imprisonment with hard labor, or for a period ex- himself, and he regarded it as a most flagrant atceeding twelve months. During the subsistence of tempt to rob another person of his iterary brains. his imprisonment, of course, Earl Russell cannot vote, as, unlike Sir Boyle Roche's famous bird, he cannot be in two places at once; but if the practice of allowing proxies still obtained, there would have been no legal objection to Lord Russell giving his

THE HUMOROUS SIDE OF THE LAW.

Peter Heinz and John Pisha admitted to a Chicago

proxy to another peer and in this way exercising his justice of the peace that they had assaulted H. P.

right of voting.— Law Times.

There is small wonder, says the Newcastle Chronicle, that the crowd outside the Leeds town hall should look with amazement, mingled with admiration, at the spectacle of two of his majesty's judges, the lord chief justice and Mr. Justice Bruce, driving away from the law courts in a motor car. The judges were, however, only going for a spin, and were not en route for another assize town. Had this been the case the innovation would have been so startling as to have almost caused a scandal in judicial circles. The judicial bench is dignified and conservative, and the dignity finds expression in the method of travel. It would be hardly less of an outrage for the king to go on a bicycle to open parliament than for one of his judges to reach an assize town by any means of locomotion which is not tolerably ancient. Long after railways connected the chief towns of this country did the judges continue to travel by coach, and the railway train was not used by them until it had attained at least a decent antiquity. Walking and riding on horseback, being ancient methods of covering the ground, may be permitted; and, indeed, we believe, Mr. Justice Day has traveled by both means without bringing disrepute upon the whole judicial bench. But the motor car would never do at all.

Lamb and were fined $5 each. The defendants asserted that Lamb had slandered them. All are deaf and dumb. The court-room was filled with mute friends of the principals in the trial, but all were silent, and the justice says he would like to hear more such cases.

In Constance, Switzerland, a tailor advertised, not to get good customers, but to be warned against bad ones. To this end he published the following: “A young lady, good looking and very wealthy, wishes to meet with a gentleman of good family; view, marriage; age, no object. The lady will not object to pay the debts (amount of which should be stated) of her future husband. Inclose photo and reply to X. Z., care of this paper."

Every bachelor for miles around, who was hard up, it is said, replied. The tailor had copies made of the photographs and pasted them in a book, with the written name and addresses. Then he returned the originals with profuse apologies. He probably has as few bad debts as any tradesman in Constance.

Arkansaw Justice (to spectator who has just entered) - Huck Buckley, fine you ten dollars for contempt of court!

Buckley-Huh, 'squire! I hain't said a word

yet!

Arkansaw Justice I know it, but that thar hoss you traded to me last week has got a spavin, and this is probably the only chance I'll have to get even with you. Fork over, or go to jail! - Ex.

On a western circuit, where the judge and the State's attorney traveled, they were holding court in a town where a wave of virtue had attacked the houses was being examined as a witness against his gambling houses. A colored helper in one of these employer. The State's attorney questioned him closely as to the location and number of the gamAnswer. bling tables, with the following result: "There was just two tables, boss." Question. "No more than two?" Answer. "No, sah, 'cept in cote time. Then a table's put in the private room where you all was playing last night,”—giving a significant sweep of his hand that included both State's attorney and judge. Ex.

At Maidstone County Court, before his honor, Judge Emden, Mr. William Pratt Boorman, proprietor of the Kent Messenger and Maidstone Telegraph, sued the owners of the Paper and Pulp newspaper for infringement of copyright. The defendants took from the plaintiff's newspaper an article on "Trouble in the Hand-made Paper Trade at Maidstone," which they reproduced, with the exception of one small paragraph, in Paper and Pulp, without any acknowledgement of the source. 1ney paid £1 into court and denied all liability. It appeared during the hearing of the case that the article was specially contributed by someone interested in the trade to the plaintiff's paper, and a similar one was offered by the same author to the defendants before anything had appeared in the Kent Messenger, but they could not come to terms. The defendant's solicitor pleaded, in cross-examination, that it was customary for one paper to cut from another. İ At the assizes, says the St. James's Gazette, a man His honor in awarding the plaintiff £5 damages, was found guilty of murdering another, at Tipperwith costs on the £20 scale, said he thought the evi-ary, by striking him over the head with a blackthorn. dence afforded an example of the loose standard of The judge asked him the usual question, if he had honor which existed amongst some persons in using anything to say why sentence should not be passed the result of other people's brains. The editor of upon him. "Well, my lord," answered the prisoner the defendant's paper, added the judge, inserted the at the bar, "all I can say is, a man with such a thin article in question as though it had emanated from skull as that had no business at Tipperary fair."

The Albany Law Journal. hand while in the other he held an instru

A Monthly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, NY. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses

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ment of death, is now pretty well known to have been but a chosen agent in the hands of a band of conspirators who cherish respect neither for God or man, crack-brained agitators and degenerates nurtured in the old world and spewn upon our shores to breed their like, and plot the ruin and downfall of their benefactors.

No great crime such as that at Buffalo can

should be addressed to THE ALBANY LAW JOURNAL COMPANY.] be committed without bringing some com

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ALBANY, N. Y., OCTOBER, 1901.

Current Topics.

pensative advantages, without teaching lessons to disregard which would be almost as great a crime as was the original. Naturally, inevitably there has been much ill-considered, foolish talk and not a few ill-digested plans for the nation's succor from this impending The bullet of the assassin, Czolgosz, at danger, both on the part of newspapers and Buffalo, on the 6th of September, aimed at individuals, but out of the many plans for the heart of the nation's chief executive, came suppressing anarchy before it succeeds in like a lightning-bolt from a clear sky. It destroying the best and freest government on awoke the nation from a sense of fancied earth, surely something will come that will be security based upon our more than generous effective. First of all, will be the punishment treatment of all who come to our shores from of the assassin; then the ruthless hunting other lands. It gave startling proof that re-down and prosecution of his co-conspirators, publics no less than monarchies, democracies advisers and sympathizers and the stamping no less than despotisms, the land of the free out of anarchy wherever it shall rear its no less than the government of tyranny and hated head. That congress will act speedily oppression, will sooner or later be the victim in the direction of making any attempt upon of these indolent, conscienceless, vindictive the life of the president or those in the line. and unspeakably brutal wretches who seem to of succession to the presidency, treason, punsee nothing in industry, right living and fru- ishable by death, seems to be reasonably cergality but an opportunity for them to divide tain as one outcome of the Buffalo crime. and despoil, who see nothing in honest accu- One or two other things may be put down as mulations of wealth but organized crime; that absolutely certain: That self-protection is a in these Anarchists whom we have foolishly first law of nations as well as of individuals; permitted to enter this country for years un- that those who seek to lodge in the minds of checked, we have been nursing nests of vipers the ignorant, unfortunate and desperate, the who have now turned upon their protector notion that government is a monster to be and buried their deadly fangs in its heart. slain in its personal representative, instead of That the ruler selected by them for assassina- reformed by the intelligent, unselfish efforts tion was singularly pure and conscientious, a of the people themeselves, will not be perruler who by his high motives and earnest, mitted to remain in this country outside of God-fearing desire to do the right as he was the prisons; that this land of freedom, this permitted to see it, was singularly beloved of refuge of the oppressed and downtrodden of all the people, irrespective of party lines, as Europe, is not to be or to become an asylum few of our presidents have been since the for assassins; that those who boast openly lamented Lincoln, makes the wanton sacrifice that they are banded together for the "reof his noble life all the more despicable. moval" of all rulers in order that they may loaf and loot, will themselves be rigidly and ruthlessly" removed." That there is no right

The wretch who, under the guise of friendship, at a public reception, extended one

VOL. 63.- No. 10.

of so-called "free speech" involved in the judges of the higher courts who have received question is clearly apparent, for no one but the approval of the people in the discharge of an anarchist is likely to claim that the right their important duties. As remarked by one of free speech as guaranteed by the Constitu- of those journals, there is an almost imperative tion of the United States and of the different demand that the community shall not be States, was ever intended or will be permitted deprived of the services of wise, learned and to comprehend the right to preach destruction experienced judges who have not yet apof government and murder of government's chosen representatives.

without opposition of judicial officers whose services and character have won the respect and confidence of the profession and of the public.

proached the age at which retirement is made compulsory by the Constitution of the State. In the first judicial department the terms of office of four justices of the Supreme Court The frank and noble utterance of President will expire with the present year. Mr. Justice. Roosevelt, at the very first opportunity, to the Morgan J. O'Brien is one of the four, and it effect that it should be his aim to continue is more particularly with reference to him that absolutely unbroken the policy of President the demand is now made for the re-election McKinley for the peace and prosperity of our beloved country, has done much to restore confidence in the minds of those who had begun to harbor doubts as to the course of the new executive. It is proof that there will Of all the justices of the Supreme Court of the State of New York, none has made a be no radical change in the conduct and management of domestic affairs; that to him the deeper or more enduring impression upon the bar and the community than Judge O'Brien. country can look in perfect confidence for a careful, wise, patriotic, conservative course of That is largely accounted for by his magnetic action. In spite of what his enemies have personality. Genial, accessible, kindly, coursaid of him, it cannot be denied that Theo-teous, but always dignified and firm, the lawdore Roosevelt possesses many conspicuous yers in the first department have become his qualifications for the exalted place to which he has now been so unexpectedly called. His absolute integrity and fearlessness, his keen, clear judgment of men and measures, his implacable hatred of chicanery and dishonesty, and his remarkable literary attain

ments surely these are worth something in a man called to exercise the powers of chief executive of the nation. Throughout his remarkable rise in politics, he has constantly shown a broadening of mind and a sobering of judgment under high responsibilities, and a growing conservatism and caution that promise well for the future of the country under his guidance. He begins his arduous and exacting duties with the general confidence of his fellow citizens, a confidence which we believe his administration will fairly which we believe his administration will fairly and fully justify.

It is very gratifying to observe that the great metropolitan newspapers are continuing in the course they have pursued for some years, of insisting upon the re-election of

enthusiastic friends. His career upon the bench has been a notable one. For fourteen

years he has been an eminent judge. Elected in 1887, the first five years of his judicial life were passed at the Circuit Courts and the Special Terms of the Supreme Court. From the beginning he displayed those qualities of sound judgment, accurate learning, knowledge of affairs, unfailing common sense, tact, quick which he has become renowned. In 1892 he comprehension and absolute impartiality for was appointed by Governor Hill a justice of the General Term, and in 1895, upon the creCourt, he was made, by Governor Morton, a ation of the Appellate Division of the Supreme member of that tribunal. As an appellate judge his merit is conspicuous. He is an indefatigable worker; his opinions are those of a scholarly lawyer; they show great reasoning

power and are useful and valuable contributions to the legal literature of the State. Judge O'Brien has thoroughly earned his right to recognition and to be retained by general consent upon the court of which he is an honored and distinguished member.

occasional criminal, says that "for such the crime committed constitutes its own punishment by the remorse which it awakens."

We publish in this issue an article from ning from free pardon up to actual medical the pen of F. S. Key Smith, Esq., of the treatment." And Lombroso, speaking of the Rome (Ga.) Bar, in which, by reviewing an article of Mr. Lucius H. Perkins, of the Kansas Bar, the writer endeavors to demonstrate the fallacy of the system of punishment, either as a deterrent or a remedy for crime. We observe, from a perusal of the columns Mr. Smith, it may be remembered, contri- of "The Law," a monthly magazine published buted in the early spring of 1899, a series of at Oklahoma City, Oklahoma, vol. 1, numarticles on capital punishment to the ALBANY ber one of which lies before us, that J. Will LAW JOURNAL, which we then took occasion Farr, Jr., has been elected president and proto recommend to our readers. We do like- fessor of law in the Oklahoma College of Law. wise with this, and are glad to see that a The publisher and manager, who is given as subject of such vast importance, which has A. T. Mair, sees fit to give Mr. Farr a very hitherto been much neglected, is now receiv- nice little send-off." We more than suspect ing some little of the thought which it has Mr. Farr wrote this himself, it is so sincere deserved for centuries. It would, indeed, and truthful: "Although he is yet a young appear that mankind has given more con- man," says Mr. Farr, of Mr. Farr, "with the sideration and study to questions affecting future before him (we should imagine he property and finance than to those involving the most serious consequences, not only to society, but to so large a proportion of its members as well and upon the most vital issues. There appears to be no other one subject, excepting that of crime and criminals, which society has considered too refined or subtle to deal with in an advanced or intelligent manner. But with crime, as Mr. Smith says, upon the ground of public policy our laws punish many because it seems apparently impossible to ascertain their mental responsibility. We are pleased, therefore, to see that under the light of science more thought and study are being given to the methods of dealing with crime and criminals. Since the receipt of Mr. Smith's within published article, we have observed with pleasure the translation of a portion of an article by the Italian criminologist, Lombroso, which apThe liability of a doctor who arbitrarily repeared in the "Literary Digest" of August fuses to respond to the call of a patient, with 17th, which, as would appear from a tersely the result the patient dies, is discussed in the expressed head-note, is somewhat along the case of Hurley v. Eddenfield (59 N. E. 1058). lines of that of our author. The "Digest "The defendant in this case had been the deobserves, that "we should not speak of the treatment of crime, which is an abstract thing, but of criminals, which are very concrete." "This," it continued, "is the key-note of an article contributed by the Italian criminologist, Lombroso, to the "Revue Scientifique" (July 13th); and as criminals differ widely, the methods employed should also differ, run

would prefer not to refer to the past), he has had several years of experience (hear! hear!) and can look with pride to many young men now successfully practicing law who received their legal instruction under his tuition and guidance." We find ourselves unable to indorse all the laudatory remarks made by Mr. Farr about Mr. Farr. In fact, we deem it our duty to call the attention of the good people of Oklahoma to Mr. Farr's record as manager of diploma foundries in various cities of the country. A little investigation will convince them, we think, that things are not always what they seem, and that it is always best for one to look before one leaps. Mr. Farr has gone quite Farr from the scenes of his former labors and triumphs, but he ought to go Farr-ther. Verbum Sap.

cedent's family physician and was sent for when decedent became dangerously ill. The messenger informed the doctor of the decedent's violent sickness, tendered him his fee for his services, and told him that no other physician was procurable in time. No other patients were requiring the doctor's immediate service, and he could have gone to the re

66

lief of decedent had he been willing to do measure be substituted for "punishment" so as to make Mr. Perkins' first inquiry read “Is there any sound reason for not adopting some measure

so, but he refused without giving any reason therefor. Death ensued. Counsel contended that under the act regulating the practice of medicine, etc., physicians are bound to respond to calls for services. The court holds, however, that this is not the case, and that a physician does not hold himself out to enter into a contract with every one requiring his services in the same manner as innkeepers, common carriers, and the like.

Α STUDY OF REWARDS AS A REMEDY
FOR CRIME.

By F. S. KEY SMITH, LL. M., of the
Rome (Ga.) Bar.

"Awake! Awake! Lift up thy strength, O, Zion!"

Out of the great mass of current literature which floods the markets of the world, it is only now and then that one finds anything worth their careful thought and study. Where, therefore, such is stumbled upon a greater reason exists, because, of the fact, for not passing it hurriedly by. Lucius H. Perkins, Esq., of the Kansas Bar, recently read before the State Bar Association of that State a paper upon corporal punishment for crime which, by publication in its columns, the editors of "The American Lawyer" have given to the country at large and to those who were not fortunate enough to have heard read.

There can be little doubt of the correctness of Mr. Perkins' views or of his conclusion that corporal punishment, by chastisement in moderation, is a deterrent for crime. It is not, however, with reference to this subject that the writer of this article desires to deal, but the material bearing of Mr. Perkins' observations upon a theory of the writer's has prompted the writing hereof.

that will avail?" And is this also not the broader view?

Taking for granted this to be conceded, the writer submits that the following observations of Mr. Perkins go a long way towards establishing his theory. In the outset of his paper, Mr. Perkins asks "In the never-ending conflict between moral order and social anarchy who can count the cost of the war on crime?" Would it not, therefore, possibly be well to cease a never-ending costless conflict? Especially if the war as waged does not accomplish its end? Our author tells us, "The student of criminal anthropology is amazed at the dullness of the laws and the consequent failure of the courts to reach the root of the evil," also that, "It is worse than useless to prescribe punishment without some knowledge of the causes of crime, and of the physical, mental and moral characteristics of the criminal; hence the general failure of criminal codes, either to deter or to reform." He asserts that a system which meets out in algebraic formulæ, so much punishment for so much crime, has always failed and deserves to fail. Why then do we cling to such totally wrong methods? Mr. Perkins explains it, saying, "The great majority of legislators are innocent of any knowledge of the subjects on which they legislate." If this be true in a matter of such vital importance and interest, there can be but one conclusion, and that, their constituents are likewise as ignorant to tolerate such legislation. Is it not time, therefore, to say to ourselves, "Awake! Awake! Put on thy strength, O, Zion?"

Mr. Perkins divides criminals into six classes, political, occasional, insane, instinctive, habitual and professional. For the purposes of this article there is no occasion for more than a reference to the insane class, as the law does not hold them accountable for their crimes. All of the others, however, are in some way or another punished for every infraction of the law in which they are comprehended. This paper, therefore, is to deal with them and their crimes. Of the instinctive more will be said later, it sufficing now to observe, that, much recently has been both spoken and written upon the advisability and humanity of dealing with them as with their kindred, the insane. Indeed, in principle there would seem no good reason why both should not be treated alike, the principal argument against it being founded upon public policy lest all guilty ones, to avoid punishment, affect to have been led into the commission of their crimes through irresistible or insane impulse. That there are some such is generally in this day admitted as Mr. Perkins says, "It is now well settled that a person may be morally mad while the mental faculties exclude the ordinary acceptation of insanity." These individuals are designated by scientists, physiological abnormalities, and their disease is called moral insanity or moral May not, however, with as much truth, the word imbecility, but as I have just said for reasons of

In the course of the endeavor to state clearly this idea it will be necessary to quote at length from Mr. Perkins, for which no apology is offered, as the sole purpose of this paper is to show by his arguments that the theory herein advanced is founded upon something more than the writer's imagination. Towards the conclusion of this paper, Mr. Perkins observes, "If the punishment that is sufficient for the man of ordinary instincts, will neither reform nor protect society from a certain class of culprits, is there any sound reason for not adopting some punishment that will avail?" And again he says, "This paper will be written to no purpose if it fails to show that punishment must be leveled at the criminal and not at the crime." If there is anything in logical reasoning such propositions are too clear for argument.