his strength in Ohio, 
and on February 3, 1860, he was elected for 
a second time to the Senate of the United 
States. All his activity was in vain. Lincoln 
was nominated and elected. Chase was one 
of the commissioners from Ohio to the 
abortive peace conference at Washington in 
February, 1861, and in March was made 
Secretary of the Treasury by the President. 

It is impossible here to more than refer 
in the barest generalities to Mr. Chase's 
administration of the Treasury. The re- 
sponsibilities of that position at that time 
were enormous, the work stupendous, the 
problems novel. He ably met them all. To 
the great Secretaries of the Treasury, Morris 

and Hamilton, must be added the name of 

Chase. Previously unacquainted with 
finance, unlearned in political economy, his 
success was marvellous, his judgment un- 
erring. What mistakes he made were forced 
upon him by the exigencies of circum- 
stances, not because he had faith in the 
measures adopted. For three years he 
worked incessantly, unsparingly. He seem- 
ed almost to extort bread from stones, and 
turn water into wine. He provided funds 
for the government with which to carry on 
the war. He reorgeznized the whole Treas- 
ury department. He evolved and forced 


The Green Bag. 

through Congress the national bank system. 
He provided for the confiscation and sale of 
rebel property. He supervised the prohibi- 
tions of trade with the enemy. Through it 
all he was insistent upon the vigorous prose- 
cution of the war. He wrote to the generals 
of the army urging action. He constantly, 
in season and out of season, urged the aboli- 
tion of slavery. He was impatient with Lin- 
coln. The strain of the times was great. 
Passions were aroused to fever heat. Politics 
were rampant. All things were unsettled 
and adrift. Chase was not a man to sink his 
own personality for the good of a cause. He 
could not understand Lincoln. Not under- 
standing him, he could not appreciate him. 
Their intercourse was never cordial. Again 
and again Chase tendered his resignation 
because of some minor difference of opinion 
or some interference by the President with 
the right, which the Secretary claimed, to ap- 
point his own subordinates. Chase’s cam- 
paign for the Presidential nomination in 
1863 and 1864 severely strained his relations 
with Lincoln. In that campaign he saw 
nothing disloyal to his chief or incompatible 
with honor. He not only greatly coveted 
the position, but he veritably believed that 
he would make a better President, and that 
it was his patriotic duty to try to obtain the 
place. Lincoln, on the other hand, was in 
this, as in all things, long suffering. He ap- 
preciated the invaluable work which Chase 
had done and was doing. He respected and 
honored his ability and his manhood. He 
said that “Chase is about one and a half 
times bigger than any other man I ever 
knew.” But even Lincoln’s patience was 
exhausted at last. In June, 1864, there came 
a political crisis over the question of the ap- 
pointment of an assistant treasurer at New 
York. The Secretary for the fourth or fifth 
time formally resignation. 
Much to his surprise and disappointment the 
President promptly accepted it on June 30. 
It was hard for the Secretary to believe that 
the administration could get along without 

tendered his 

his services. Mr. Chase went to New Eng- 
land for some weeks, returned to Washing- 
ton, and then to the West, to support actively 
and cordially Lincoln’s campaign. On 
October 12, 1864, Mr. Chief Justice Taney 
died. On December 6 the President nomi- 
nated Mr. Chase to the vacancy. The nomi- 
nation was immediately confirmed by the 
Senate. He had previously expressed him- 
self as desiring this place above all others. 
But Lincoln’s shrewd estimate of men was 
never better shown than when, prior to mak- 
ing the nomination, he asked Sumner ii 
Chase would be contented to remain Chief 

The appointment was in more ways than 
one unfortunate. It ended the line of Chief 
Justices of the United States who were both 
great and greatly learned in the law. It was 
impossible for such venerable and able 
magistrates and lawyers as Mr. Justice 
Nelson and Mr. Justice Grier to look up to 
their new chief with admiration or confi- 
dence. He had no decided love for his 
profession, no especial interest in his judicial 
work, no deep reverence for the judicial 
function. Yet for eight years the new Chief 
Justice presided over his court with dignity 
and grace. His ability was adequate to the 
great office. Eight years were too short a 
time, however, for him to make a decided 
impress upon the course of judicial judg- 
ments. His personality, moreover, was not 
such as to make his influence paramount 
with his associates on the bench. But he 
was eminently fitted to deal authoritatively 
with the grave questions of reconstruction 
which came before the court for decision, 
and he studied with vigor to make himself a 
competent judge upon ordinary matters of 
litigation. With his previous training it is 
remarkable that he attained the judicial suc- 
cess that he did. His influence, too, was 
much curtailed by his unfortunate continued 
pursuit of the Presidency. The ermine oi 
the judge could not conceal the aspirations 

of the politician. His mind was executive 

Salmon Portland Chase. 


rather than judicial. In 1867 he began to 
make his plans to capture the Republican 
nomination in the following year. He could 
arouse no enthusiasm. In March, 1868, it 
became apparent that Grant would be nomi- 
nated, and Chase withdrew from the contest. 
Yet with singular fatuity he strove to grasp 
the eagerly desired Frize at the hands of the 
Democracy. He was alarmed and disgusted 
by the measures of the Republicans. While 
hoping and striving for their nomination he 
thought that as President he could control 
and direct the party. But by April he had 
brought himself to believe that the Republi- 
can party had been created for an especial 
purpose which had been accomplished, that 
it was a temporary organization, brought 
into being by a crisis that had passed. At 
heart he was always a Democrat. As a 
judge he strove to curtail the limits of Fed- 
eral power. In September, 1868, he wrote: 

“T hold my old faith in universal suffrage, in | 
| lamations of April and August, 1866, de- 

reconstruction upon that basis, in universal 
amnesty, and in inviolate public faith; but 
I do not believe in military government for 
American States, nor in military commis- 
sions for the trial of American citizens, nor 
in the subversion of the executive and 
judicial departments of the general govern- 
ment by Congress.” This is his justification 
for changing his party. The change was 
fruitful of no other result than loss of in- 
fluence and prestige. Again in 1872 he 
pulled wires for the Democratic nomi- 
nation. Again his desires and hopes were 
vain. All these excessive activities and 
anxieties at last had their effect upon the 
splendid physique of the Chief Justice. In 
August, 1870, he had a severe stroke ol 
again sat with the court during the terms of 
1871-72 and 1872-73. Upon the rising of the 
court in the latter year he went to New 
York, where, upon May 6, he experienced a 
second stroke, from which he died on the 
following day. 

During the Civil War the Supreme Court 

From this he slowly rallied and | 

of the United States was in a humiliating 
position, silent leges inter arma. Its juris- 
diction was limited by extrajudicial tribu- 
nals, its authority impaired. —It refused to- 
entertain appeals from those parts of the 
country that were in rebellion. One of its 
ablest justices resigned in order to join in the 
effort to overthrow the government that he 
had sworn to support. But by 1866 the 
court began “to render a series of brilliant 
and far reaching decisions, which at the 
same time restored its own prestige, crystal- 
lized the body of law arising out of the Civil 
War and moderated the excesses of Con- 
gress. All the questions which finally stood 
forth for judical decision had been presented 
to Chase while he was Secretary of the 
Treasury, and upon most of them he had 
made up his mind.” But I intend here only 
to refer briefly to four episodes of his judicial 

Even after President Johnson’s two proc- 

claring the war ended, the Chief Justice 
steadfastly refused to hold any court in 
Virginia or North Carolina, until all possi- 
bility that the judiciary would be subordi- 
nate to the military power was removed. 
Jefferson Davis had been arrested on May 
10, 1865, confined in Fortress Monroe, and 
indicted for treason in the District of Colum- 
bia. That indictment, however, was not 
prosecuted, and in May, 1866, a true bill was 
found against him in the District of Virginia 
for waging and levying war upon the United 
States while owing them faith and allegi- 
ance. The penalty for this offence was a 
fine not exceeding $10,000, or imprisonment 
not exceeding ten years or both. The Chief 
Justice believed that a military commission 
was the suitable tribunal. But in May, 1867, 

_the President threw the responsibility of 

Davis’s trial upon the judiciary by surren- 
dering him to the custody of the Federal 
Court under a habeas corpus issued by Mr. 
Chief Justice Chase. Judge Underwood 
then admitted him to bail, and the trial was 


The Green Bag. 

continued from term to term until June, 1868. 
Then the Chief Justice for the first time sat 
as a judge in the Circuit Court for the Dis- 
trict of Virginia. By agreement of counsel 
the case was postponed until the fourth 
Monday of November. The plea was then 
made that Davis was one of those included 
in the Fourteenth Amendment, wherein the 
penalties enumerated took the place of any 
previously incurred. The Chief Justice ap- 
proved it and the Circuit Judge was of the 
contrary opinion. The Court therefore certi- 
fied its difference of opinion to the Supreme 
Court. A few days later, December 25, 
1868, the President issued his proclamation 
of general amnesty, and at the next term of 
the Circuit Court Davis was discharged. 
The most imposing duty which the Chicf 
Justice was called upon to perform was pre- 
‘siding at the trial of the President of the 
United States, impeached for high crimes 
and misdemeanors, before the Senate. There 
were no precedents by which the Chief Jus- 
tice’s conduct could be guided. The trial 
was instituted by rank partisanship and 
political intrigue. There was no desire upon 
the part of the managers of the prosecution 
for justice. The Republicans of the Senate 
were hostile to and suspicious of the Chief 
Justice. They sought by every means in 
their power to limit his influence and 
curtail his authority. He successfully in- 
sisted that his position was not that of a 
moderator, but that of the presiding judge 
of a judicial tribunal. 

to the revision of the Senate, if a vote was 

demanded. It was agreed by the Republi- 

cans that upon the first attempt of the Chief | 

Justice to vote, his right to do so should be 
tion of the retirement of the Senate for con- 
sultation. The Chief Justice immediately 
voted in favor of adjournment, declared the 
session of the court closed, and instantly 
rose from his seat. This prompt and deter- 
mined action frustrated the designs of the 

He assumed the rigl:t | 
to rule upon questions of evidence, subject | 

Sut the first tie vote came on a ques- | 

political cabal and strengthened his position 
beyond the possibility of successful assault. 
He deserves great credit for the firmness, 
calmness and good judgment with which he 
presided over his trial and for his effort to 
stamp it with a judicial character. 

The Chief Justice considered that his judg- 
ment in the case of Texas v. White, 7 Wall, 
700, was his most important opinion. That 
was an original suit in the Supreme Court 

| of the United States by the State of Texas 

to compel the surrender of United States 
bonds, and for an injunction to restrain the 
respondents from receiving payment on 
them from the National Government. The 
Chief Justice held that when Texas became 
one of the United States she entered into an 
indissoluble relation which was final, there 
was no place for reconsideration or revoca- 
tion; that she continued to be a State of the 
Union, notwithstanding the transactions 
which she had entered into during the Re- 
bellion ; and that the government established 
since the end of the war was a State govern- 
ment de facto under the Federal Constitu- 
tion, and that therefore she had the right to 
sue in the Supreme Court of the United 
States. Upon the merits it wes adjudged 
that she was entitled to the bonds. 

Since the determination of the case of 
Juilliard v. Greenman, 110 U. S., 421, decided 
on March 3, 1884, I fancy that there can be 
few who doubt the constitutional right and 
power of the government of the United 
States to issue legal tender paper money. 
For I believe that the learned and brilliant 
opinion of Mr. Justice Gray in that case is 
unanswerable, and has ‘settled the question 
for all time. But in the stress of the Civil 
War it was a nice and grave question. At 
the time the Legal Tender Act was passed 
Mr. Chase, then Secretary of the Treasury, 
gave his assent to it and carried out its pro- 
visions from a belief in its necessity. He 
had little time to consider the constitutional 
question, and if he had an opinion, sub- 
mitted it to the exigencies of circumstances. 

Salmon Portland Chase. 


When, in 1869, as Chief Justice he had to 
consider it in his judicial capacity in Hepburn 
v. Griswold, 8 Wall, 603, he came to the 
decided conclusion that the act was uncon- 
stitutional. As he said at the close of his 
opinion in that case: “Many who doubted 
yielded their doubts; many who did not 
doubt were silent. Not a few who 
then ‘insisted upon its necessity, or ac- 
quiesced in that view, have since the return 
of peace, and under the influnce of the 
calmer time, reconsidered their conclusions, 
and now concur in those which we have just 
announced.” Until this decision the Chief 
Justice had been considered the champion of 
the, legal tenders. No doubt the sluggish- 
ness of the Congress to provide for the re- 
sumption of specie payments had a large 
influence in directing his final opinion. He 
looked upon the continuance of legal tender 
money as a menace to the country, which 
ought to be removed at all hazards. He 
failed to realize that the interests involved 
were so enormous that it was of the first 
importance to sustain the constitutionality 
of the Legal Tender Act. It was one of 
those instances where, like the Mill Acts, the 
act simply would have had to be supported, 
even if it had been unconstitutional. 

I shall not enter here upon any extended 
narrative of the perfectly constitutional, legal 
and rightful method by which a majority of 
the Supreme Court of the United States were 
procured to overrule Hepburn v. Griswold. 
At the time of that decision, on February 7, 
1870, the Court was in process of reorgani- 
zation. Mr. Justice Grier had resigned 
before the judgment was announced. On the 
first Monday of December, 1869, an act of 
Congress went into effect which provided for 
eight Associate Justices instead of seven. 
The Court, which by a bare majority of four 
to three had decided Hepburn v. Griswold, 
‘was quickly increased to the legal number 

by the appointment of Mr. Justice Strong 
and Mr. Justice Bradley. Thereupon, as 
soon as might be, the Legal Tender Cases, 
12 Wall, 457, were argued. The decision by 
a majority of five to four overruling Hep- 
burn v. Griswold was made on May 1, 1871. 
The opinions were not delivered until 
January 15, 1872. In those opinions of the 
majority and minority there is sufficient and 
undignified evidence of the great friction 
among the members of the court. In the 
opinion of Mr. Justice Strong the Chief Jus- 
tice was charged with having, as Secretary 
of the Treasury, “represented to Congress 
the necessity for making the new issues legal 
tenders, or rather, declared it impossible to 
avoid the necessity.” The reply of the Chief 
Justice was frank and manly. “Examination 
and reflection under more propitious circum- 
stances have satisfied him that this opinion 
was erroneous, and he does not hesitate io 
declare it. He would do so, just as unhesi- 
tatingly, if his favor to the legal tender 
clause had that time decided, and his 
opinion as to the constitutionality of the 
measure clear.” He might have gone on 
and asserted that he had simply returned to 
the faith of a lifetime, that he saw dangers 
then from the legal tenders which he had not 
seen nine years before. But his attitude was 
unfortunate. It impaired both his reputation 
and that of his court. Yet his fearlessness 
was characteristic. His action was that of a 
strong man, undismayed by the difficulties 
of his position, conscious of his own recti- 
tude, not afraid to face the imputation of 
change of opinion. Mistaken though he 
undoubtedly was, he showed the attributes 
of a judge. Popular clamor could not 
swerve him from his path of duty as he saw 
it. That which brought great abuse upon 
him seems to me to be the crowning act of 
his judicial career and of his life. It was an 
epitome of the man. 

The Green Bag. 


By Bruce WyMan. 

T will take at least four men to replace 
| you,” so Coleridge wrote Russell (p. 103). 
Indeed it is a strenuous life that this biog- 
raphy discloses. Advocate, legislator, At- 
torney General, Lord Chief Justice — Lord 
Russell of Killowen in his time played many 
parts. This man as we see him here is always 
in action. He says to a young barrister in 
a chair at a club: “ Why don’t you do some- 
thing — anything— only do something”’ (p. 
258). This extract will show that Russell 
lived life according to that idea. “*‘ Russell 
always wished to be doing something,’ says 
one ‘devil.’ The following record of a 
week’s doings which I chance to remember 
will illustrate how untiring he was in work 
and play alike. The week in question was 
that of one of the Newmarket spring meet- 
ings. On the Tuesday night he travelled, 
after having been in court all day, down to 
Newmarket’; Wednesday he spent at New- 
market, and, immediately after the races 
were over started for Stowmarket, where he 
was advertised to speak at a political meeting 
at eight. After the meeting he returned 
from Stowmarket to London, arriving at four 
o’clock on Thursday morning. All Thursday 
he was in court, and in the afternoon again 
went to Newmarket, returning to London on 
Friday night. On Saturday morning he was 
again in court, and Saturday afternoon, after 
the courts had risen, was devoted to some 
difficult cases for opinion. While he was 
going through these, a telegram was brought 
into the room ; he passed it to me, and I saw 
that the purport of it was that the funeral of 
some friend of his was to take place in Dub- 

R. Barry Obrien. New York: Longmans, Green and 
Company, 1901. (viii + 405 pp.). 

He said, ‘I think I 
will go,’ and thereupon sent to order a sleep- 
ing berth at Euston. He attended his 
friend’s funeral in Dublin on the Sunday, 
arriving in London again early on Monday 
morning. All Monday he was again in court, 
and, on the rising of the court, started for 
Ely to attend a meeting in the evening at 
which he had promised to speak. In gaug- 
ing the fulness of the week like this, it must 
be remembered that each day spent in court 
entailed careful preparation, and the mastery 
of at least one new set of facts” (p. 352). 
So it was from the beginning of his career 
to its end. 

It was Charles Russell, advocate, who 
made the highest mark. He will be longest 
remembered in awe as the great barrister. 
This man was a force. Let this instance 
witness this: “It is a story of the Northern 
Circuit. You were engaged in a case at 
Liverpool. It wasan uphill case. The judge 
and jury were dead against you. The trial 
had lasted for two days. You had failed to 
shake the witnesses in the cross-examination. 
You made no way. The case seemed hope- 
less. You were horribly irritable, and swore 
at every one. On the third day you began 
your speech. You spoke for nearly an hour 
without apparently producing much effect. 
Then the foreman asked a question which 
showed that at length you had staggered the 
jury. You answered the question. The 
judge did not like the answer and interposed. 

lin on the next day. 

You faced the judge and stood by your guns. 
There was an altercation between you and 
the Court. It was the crisis of the case. 
After a hard fight you had got hold of the 
jury. The judge interfered to take them out 

of your hand. Would he succeed ? 


Charles Russell, Barrister. 167 

was the point. You were still arguing with | note-taking sometimes degenerates into a 
him, when your solicitor, an eminently re- | mere mechanical operation. Russell was 
spectable and even pious-looking man, with | taking no note, but he was thoroughly on 
a black frock coat, kid gloves, and a white | the alert, glancing about the court, some- 
tie — he was solicitor, I believe, for half the times at the judge, sometimes at the jury, 
county families in the district —rose, and | sometimes at the witness or the counsel on 

the other side. Suddenly he turned to the 

turning round, whispered with great reserve, 


junior and said, ‘What are you doing?’ 

‘Mr. Russell, will you allow me —’ ‘ Damn | 
you, sit down,’ said you in a voice quite au- | ‘Taking a note, was the answer. ‘ What 
dible to judge and jury. The effect was the devil do you mean by saying you are 
electrical. The solicitor sat down. The | taking a note? Why don’t you watch the 
judge said no more. The jury collapsed. | case?’ he burst out. He had been ‘ watch- 
You then blazed away fiercely for another , ing’ the case. Something had happened to 
half hour without interruption from any one. | make a change of front necessary, and he 
The jury returned a verdict without leaving | wheeled his colleagues round almost before 
their “seats” (p. 3). they had time to grasp the new situation ” 
Again this: “One day a junior was | (p. 96). Russell would have made a great 
taking a note in the orthodox fashion, and | general. 


The Green Bag. 

To an American lawyer the English bar- 
rister is always incredible. That an advocate 
can conduct a trial when others find the 
facts for him; that a counsel can argue a 
case when others determine the law for him; 
that thus the barrister comes to a new case 
each day with no previous acquaintance with 
the facts or with the law ; — it all seems im- 
probable. And yet this was the way that 
Charles Russell practiced law. “One day on 
circuit, a barrister went into the library. He 
saw a man working up some cases. ‘ What 
‘Working up 
cases for Russell,’ was the answer. He went 
round the library, and found that there were 
not less than six men ‘ working up cases for 
Russell.’ ‘Why,’ said he, ‘the whole library 
seems to be working for Russell.’ « Yes,’ said 
the sixth man, ‘there are six of us doing the 
work of one man, in order that one man may 
do the work of six.’ It has been said that 
Russell ‘ devilled’ everything. He certainly 
reduced ‘devilling’ to an exact science” (p. 
189). He -had the wonderful faculty for 
using the brains and knowledge of others. 
“When he had confidence in his juniors he 
would dispense with the authorities. ‘I will 
take your word for it,’ he would say” (p. 136). 

Here is one instance from many: “He 
had not read his brief, and had no note. He 
knew nothing about the business. The solici- 
tor and the parties were in his room waiting 
for him. I ran across to court just to tell 
him something of the case on the way back. 
‘Well, my boy,’ said he, ‘what is it all about ?’ 
I told him shortly: ‘An action against an 
insurance company on a life policy. We are 
for the company. The defence is that it was 
a bad life, and that some important facts 
were not disclosed.’ ‘ What’s the point?’ 
‘Well, the point against us is that our doc- 
tor passed the life.’ By this time we had 
reached his door. He did not hesitate for a 

are you doing?’ he asked. 

a moment; he walked straight in without 

: ‘ . , 
further question, sat in his chair, took off 

his wig, and, looking the master of the whole 
situation, said: ‘ Well, gentlemen, isn’t this 
an awkward business about our doctor? Let 
me see his opinion.’ The solicitor rammaged 
among the papers; the clients were anxious 
and Russell read the doctor’s 
opinion, cross-examined everyone, and soon 
got a grip of the case. But no one could 
have guessed that he had practically only 
heard of it about ten minutes before he 
entered the room.” 

Once in this way Russell did not reach the 
court until the luncheon hour. “Then you 
spied the official reporter of the court. ‘ Ah!’ 
said you, ‘ you were there.’ ‘ Yes,’ said he, 
‘but I did not take a very careful note.’ He 
wanted to go to his luncheon, and did not 
care to be buttonholed by you at that mo- 
ment. ‘Where is your note-book?’ said you; 
and then, without waiting for an answer, you 
pounced on the note-book which was lying 
on the desk. ‘Here it is: don’t go.’ Find- 
ing that he was in for it, he resigned himself 
to his fate, saying, ‘ I'll find the note for you.’ 
‘I have found it,’ said you ; ‘ you write very 
carelessly.’ You then read the note, asked 
him questions, made mems on your brief — 
which was tied up and quite clean — it was 
clear that you had never opened it. By the 
time that you had cross-examined this man, 
and got out all he knew about the case, the 
judges returned. ‘Are you ready, Mr. Rus- 
sell?’ they asked. ‘Yes, my Lords,’ said 
you. You then argued for a couple of hours, 
turned the court right round, got judgment, 
and walked out without giving back the man 
his note-book ” (p. 5). 

Russell attended to the smallest details ina 
case; he forgot nothing, he overlooked nothing. 
Once he was engaged in a breach of promise 
| action. ‘“*The case,’ says his devil, ‘was a 

simple one, and practically the question was 
| the amount of damages which the plaintiff 



Charles Russell, Barrister. 169 

would get. Dhirectly his junior and the soli- 
citor had seated themselves in his room for 
the consultation, he turned to the latter and 
asked, ‘ What is your client going to wear at 
the trial?’ The solicitor replied that he had 
not the faintest idea. Russell then said, 
‘ Take her to-morrow to her dressmaker, and 
order a perfectly plain dress of a soft grey 
colour, fitting closely to the figure, without 
any trimming, and a big black hat also as 
simple as possible.’ The consultation was 
very short and the case itself was practically 
not discussed — indeed there was little to 
discuss in it. Russell’s client got a verdict 
for £10,000” (p. 109). ““* Russell’ (says 
a Northern circuiteer) ‘ differed from all the 
men on the circuit in this respect ; he was 
a splendid all-round man. Some men were 
good for legal argument, others were first- 
rate in commercial cases, others admirable in 
what are called sensational actions — libel or 
breach of promise ; others came to the front 
in criminal causes, but Russell excelled in 
everything. Whatever he went into he came 
out top’” (p. 111). 

Russell in cross-examination excelled all 
the masters of that art. This biography 
gives many examples; and most absorbing 
reading they are. Space can be taken here 
for three only. Of these three, the first, 
Lambri Pasha v7. Labouchere, was at the be- 
ginning of his practice at the bar; the sec- 
ond, Scott’ v. Sampson, was in the middle; 
the third, the Parnell Commission, was to- 
ward the end. The increase in his own skill 
is to be noted in this progression ; in the 
first case the cross-examination of Lambri is 
by comparison with his later work slight, the 
witness is tricked, that is all; in the second 
case, the cross-examination of Sampson shows 
great power, but no subtlety; in the third 
case, the cross-examination of Pigott will 
always be to the legal profession a model — 
and a marvel. 

“ Russell once more turned sharply to 
Lambri and asked in English, ‘ Is your father 
alive ?’ 

“ Lambri (in good English) : ‘ Yes.’ 

“ The Lord Chief Justice: ‘We can dis- 
pense with the interpreter, I think.’ 

«“ A Juror: ‘It would be a great saving of 

“ Russell had produced the effect he de- 
sired. He had satisfied the judge and the 
jury that Lambri understood English quite 
well enough to undergo his examination in 
that language. The rest of the cross-exam- 
ination was carried on through the interpreter, 
but the prejudice created against the prose- 
cutor at the outset remained to the end ; and 
in the end Russell demonstrated to the sat- 
isfaction of the judge and jury, and indeed of 
every one in court, that Lambri was an ill- 
bred, ill-educated imposter, who had lived on 
the Continent bycard-sharping, and had come 
to England to ply the same trade, when Mr. 
Labouchere, by the help of the French police, 
brought him to book” (p. 128). 

“«*Russell’s cross-examination of Samp- 
son,’ says an eye-witness, ‘ was ferocious.’ I 
remember one scene which was painful in its 
dramatic intensity. It lasted only for an in- 
stant, but produced an extraordinary effect. 
Russell asked Sampson a question. Sampson 
did not answer. ‘ Did you hear my question ?’ 
said Russell in a low voice. ‘I did,’ said 
Sampson. ‘Did you understand it?’ said 
Russell in a still lower voice. ‘I did,’ said 
Sampson. ‘Then,’ said Russell, raising his 
voice to its highest pitch, and looking as if 
he would spring from his place and seize the 
witness by the throat, ‘why have you not 
answered it? Tell the jury why you have 
not answered it.’ It is impossible to realize 
the scene unless you saw Russell. The 
voice, the gesture, the manner, the whole 
appearance of the man were awful. A thrill 
of excitement ran through the court. Samp- 


The Green Bag. 

son was overwhelmed, and he never pulled | 
| There was not a breath, not a movement. 

himself together again” (p. 148). 

“ Pigott stepped jauntily into the box and 
Russell rose. I never saw such a sudden 
metamorphosis in any man. During the 
whole week or more he had looked pale, worn, 
anxious, nervous, distressed. He was impa- 
tient, irritable, at times disagreeable. 
at luncheon, half an hour before, he seemed 


to be thoroughly out of sorts, and gave you 
the idea rather of a young junior with his 
first brief than of the most formidable advo- 
cate at the bar. As 
he stood facing Pigott, he was a picture of 

Now all was changed. 

calmness, self-possession, strength; there was 
no sign of impatience or irritability; not a 
trace of illness, anxiety, or care; a slight 
tinge of colour lighted up the face, the eyes 
sparkled, and a pleasant smile played about 
the mouth. The whole bearing and manner 
of the man, as he proudly turned his head 
towards the box, showed courage, resolution, 
confidence. | 

“ Russell : ‘ Were you not aware that there 
were grave charges to be made against Mr. 

Parnell and the leading members of the Land | 

League ?’ 
“ Pigott (positively) : ‘I was not aware of 
it until they actually commenced.’ 

“ Russell (again with the Ulster ring): | 
| clue of the most indirect kind to what it 

‘What ?’ 

“ Pigott (defiantly) : ‘I was not aware of 
it until the publication actually commenced.’ 

“ Russell (pausing, and looking straight at 
the witness) : ‘ Do you swear that ?’ 

“ Pigott (aggressively) : ‘I do.’ 

“Russell (making a gesture with both 
hands, and looking towards the Bench): 
‘Very good, there is no mistake about 

“Then there was a pause} Russell placed 

his hands beneath the shelf in front of him, | 
of Parnell, isa splendid answer. The United 

and drew from it some papers — Pigott, the 
Attorney-General, the judges, every one in 

court looking intently at him the while. 

I think it was the most dramatic scene in the 

| whole cross-examination, abounding as it did 

in dramatic scenes. Then, handing Pigott a 

| letter, Russell said calmly : 

«Ts that your letter? Do not trouble to 
read it ; tell me if it is your letter.’ 

“ Pigott took the letter, and held it close 
to his eyes as if reading it. 

“Russell (sharply): ‘Do not trouble to 
read it.’ 

“Russell read it paragraph by paragraph. 

««* What do you say to that, Mr. Pigott ?’ 

“ Pigott (bewildered) : ‘I say nothing, ex- 
cept that I am sure I could not have had the 
letters in my mind when I said that, because 
I do not think the letters conveyed a suff- 
ciently serious charge to cause me to write 
in that way.’ 

“ Pigott equivocated. 

“ Russell: ‘ What was it ?’ 

“ Pigott (helplessly ; great beads of per- 
spiration standing out on his forehead and 
trickling down his face) : ‘I cannot tell you. 
I have no idea.’ 

“ Russell: ‘It must have been something 
far more serious than the letters ?’ 

“ Pigott (vacantly): ‘ Far more serious.’ 

“Russell: ‘Can you give my Lords any 

was ?’ 

“Pigott (in despair): ‘I cannot’” 

The next day Pigott fled from London . 

Russell had the eloquence of advocacy. 
The three examples appended here are for 
the purpose perfect. The first, the plea for 
Lady Colin Campbell is a noble sentiment. 
But notice in that appeal for justice, that 


| appeal to the emotions which will overbear 

all judgment. The second, the vindication 

Kingdom rang with it : We are the accusers, 

Charles Russell, Barrister. 


the accused are there.” But it made for no 

settlement of the Irish question. 

the close to the Behring Commission is con- | 
Russell pleads for peace; yet | 

notice that he threatens war. 

In the divorce suit of Campbell v. Camp- | 

bell: “I ask for justice, justice, justice, 

which forbids life or fame to be sacrificed | 
save on evidence at once credible and cogent. | 
| sponse to that cry of humanity heard through 

Gentlemen, Lady Colin Campbell’s life—nay, 
something dearer than life —is in your hands; 
and with an earnest heart and with spirit of 
reverence I would humbly pray that your 
minds and your judgments be inclined to‘give 
in this case a just and honest deliverance ” 
(p. 207). 

In the close to the Parnell Commission : 
“In opening this case I said that we repre- 
sented the accused. My Lords, I claim 
leave to say that to-day the positions are 
We are the accusers; the ac- 
cused are there. I hope—TI believe — that 
this inquiry in its present stage has served, 
and in its future development’ will serve, 
more purposes even than the vindication of 
individuals. It will remove baneful miscon- 
ceptions as to the character, the actions, the 
motives, the aims of the Irish people, and of 
the leaders of the Irish people. It will set 
earnest minds — thank God there are many 
earnest and honest minds in this land — think- 
ing for themselves upon this question. It will 
soften ancient prejudices. It will hasten the 
day of true union and of real reconciliation 
between the people of Ireland and the people 
of Great Britain ; and with the advent of that 
union and reconciliation will be dispelled, and 
dispelled for ever, the cloud —the weighty 
cloud — that has long rested on the history 
of a noble race, and dimmed the glory of a 
mighty empire’’ (p. 255). 

In the peroration before the Behring Com- 
“This arbitration 
gainsay it? who can gainsay it ?—a victory for 


mission : is—who will 

The third, | 

peace. Will your award bea victory for peace? 
You, gentlemen of this tribunal, alone can 
answer. It will be, it must be, a victory for 
peace if,as I cannot permit myself to doubt, 
it conform to, and leave untouched and un- 
doubted, the principles of that law which has 
been consecrated by long usage and stamped 
with the approval of generations of men ; 
that law which has, after all, grown up in re- 

all time, a cry sometimes inarticulate, some- 
times drowned by the discordant voices of 
passion, pride, ambition, but still a cry, a 
prayerful cry, that has gone up through all 
ages for peace on earth and good-will amongst 
men’”’ (p. 267). 

In his intercourse with men, Russell could 
be intolerable. ‘ In one consultation, client, 
junior, solicitor were in attendance at the 
appointed hour. Russell came in, in wig and 
gown, sat on his chair, took off his wig, and 
then turning to the solicitor said, without 
any preliminary remark whatever, ‘ Well, 
Mr. A., I have read every word of your brief, 
and there is neither sense, fact, nor law in it 
from beginning to end’ ” (p.106). A pom- 
pous “expert ’’ who had been in the habit 
of laying down the law before Parliamentary 
committees, once attended a consultation at 
Russell’s chambers. ‘Gentlemen,’ said he, 
while Russell was engaged in conversation 
with the other counsel, ‘If you will allow me, 
I shall give you my view of this case 

’ «Hold your tongue,’ said Russell, 
‘till you are asked for your view’” (p. 107). 
«One day in court the lay client in a case 
turned round and made some suggestion to 
Russell. ‘Who is that unpleasant-looking 
man who spoke to me?’ said Russell witha 
frown to the solicitor, who happened to be 
sitting by the side of the client. ‘That’s 
your client,’ said the solicitor. ‘Then I 
must trouble you,’ said Russell, ‘to ask him 
to go to some part of the court where I can- 



not see him’” (p. 108). “One judge re- 
marked : 
matter.’ Russell replied; ‘What may ap- 
pear to you now irrelevant matter may turn 
out very relevant by and by’”’ (p.15). “It 
is a pity,’ said some one, ‘that Russell is not 

a little more tolerant of the judge’”’ (p. 103). 

‘We cannot listen to irrelevant 

After so many incidents of this sort, this | 

story gives us comfort : In Manchester once 
Russell called a cab. The cabman was a 
powerful man in build. Russell scanned 
him: “* Why,’ he said, ‘a big fellow like you 
ought not to be driving a cab. ‘ What the 
hell is it to you,’ said the cabman, ‘ what I 
do? get ‘into the cab and mind your own 
business ’”’ (p. 205). 

Perhaps the strangest thing about Russell 
was that although an Irishman he had no 
sense of humor whatsoever. He never em- 
ployed even irony. 
battle. Only one instance is recorded ; and 
that incident shows Russell as a man using 

He was a grim man in | 

The Green Bag. 

a new weapon. A friend repeated the verse 

to him, old now: 
“ There was a young lady of Riga 
Who smilingly rode on a tiger ; 
They returned from the ride with the lady 

And the smile on the face of the tiger.” 

«‘He did not seemed at all amused at the time, 
but next day told me that he had used it with 
excellent effect in a speech at a meeting, as 
an illustration of the political situation, the 
tiger being the Conservative party, and the 
Liberal-Unionists being represented by the 

young lady” (p. 344). 
What Lord Bowen said of Lord Russell 

| was said with discrimination,— Russell might 
not know the facts, Russell might not know 
| the law, — but he could argue any point of 

| law or fact better than any other man. It 

was as advocate that Lord Russell was great- 
est. It was Charles Russell, barrister, that 
achieved the highest eminence in his time. 


By M. E. 

which dumb animals had been indicted 
with due formality, regularly tried and con- 
victed, and solemnly executed. But our 
strenuous forefathers did not confine their 
attentions and juridic deliberations to men 

Eigen are several cases on record in 

and animals. They journeyed into the mystic 
realms of the supernatural, and actually put 
venturesome ghosts upon trial for their ill- 

The solemn Glanville’ gravely records the 
ghostly gambols and frolics in the ancient 
Hurstmonceux House, and introduces, with 
plenary evidence, a minute narrative of “the 
Tedworthy,” invisible 

Demon of whose 

?See his “ Saddicismus Triumphatus,” published in 
1668, precious copies of which are still met with on rare 

E. Kerr. 

drum beat in the aforesaid mansion-house 
every night for about a year, for the delecta- 
tion of some reverend magistrate, who had 
manifestly raised a spirit he could not lay, and 
whose frisks and antics woefully deranged 
the whole unsuspicious family. This account 
of the prank nocturnal visitant, confirmed by 
affidavits, though shaken by demurrers, was 
long a leading article of faith with all good 
and pious people, and was finally immortalized 
by the inimitable Joseph Addison in his 
comedy entitled “ The Drummer, or the 
Haunted House,’ and the “ghost”? was 

finally “laid” by “an old man with a grey 
beard, in a black cloak, 

“ conjurer.”’? 
2? Addison’s Works (Hurd’s ed.), Vol. V., p. 141 ef 

' $éq. 

” who passed for a 


Great Lawyers and How They Won. 173 



T has been my good fortune to know 

some of the leaders of our bar and that 
is why I presume to try to pay the debt of 
your hospitality by telling you what I know 
of those leaders. It isa great pleasure to be 
of use to young men. New York isa centre 
for commerce and for the business of other 
States and other countries, but more yet it is 
a centre where litigated matters are brought 
into court. To New York come the cham- 
pions at the bar of other States and other 
countries. Three Presidents of the United 
States have been members of our city bar 
within about ten years. Here also settled 
Evarts and Choate from New England, 
O’Conor of Irish -birth, Robert Ingersoll 
from Illinois, Governor Hoadley from Ohio, 
Secretary Carlisle from Kentucky, Prior from 
Virginia, the Van Wycks from North Caro- 
lina, and a thousand others of greater or 
lesser degree and from all parts. The com- 
petition has been of the keenest and the 
ability required for success of the highest. 
Eloquence has become common, especially in 
our brethren from the South and from Ire- 
land, but perhaps it is less valued, if not 
combined with other gifts, in a town where 
the judges have little time. The business 
quality is far more valuable to the successful 
lawyer of to-day. Industry is more valuable. 
A conspicuous integrity is a still better asset. 
I think our leaders have been men who com- 
bined all these qualities with a large human- 

Charles O’Conor was the leader of this 
bar thirty years ago, and he was the last of 
the old school. He was a beautiful figure, 

TAn address before the New York Phi Delta Phi 
Club, November 11, 1901. . 

full of emotional power, like a fine sort of 
Irish Galahad. 

Mr. O’Conor once gave in his incisive 
way a useful hint to all lawyers: “ Cross- 
examination is an amusement indulged in by 
the very young. It is like trying to pull the 
tiger out of his den. You may pull him out, 
or again he may pull you in.” Mr. O’Conor 
did effective work for good government and 
for elevating the character of bench and bar. 

Next came Mr. Evarts. His great legal 
contests were the International Arbitration at 
Geneva, where, as chief, he won $17,000,000 
in damages, the Hayes-Tilden electoral con- 
test, the Andrew Johnson impeachment trial, 
where he was at his greatest, intellectually, 
the Vanderbilt will case, which he closed out 
at short notice, and the Beecher-Tilton liti- 
gation. He won them all. Mr. Evarts had 
a fine, old-fashioned dignity and elevation of 
character, and high power in national and 
international law. From time to time the 
selection of the judges of the United States 
court rested with Mr. Evarts. His choice 
was always for judges of the highest old- 
fashioned quality. 

Then came the younger Choate, who has 
stood as our belted champion against all 
comers for twenty years. He has tried and 
won more litigations involving large amounts 
than any lawyer of history,— for Webster 
and the elder Choate tried some small coun- 
try matters all their days and never had 
litigations involving such large pecuniary 

Joseph H. Choate’s winning record in all 
multi-millioniare will-cases is a sample. It 
needs a book to tell of all. In the court or 
at the Cooper Union, while he has always 



174 The Green Bag. 

been a little finer and a little keener than 
judge or jury or audience, yet he always got 
into the jury box. It is pleasant to hear the 
East-Side, foreign-born citizens clamor for 
him in reform meetings. It is a comfort to 
hear him in after-dinner speeches. His wit 
is of the best, and there has been so much 
of it that it cannot be recounted on an occa- 
sion like this. Other men have been above 
or below the forum ; others have been strange 
or portentous, but he has always been just the 
height of the heart of the judge and the jury. 
Where in history has a lawyer tried and won 
so many cases of such magnitude? Witha 
jury, perhaps Colonel James was his best suc- 
cessor among those who are now dead. All 
of these men who led were largely gifted, 
physically as well as mentally. I do not for- 
get Mr. Parsons and the chief of my name, 
Wheeler H. Peckham, but they are living, and, 
I hope, will long live to add fame to our bar. 

The Lord Protector’s Chancellor took for 
his posey the motto: “The name of serjeant- 
at-law was the name of a gentleman.” Be 
sure that is a prime quality of all the leaders 
of the first rank. It is better for a man to 
hang a millstone around his neck than to dis- 
parage old age or womanhood at our bar. 
You know how a roystering parson sued a 
man in King Alfred’s time, because the other 
man called him, in the mixed language of 
those times, #2 grand fou, which in modern 
language would be a fool. The court 
used up a portion of the leisure of those days 
in settling the law for all time, and said that 
the parson would not recover because he had 

not shown special damage to his business, 
and added significantly : @’ux attorney altiter. 
Still, to-day, an attorney should be free from 
that qualification. 

Besides the conspicuous leaders, many 
lawyers live and die unknown to fame, men 

of admirable talent, men of honor, trusted as 
completely by their clients as the confessor 

is trusted by the penitent. Their wars are 
matters mooted in books and in precedents 
of conveyancing. Their lines of battle are 
upon parchment, their successes are in un- 
questioned titles and undisputed wills. Their 
credit with all good men is unbounded. 
With these men lies all hope of the future 
for bench and bar. In other States and 
other countries the leaders of the bar are 
elevated to the bench. 

Three perfect forums have I seen: One 
was where the Lord Chief Justice of England, 
Baron Russell, sat, with his snuff-box and 
with his red bandanna handkerchief, in the 

| serenity that comes from the knowledge in 

all men that the judge is the ablest by birth 
and by learning, and as far above politics or 
pull or prejudice as are the heavens. The 
other was where Grover Cleveland sat as 
trial referee, with a physical, mental, and 
moral weight that made McGregor’s seat the 
head of the table. Exception, objection, and 
disquiet, and the anticipation of appeal were 
absent from both of these trial forums. The 
particulars as to my third ideal forum I re- 
serve for another occasion. 

From this table some years ago Mr. Justice 
Patterson severely criticised the bar. We 
plead zon vult. - There are reasons, partly of 
policy and partly of politeness, for this plea. 
But consider what the chosen leaders of the 
bar can offer of their choice to strengthen 
the bench. There will be interest in this 
query, if not to-day, then to-morrow. Roose- 
velts and Jeromes will now develop in every 
State, and will be numerous in our city. We 
are a proud people, and, above all, we crave 
the supremest quality in the material for our 
bench. We want more like Mr. Justice 
Patterson. We say that the way to give us 
more of the same is, in one way or another, 
directly or indirectly, to make the choice of 
judges from the choice of the bar and not of 
the politicians. 


Counsellor McCann. 175 


Tue counsellor, Andrew Jackson McCann, 

Was in many respects a remarkable man ; 
A rich tone of voice, without stop or stammer, 

(The writer can’t strictly vouch for his grammar), 
Quick-witted, astute, with unlimited gall ; 

Of wide local repute and admired of all. 

Now it seems Andrew Jackson was always at odds 
With a brother attorney whose last name was Dodds: 
In all legal tilts and forensic display, 
The one got the best who had the last say, 
Till the great local action, remembered e’en now, 
Of Pitts versus Fowler, concerning a cow. 

Squire Perkins of Podunk had slept in his chair, 
With small knowledge of law but a judicial air ; 
Had made all his rulings, the case had been closed ; 
The constable roused up each juror that dozed ; 
The court room was crowded; from far and from near, 
To listen to.“ sum up,” the verdict to hear. 

The justice had charged, as his final act, 
“ The jury were judges of law and of fact ” ; 
Then Counsellor Dodds began a great plea, 
He covered all subjects in earning his fee, 
And ended by saying, “ He was proud of event 
Of meeting a lawyer who was greater than Kent.” 

’T was then Andrew Jackson rose in his place ; 

He bowed to the court, and the jury did face : 
“ Your Honor and gentlemen, I once went to school 

In the old district school-house, and there learned the rule 
That all parts of speech are made up of three, 

And when I illustrate with this you'll agree.” 

Then turning to Perkins with a wink of the eye, 

“ That your Honor ’s the Person no one will deny.” 
Then glanced round the room, and each corner did trace 

With finger: “ And, gentlemen, this is the Place.” 
Then raising his voice till the rafters did ring, 

He pointed at Dodds: “ There! there! is the Thing!” 

The Green Bag. 



HE article on the report of the trial of 
Herman W. Mudgett, alas H. H. 
Holmes, by H. Gerald Chapin, entitled «A 
Study in the Fine Art of Murder” and pub- 
lished in THE GREEN Bac for November, 
1901, is a philosophic treatment of the trial 
as published with entire fullness by George 
T. Bisel, Philadelphia. There are some 
matters connected with the murder and trial 
which do not appear on the surface of the 
report, some which may be read “ between 
the lines” by those who took part in the 
trial, and some matters which require explan- 

The first matter which should be con- 
sidered is the effort made on behalf of the 
prisoner to obtain a continuance or post- 
ponement of the trial and to create sympathy 
for the prisoner in case of refusal. 
prisoner was arraigned on September 23, 
1895, and October 28, 1895 (five weeks after- 
wards), was fixed as the date of the trial. 
On that day witnesses were present from 
Massachusetts, Colorado, Texas, 
Canada and other places. If the trial were 
postponed it would have been difficult to get 


the witnesses again. Prisoner’s counsel gave 

as a reason for a continuance that the time 
allowed for preparation was hopelessly short 
and inadequate, that three murder cases were 
to be tried in one case, that the defendant’s 

* Hon. Michael Arnold has served twenty years as 
judge of the Court of Common Pleas as well as of the 
Criminal Courts of Philadelphia. He has presided at the 
trial of more than one hundred murder cases, and is 
considered one of the ablest judges in the State of Penn- 
sylvania. .He is a man of great practical ability and is 
the father of several important Acts of the Legislature 
by which ancient rules both of substantive law and of 
practice have been abolished to make way for new laws 
drawn in conformity with the demands of modern ideas. 
He is, to use his own words in an opinion in the case of 
Downey v. Traction Co., 3 Dist. Repts. (Pa.) 81, an advo- 
cate of “ The triumph of common sense over unreasonable 
authority.” — Zhe Editor. 


financial affairs were in such a condition as 
to make it impossible to gather witnesses, 
and that they had come to the determination 
that they could not consistently proceed 
with the case much under sixty days from 
that time. The District Attorney opposed 
a continuance, stating that many of the 
witnesses had been brought from far dis- 
tant States, that they came voluntarily, that 
he could not compel their attendance, that 
he was quite sure he would never be able 
to get them here again, and that the con- 
dition of the widow of the deceased was such 
that it was absolutely perilous to permit the 
The motion for a continu- 
ance was overruled. Then the prisoner’s 
counsel made a dramatic attempt to delay 
the trial by withdrawing from it, and were 
checked by a ruling which caused much dis- 

case to go over. 

cussion by lawyers and newspaper writers 
throughout the country, although it can be 
sustained upon principle and supported by 
the authority of the highest courts in the 
country. That ruling was: “Counsel in a 
case like this have no right to withdraw. 
You have no right to withdraw at the very 
beginning of the trial. Your duty is to re- 
Of course I cannot force you to stay 
and do your duty. The remedy of the court 
is, if counsel withdraw on the eve of a mur- 
der trial without consent, to enter a rule on 


them to show cause why they should not be 
disbarred.” As before said, this ruling is 
supported by the authority of the highest 
courts of this country. Some of them are 
cited in Weeks on Attorneys, Section 255. 
It is also sustainable upon principle. All 
withdrawals of counsel are by leave of 
court, which is always given when ample 

time is allowed to the prisoner to get other 



An Analysis of the Holmes Case. 


counsel. It would be unjust to the pris- 
oner as well as tohis counsel, to hold them 
together when they are out of harmony with 
But there is a time to withdraw 

anda time toremain. To withdraw without 

each other. 

retained to defend a young Swiss valet 
named Courvoisier, charged with the murder 
of his master, Lord William Russell. The 
defence was a denial of the charge, and there 
was an insinuation that one of the female 

2Ichacl Qrnnola, 

the consent of the prisoner on the very eve of 
the trial, would be to abandon him to fate. 
It would be such an atrocious act of desertion 
as no court would permit. A reference toa 
celebrated case, which was tried in London 
in 1840, shows the opinion of a very dis- 
tinguished English judge on this subject. 
Charles Phillips, a prominent barrister, was 

servants of Lord Russell had committed the 
murder. On the second day of the trial 
Courvoisier sent for his counsel and said to 
them : “I have sent for you gentlemen to tell 
Mr. Phillips, 
in a correspondence written in 1849, and 
published in the London 77zmes, wrote of this 

confession : “* When I could speak, which was 

you I committed the murder.” 


The Green Bag. 

not immediately, I said : ‘Of course then you 
are going to plead guilty?’ ‘ No sir,’ was the 
reply. ‘I expect you to defend me to the 
utmost.’ We returned to our seats. My posi- 
tion at this moment was, I believe, without 
parallel in the annals of the profession. I, at 
once, came to the resolution of abandoning 
the case, and so I told my colleague. He 
strongly and urgently remonstrated against 
it, but in vain. At last he suggested our ob- 
taining the opinion of a learned judge, who 
was not trying the case, upon what he con- 
sidered to be the professional etiquette under 
circumstances so embarrassing. In this I 
very willingly acquiesced. We obtained an 
interview and Mr. Baron Parke requested to 
know distinctly whether the prisoner insisted 
on my defending him, and on hearing that 
he did, said I was bound to do so, and to use 
all fair arguments arising on the evidence.” 
Chief Justice Sharswood, in his valuable book 
on Legal Ethics, gives all the correspondence 
and lends the weight of his opinion in favor 
of Mr. Phillips’ action in that case. After 
an attorney has entered his name on the re- 
cord, he cannot withdraw without leave of 
the court: Taney, C. J., in United States v. 
Curry, 6 Howard, U. S. Rep. 106. 

After the effort of counsel for Holmes to 
withdraw without his consent, they took their 
seats and the examination of talesmen was 
commenced to determine their competency 
When the first talesman 
was turned over to the defence for cross- 

to serve as jurors. 

examination, the prisoner arose and said: 
“May it please the Court, I have no inten- 
tion to ask Mr. Rotan and Mr. Shoemaker to 
continue in this case when I can see that it 
is against their own interest, and, bearing 
that fact in mind, I ask to discharge them 

from the case. These gentlemen have stood 

by me during the last year, and I cannot | 

ask them at this time to stay in the trial of 
the case when it is against their interest.” 

After some more discussion, in which the 
prisoner and his counsel said they would like 
a continuance for one day so that they could 
get other counsel, they agreed to remain in 
the case and give the prisoner until the next 
day to secure other counsel. Counsel then 
proceeded to cross-examine the talesman, 
when one of the counsel arose and said: “ May 
it please the Court, the defendant in this case 
says that he intends to examine these wit- 
nesses (talesmen), that he does not want us 
to interfere with the examination of them, 
and that that is what he is going to do.” Then 
they retired. The examination of the tales- 
men went on for a time when Mr. Moon, a 
prominent member of the bar, came into the 
court-room and held a consultation with the 
prisoner for more than fifteen minutes (the 
trial being delayed meanwhile) when he ad- 
dressed the judge in these words: “In 
response to a request of the prisoner, I have 
come here, and, after a brief consultation with - 
him, I would say that of course it is impos- 
sible for me to take charge of this case. I, 
perhaps, know as much as any other counsel 
could know about the case. And I would say 
that practically I have not been consulted in 
this matter, although efforts have been made 
to retain me, but for reasons I have not ac- 
cepted a retainer. I have declined to take 
part in the case and the position in which I 
find myself now, no matter how earnestly 
I might desire to aid this man, in view of the 
preparation of the case, which covers affairs 
and transactions which I have not had the 
opportunity to examine or investigate at all, 
no matter how earnestly I might desire to 
serve the prisoner and however willing I 
might be to lay aside my own professional 
engagements, I feel that in the absence of 
preparation I should be utterly powerless 
to aid the prisoner. Therefore, I must de- 
cline and I am frank to say so to the Court.” 
The reply was : 

An Analysts of the Holmes Case. 


“The Court. The prisoner has exercised 
his right ; he has discharged his counsel and 
is conducting his own case.” 

The effect of Mr. Moon’s consultation with 
the prisoner before the jury and his refusal 
to take part in the trial, and especially his 
statement that “perhaps he knew as much 
as any other counsel could know about the 
case” may be imagined. I will not repeat 
the rumors about the prisoner and who were 
his counsel, but I will state an undoubted 
fact, that after his ostensible counsel were 
discharged and retired, they were in consul- 
tation with him during every recess of the 
court and in the morning before the opening 
of court. After the jurors were selected and 
sworn a recess was had until three o’clock, 
when the District Attorney made his opening 
address and court was then adjourned, at the 
request ‘of the prisoner, until the next morn- 
ing. Other counsel were then assigned to 
the prisoner, but he rejected their services. 
On the evening of the second day his counsel 
who had been discharged previously, re- 
turned and took part in the trial until the 
conclusion of it. In deciding against grant- 
ing a new trial I said: “ The Constitution of 
Pennsylvania as well as of the United States 
secures to persons accused the right to have 
counsel to assist them at their trial, but it 
does not attempt to force counsel upon them. 
The right of every man to plead his own 
cause is a natural, inherent right. The right 
to have counsel is given by the Constitution, 
and no man can be deprived of the right to 
defend himself or be compelled to have the 
the services of counsel. The Constitution 
also secures to the defendant the right toa 
speedy public trial. This was given in re- 
turn for the right which the Commonwealth 
possesses to a like speedy public trial, and it 
is not within the power of persons accused 
to say when they will be willing to be tried 
or to defeat a trial by dilatory motions and 

practices such as were resorted to in this 

case.” Comm. v. Mudgett, 174 Pa. 239. 
The court cannot force counsel on an accused 
person : State v. Moore, 121 Missouri 574. 
The next matter to be considered is the 
time taken to select the jury and the questions 
allowed to be put to talesmen. The jury in 
the Holmes case was selected in about three 
hours, the time usually required for that pur- 
pose in this State. The questions allowable 
are only two in the main, but they may, how- 
ever, be divided into more, according to the 
answers given by the talesman. They are: 
“ Have you formed or expressed any opinion 
as to the guilt or inn ‘cence of the prisoner ?” 
and, “ Have you any conscientious scruples 
on the subject of capital punishment?” If 
the talesman answers that he has formed 
an opinion, then he is asked whether that 
opinion is so strong as to influence him in 
finding a verdict and whether he can lay aside 
his opinion and render a verdict on the evi- 
dence which he will hear in court without 
regard to his opinion. If he says he will be 
governed by the evidence alone without re- 
gard to his opinion, he will be accepted as a 
juror. Comm. v. Crossmire, 156 Pa. 304, is 
the last of a long line of cases on this point. 
There are in Pennsylvania a number of 
persons of religious views who call them- 
selves Friends, while the general public call 
them Quakers. One of their tenets is oppo- 
sition to war and to the death penalty. They 
say they have conscientious scruples against 
capital punishment and would not agree in 
finding a verdict which would result in that 
kind of punishment. They are never ac- 
cepted as jurors. There are a number of 
other persons who are not Friends or Quakers, 
who, in order to evade jury duty, say they 
are conscientiously opposed to capital punish- 
ment. Of course they are prevaricators, but 
we have to take them at their word and de- 
clare them unfit for jury duty. 

180 The Green Bag. 

No questions are allowed to be asked of 
talesmen as to their religion, politics, social 
relationships as Masons, Odd Fellows and 
the like, or the degree of proof which they 
would require. Consequently it takes not 
more than five to ten minutes to examine 
each talesman, and the jury is_ usually 
selected in from two to three hours. 

I come now to the important matter in 
regard to the trial, and that is the guilt of the 
prisoner. The allegation of the District At- 
torney was, that Pitezel was killed on Sunday 
morning, September 2, 1894, by chloroform 
poisoning. His body was found on Tuesday 
morning, September 4, on the second floor of 
the house which he alone occupied, but the 
surrounding conditions showed that he died 
on the third floor, and was dragged down 
after death to the second floor. The belief 
of the District Attorney was that Pitezel was 
drunk when Holmes chloroformed him, but 
this was not proved until Holmes, by ques- 
tions which he put to the coroner’s physician, 
convinced every one that Pitezel was drunk 
at the time. When the body was found 
partial decomposition had taken place. The 
clothing and part of the skin was burned. 
Alongside the body was a broken quart 
bottle which emitted the odor of benzine. 
The broken pieces of the bottle were on the 
inside of it, instead of being scattered on the 
floor as they would have been if the bottle 
had been exploded instead of collapsed, and 
the ashes of burned paper were on the cork. 
There was a corncob pipe full of tobacco not 
used and a burned match stick alongside the 
body. All this was done to make it appear 
that Pitezel was accidentally killed by an ex- 
plosion. The coroner’s physician said the 
cause of death was chloroform poisoning, that 
he found a quantity of chloroférm in the 
stomach of the deceased, and that it was put 

in after death, as the stomach was not irri- | 

tated and there was no inflammation or con- | 

gestion of the cesophagus as there would 
have been if chloroform had been injected 
during life. How the chloroform was put 
into the stomach was shown by Holmes’ 
examination of the coroner’s physician. 
Holmes’ questions were based on his knowl- 
edge of the manner in which the chloroform 
was injected, and convinced every one who 
heard the questions, that he was proving 
those facts which Holmes knew and the 
District Attorney believed to be the facts, 
but which he could not prove. For instance, 
Holmes was inquiring of the physician the 
various ways of getting chloroform into the 
stomach, and put this question : 

“I am very particular for your answer on 
this point .. . Was there anything in the con- 
dition of the stomach at the time you made 
your examination to preclude the possibility, 
at least, of the chloroform that you found 
there at that time having entered by dropping 
into the mouth and passing down through 
the throat or cesophagus into the stomach ? 

« Answer. Such could have been the case 
before rigor mortis had taken place. 

“ Cross-Question. Is it possible if the 
mouth had been filled at the time of death 
or within an hour or two, that it could have 
passed down into the stomach ? 

« Answer. There is such a possibility.” 

These questions and answers convinced 
every one that Pitezel had not swallowed 
the chloroform and thus killed himself, 
but that it was put into his stomach after 

The next matter of inquiry was the condi- 
tion of Pitezel immediately before his death. 
Was he drunk, and therefore in a condition 
to be stealthily killed by chloroform? This 
matter was settled by Holmes’ questions to 
the coroner’s physician. There was evidence 
that Pitezel had bought a pint of whiskey on 
the Saturday night before the Sunday on 
which he was supposed to have been killed, 


An Analysis of the Holmes Case. 181 

but there was no evidence as to the time he 
used it. Holmes asked the physician : — 

«Question. Was there any trace of liquor, 
by which I mean anything in the way of any 
kind of stimulants in the stomach ? 

«“ Answer. It did not show it, because the 
odor of chloroform was more prominent than 
any liquor could be, and the quantity is too 
small for that. 

«Question. If this man had taken into his 
stomach within an hour prior to his death, 
a wine-glass full of liquor ... would it not 
have been in the stomach at that time — cer- 
tain traces of it ? 

' «Answer. Well, it diffuses very rapidly in 
the stomach.” 

It is to be remembered that the doctor’s 
examination of the body was made two days 
after the death and that decomposition had 
already set in. But that Pitezel was drunk 
and therefore easily to be chloroformed was 
shown by Holmes’ further questions : 

“Question. From the condition of the 
stomach and other organs, are you prepared 
to say, that at the time this man died he was 
not in an insensible condition from drink ; 
say one-half hour before his death ? 

« Answer. No. There was not enough 
liquor in his stomach to cause alcoholism or 
alcoholic poison. 

“Question. I wish to repeat that question. 
From the conditions you found in this body, 
in his stomach or other organs, are you pre- 
pared to give a professional opinion to the 
effect that one-half hour before he died or at 
the time of his death, he was not in an in- 
sensible condition from the excessive use of 
alcohol ? 

« Answer. I can say truthfully his stomach 
did not so indicate.” 

These questions and the emphatic manner 

in which they were put and repeated con- | 
| that it was very warm, that you had been 

vinced every one who heard them that Pitezel 
was drunk on Sunday morning, September 2, 

when Holmes went to his house, and that 
Holmes then killed Pitezel ‘with chloroform. 
Holmes had been partially educated as a 
physician, but did not graduate. He knew 
about poisons, he had kept a drug store, he 
could write prescriptions, and the belief was 
that when he found Pitezel drunk, he went 
out and procured the chloroform. 

Pitezel’s life was insured in the Fidelity 
Mutual Life Association of Philadelphia for 
$10,000. Holmes was paying the premiums 
which were becoming burdensome. If he 
could get rid of Pitezel by an apparently ac- 
cidental death, the insurance money could 
be collected. Hence the motive for killing 

It will be noticed that Holmes examined 
the coroner’s physician. This was done be- 
fore his counsel returned to take part in the 
trial, although in the meantime they were 
advising him during the recesses of the court. 

Miss Yoke (Holmes’ third wife, so called), 
was examined when Holmes’ counsel were 
present, but at his request he was allowed to 
cross-examine her. There was evidence that 
he had three wives living, so that Miss 
Yoke, not being a lawful wife, was allowed 
As before said, the 
murder was perpetrated on Sunday, Septem- 
ber 2, 1894. He asked Miss Yoke : — 

« Question. You have said I left the house 

. at about half-past ten or eleven— between 
ten and eleven o’clock on Sunday morning, 
September 2. 

to testify against him. 

«« Answer. I have. 
“ Question. 

«¢ Answer. 

When did you next see me? 
I have said that I believe be- 
tween three and four o'clock. 

“Question. Describe as nearly as you can 
the condition in which I then appeared when 
I returned to the house —I mean physically ? 

« Answer. You came in hurriedly and said 

walking very fast, and if I was well enough 


The Green Bag. 

we would leave that evening, since I had 
partially packed my trunk and had expected 
to go. 

“Question. Had you ever seen me in a 
more nervous and prostrated condition than 
upon that day? .. . Was my appearance not 
such that it would be readily seen by any one, 
and was it not readily seen by you, that I had 
been probably much excited during my ab- 
sence ? 

«Answer. I thought you had been very 
much hurried and somewhat worried. 

“Question. As to the condition of my 
clothing on that day, you had occasion be- 
fore we left that evening to see the condition 
in which the suit I wore was on that day, 
packing it in the trunk, had you not? 

« Answer. I don’t know whether I put the | 
suit in the trunk or not. You had spoken of 
your underwear being damp from perspira- 

« Question. And my underclothing in the 
same condition? 
«“ Answer. Yes, sir.” 

This testimony showed that Holmes, when | 
he came away from Pitezel’s house on the | 
day of the murder, was, as he called it, nerv- | 
ous and prostrated, and excited during his 
absence from his place of sojourn (a boarding | 
house about two miles from the place of the | 
murder) and as Miss Yoke said, hurried and 
worried, just as a person would likely be 
after committing a murder. The cross-exam- 
ination of Miss Yoke also developed the fact | 
that when Holmes left Miss Yoke in the 
morning of the day of the murder they had 
not fixed upon a time when they were to | 
leave the city, yet as soon as Holmes got | 
back to his residence he told’ Miss Yoke that | 
they would leave that evening. This was 
evidence of flight immediately after the per- 
petration of the murder and had its weight 
with the jury. 

On the assumption that Pitezel had not 

| murderer. 

committed suicide, the insurance company 
paid the insurance money, ten thousand 
dollars, on September 24. Part of the money 
was retained by a western State lawyer, 
but the greater portion of it was received by 
Holmes, who thereupon became interested 
in removing the widowand children of Pitezel 
as claimants of the money. Evidence had 
been given that Holmes had tried to kill Mrs. 
Pitezel by an explosion of dynamite in Bur- 
lington, Vermont. The District Attorney 
then offered to prove that Holmes killed the 
minor son of Pitezel at Irvington near Indian- 
apolis, and two of his minor daughters in 
Toronto, Canada, to show the motive for the 
murder. This offer was admissible under the 
decisions of the Supreme Court ; Goerson vz. 
The Commonwealth, 97 Pa. 388, and 106 Pa. 
477; but it was rejected, as I did not deem it 
wise to complicate the trial with the details of 
four murders when there was sufficient evi- 
dence of one, the prisoner could 
have been tried in the other jurisdictions 
where he had committed the offences charged 
to him, if he escaped conviction here. 

How was the crime detected ? How were 
the facts discovered ? Holmes was a stealthy 
He killed his victims by means of 
poison, and when suspicion was diverted he 
would talk about the persons whom he killed. 

| Holmes was arrested in Boston on a charge 
| of conspiracy to cheat and defraud the in- 
| surance company. He was wanted at the 

same time in Texas for horse stealing, but he 

| preferred to come to Philadelphia without a 
| requisition. 

It was his talk after his arrest 

| that led the officers of the insurance com- 

pany to suspect that Pitezel had been mur- 
name of 
Perry, and an inguiry was started to determine 
whether Perry was Pitezel. 

dered. Pitezel went under the 
The body was 
dug up on September 22, 1894, and identified 
as Pitezel. While in prison Holmes wrote 
a book called “ Holmes’ Own Story,” which 


The Black Marta. 183 

described the finding of Pitezel’s body and 
was intended to lead the reader to believe 
that Pitezel was accidentally killed or com- 
mitted suicide. It contained much informa- 
tion which gave the detectives clues which 
they ran out and thus unravelled the case. 
Holmes also talked to the detectives and told 
one of them that he had dragged Pitezel’s 
body from the third to the second floor of 
his house after he was dead. The inquiry on 
this would naturally be — why did he do it ? 
It may be truly said that Holmes convicted 
himself. He did not go upon the witness 
stand, and no evidence was offered in his 

After his conviction Holmes wrote and 
sold to a newspaper combination (it is said for 
$7,500) a confession in which he said he had 
killed twenty-seven persons, but this was vain 
boasting. It is believed that he killed at 
least six,— that is, Pitezel and three of his 
children, and two girls named Williams, with 
whom he was intimate, and who were never 
heard of after they lived with*him. On the 

scaffold he denied that he had killed Pitezel, 
so that he died as he lived, a murderer and a 
liar. He was of good personal appearance 
and manner, and neat and tidy in his dress. 
He was called “ smart” by some persons, but 
he caused his conviction by his talk before 
and after his arrest, by the book he pub- 
lished while in prison, and by the questions 
he put to the witnesses, which questions con- 
vinced every one who heard him that he knew 
the facts to be just as his questions were in- 

_tended to elicit. 

The trial was commenced on Monday, 
October 28, 1895, and was concluded on 
Saturday night, November 2, shortly after 
eight o'clock. Two sessions of the court 
were held daily, from ten to one and from two 
to six o’clock, and on two nights from seven 
toteno’clock. The trial was conducted with 
entire propriety and great care for the in- 
terests of the prisoner as well as of the Com- 
monwealth, and the verdict of guilty of mur- 
der of the first degree was right and just. 

Holmes was hanged on May 7, 1896. 


By JoHn DE MorGan. 

HE repulsive, hearse-like wagon used in 
England for the conveyance of prisoners 
is universally known as the “ Black Maria.” 
There is a degradation in being carried to 
court, or to a police cell, in this wagon which 
is positively cruel, because even those arrested 
on suspicion as well as the most hardened 
and vicious have to use it. Most of the 
Black Marias are constructed like a furni- 
ture wagon, but have small cells, in which it 
is impossible to sit down, on either side of a 
centre aisle. In this aisle sits a court officer, 
policeman or deputy warden of the prison. 
In 1867 Colonel Kellyand Captain Deasy, 

two Irish-Americans suspected of Fenianism, 
were being conveyed to prison in a Black 
Maria, in the city of Manchester, when they 
were rescued bya mob of Irishmen. In the 
turmoil the police-sergeant sitting in the 
Black Maria was accidentally killed. Three 
men, Allen, Larkin and O’Brien, were hanged 
for the death of Sergeant Brett, another, 
Edward O’Meara Condon, was reprieved and 
eventually liberated, though he too had been 
sentenced to death, and a fifth, also convicted 
of the capital offence, was proved to be en- 
tirely innocent of any participation in the 


The Green Bag. 

The Black Maria has a very interesting 
history, for in that very prison wagon 
some of the Chartist prisoners had ridden 
to prison, their crime being love of free- 

The origin of the name is not so well 
known as the history of the wagon. 

The term originated in this country. 
When New England was filling with immi- 
grants from the old country, a negress, named 
Maria Lee, kept a sailors’ boarding house in 

Boston. She was a woman of Amazonian 
strength and helped the authorities to keep 
the peace. Frequently the constables in- 
voked her aid, and the saying “Send for 
Black Maria” came to mean “ Take him to 
prison.” The sailors returning to England 
frequently used the phrase, and so in the 
course of time the name of Maria Lee, 
shortened and altered to Black Maria, became 
the name of the prison carriage, and has re- 
mained so until this day. 




E have nothing to indicate the respec- 
tive callings of the parties to this 
case, nor the motives which led them to enter 
into the peciliar contract which it was ad- 
mitted they did enter into. Both parties may 
have thought that he was driving a good 
bargain, and that he had got the better of 
the other. Certain it is that the defendant 
had not studied the arithmetical progression. 
No man would willingly agree to supply 
524,288,000 quarters of rye for the sum of 
five pounds, even on the terms that two- 
sixths of that sum should be paid before, the 
commencement of the delivery. But one 
would like to know whether the plaintiff 
realized, when he made the bargain, that he 
was entitled, on the strict construction of the 
contract, to an amount of grain which 
would certainly have taxed the agricultural 
resources of England, even if the defendant’s 
counsel was not wholly justified in asserting 
that there was not so much rye ‘in the whole 
But while we are left to speculate on the 

* Thornborow v. Whitacre; 2 Ld. Raym., 1164 (1705). 

motives and attending circumstances that led 
to the formation of the contract, its terms 
happily preserved in all their specious sim- 
plicity and apparent innocence. For the 
magnificent sum of half a crown in hand, 
paid, Whitacre agreed to deliver to Thorn- 
borow 2 grains of rye corn on Monday the 
29th of March, 4 grains on the Monday next 
following, 8 grains on the subsequent Mon- 
day “et progressu sic deliberaret quolibet 
alio die Lunae successive infra unum annum 
ab codem 29 Marti bis tot grana secalis quot 
die Lunae proximo praecedente respective 
deliberanda forent.” The balance of the 
purchase money, amounting to four pounds, 
seventeen shillings and sixpence, was to be 
paid—mark the plaintiff's caution—on the 
completion of the contract by the defendant. 
Such were the terms to which the parties 
bound themselves, and to an uneducated 
farmer, in the early years of Anne, we can 
imagine they apeared tempting. 

With the characteristic brevity of the old 
time reporter, Lord Raymond does not 
vouchsafe any information as to the perform- 


Cases from the Old English Law Reports. 185 

ance of the contract. We can, however, 
picture simple-minded Whitacre producing, 
with a smile of satisfaction at the thought of 
his large profit, two grains of rye corn from 
the remote corners of his wallet. We can 
see the wallet gradually swelling on each 
successive Monday, till at last it is displaced 
by a sack. We conjecture that it was about 
the time when he required assistance to de- 
liver his weekly instalment that the defend- 
ant committed that breach of the agreement 
which led Thornborow to bring his action. 

To the declaration the defendant de- 
murred, and the dissention was argued before 
Holt, C.J. It was then contended that con- 
tract was void on the ground of impossi- 
bility, which was divided into three classes: 
legis, rei, and facti. In the course of the ar- 
gument the case was instanced of a relief 
payable by law to a landlord, immediately 
on the death of the tenant, yet if the relief 
be a rose or a bushel of roses, and the pay- 
ment fell due in the winter time, the landlord 
might not distrain till the summer; for the 
“Law takes notice that roses cannot be 
kept, but otherwise of wheat, etc., which 
may.” A difference is also asserted in a 
covenant to hand over in as good a con- 
dition as at the beginning of the lease 
between a wood and a house, where they 
have suffered from a violent gale. 

Holt, C. J., however, intimated in the 
course of the argument, that “where a man 
will, for a valuable consideration, undertake 
to do an impossible thing, though it cannot 
be performed, yet he shall answer damages.” 
He also appeared prepared to hold that in 
the present case the performance was only 
impossible with respect to the defendant’s 
ability, which was not such an impossibility 
as to void the contract. Moreover, he con- 
sidered that the words, “ guolibet alio die 
Lunae” were to be considered as meaning 

every other Monday, which would materially 
reduce the impossibility. 

During the argument the case of James v. . 
Morgan, 1663, was referred to, of which the 
following isthe complete report}: ‘(A ssumpsit 
to pay for a horse a barley corn a nail, 
doubling it every nail; and avers that there 
were thirty-two nails in the shoes of the 
horse, which being doubled every nail, came 
to five hundred quarters of barley; and as 
non assumpsit pleaded, the cause being tried 
before Hyde at Hereford, he directed the 
jury to give the value of the horse in dam- 
ages, by eight pounds, and so they did; and 
twas afterwards moved in arrest of judg- 
ment for a small fault in the declaration 
which was over-ruled, and judgment given 
for the plaintiff.” From which, incidentally, 
we gather either that the method of shoeing 
horses has altered, or that the horse in ques- 
tion had some peculiarity of formation in his 
hoof which necessitated an extra nail in 
each shoe above the number now commonly 

After a vain attempt to distinguish this 
case, the defendant’s counsel appears to have 
lost heart, for he, perceiving the opinion of 
the court to be against his client, offered the 
plaintiff his half-crown and his cost, which 
was accepted of, and so no judgment was 
given in the case. 

Thornborow, like many others, was before 
his day. As a speculator in wheat at the 
present time, he would probably have 

| amassed a huge fortune. Think of it! The 

world’s crop of rye for a five pound note. 
What a magnificent corner it would have 
been. Lord Raymond states that thirty in- 
stalments would have amounted to one hun- 
dred and twenty-five quarters, and the full 
fifty-two to 524,288,000 quarters. The 
sceptical may check his figures. 

= s Lev. 11. 

The Green Bag. 

HE Supreme Court of Porto Rico, as at 

present constituted, was created by the 
Act of Congress approved April 12, 1900, 
commonly called the “ Foraker Bill,” provid- 
ing a civil government for the Island. It 
consists of five justices and has the usual 
jurisdiction of appellate tribunals, with an 
appeal or writ of error to the Supreme Court 
of the United States, “in the same manner 
and under the same regulations and in the 
same cases as from the Supreme Court of 
the Territories.” 

The Spanish language has heretofore been 
used exclusively in all proceedings in this 
court, but on appeal to the Supreme Court 
of the United States, the whole record is-re- 
quired to be translated into English. No 
case has so far been brought to the Conti- 
nental court from the Insular court for re- 
vision. An act has been recently passed 
authorizing .the use of both the languages 
without distinction in all the courts and pub- 
lic offices throughout the island, and goes 
into effect the first day of July next. 

The salary of the Chief Justice is five 
thousand dollars, and of each of the Associ- 
ate Justices four thousand five hundred 
dollars, annually ; being fixed by the Foraker 

Since the institution of civil government 
in the island on the first of May, 1900, up to 
the first of March, 1902, there have been on 
the files of the Supreme Court of Porto Rico 
a total of 519 cases. Of these, 213 were 
civil and 306 criminal. Among the civil 
cases are Classed those called in the Spanish 
law administrative and contenctoso, which are 
appeals from the Executive branch of the 

Of the civil cases, 155 have been decided 
and 58 are yet left pending; and of the 


criminal cases 27 are pending and 279 have 
been disposed of. Thus it appears that of 
the total of 519 cases entered, 434 have 
been decided and 85 are left yet remaining 
on. the docket. This is certainly not a bad 
showing for a tropical climate. 

José Severo Quifiones, the Chief Justice, 
was born in the capital city of Porto Rico, 
on the 6th of November, 1839, and attended .- 
school and collegé in his native town. He 
studied law in the universities of Seville and 
Madrid, taking his degrees in 1860. He en- 
gaged at once in the practice of his profes- 
sion in his native island, and rose to eminence 
at the bar. He enjoyed a very lucrative prac- 
tice until 1894, when he was appointed toa 
high office in the civil administration. He 
also held the office of Secretary of Agricul- 
ture, Commerce and Industry under the Au- 
tonomous Government. He was elected also 
a member of the House of Delegates. During 
the American occupation he was appointed 
by the Military Governor a judge of the Ter- 
ritorial Court. He was afterwards trans- 
ferred to the Supreme Court, as organized 
under the Military Government by General 

On the 5th of June, 1900, President Mc- 
Kinley selected him for Chief Justice of the 
Supreme Court of Porto Rico. He 
many friends among his countrymen, and is 
regarded by men of all parties as a thor- 


oughly honest and able man, and worthy to 
be the head of the Porto Rican judiciary. 
Louis Sulzbacher, the oldest Associate 
Justice, was appointed to that office by Presi- 
dent McKinley on the 4th of June, 1900. 
He was born in Germany in the year 1840, 
and received a good education in his native 
land, where he mastered the French and 
German languages and the principles of the 

The Supreme Court of Porto Rico. 187 

civil law. He emigrated to the United States | lated by his professional labor and _ skill. 
in his early manhood and settled in the Terri- | During his residence in New Mexico he 
tory of New Mexico, where he soon became a | made a life-long friend of Senator Elkins. 
naturalized American citizen. He engaged | Since his appointment to the Supreme Bench 
in agricultural pursuits while learning the | of Porto Rico he has rendered intelligent, 


common law and the Spanish and English | faithful and laborious service to the Govern- 
languages. When properly prepared, he was | ment of the United States. 

admitted to the Territorial bar, and at once José Conrado Hernandez was born in 
began a lucrative practice at Las Vegas, | Aibonito, Porto Rico, on the 19th of Feb- 
where he resided continuously until 1899, | ruary, 1849. He graduated from the Jesuits’ 
when he transferred his residence to Kansas | College in San Juan, in 1865, and from the 
City, Missouri, to enjoy the fortune accumu- | Salamanca University in Spain in 1873. 


He received in Spain the degrees of LL.M. 
and D.D. 
practiced law for two years, becoming prose- 
1877, and afterwards 
judge of the Court of First Instance, hold- 

Returning to his island home, he 

cuting attorney in 

The Green Bag. 

ary. He won golden opinions from his col- 
leagues, and in 1898 returned, covered with 
many laurels, and served on the Bench under 
the Spanish government until the American 

occupation, when he was continued in service 


ing that position for many years in various 
parts of the island. He was transferred 
to the judiciary in Cuba in 1888 and held 
different posts in that island until 1891, when 
he was transferred to the Philippines. He 
remained there seven years, occupying many 
positions of great responsibility in the judici- 

as a judge of the highest courts by the Mili- 
tary Governors. On the organization of civil 
government, in June, 1900, he was commis- 
sioned by the President of the United States 
as Associate Justice of the Supreme Court. 
This high post he still adorns with his talents 

and enlightens with his learning. 


The Supreme Court of Porto Rico. 189 

José Maria Figueras was born in San 
Juan, Porto Rico, in 1852, and there received 
his early education. He studied his profes- 
sion of the law in the University of Galicia, 
Spain, from which institution he received the 

at Manila, P. I., and afterwards in Cuba, at 
Santiago and Havana. He then became a 
District Judge in Porto Rico, and the Ameri- 
can invasion found him discharging the duties 

of that very responsible office at Mayaguez. 


On graduation, he returned 
to the land of his nativity and engaged in an 

degree of B.L. 

active practice for many years, achieving the 
He served 
for some time as Secretary of the Territorial 
Court at San Juan, with great distinction. 

distinction which follows merit. 

. ° | 
For a while he was the prosecuting attorney | 

On the American occupation he was made 
thg prosecuting attorney by the military au- 
thorities, and served with great satisfaction 
to the government and proportionate terror 

to evil doers. On the organization of civil 

| government he was selected by the President 

of the United States as Associate Justice of 


the Supreme Court. His vigorous intellect, 
practical experience and learning are of great 
value to the judiciary. 

James Harvey MacLeary was born in 
Tennessee on the 27th day of July, 1845. 

The Green Bag. 

A.B. in 1868, and of B.L. in 1869. He 
then settled in San Antonio, Texas, and 
practised his profession, meanwhile serving 
as member of the State legislature, both in 

the House and the Senate. In 1880 he was 


He landed in Texas with his father’s family 
on January 15, 1856. He enlisted in the 
Confederate army in July, 1861, and served 
four years, receiving four wounds. After 
the Civil War, in 1866, he entered Washing- 
ton College, now Washington and Lee Uni- 
versity, and graduated with the degree of 

elected Attorney General of Texas and 
served one term, declining on account of in- 
sufficient salary to be a candidate a second 
time. In 1886 he was appointed Associate 
Justice of the Supreme Court of Montana, 
and served on that bench two years, resign- 

ing on account of the rigorous climate. Re- 


turning to San Antonio, Texas, he continued 
his law practice until the declaration of the 
war against Spain. He received a commis- 
sion from President McKinley as Major and 
Inspector General in the volunteer army, and 

The Supreme Court of Porto Rico. 19gI 

General Wood in the civil service, as in- 
spector of charities, and rendered geod ser- 
vice to the island. He came to Porto Rico 
in February, 1901, as Assistant Secretary, 
and on the 4th of October was appointed 


served through the Santiago campaign. He 
was made Alcalde of Santiago de Cuba on the 
American occupation, and afterwards served 
as Inspector General of the Department of 
Santiago de Cuba on the staff of General 
Leonard Wood. On the dissolution of the 
volunteer organization he was continued by 


Associate Justice of the Supreme Court by 
President Roosevelt. 

To the American lawyer whose life has 
been spent in courts where the common law 
system prevails, there are many strange 
things in the practice of Porto Rico. Here 
we find the code system in its full vigor. 


The Green Bag. 

There are many excellent features in the 
Spanish codes, especially in the Civil Code, 
which is said to be constructed on scientific 
principles, and which has profited in a great 
degree by the experience of the Latin 

nations, from the time of Justinian down to | 
The Criminal Code does | 

the present day. 
not commend itself in such a great degree 
to the American mind. The refinements 
and delicate distinctions drawn between 
crimes of a kindred nature, and the carefully 

graded system of punishments, 

nothing whatever to the discretion of the 

court, and especially the absence of the jury 
system, are not in accord with ideas spring- | 

ing from the great fountain of Anglo-Saxon 
liberty. Many crimes, also, are regarded as 
offences against private individuals instead 
of against the State, and after conviction 
even, the party supposed to be particularly 
injured can come into court and file a par- 
don, thus nullifying the judgment and set- 
ting the prisoner free. 

The Supreme Court of Porto Rico, since 
its organization under the American military 
government on the 9th of August, 1899, has 
had nearly twice as many criminal cases as 
civil ones, and very few cases involving 
titles to land or principles of constitutional 
law. The court is limited in its jurisdiction 
to the correction of errors, and cannot review 
the facts of the case except as they are 
stated in the judgment of the court below. 

An appeal is allowed both in civil and crim- | 
inal cases to every person interested in any | 

case decided by the District Court, without 
Thus the 
most frivolous cases command the attention 
of the Supreme Court equally with the most 
A quarrel between two fish- 

bond or security of any kind. 

women, in which the usual epithets are 
hurled from one to the other, has been 
gravely paraded before the court of last 

the Island for final settlement. 

resort in 

| risdiction 

During the appeal, defendants in all except 

; ‘ 
| the gravest cases are permitted to remain at 

| large. The Supreme Court has original ju- 
in cases of malfeasance or mis- 

feasance in office. Among the more impor- 
tant cases presented to the Supreme Court 
since the American occupation, are the fol- 
lowing : 

A district attorney was charged by the 

| prosecuting officer with neglect of duty and 

accepting a bribe in an investigation made 
by him as to the occurrence of an incendiary 
fire. The judges of the District Court in 
which he exercised his functions were the 
principal witnesses, and were divided on the 
question two to one. The matter was tried 
in a public hearing by the Supreme Court 
and consumed several days. Great interest 
was manifested in the result throughout the 
island. Witnesses contradicted each other 
on every point, and finally the defendant was 
acquitted for lack of evidence. The strangest 
feature, however, of the trial was the fact 
that in making the statement in his own be- 
half, the accused acknowledged that one of 
the affidavits presented by him to the court 
was false, and excused himself on the ground 
that he had been falsely charged with accept- 
ing a bribe, and was fighting the devil with 
fire. It seems that this action on his part 
cannot be punished under the Spanish code, 
and apparently his prestige as a lawyer was 
not injured by the perjury or the confession 
of it. However, the Supreme Court recom- 
mended in the sentence acquitting him that 
he should be removed from office by the 
executive authority, which was promptly 

Another case of great interest was that of 
a municipal judge who was tried before the 
Supreme Court for usurpation of jurisdiction. 
In cases where two municipal courts or dis- 
trict courts claim jurisdiction of the same 
case, the matter has to be referred to the Su- 


The Supreme Court of Porto Rico. 193 

preme Court for settlement, before the trial 
courts can proceed to judgment. In the case 

mentioned, the municipal judge had disre- | 

garded this article of the code, and proceeded 
with the trial of the case without waiting for 
the decision of the question of jurisdiction. 
He was promptly prosecuted and convicted, 
and fined $200 and costs. Being dissatisfied, 
naturally enough, with the decision of the Su- 
preme Court rendered against him, he at- 
tacked the judges with great violence in the 
newspapers, and, it is said, presented charges 
against them to the executive authorities, not 
only of the Island, but of the nation. How- 
ever, the court calmly proceeded on its way, 
and sent the marshal to collect the fine, which 
was paid under protest. 

Some two years ago, it may be remem- 
bered, five men were garroted at Ponce for 

having murdered a Spaniard, under circum- 

stances of great barbarity, just after the land- 
ing of the American troops. Criminals at 
that time made an excuse of the unsettled 
condition of the country to attack everyone 
against whom they had any grudge, and to 
combine robbery and rape with murder and 
arson. A similar case to that of these people 
was brought before the Supreme Court not 
long since. Five men were accused of mur- 
dering a respectable old Spaniard, of ravish- 
ing two females belonging to his family, and 
of robbing his house. A party of thirty or 
forty had surrounded the house at night, 
in a remote district, and demanded entrance 
in the name of the American authorities. 
This being readily granted them, they shut 
the women and children up in one of the 
rooms, tied the five or six men belonging to 
the family in another room, and dragged the 
head of the family to an outhouse and mur- 
dered him by strangulation, cutting off his 
ears, and disfiguring his body with great in- 
dignity. They then ravished the women and 

gutted the house. Five of them only were 

identified, and were convicted in the District 
Court at Ponce by a vote of two to one, of 
the three judges composing that court. The 
case was, of course, appealed to the Supreme 
Court of the Island and considered with 
great attention. One of the judges being 
sick, only four sat at the hearing. The 
judgment of the District Court was affirmed 
by a vote of three to one, the dissenting 
judge basing his opinion on the fact that one 
of the judges below had dissented, and that 
the old Spanish law required three judges to 
concur in fixing the death penalty. Under 
the Spanish code, in a capital case, after the 
affirmation of the judgment by the Supreme 
Court, the case must be referred to the fiscal 
(assistant attorney general), for his exami- 
nation and report as to whether or not any 
circumstances attending the case justify a 
recommendation to the Governor for clem- 
ency. This course was followed, and the 
fiscal reported that the crime had been com- 
mitted with circumstances of unusual bar- 
barity, and that there was nothing whatever 
in the record justifying any recommendation 
for clemency. With this recommendation 
of the fiscal the two American judges con- 
curred, but the two Porto Rican judges, in- 
cluding the one who dissented, who had 
participated in the trial, joined in a letter to 
the Governor, recommending the commuta- 
tion of the death sentence from capital pun- 
ishment to imprisonment for life. Applica- 
tions for pardon, from all over the island, 
have been pouring in by hundreds to the 
Executive office. The Governor has not yet 
considered the matter sufficiently to deter- 
mine whether executive clemency should be 

Another interesting case was that of a tax 
gatherer and a notary. The tax collector 
had been appointed under the military gov- 
ernment, to collect the taxes in four different 
townships, and required to give a bond in 


The Green Bag. 

each case. He had the bonds prepared, 
signed by himself and sureties, and came be- 
fore a notary, where they were duly acknowl- 
edged and certified to by the notary. Filing 
his bonds, he collected all the taxes he could 
conveniently gather and sailed for Spain, but 
afterwards changed his destination to Paris, 
in order to enjoy more readily the fruits of 
his enterprise. In the meantime it was dis- 
covered that the persons who acknowledged 
and signed the bonds were not the persons 
who they represented themselves to be; in 
other words, that the documents were for- 
geries. Extradition proceedings were set in 
motion, and the absconding tax collector 
brought back. He was put upon his trial for 
emitting forged instruments, and the notary 
for making false certificates. Each was con- 
victed, the tax collector being sentenced to 
twenty-four years’ imprisonment, and the no- 
tary to six months. The cases were brought 
to the Supreme Court in regular course on ap- 
peal. That of the tax collector was affirmed. 
The notary’s case presented some peculiari- 
ties. The Spanish code makes a very marked 
difference between a public and a private in- 
strument, and the punishment is different 
when a false certificate is made with or with- 
out malice. Strange as it may appear, these 
official bonds, under the code, are private in- 
struments, from the fact that they were not 
executed with the formalities required for 
public instruments. If they had been pub- 
lic instruments and the notary had certified 
to them, malice would not be necessary to 
be proven, but would be presumed. Being 
private instruments, it was necessary to prove 
malice in making the certificate. However, 
the District Court found the instruments to 
be private instruments, which was a correct 
finding, and they also found that the notary 
had acted without malice. Nevertheless, 
they sentenced him to six months’ imprison- 

ment. This was held to be erroneous, be- 

cause the instrument being a private one, as 
found by the trial court, and the malice not 
being proven, it was impossible to convict 
of reckless negligence, which had been the 
charge, and on which judgment he was sen- 
tenced. The case was reversed, and the 
notary exonerated. The defendant being a 
very well-known and popular man, of influen- 
tial connections, the case made quite a noise 
from Fajardo to Mayaguez. 

One of the most important civil cases 
which has been tried before the Supreme 
Court was a divorce case, involving the con- 
struction of the Organic Act, which provides 
that “ All persons lawfully married in Porto 
Rico shall have all the rights and remedies 
conferred by law upon parties to either civil 
or religious marriages.” The District Court 
held that this language meant that the mar- 
riages to which it referred must have been 
performed in the Island of Porto Rico, and, 
as the parties litigant were married in Spain, 
that the Organic Act did not apply to their 
case, and further, that being citizens of Spain 
they were governed in their marital relations 
by the laws of Spain, and not by the laws of 
the United States. 
granted under the Spanish law, the divorce 
The decision of the District 

As no divorce can be 

was refused. 
Court in both of these particulars was re- 
versed by the Supreme Court, and the divorce 

There are cases pending in the Supreme 
Court at present, involving the question as 
to whether conspiracies to raise the price of 
labor are punishable in Porto Rico, as they 
were under the Spanish code, and whether 
or not newspapers prior to publication have 
to comply with all the restrictions imposed 
by the Spanish codes, and in several other 
cases of apparent conflict between the exist- 
ing code and the Constitution and laws of 
the United States. 
by the Supreme Court of the United States 

The late decisions made 


A Solomon of the Turkey Roost. 195 

in the insular cases, afford material assist- 
ance to the Supreme Court of Porto Rico in 
solving some of these interesting questions. 

Since the American occupation, the 
opinions of this court have been published 
in the Offictal Gazette, a daily newspaper 
issued at the capital. These publications 
simply give a certified copy of the senten- 
clas or opinions, without head notes or other 
explanation. A bill has just passed the Leg- 
islature authorizing the publication of all the 
opinions rendered since the organization of 
the court, in volumes similar to those of the 
United States Supreme Court reports, to be 

called « Porto Rico Reports,’’ and numbered 
consecutively. The Attorney General being 
authorized by the bill to designate one of the 
justices of the Supreme Court to act as re- 
porter and supervise the preparation and 
publication of these opinions, has selected 
for that duty Associate Justice MacLeary, 
who will immediately begin to have the 
opinions translated. At the same time, he 
will prepare the syllabi in English and Span- 
ish, and otherwise arrange the cases for 
orderly publication. It is supposed that the 
first volume of reports will be issued in 
about six months. 


By Henry Burns GEER. 

T was a great day at Barney’s Point — 

the day that Rube Wilkins brought suit 
before Squire Patton to replevin a hen tur- 
key and her brood of half-grown turks. 

Wilkins lived just across the road from 
Joshua Nelson, and he charged that the 
latter had alienated the birds from his kindly 
care and supervision, and had caused them 
to take up with his own fowls, to his 
(Wilkins) displeasure and financial loss ; and 
further, that when he had remonstrated with 
his neighbor in a neighborly way, the latter 
had turned unto him a deaf ear, and had re- 
fused to deliver the turkeys over to him, 
their rightful owner. Therefore, he prayed 
the court for a replevin warrant, and an offi- 
cer to execute it, that he might lawfully re- 
cover possession of his property. 

The neighboring farmers were there for 
miles around, and the plow-shares rested 
quietly that day. The opposing counsel 
argued the case very learnedly, and the wit- 
nesses were most painstaking and explicit in 

their evidence. It was evident, long before 
the case was half over, that it would be a 
hard question for the Squire to decide. 
And, besides the legal aspect of the case, 
there was the political side to it. How could 
Squire Patton afford to render a decision 
against either side, when the election was 
only about a month off, and both sides 
about equally strong in votes? 

The evidence was all in finally, and the 
question up to the court for a decision. 
The Squire wore a self-satisfied look, as if 
he had reached a happy solution of the mat- 
ter, that would be satisfactory to all con- 
cerned, as he arose and rapped for order. 
In a minute all was quiet, —men craning 
their necks eagerly forward to catch every 
word of the expected decision : 

“ The officers will now bring the turkeys 
into court,’ the Squire said gravely, and 
then he sat down, and leaned back in his 
seat, with his eyes closed. 

A buzz of surprise ran around the room 

196 The Green Bag. 

at this request, but it was quickly complied 
with, as the fowls had been cooped, — await- 
ing the decision of the matter. 

Then the Squire rose quickly, and ad- 
dressing a constable said : 

“Release the turkeys in the road ;” and 
then turning to the contestants and witnesses, 
he continued : 

“The court reserves its decision until the 
turkeys, just released, go to roost, and, in 
the meantime, all the gentlemen present are 
invited to join the court, that we may ob- 
serve the birds select their roosting place.” 

This-announcement made the plaintiff and 
his friends smile. They construed it as a 
verdict in their favor ; while the defendant 
looked uneasy. 

But all turned out to watch the manceuvers 
of the birds. They fed leisurely along down 
the road, and as it was getting late in the 
evening, they made upward glances with 

heads one-sided at every overhanging object | 
they passed. Finally, they left the grass | 
and took up a line of march straight down 
the road in the direction of Rube Wilkins’ 
home, —the honorable court, and all in- 
terested, to the number of forty or fifty men, 

following gravely along at a safe distance 
behind, that they might not frighten the 

On down the road they went, straight to 
Wilkins’ back-lot bars, where they turned, 
went single file over to the horse-trough, 
drank with solemnity, then filed about to 
the barn shed, where the mother turkey 
said a few words to her young, — looked first 
with one eye, then with the other up to some 
poles stretched across, where there used to be 
some hay, then deliberately flew up there and 
settled down for the night — followed by 
every blamed young turkey in her brood ! 

Squire Patton sprang up on a stump where 
he was in full view of both audiences, — the 
turkeys and the litigants with their friends, 
—and, clapping his hands for order, said : 

«You gentlemen are all aware that ‘chick- 
ens will come home to roost.’ It is the belief 
of this court that turkeys will also come home 
to roost, and, therefore, the court decides this 

| case in favor of the plaintiff.” 

A shout of approval mingled with exclama- 
tions of admiration greeted this decision. 

The next day the Squire’s opponent with- 
drew from the race, 

"CBB 8 


London Legal Letter. 197 


WO cases, of a widely different nature, 

have recently attracted the attention of 
the lay public to the courts. In one of them 
certain phases of the ecclesiastical law of the 
kingdom for the past five hundred years 
have been carefully reviewed, and in such a 
manner as to excite comment upon the eru- 
dition which many of the judges and counsel, 
and those, particularly, who are supposed to 
be engrossed with modern commercial dis- 
putes, are able to exhibit. Interest was 
added to the litigation by the fact that it 
was started by an extreme faction of the 
Church of England, those who advocate the 
evangelical or “ low-church ” practice. Can- 
on Gore, who it was claimed was a ritualist, 
had been appointed Bishop of Worcester, 
and, in usual course, the appointment was 
referred to the Archbishop of Canterbury 
for confirmation. The Vicar General, acting 
for the Archbishop, refused to hear ob- 
jections, and the objectors obtained a rule 
nist for a mandamus to compel him to do so. 
The case was argued at great length, and 
antique Roman Latin in musty volumes was 
quoted for hours. Within three days after 
the arguments were concluded the Lord 
Chief Justice delivered a judgment which 
filled four solid columns of Zhe Times, and 
the two other judges sitting with him added 
two other columns. The opinions were mar- 
vels of learning, but what would have most 
surprised an American lawyer was the 
promptness with which they were handed 
down, particularly considering the recondite 
nature of the questions the judges were 
called upon to decide, and the quantity of 
almost obsolete authorities that must be ex- 
amined. The decisions were adverse to the 
contention of the objectors to the confirma- 

Marcu, 1902. 

The other case was one in which several 
men were put upon their trial, one for forg- 
ing bank checks, and the others for con- 
spiring with him in the fraud. 

One Goudie, a clerk in a Liverpool bank, 
had succeeded in getting no less than close 
to $600,000 out of the bank on forged 
checks. He drew the checks in the name 
of a wealthy depositor in the bank, sent 
them to his co-conspirators in London, and 
then when the checks came, instead of 
charging them up to the account of the 
nominal drawer, destroyed them. He was 
able to do this through being the ledger 
clerk, having in charge the books in which 
the checks of the particular depositor would, 
in the ordinary course of business, have been 
debited against him. 

One of the features of the trial was the 
clever way in which the judge assisted in 
forcing a restitution of the proceeds of the 
forgeries, which, having passed into the hands 
of third parties, or having been secreted, could 
not otherwise have been recovered. The trial 
was concluded on Thursday, when the judge 
announced that he could not sentence the 
prisoners until the following Saturday, and 
that his sentences would be influenced by 
their efforts and those of their friends in 
bringing the money into court. This course 
was eminently successful, and led to the 
restoration of nearly sixty per cent of the 

A bill has been introduced into Parliament 
during the past fortnight which will probably 
be passed without much opposition, and 
which will materially modify patent practice 
in this country. It is the outcome of the 
report of a committee which rendered its 
report last March, after having taken a large 

| amount of evidence of well-known experts. 


198 The Green Bag. 

The chairman of the committee was Sir 

Edward Fry,a retired judge of the High 
Court, and among its members were Lord 
Alverstone, the present Lord Chief Justice, 

and Mr. Fletcher Moulton, K.C., who is the | 
leader of the counsel who are most fre- | 

quently engaged in patent litigation. It is 
well known to those who are versed in 
patent law that the practice in this country 

has occupied, so far as the grant of letters | 
. . . ve) | 
patent is concerned, an intermediate position | 

between two extremes. In certain countries, 
including France, a patent imports little 
more than that it has been registered, and 
the certificate expressly states that it con- 
veys no official guarantee as to its novelty. 
In the United States, Austria and Germany, 
a patent is granted only after a rigorous ex- 
amination is made as to novelty, and conse- 
quently when it is issued it is of some value. 
In this country the rule, as it now stands, is 
that unless there is prima facie some appear- 
ance of identity in the patent claimed with 
some prior. existing patent, the Comptroller 
will seal the patent. The Solicitor General, 
to whom an appeal lies from the Comptroller, 
has laid it down asa principle to be followed, 
that where the matter of identity is much in 
doubt it is better to run the risk of putting 
the party opposing the grant to the costs of 
making out his case in some ulterior proceed- 
ings, than to withhold the seal from the 
patent in the first instance. Ina well-known 
case, Sir Edward Clarke, when Solicitor Gen- 
eral, said that having regard to the tact that 
by allowing the issue of a patent he did not 

close the matter, but left it open to the oppo- | 

nent to challenge in a court of law the valid- 

ity of the patent, he did not think he ought 
to refuse a patent to be sealed unless he was 
satisfied that no jury could reasonably come 
to a decision in favor of the applicant. 

The new bill provides that where an ap- 
plication for a patent has been made, and a 
complete specification has been deposited, 
the examiner, in addition to ascertaining 
whether the nature of the invention has been 
fairly described, and the application, specifi- 
tion and drawings have been prepared in the 
prescribed manner (as now required), shall 
make a further investigation to ascertain 
whether the invention claimed has _ been 
wholly or in part claimed by any previously 
published application within fifty years past. 
If he finds that there has been a prior claim 
within the period named, the applicant must 
be. informed, and he will then be permitted 
to file an amended specification. The Comp- 
troller, if satisfied as to the amendment or 
disclaimer, will seal the patent or not as he 
deems proper. From his decision an appeal 
will be, as at present, to the Solicitor Gen- 
eral. The new act specifically provides that 
the investigations and reports required by 
the act shall not be held in any way to guar- 
antee the validity of any patent. It is further 
and most usefully provided that an invention 
shall not be deemed to have been anticipated 
by reason only of its publication in a specifi- 
cation deposited in any Patent Office pursu- 
ant to an application made not less than fifty 
years before the new application. These 
provisions, which will come into effect on 
the first of January next, will be of consid- 
erable interest to American inventors. 

STUFF Gown. 


The Green Bag. 


Communications in regard to the contents of the Magazine should be addressed to the Editor, 
Tuos. TILESTON BALDWIN, 1038 Exchange Building, Boston, Mass. 

The Editor will be glad to receive contributions of 
articles of moderate length upon subjects of in- 
terest to the profession ; also anything in the 
way of legal antiquities or curiosities, facetia, 
anecdotes, etc. 

THE GREEN’ Bac has not joined the ranks of 
the soubrettes or of the prime donne, whose 
jewels are stolen, periodically, when the press- 
agent is hard-pushed for an advertising sensa- 
tion ; but this felonious mode of advertising has 
been forced upon us. Shortly before the time 
for going to press a “thief in the night,” enter- 
ing the establishment of our printer, became 
enamored of a large number, to wit, fifty-three 
galleys from which the present and future num- 
bers of THE GREEN Bac were in part to be 
printed, and converted said galleys to his own 
use. We feel flattered that, even under such un- 
toward circumstances, GREEN Bac articles should 
prove of compelling interest to a gentleman pre- 
sumably not of the legal profession ; but such a 
taking method of expressing appreciation has 
its disadvantages, in that it compels resetting of 
matter, with consequent delay in publication. 
It is to‘explain this short delay, rather than for 

the purpose of advertisement, that we mention | 

the loss of our jewels. 

Wuart principles should guide the Court in 
pronouncing a criminal sentence? When award- 
ing punishment, do criminal judges act on settled 
principles, and is uniformity in this respect de- 
sirable? An important first-step toward solving 
these problems was taken in Paris in 1g00 by 
the International Congress of Comparative Law, 
which appointed a Commission to investigate 
the question. A recent circular of this Com- 
mission, after noting the three district theories 
of punishment — the expiatory, the deterrent, 
and the reformatory, — and mentioning certain 
circumstances which are sometimes taken into 
consideration in determining sentence, asks for 
answers to the following suggestive questions : 

QUESTION 1. Does the judge, in fact, when 
awarding a sentence, act on any theory as to 
the object of punishment, such as retribution, 
expiation, example to others, reformation of the 
offender, or the like? Is it desirable that he 
should do so? 

QUESTION 2. Does the judge, in fact, keep 
the same end in view in the case of all offences, 
or does he make a distinction between one of- 
fence and another? Is it desirable that he 
should do so? 

QuEsTION 3. When he makes a distinction 
between one offence and another, on what is 
the distinction based? On the character of the 
punishable act looked at from a moral stand- 
point? On the greater or less frequency of the 
crime in the district? On the greater or less 
risk to which it exposes the community, or on 
any, and what, other circumstances ? 

QueEsTION 4. When he makes a distinction 
between one individual and another, does the 
distinction turn on the offender’s antecedents as 
shown by his judicial record, or on his degree of 
intelligence and education, or on any other, and 
what, circumstance? Is the age or sex of the 
offender taken into account, and if so, to what 
extent? Is it desirable that any, and which, 
of the distinctions mentioned above should be 

QueEsTION 5. In the absence of special cir- 
cumstances, does the judge award the full pen- 
alty allowed by the law, or does his normal 
sentence fall short of this? 

From a study of the answers to these questions 
the Commission hopes to discover what are the 
guiding principles of punishment at the present 
time, and what principles ought, in the opinion 
of the authorities consulted, to prevail. It would 
seem that the Commission has ground for hop- 
ing that its recommendations, which will be sub- 
mitted to the next International Congress of 
Comparative Law, will result in the framing of 
a set of practical rules “ worthy of being accepted 


The Green Bag. 

and acted on by all who take part in the ad- 
ministration of criminal justice.” 

Tue Bench has robbed THE GREEN Bac of 
an old and esteemed contributor. 
Renton, Esq., has been appointed to a judge- 
ship in Mauritius, and the press of official duties 
has made it impossible for him to continue his 
series of ‘Cases from the Old English Law Re- 
ports,” begun in the last volume. 
to congratulate Mr. .Renton on this well-deserved 
appointment, and we trust that his retirement 
from the ranks of GREEN Bac contributors is 
not permanent. ‘The series will be continued 
by Max A. Robertson, Esq., of London, whom 
we are glad to welcome as a contributor. 


LAWYER: When I was a boy my highest am- 
bition was to be a pirate. 

CLIENT: You're in luck, It isn’t every man 
who can realize the dreams of his youth. 

A BARRISTER asked Lord Mansfield when a 
certain case would be tried. 

“ Next Friday.” 

“ Will you consider, my lord, that next Fri- 
day will Good Friday ?” 

“I don’t care for that,” said Lord Mansfield, 
“the better the day, the better the deed.” 

“ Well, my Lord, if you sit on that day, you 
will be the first judge who has done business 
on that day since Pontius Pilate’s time.” 

At Caruthersville, in the southeastern part 
of Missouri, the grand jury had returned quite 
a number of indictments against parties for car- 
rying concealed weapons, and among those who 
had thus violated the law was a well-to-do saloon- 
keeper. When his case came up, the defendant 
having pleaded guilty, the judge said : 

“ Stand up, Mr. Blank.” 

The defendant did as requested, and the judge, 
somewhat severely, exclaimed : 

“ Mr. Blank, I fine you fifty dollars.” 

“ All right, Judge!” cried the saloon-keeper 
delightedly. “I’ve got it right here in my poc- 

ket,” slapping his wallet boastingly. 

“And three weeks in jail,’’ continued the 
judge. ‘ Have you got that in your pocket, Mr. 

A. Wood | 

It isa pleasure | 
| travelling in similar style, accompanied them, 


THINGs are done in a breezy way in the West. 
For instance, a Kansas lawyer prints his portrait 
in the local paper and adds this bit of philos- 
ophy: “I was born, am living, and I suppose 
will have to die. As to what I can do, bring 
me your business and try me.” 

In the mountain sections of the south, in the 
old days when the judges, on horse-back, rode 
the circuits of the courts, the members of the bar, 

and good fellowship naturally followed. It was 
usually the case that his honor, being a gentle- 
man of the old school, took his brandy and water 
with regularity and relish. To this indulgence 
at his inn would often be added the diversion of 
a modest game of poker. In Georgia, in the 
county of R , bordering on the North Caro- 
lina line, at the fall term of the court, many 
years ago, the judge who was to preside arrived at 
the town tavern on the afternoon preceding the 
day on which the court was to convene, and after 
supper a number of the lawyers, as their habit 
was, gathered at the room of the genial and 
convivial dignitary to pass the evening. As an 
accompaniment to the “apple jack,” thought- 
fully provided by the host, there was nothing 
more natural and agreeable than a friendly game 
of draw. Into the good-humored gathering, at 
the invitation of the inn-keeper, had dropped a 
couple of the well-known planters thereabouts — 
among the men of the best figure in the county — 
desiring to meet his honor and to renew ac- 
quaintance with their legal friends. A game 
was soon going, all hands joining in, and it was 
a late hour before chips were cashed and the 
jovial party dispersed. On the following morn- 
ing, after duly opening court, the judge began 
his charge to the grand jury. After giving in 
charge the most important things, his honor said: 
“Now, gentlemen of the jury, I come to 
charge you concerning the pernicious habit of 
gaming, — the vice of poker playing. I do not 
know anything about it myself,” and looking 
up from his manuscript and glancing over his 
spectacles, that hung low on his generous nose, 
he espied on the jury one of the planters who 
had been in the game with him the night pre- 
vious ; so clearing his throat he continued, — 
“that is, I don’t know much of it, but it’s a per- 
nicious practice and should be broken up.” 


Editorial Department. 201 

Jupce H. H. Trimstie, of Keokuk, Iowa, 
general manager of the St. Louis, Keokuk & 
Northwestern Railroad, is a lover of the hunt, 
and together with Judge N. M. Hubbard, of 
Cedar Rapids, passes much time on the prairies 
gunning for game. The two judges are old 
cronies, and made many trips together. 

The prairie chicken season in Iowa opened 
September 1, but Judge Trimble decided that as 
the first of the month came on Sunday he 
had the right to hunt chickens the last day of 
August. So he and Judge Hubbard started out 
the day before the season opened, and, going 
into northern Iowa, had a good day’s sport. 

When the day’s hunt was over, they had a 
half-dozen chickens to their credit, and with 
these went to the little hotel at Ledyard, where 
they prepared to devour their prey. While they 
were quietly eating at the table, a stranger en- 
tered and sat down. 

“ Been out chicken-hunting ?””’ asked the man, 
as he gazed at Judge Trimble’s plate. 

“ Yes,” said the judge, who is a sociable sort 
of a fellow, as he took another mouthful of the 
tender fowl. 

“Much luck?” again asked the man. 

“ Pretty: good,” replied the judge. “I shot 
four chickens, and Judge Hubbard got two. 
We ’re having some of ’em now.” 

The stranger continued the conversation for a 
time, and then said: 

“T’m Deputy Game Warden Reilly ; please 
consider yourselves under arrest.” 

And there was nothing for the two judges to 
do but submit. The game warden insisted on 
taking them before the court at Algona, thirty 
miles away, and the judges were compelled 
to go. 

Now, the road entering Algona is the North- 
western, of which Judge Hubbard is a prominent 
official. So the judge hunted up the conductor 
when the train arrived, and told. him not to 
accept the judges’ annuals, but to compel the 
warden to pay their full fares to Algona. The 
warden was notified that he must buy tickets for 
his prisoners. 

As he told the story afterwards, Judge Trimble 

“J instructed the conductor that in case the 
game warden did not pay our fares or furnish 
tickets, he must put us off on the prairies. That 


is where we had intended to be all the time, and 
of course that is where we would have preferred 
to be put off.” 

But the game warden was game, bought the 
tickets, and paid the judges’ fares to Algona, 
although both had annuals, and took them be- 
fore a magistrate, where Judge Trimble was 
fined $30, and Judge Hubbard escaped, because 
he argued the legal proposition so learnedly that 
the judge was loath to fine him. 

Two Irishmen passing through a graveyard 
came to astone. One of them stooped down 
to read the inscription, which was ‘“ Here lieth 
a lawyer and an honest man.” 

“ By gorry,” said the other, “ how came they 
to put two men in one grave?” 

WE have it on the authority of Zhe Lyre that 
the following is a “true copy” of an Irish will: 
‘In the name of God, amen! I, Timothy Del- 
ona of Barrydownderry, in the county of Clare, 
farmer ; being sick and wake in my legs, but 
of sound head and warm heart; Glory be to 
God !— do make the first and last will, the ould 
and new testament; first, I give my soul to God 
when it pleases him to take it; sure, no thanks 
to me, for I can’t help it then; and my body 
buried in the ground at Barrydownderry chapel, 
where all my kith and kin have gone before me, 
an’ those that live after, belonging to me, are 
buried, pace to their ashes, and may the sod 
rest lightly over their bones. 

“Bury me near my grandfather, Felix O’Fla- 
herty, betwixt and between him and my father 
and mother, who lie separate altogether, at the 
other side of the chapel yard. I lave the bit of 
ground — 1o.acres —rale old Irish acres, to me 
eldest son, Tim, after the death of his mother, 
if she survives him, My daughter, Mary, and 
her husband, Paddy O’Ragan, are to get the 
white pig. Teddy, my second boy, that was 
killed in the war of Amerikay, might have had 
his pick of the poultry, but as he is gone I'll 
lave them to his wife, who died a wake before 
him; I bequeath to all mankind fresh air of 
heaven, all the fishes of the sea they can take, 
and all the birds of the air they can shoot; I 
lave to them the sun, moon and stars. I lave 
to Peter Rafferty a pint of ful-poteen I can’t 
finish, and may God be merciful to him!” 


The Green Bag. 

Ir seems that in Philadelphia, as well as in 
Boston, there is some difficulty in finding a 
satisfactory test of drunkenness. For example 
(according to the Baltimore Sun), Judge Auden- 
ried, of the License Court, asked a witness — an 
agent of the Law and Order Society — what 
was his definition of “ drunk.” 

“¢T regard a man as. drunk when he is visibly 
affected by liquor,’ was the answer. 

“*VYes; but we would like you to be more 
specific,’ said the court. 

“Well, I take it from a man’s conduct, the 
general appearance of his face; but I do not 
necessarily mean that he shall stagger. Others 
have a habit of leaning against the rail around 
the bar.’ 

“*T notice that while giving your testimony 
you yourself have been leaning on the bench. 
You wouldn’t have us regard that as being an 
evidence of intoxication on your part, would 
you?’ inquired Judge Audenried. 

“ The agent colored up and answered that he 
would hardly like the court to consider the 
question in that light. 

‘Judge Ralston said he understood that saloon 
bars were supplied with rails for the purpose of 
leaning against.” 

For our own part we prefer to take Judge 
Ralston’s view of the matter, rather than the 
agent’s. If the latter’s view should prevail, it 
would seem that the bar-rail must be put in the 
same class with the deadly “ third-rail.” 

A LAWYER who studied in Mr. Lincoln’s office 
tells a story illustrative of his love of justice. 
After listening one day for some time to a 
client’s statement of his case, Lincoln, who had 
been staring at the ceiling, suddenly swung 
around in his chair, and said: 

“Well, you have a pretty good case in techni- 
cal law, but a pretty bad one in equity and jus- 
tice. You ‘ll have to get some other fellow to 
win this case for you. I could n’t doit. All the 
time, while talking to that jury, I ’d be thinking : 
‘Lincoln, you ’re a liar,’ and I believe I should 
forget myself and say it out loud.” 

Tue GREEN Bac is indebted to an English 
correspondent for the following interesting note 
concerning judges as plaintiffs or defendants : 

Early in the seventies an action was brought 

by the “ Inhabitants of Surrey ” against the “In- 
habitants of Middlesex” for the non-repair of 
Walton Bridge. The case was set down for 
trial at Maidstone Assizes. The solicitor-general 
(who in those days was allowed to have a private 
practice), Mr. Murphy, Q. C., and other well- 
known counsel were briefed for the plaintiffs. 
The solicitor-general’s fee, it is stated, was three 
hundred guineas. 

On the judge taking his seat a junior counsel, 
in the absence of both his leaders, made an 
application to his Lordship, pointing out that it 
was impossible for his Lordship to try the case, 
which was in the nature of an indictment, the 
inhabitants of the county of Surrey being plain- 
tiffs and the inhabitants of the county of Mid- 
dlesex being defendants, because he (the counsel) 
understood his Lordship was an inhabitant of 
Middlesex and therefore a defendant. The 
Lord Chief Justice (Coleridge) agreed that that 
was so. ‘ But,” said his lordship, “‘what strikes 
me as a difficult problem to solve is that the 
whole of my learned brothers must be, as in- 
habitants of one county or another, plaintiffs 
or defendants. However, sufficient for the day 
is, etc.; you must of course go elsewhere.” 

In 1877 it was found necessary to pass an 
act called Judicial Proceeding (Rating), to 
enable this case to be tried. The following is 
a copy of the first section : 

1. No judge shall be incapable of acting in 
his judicial office in any proceeding, by reason 
of his being, as one of several ratepayers, or as 
one of any other class of persons, liable, in 
common with others, to contribute to or to bene- 
fit by any rate which may be increased, dimin- 
ished or in any way affected with such proceed- 


AFTER hearing evidence in an assault case 
between man and wife, in which the wife had 
had a deal of provocation, the magistrate turn- 
ing to the husband, remarked: “ My good man, 
I really cannot do anything in this case.” 

“But she has cut a piece of my ear off, sir.” 

“Well,” said the magistrate, “I will bind her 
over to keep the peace.” 

“You can’t,” shouted the husband; “she’s 
thrown it away.” — Zid-Bits. 

London has 5,272 barristers and solicitors. 

Editorial Department. 



JosePH P. BRADLEY, Associate Justice of the 
Supreme Court of the United States. Edited 
and compiled by his son, Charles Bradley. 
1g01. Newark, N.J.: L. J. Hardham. Cloth. 
(xii + 435 PP-)- 

The most. interesting part of the present 
volume is the thirty pages dealing with the 
Legal Tender cases. After quoting at length a 
letter of Senator Hoar, dated December 7, 1896, 
there is given, now for the first time in print, a 
statement, signed by a majority of the Court at 
the time, of facts relating to the re-argument 
of the Legal Tender cases. Senator Hoar, it 
will be recalled, showed by a comparison of the 
dates on which the first Legal Tender case, 
Hepburn v. Griswold, was considered and later 
agreed to in conference, and on which, after- 
wards, the decision was announced, with the 
dates on which the nominations of Secretary 
Stanton and Judge Hoar and of Judges Strong 
and Bradley were made, that the charge of pack- 
ing the Court was unfounded, unless, indeed, three 
things could be proved which have not been 
proven — that the views of the Justices in their 
first conference on the case had leaked out, that 
these views had become known to the President 
and his advisers, and that in consequence of 
such knowledge the nominations of Justices 
Strong and Bradley were made, and would not 
have been made but for that. 

The “ Statement,” signed by Justices Swayne, 
Miller, Davis, Strong and Bradley, is in answer 
to a paper filed —but afterwards withdrawn — by 
the Chief Justice, in behalf of himself and Jus- 
tices Nelson, Clifford and Field, stating the 
reasons why they dissented from the order of 
Court involving a re-argument of the legal 
tender question. This dissent was based on a 
supposed agreement of the Court and of counsel 
that all of the cases in which the legal tender 

question was involved should abide the decision | 
in Hepburn v. Griswold. The “ Statement” of | 

the majority is a vigorous denial that there was 
any such agreement, and charges that the paper 
of the Chief Justice “ invades the sanctity of the 
conference room ”’ and gives a view of the ques- 
tion at variance with the records of the Court. 
The original draft — also printed here — of the 

“Statement” contained a severe arraignment of 
the change by Mr. Justice Grier of his vote on 
the Hepburn case, but this was toned down in 
the final form. 

The paper filed by the Chief Justice was 
withdrawn from the files of the Court, and for 
that reason the “ Statement” in answer to it was 
never filed. This latter document was preserved, 
however, by Mr. Justice Miller by whom it was 
prepared, and on his death came into the posses- 
sion of Mr. Justice Bradley, who, on his death, 
consigned it to the keeping of his son with the 
injunction, in which Mr. Justice Strong, the sur- 
viving signer of the “Statement” concurred, 
that it should not be printed “as long as any 
justice who was on the bench at that time was 
still living. The recent death of Mr. Justice 
Field released this obligation, and thus now, for 
the first time, there is a clear understanding of 
what is, in some respects, the most unfortunate 
incident in the history of the Court. But now 
that this secret history has come to light, we 
cannot but express our admiration for the 
courage of Justices Strong and Bradley in with- 
holding this publication, even though by such 
action they were: subjected for years to the un- 
just attacks and the most bitter abuse. And 
when we consider the charge of a like nature, 
but equally unfounded, made against Mr. Justice 
Bradley in connection with the Electoral Com- 
mission, where his was the deciding vote, we 
cannot but feel deep regret that his judicial 
career brought to him so much undeserved 

The larger part of the present volume is taken 
up with letters, short essays and studies, which 
are interesting as showing the strong personality 
and active mind of the writer, and the wide 
range of questions which claimed his attention. 
The matters on which he wrote and spoke were 
sometimes political, historical, legal or philoso- 
phical; sometimes scientific or mathematical ; 
sometimes religious. ‘ Much, probably three- 
quarters, of the time occupied in studies distinct 
from those incident to the prosecution of his pro- 
fession, was devoted,” says his son, to “ mathe- 
matics, his favorite study.’ A result of this love 
and study of mathematics was the preéminence 
of Mr. Justice Bradley in complicated patent liti- 
gation which came before the Supreme court 
while he was on the Bench; although probably 


The Green Bag. 

his most important judicial work was in develop- 
ing the law relating to interstate commerce. 
The volume contains, also, a short biography 
by his son, and two able legal studies, — “ The 
Judicial Record of the late Mr. Justice Bradley,” 
by William Draper Lewis, the associate editor of 

the American Law Register and Review, and | 

his “ Dissenting Opinions ” — among which was 
one in the Slaughter House cases — by the late 
A. Q. Keasby. 

TIVE LkGISLATION. Edited by John Mac- 
donell, C.B., LL.D., and Edward Manson. 
New Series, No. VIII. December, 1gor1. 
The frontispiece of this number is an excel- 

lent photogravure portrait of the Hon. J. H. 
Choate, while the leading article is a short, but 
appreciative, biographical notice of the Ameri- 
can Ambassador, by R. Newton Crane. Sir 
Frederick Pollock and Sir Dennis Fitzpatrick 
contribute the second article on their respective 
subjects, ‘The History of the Law of Nature” 
and “ Non-Christian Marriage.” G. G. Philli- 
more gives an interesting and— in view of 
recent occurrences in China and elsewhere — 
timely study of “ Booty of War.” 

Bearing on an irternational question of a 
more pacific nature is Wallwyn P. B. Shep- 
heard’s paper on “ The Most Favored Nation 
Article,” which sums up the effect of such a 
clause as follows : 

“ The interpretation that both treaty Powers 
retain their liberty, notwithstanding this article, 
to adopt measures necessary to protect their 
own subjects or citizens, gives as much effect as 
it seems possible to give to this treaty engage- 
ment. Such reserved power and liberty enable, 
if necessary, either treaty Power to accord dif- 
ferent treatment as between the other treaty 
Power and third Powers; but such variation 

being consequent upon acts within the volition | 

of the Power objecting, seems to be no violation | 

of the most favored nation engagement, on the 
principle of volenti non fit injuria.” 

A third or more of this number is given over 
to the “ Review of the Legislation of the British 
Empire in rgo00,”—as usual with these “ Re- 

views,”’ a valuable compilation by several hands, | 
We have space po enumerate only a few of the 
interesting items which a rather hasty examina- 

tion disclosed; for instance, Tasmania alone 
passed legislation regulating the speed of auto- 
mobiles, and this same colony prescribed penal- 
ties in the case of any person under thirteen 
years of age who smokes tobacco in any form in 
a public place, and of the tobacconist who sup- 
plies such person with the weed; in the Straits 
Settlements, owners of jinrikishas must be pho- 
tographed for purposes of identification ; a Gold 
Coast mining ordinance provides a fine “if any 
chief or other person shall declare or represent 
any land effected by any concession,” etc.,.. . 
“to be fetish land”; Trinidad and Tobago de- 
fine the term “ corporal punishment” to include, 
in the case of female offenders, having the hair 
cut short; New Zealand allows marriage with a 
‘deceased husband’s brother ’” —a variation of 
a familiar theme ; Antigua, with rare regard for 
the interests of the patient, sets a fee of one shil- 
ling for successful vaccination; Tasmania for- 
bids the hunting of the opossum, which looks like 
a form of cruelty to the negro ; and Mr. Manson, 
in noting legislation as to voting machines, in 
Ontario, remarks with quiet humor that “this 
has nothing to do with political organization.” 

WILLs ; with an Appendix of Forms. A Book 
of Massachusetts Law. By George F. Tucker. 
Second edition. Boston: George B. Reed. 
1902. Law sheep: $3.50. (liii + 382 pp.) 
The first edition of this excellent manual was 

published eighteen years ago, and made for itself 

at once a place on every Massachusetts lawyer’s 
shelves beside those indispensable volumes, 

Crocker’s “ Notes” and “ Common Forms” and 

Smith’s “ Probate Law.” Since that time many 

new points have arisen, and are included in the 

present edition ; and the number of cases cited 
is doubled. The forms given in the appendix 
are of very practical value to the practising 
lawyer. Indeed, this volume, while primarily 
based on Massachusetts statutes and decisions, 
is by no means limited to use in that Common- 
wealth, for with the checking of such knowledge 
as every lawyer naturally has of local statutes 
and decisions, this manual can be used with 
advantage by the profession generally. The 

Index is well done; and all in all Mr. Tucker 

has given us an excellent and convenient