THE PUBLIC CONSCIENCE A CASE BOOK IN ETHICS GEORGE CLARKE COX UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE PUBLIC CONSCIENCE SOCIAL JUDGMENTS IN STATUTE AND COMMON LAW BY GEORGE CLARKE COX WITH AN INTRODUCTION BY RICHARD C. CABOT PROFESSOR OF SOCIAL. ETHICS IN HARVARD UNIVERSITY The body of the law is the professed morality of states; and that which holds throughout generations and ages, essentially unchanged, may, without impropriety or exaggeration, be called the actual morality of states. NEW YORK HENRY HOLT AND COMPANY COPTHIQHT, 1922, BY HENRY HOLT AND COMPANY PRINTED IN THE U. 8. A. r ERRATA Page ix, line 29. Read PRESERVATION OF PROPERTY Intentional wrong— always condemned. Page X, line 34. Read also, under Taxation, The Natural Law in Property Offenses .... 261. Page xi, line 7, for "Method" read "Medicine". Page 475, line 8, for *'the State does not interfere" read "the State does interfere." Page 475, line 9, for "A man may marry" read "A man may not marry." rmtiTTBD !« Tim o. •. a. A. M. C. HOME-MAKER, FRIEND AND MATE A LOVER OF TRUTH THIS BOOK IS DEDICATED AUTHOR'S PREFACE The publication of this book, finished some time ago, has been delayed first by the War and then by my own preoccupation with other imperative duties. Its com- position, while contemplated for over ten years, was undertaken at the request of the late Edward de Cop- pet, whose interest in the scientific study of ethics was profound. He gathered around him in New York, during the winter of 1915-16, a notable group of men to make plans for the establishment of a Research Institute for the Scientific Study of Ethics. It was Mr. de Coppet's idea to endow such a research insti- tute; but his sudden and lamented death destroyed the hope that such a plan might be realized, at least in the near future. One of the men drawn into that group was my bril- liant friend. Dr. Elmer E. Southard of the Harvard Medical School, now dead; neurologist, philosopher and psycho-pathologist. Dr. Southard warmly ap- proved of studying and teaching ethics by the case method and promised his aid in providing abnormal cases. His sympathy and advice are here remembered. I am indebted to another friend, Hastings Lyon, Esq., of the New York Bar, for many suggestions and for aid in preparing a table of cases: to Professor William P. Montague of Columbia University for the vi AUTHOR'S PREFACE title to this book: to Dean Roscoe Pound of the Har- vard Law School for his suggestions and warm interest in the project and for bringing it to the attention of Dr. Richard C. Cabot: through whose persuasion the boot was finally made ready for the press. I wish to thank Professor Joseph H. Beale for the privilege of quoting from his " Cases on Criminal Law," Richard Ames, Esq., of the Harvard Law School, for permission to quote from his father's " Cases on Torts " and Professor Richard T. Ely as well as Messrs. Macmillan, for a like privilege in use of Professor Ely's studies on " Property and Contract." I am grateful to the authorities of Columbia Uni- versity for the free use of their University and Law Libraries where much of the book was written. The first chapter of this book — now considerably modified — appeared in April, 1916, in the Journal of Philosophy, Psychology and Scientific Methods. Ac- knowledgement is made to the editors of that publica- tion for permission to reprint. The idea of using the case method in the study of ethics was wholly original with me; but, after I had spent some years in this study, I discovered Professor Levy-Bruhl's work, which supports the idea strongly; and I feel proud to associate my work with his name. The recent Great War will lend strong support to certain conclusions which I have drawn ; but the cases which will be found in the years to come, when the history of that war shall have been written dispassion- ately, are not now available. AUTHOR'S PREFACE vii It is my hope that this modest first attempt at a case book in ethics will be found useful not only to students and teachers of ethics, but also to students and teachers of sociology and law — and to the general public. The world seems to me to be blindly groping for a sure foundation for its moral concepts. The old cer- tainty is gone. Men seem afraid that there may be found nothing to take its place. I believe that cer- tainty will again be attained; but that it cannot be attained without the same patient, widespread, cooper- ative laboratory method which has characterized the physical sciences. Of the imperfections and short-comings of the book, I am well aware ; but it has seemed best to put it forth with all its imperfections rather than wait longer. Many men must work on this problem before it can ever hope to be solved. The efforts of most writers on ethics have seemed to me to be bent toward edification. One cannot be truly edified until he is truly informed. A lighthouse will not be stable, in a dangerous place, until much patient work has been put where it will be lost to sight. Geo. Clarke Cox MONTCLAIR, N. J. May, 1922. CONTENTS CHAPTEE PAGE Introduction xi I. Ethics as Science and as Art 3 II. The Empirical Use of Cases 34 III. Methods 53 PART I Preservation of Life and Limb 67 Some Excerpts From History 75 Crimes Against the Person 83 I. Illegal — Always Reprobated Murder 85 Manslaughter 105 Wilful Neglect 110 II. Sometimes Reprobated, Often Not Accidental 117 Self-Defense 128 Assault and Battery 132 Assault — Self-Defense 134 Duel — Wager of Battle 141 Dueling 142 Euthanasia 145 III. Legal: But Not Always Approved by the Group 146 IV. Semi-Legal 151 V. Doubtful Assassination 160 Statute and Common Law 164 Attempts to Commit Crimes or Misdemeanors 166 The Natural Law of Killing 171 PART II International Wrong Always Condemned I. Directly Affecting the Person Burglary 179 X CONTENTS PAGE Robbery 185 Akson 186 LAIiCENY 192 II. Larceny Under Peculiar Conditions of Frontier Life 194 III. Frauds, Victims Deceived Swindling 196 Insurance Fraud 197 Cheating 198 False Pretenses 199 rV. Appropriation by Compulsion — Not Physical Extortion 201 Usury 202 Blackmail 202 V. Breaches of Trust Embezzlement 205 Bankruptcy — Dishonest 208 Fraudulent Entry 209 VI. Attack Upon Rights op Property in Personality Libel and Slander 210 Bigamy 217 VII. RioHTs as Between Two Parties Ownership of Aerolite 219 Lien 220 Trespass 230 Caveat Emptor — Let the Buyer Beware 235 Eminent Domain 236 Contract 237 Nuisance 240 Negligent Destruction 250 Property — Accidental or Negligent Destruc- tion 258 Recovery for Negligence 259 Taxation 260 PART III Preservation of Secltrtty I. Security in Life and Limb Attack on Courts 270 Authority of the State Courts 271 Quarantine 273 Treason 274 Mutiny 282 CONTENTS xi PAGE False Imprisonment 283 Unfair Trials 284 Classes of Cases Which Have to do With Neg- lect on the Part of Employers, etc 285 Food Adulteration 293 Food Supply 295 Health — Practising Method 297 Nuisance — Danger to Life 298 Public Safety — Explosives 299 Carrying Concealed Weapons 300 II. Security in Preservation of Property Counterfeiting 304 False Entry 306 Interference With Mails 307 Blue Sky Laws 309 Miscellaneous — (6) Rebating 311 Conspiracy in Business 312 Strikes and Picketing 314 Inventions, Patents, etc 318 Personal — (c) Adultery 320 Seduction 322 Reputation — (d) Libel 323 Libel 325 Libel — or Near Libel 326 III. Public Order (Decency) 327 Decency 332 Inciting to Murder and Rebellion 333 Decency 334 Sunday Laws 337 Selling Liquor 342 Neglect of Education 343 Public Order and Peace 344 Offence Against the Common Weal 347 The Natural Law of Offences Against Security 349 PART IV Preservation of Liberty Provisions of the Constitution of the United States With Respect to Liberty 357 Definition of Liberty 361 Public Expressions Regarding Liberty From Va- rious Sources 362 xii CONTENTS PAGE I. Interference With Bodily Freedom Slavery 364 Peonage 366 II. Interference With Freedom of Movement (a) False Imprisonment 371 Habeas Corpus 378 Passports and Registration of Strangers 379 Freedom of Movement 380 Right of Assembly 381 III. Interference With Freedom of Action. — Police Regulations Police Power — Licenses 386 Equal Protection — Liquor License 390 Police Regulations (2) Labor Unions 393 Police Power in General 400 Trust Regulations — Monopoly in Restraint of Trade 404 Conspiracy — Monopoly 408 Hours op Labor 411 Blacklisting 416 Contract and Blacklisting 420 Restraint of Trade 427 Limits to Property 431 Franchises 432 Eminent Domain 437 Public House 441 Contract ("Labor Unions) 443 Property Rights in Means op Livelihood 451 Liberty — Trade 452 IV. Inter}- erence With Freedom in Personality Suffrage 455 Liberty in Family Relations 462 Association 465 Speech — Birth Control 468 Miscellaneous 469 The Natural Law of Liberty 470 Index of Cases 481 INTRODUCTION I believe that Mr. Cox has written an epoch-mak- ing book, which deserves to alter the tone and method of ethical teaching. My reasons for this faith are: 1. That the idea is essentially new (in this field). 2. That it has come to dominate the teaching of law, medicine and other studies not fundamentally different from ethics in their aim. 3. That it has signal advantages in the field of ethical teaching. I cannot name a single text book of ethics used today which is based on the case method. Books on casuis- try, have a somewhat different aim. They give us answers to the question, " What should one do or ad- vise? " in various imaginary situations presenting moral problems. They do not (so far as I know) offer fragments of real history and ask us independently to analyse them. They lack the flavor of actuality and the stimulus of a call to action. Illustrations, I imagine, every teacher of ethics and every book on ethics provides. But cases are more than illustrations, for the student and not the teacher decides what the case illustrates. The teacher's illus- trations belong to him and obey his ideas. But ethical xiv INTRODUCTION cases, such as this book supplies, are nobody's property and often manifest in class discussion their own inde- pendent vitality. The case method which Mr. Cox is (so far as I know) the first to employ in ethical teaching, has been used in the Harvard Law School since 1870 and at the Harvard Medical School since 1894. It is used exten- sively in the Harvard School of Business Administra- tion and to some extent in the teaching of logic (Dr. Sheffer) and of economics. It is the method of ex- perience, for it seeks to bring the student face to face with concrete experiences from which somebody has already learned something in the school of life. Mr. Cox himself used it in his ethical teaching at Dart- mouth College and owing to his kindness I have been able to use some of his unpublished cases in my own work with Harvard undergraduates. I am confident that it is at least as valuable in ethics as it is in law and medicine, sharing with them certain obvious ad- vantages and possessing also its own peculiar merits for ethics. Let me illustrate: (a) It keeps a large class of students busy and inter- ested. A good lecturer can keep several hundred inter- ested but not busy. They are too passive. The lecturer does most of the work and gets most of the profit. If he throws out questions into the class, the advantage is chiefly for the few who answer, rarely for the majority who are silent. With a small class one can keep everyone busy in discussion. But with a large class — one hundred or more — this is almost INTRODUCTION xv impossible. In the laboratory where each student has his own specimen or experiment to attend to, many are busy at once, but many teachers are needed for supervision if the class is large. Case teaching gives each student his own specimen (a legal, medical, economic, or ethical problem) on a sheet of paper and demands that he analyse it, experi- ment with it and render judgments upon it in answer to the teacher's questions. Each man is kept busy with something tangible and can learn something then and there by his own analysis and reasoning, even if he is not called up by the teacher. The method is almost as useful with 150 students as with 20. As a means whereby one teacher can call out continuous labor from many students at once, it is almost as good as an examination; yet it can be given once or twice a week throughout the college year. (6) The teacher and the class face together a con- crete reality. The teacher cannot entirely control the case as he controls his own illustrations during a lec- ture. A vividly written case may rear, kick and run away. Quite unexpected interpretations or problems are sometimes discovered by the students who then quiz the teacher as he more often quizzes them. All this adds to the interest and vitality of the hour. The teacher is not handing out all the wisdom nor himself bearing all the burdens of the exercise. Sometimes the case almost teaches itself, — an ideal result. The student attains a real experience — something that takes root in memory — whether the teacher's inter- xvi INTRODUCTION pretation seems profitable or not. He studies with his class as well as for them. They must observe and reflect then and there. His place is to egg them to this labor and to suggest useful tools. (c) For at first the student may be puzzled how to attack the situations presented. He can be helped to pick them to pieces with the tools of analysis and then to reconstruct them in terms of a theory or solution. " Boil down and restate, " " Enumerate the dramatis personce, " " Propose alternative solutions, " " Drag up to consciousness the principles and the data taken for granted in your judgment, " " Show up the links in your chain of reasoning. " Such well worn tools as these come to be used almost instinctively when the student has been led to apply them again and again and to see with pleasure how well they work on all sorts of cases. Observation, reasoning and decision, — that is all there is to law, medicine, geology, economics, ethics or theology, and what we want is to see the student gain sldll and sagacity by the actual use of these tools upon the raw materials of experience. By the case method we can actually see that he does it and not merely hope that he will do it in his room or in future cramming. {d) By keeping back his own opinion and any existing decisions by others until the students have all evolved and recorded theirs, the teacher can add some- thing of the " hide and seek motive " to the interest of INTRODUCTION xvii the case itself. In law we can announce after the dis- cussion the judge's or the jury's decision; in medicine, we have the revelation of the autopsy. In ethics we have nothing so cogent and decisive. But when legal cases are used, as in this book, one has at least the verdict of public opinion as interpreted by judge and jury. Moreover, the students are almost always in- terested to know in the end what the teacher thinks, — even if they disagree. Thus one works towards a climax, as one does in a novel or a detective story, and there is competition in the solutions or the predictions offered by all who take part. Suspense and competition are valuable adjuvants when we want students to work hard. In lecturing and in ordinary general discussion they are hard to command. In case teaching they spring up naturally. Law cases, such as make up the bulk of this book, have the advantage of a definite decision (wise or unwise) at the end of each. The corresponding dis- advantage is that they cannot cover the whole ground of ethics. Many poignant ethical problems never get into court and cannot be authoritatively decided. No one is more aware of this limitation in the present book than Mr. Cox. Any collection of suitable cases is an enormous labor. Naturally he has not been able to extend his field of search in all possible direc- tions. But he has broken out the first path. It is for the rest of us, following his method, to collect other groups of cases from industry, from the adventures of family life or from the tangled experiences of medicine xTiii INTRODUCTION and of social work. Ethical cases arise on the athletic field, aboard ship, on the stock exchange, in the artist's studio, in trolley cars. Obviously no one man can follow up all these clues. Many people must collabo- rate and will be tempted, I believe, to do so, when they have read Mr. Cox's book. For he has started a fox that many can hunt, though with the signal advantage that this fox all can catch, while no damage is done to the animal! I predict that many other case books of ethics will follow this one and that in a few years we who are trying to teach ethics shall look back in wonder at our foolishness that so obvious and useful a method never occurred to us or was used by us till he suggested it. Mr. Cox has kept his own personality and his own views in the background. He gives us the cases with little of comment or interpretation. That is for each teacher and every pupil to supply in his own way and by the light of such principles as he can find. To some timid teachers this will seem a drawback. But in the long run I believe it will increase the usefulness of the book as a collection of human documents which each can interpret in his own way. In class-room use I take it the teacher will work out beforehand suggestive questions and sidelights on each case, often giving out these questions with the case as a guide and stimulus to the class. Mr. Cox's practice of asking students themselves to collect and bring to class cases more or less similar to his own seems to me admirable both for the students INTRODUCTION xix who collect them and for the wider public which these cases may later come to serve. Thus the class which uses the case method will itself be used by the case method to extend its usefulness and its variety. Richard C. Cabot Boston, Mass. May, 1922. THE PUBLIC CONSCIENCE " Doubtless, the most effectual mode of showing how the sciences of Ethics and Politics may be constituted, would be to construct them; a task, it needs scarcely be said, I am not about to undertake. But even if there were no other examples, the memorable one of Bacon would be sufficient to demonstrate, that it is sometimes both possible and useful to point out the way, though without being oneself prepared to adventure far into it." ^ " We advocate a method . . . which considers objec- tively the given social reality, studying it in the civilization in which we live, and comparing this with others which we may be able to know. In a word, we demand that one use, in so far as the character proper to social reality permits, the same method which has shown itself so fruitful in sciences which deal with physical reality. Hence, a ' psychological ' or ' moral ' study of the sentiments, how- ever interesting it may be in certain respects, has no part in the science with which we are engaged. Our directing principle is to relate facts, duly analyzed, to their constant laws, and effects duly stated, to the forces which produce them. If the instincts, needs, and sentiments, more par- ticularly the sentiments called moral, are of the number of these forces, a study of given social reality will make us acquainted with the fact, and that, too, in the only way which can be called scientific, namely, by the exact state- ment and measurement of their cfTccts." ^ " A man who thinks in a different fashion from others, even about problems which do not immediately touch upon artion and which every one can consider without passion, provokes among those others a certain uneasiness, an astonishment which is not free from ill will." ^ 1 J. S. Mill, " Lopir," Vol. II, p. 419, 10th od. 2 L. L('vy-Bruhl, " La Morale et la Science des Moeurs," p. 225. 3 Ibid., p. 249. CHAPTER I ETHICS AS SCIENCE AND AS ART Almost any undertaking may be and has been de- scribed as a science, just as almost any one may and does call himself a professor. When I propose to consider ethics as a science it is in the narrowed sense of " ordered knowledge of natural phenomena and of the relations between them." I have in mind also (a) the saying of Svante Arrhenius that "science implies measurement," (b) the practice of experimental research instituted by Francis Bacon,^ and (c) Galileo's practice of searching for the " how " rather than the " why " of things. We need no account of scientific method. All the educated world knows what it is and admires its effi- cacy. It has had its hard days in the past when its 1 It need hardly be said that the " Baconian pure induction or mere observation " has been left far behind in what we, none the less truly, term the inductive methods of modem science. Mill has warned us that " the conclusions of theory cannot be trusted, unless confirmed by observation; nor those of observation, unless they can be affiliated to theory. It is the accordance of these two kinds of evidence separately taken — the consilience of a priori reasoning and specific experience — which forms the only sufficient ground for the principles of any science so " immersed in matter," dealing with such complex and concrete phenomena, as " Ethology," for which, see below, p. 6. 3 4 THE PUBLIC CONSCIENCE devotees were not only treated as impious, but were even destroyed in various delicate ways. But why consider that that which is " the ordered knowledge of natural phenomena " can possibly be applied to ethics? There's the rub! for ethics has, heretofore, been for- bidden territory to science. Now the various natural sciences, such as physics, chemistry, geology, biology, etc., have all had their theological and metaphysical stages before they emerged into the positive stage. Every science is ipso facto positivistic and naturalistic. There is, however, a positivistic temper against which philosophers and theologians have justly protested. It is the temper of that science which does not recognize the rock whence it is hewn; for all the sciences have been gradually separated from the more inclusive if less defined disci- pline known as philosophy. The natural sciences are taught in many places today as natural philosophy, and it were well that we should always recognize the significance of this connection. Physics and chemistry, as the most exact of the natural sciences, and hence the most dogmatic, are quite apt to forget their origin and to overlook the fact that they are based upon unproved assumptions. Their deeper questions are still questions for philos- ophy. Still, one must acknowledge that, so long as they were under the tutelage of theology or meta- physics, they made little progress; and the same may be said of the more recently emancipated sciences, which, moreover, tend to split up into subordinate ETHICS AS SCIENCE AND AS ART 5 sciences. Thus general biology divides into zoology and botany, physiology, psychology, psychiatry, etc., and each of these in turn becomes more productive when it has set up a household of its own. There are problems in each of the sciences which remain philo- sophic problems — some would say, chiefly because they are unsolved. Be it so. There are many soluble problems in ethics, I believe, and it is to those that I would see men turn their attention today. II Now many writers on ethics have spoken of it as a science; but they have not treated it as such. Many have added greatly to our exact knowledge in ethical fields who yet have not submitted the entire subject of ethics to scientific method. Some recent writers have been intensely practical in their applications of ethics and franker on some biologic subjects than any one heretofore, who are yet quite unscientific in their total attitude. The greatest name which may be cited in support of this sort of enterprise is that of John Stuart Mill; but it is, of course, quite foreign to its character to claim anything on the ground of authority. We may then say, better, that the argument of Mill in the Sixth Book of his " System of Logic " has set forth in masterly fashion the reasons for according the same sort of treatment to the study of man in society as has been given to his physical nature. He says: " 2 " System of Logic," Book VI, p. 418, Vol. II, 10th ed. 6 THE PUBLIC CONSCIENCE " If there are some subjects on which the results ob- tained have finally received the unanimous assent of all who have attended to the proof, and others on which mankind have not yet been equally successful; on which the most sagacious minds have occupied themselves from the earliest date, and have never succeeded in establishing any considerable body of truths, so as to be beyond denial or doubt; it is by generalizing the methods successfully followed in the former inquiries, and adapting them to the latter, that we may hope to remove this blot on the face of science " ; and he adds that " the remaining chapters (of the ' Logic ') are an endeavor to facilitate this most desirable object." He insists that there is or there may be a science of human nature. " Any facts are fitted to be a subject of science which follow one an- other according to constant laws"; and he finds that the laws of the formation of character are the principal object of scientific inquiry into human nature, these being deduced from the general laws of mind. " The laws of mind ^ . . . compose the universal or abstract portion of the philosophy of human nature; and all the truths of common experience, constituting a prac- tical knowledge of mankind, must, to the extent to which they are truths, be results or cansequences of these." Mill's " Science of Ethology " is a science of char- acter and of its formation — it corresponds to the art of education; and it will be evident from my strict 3 Ibid., p. 448. ETHICS AS SCIENCE AND AS ART 7 separation of the science of ethics from the art of ethics why, in spite of his authority and in spite of his good will toward such an enterprise as this, it is not Mill who has most clearly formulated the method of procedure for a science of ethics. The only writer, whom I know, who has proposed a strictly scientific programme for ethics — if we except Comte on account of his general attitude — is, signifi- cantly enough, L. Levy-Bruhl.* In his book " La Morale et la Science des Moeurs," ^ he proposes a plan of study to which I can give almost unqualified adhe- sion ; though I would supplement it in significant ways. Durkheim ® is a kindred spirit. The work of these two brilliant and honest minds has been strangely overlooked in English-speaking circles. Nothing more significant for ethics since the days of Jeremy Bentham and the Mills has been written than the work of Levy-Bruhl. It is a complete programme for ethical science, a work which has gone into five editions in France; yet it is practically un- known and certainly untaught in this country. There is hardly a mention of Levy-Bruhl and Durkheim in contemporary ethical literature in spite of their great influence in Europe. In the International Journal of Ethics, during the entire period of its existence, I can * The biographer of Comte. 5 Translation by Elizabeth Lee. London, 1915. 8 fimile Durkheim, " De la Division du Travail Social " and " Les Regies de la Methode Sociologique." Cf. also my article in the Journal of Philosophy, Psychologij and Scientific Methods, Vol. X, p. 337, " The Case Method in the Study and Teaching of Ethics." 8 THE PUBLIC CONSCIENCE find but two brief and utterly inadequate reviews of their works, works of recognized power but which pre- sent a totally new viewpoint in ethics. The " Ethics " of Dewey and Tufts was written as a textbook, not as a preliminary book in the scientific study of ethics. Its three sections embrace a his- torical treatment of human customs and manners/ an analysis and presentation of classic theories in rela- tion to the real problems of life, and a final section which might be called a programme for social reform. It is not avowedly inductive and naturalistic; but it is more sympathetic to the scientific attitude than any actual performance within my knowledge. None of the previously named writers apparently had the inten- tion of making experimental studies. Westermarck ^ has proposed '' to study moral con- sciousness as a fact." Sutherland ^ has written of the genesis of morality. Professor Sharp '° has done valu- able work in casuistical studies. Hobhouse " has made a comparative study of ethics. None of them, I think, has initiated a real science of ethics, though scientific method has been used by all, and all have gathered valuable material which the new science not only may, but must use. ' There is no substitute for the French word moeurs — although Professor Sumner has nearly translated it in folk ways. 8 Edw. Westermarck, " The Origin and Development of the Moral Ideas." 8 A. Sutherland, " The Origin and Growth of the Moral Instinct." '" F. C. Sharp, " A Study of the Influence of Custom on the Moral Judgment." Bulletin of the Univer/dty of Wisconsin, 1908. '1 L. T. Hobhouse, "Morals in Evolution." ETHICS AS SCIENCE AND AS ART 9 My purpose is so to separate the study of ethical material as subject of science from any conclusions which may he drawn from it, that different investi- gators may at least have a chance to know what it is that they are agreeing or disagreeing about. Ill The greatest obstacle in the way of a scientific study of ethics is its usual classification, with logic and es- thetics, as a normative science/" Now the course of the centuries has seen the produc- tion of not one, but many sciences of ethics on this basis, which is to say, no science at all. If by norma- tive we mean merely ideal, then we may ask v/hether our science does not become at once an art. The standards are somehow already at hand. All that re- mains is to apply them in the best and most practical way. But if it is a question how men come to have these various standards, these " types of ethical theory," then we have a genetic inquiry to begin with and we may, by classification, formation of hypotheses, experiment, etc., form a true science of ethical theory, as we may have a science of anything whatsoever. But, I take it, this is not the meaning of those who 12 Rashdall, "Theories of Good and Evil," Vol. II, p. 414. " Logic, esthetic, and ethic are sometimes spoken of as normative sciences, i.e., sciences which set up standards or which deal not sin&ply with what is, but with what ought to be. They determine the principles upon which we distinguish between the true and false, right and wrong, judgments about the true, the beautiful, and the good." 10 THE PUBLIC CONSCIENCE protest against ethics as a natural science and claim that it is rather normative. Their protest is against the intrusion of the naturalistic method at all. Seeing the absolutely imperative character of the standard when achieved or realized, it is conceived to have a Minerva-like directness and timelessness of source. This is deceptive. Norms are in all essential respects attained in the same fashion as natural laws. The mere fact that the norm says " ought " and the law says " does/' " does not wholly differentiate them. The natural science method is as applicable to the dis- covery of the growth of norms as it is to the discovery of laws, though it is true that the individual or group cognizant of these norms has not attained them by an inductive process. It has them, and then it attempts to justify them. It is just my contention that a dis- interested inductive study is essential to the discovery of the " how " of their acquisition. One may observe likewise that the " norms " of physics are as imperative to the intelligence as the norm of ethics is to the will. The name "science" is not trade-marked; and we may speak of Christian science and normative science 13 A careful distinction must be made and kept in mind between the law which describes how things do behave and the law which imposes the will of the lawgiver. " If ethics {la morale) has at the same time to prescribe and to legitimize its prescriptions rationally, if it has to be at the same time normative and theoretic, its imperatives will have to be laws. Thence arises the ambiguous and bastard concept of the moral law, which, on its theoretic side, approximates the law of nature, and on its normative side, law understood in the social and judicial sense." — Levy-Bruhl. ETHICS AS SCIENCE AND AS ART 11 if we wish; but these are not natural sciences, and neither of them claims to be such. The characteristic of a normative science is that its principles are postu- lated. It makes no difference whether one be an intuitionist ,a utilitarian, or an evolutionary moralist, since these, however different in other ways, are alike in their method of acquiring the initial position.^* They get it a priori every time; and it is not surpris- ing that, after the lapse of twenty-five centuries, the different theories are no nearer together than they were at their separate beginnings. Wundt,^^ recognizing " the universal applicability of the purely descriptive standpoint to all departments of human knowledge " to be unquestionable, says, " we should still take into consideration that the esti- mate of the value of facts is also itself a fact and a fact which must not be overlooked when it is there to 1* E. Durkheim, " De la division du travail social," p. 18. " II est evidemment impossible qu'on puisse jamais trouver la loi qui domine un monde aussi vaste et aussi varie, si Ton ne commence par I'observer dans toute son etendue. Est-ce ainsi que procedent les moralistes? Tout au contraire, ils croient pouvoir s'elever a cette loi superieure d'un seul bond et sans intermediare. lis com- mencent par raisonner comme si la morale etait toute entiere a creer, comme s'ils se trouvaient en presence d'une table rase sur laquelle ils peuvent a leur gre edifier leur systeme, comme s'il s'agissait de trouver, non une loi qui resume et qui explique un systeme de faits actuellement realisees, mais le principe d'une legis- lation morale a instituer de toutes pieces. A ce 'point de vue il n'y a pas a distinguer entre les ecoles. U argumentation des empiristes n'est ni moins hdtive ni moins sommaire qiie celle des rationalistes : la maxime de I'utile n'a pas ete obtenue plus que les autres a I'aide d'un methode vraiment inductive." (Italics mine.) 15 W. Wundt, " The Facts of the Moral Life." (Transl.) Page 5. Swan, Sonnenschein, and Company. London. 1897. 12 THE PUBLIC CONSCIENCE see. A necessary condition of any such estimate is the existence of human free will. By free will we mean here not a metaphysical faculty, but merely the empir- ically given capacity of choice between various ac- tions." Faites vos jeux, Messieurs! Here we are again! I suppose that we shall never rid ourselves entirely of this Old Man of the Sea; but he must be locked up, temporarily at least, if there is ever to be any progress in moral science. More of him, later, when we touch upon " The Freudian Wish " of Professor Holt. " A normative science or a science of human norms " — what can these words possibly mean? If we have our norms to begin with, there will be nothing left ex- cept application of them, and all ethics will become casuistry. But if norms are, as Wundt implies, very much like natural laws, obtained in the last analysis in the same way, one can not possibly have any objec- tion, scientific though his temper may be, to norms as such. Every man who has studied the historical ethical systems must have felt a sympathy with them all. Each has made some contribution of great worth, and the normative character of ethical standards is beyond question. The final command is " ought." That, among other things, differentiates ethics from physics; but man does not respond to the " ought " invariably. When he fails to respond, he suffers remorse — perhaps — but often no other penalty; when he tries to dis- obey the physical law he is invariably injured or de- ETHICS AS SCIENCE AND AS ART 13 stroyed. The physical law holds for all men ; the par- ticular ethical law holds only (and as just indicated) for those who accept it; others violate its provisions with impunity except where these coincide with the principles of all other ethical systems. And, in this case, we hold, in agreement with Wundt, that these provisions have the character of a natural law.^^ It would be rash and impertinent to say that all ethical speculation in the past had been fruitless ; but it might be ventured that whatever merit the ethical systems of the past have had is owed rather to the necessary reactions of men in society than to the wis- dom of ethical principles intuited by brilliant minds. One does not make a man any better by explaining hedonism to him nor any more virtuous by letting him discover that he is a natural intuitionist. And the curious fact has often been pointed out that, under Stoic and Epicurean, with quite opposite and contra- dictory theories, there were almost identical practical principles of action ; that is to say, an Epicurus or an Aurelius would have advised the young to do prac- tically identical things." The reason for this is evi- 16 " A human law states what is expected to be done, or what is usually done; but the expectation may not be realized, the custom may be broken through. Laws of nature are, in the strictest sense, inviolable, i.e., there is no meaning in talking of violating them. When a law of nature appears to be violated, this only shows that it has not been correctly stated. . . . When people speak of break- ing laws of nature, they mean breaking some maxim of health, prudence, etc., based upon, or supposed to be based upon, a knowl- edge of the way in which nature works." — D. G. Ritchie, " Natural Rights," p. 73. 1^ I do not fail to recognize that stoicism has usually been a 14 THE PUBLIC CONSCIENCE dent. Their practical rules do not grow out of their initial principles, but are rather the result oj an un- noticed inductive process carried on by all men, which has its fruits in the practical wisdom of action of the most unphilosophic. It has been suggested to me that, however similar Stoic and Epicurean may be in their practical conduct, there are none the less ethical ideals which lead men to widely different conduct, e.g. St. Augustine and Walt Whitman not only led different lives, but these lives were the legitimate outcome of their ethical philosophy. This is perfectly true. There are some consistent men in the world! And for all Emerson's contempt of it, consistency is a very great and unusual virtue. I have not meant to imply that all ethical systems were fundamentally the same and would legitimately eventuate in the same conduct. I believe that there is some ground common to them all; but this is not the place to explain why I so believe. " The normative method," if one may use such an expression, is characterized by a great deal of hyposta- tization. Such terms as " the right," " the good," " justice," " duty," " freedom," are of frequent occur- rence. Ideal standards of conduct are planned which might be possible if all beings (upon whatever meta- physical basis conceived) were themselves perfect to begin with, but which become grotesque when we social preservative, whereas the deliberate adoption of epicurean principles has usually been followed by degeneration. Offset this by the noble life of Epicurus himself. Cf. also Levy-Bruhl op. cit., pp. 35-36. ETHICS AS SCIENCE AND AS ART 15 realize that they are to be carried out by people who have imperfect bodies, faulty heredity, and a reluctant environment. No one but Kant (and a few of his sternest spiritual mates) has ever promulgated the doctrine that one must do " the good " even if all re- sults of so doing were manifestly bad; and Kant had to take refuge in an unrealizable world in order to es- cape the charge of utter unreason. The doctrine that nothing is good but the Good Will leads straight to antinomianism. Its potency is all destructive. And, even if men could agree on some one of the many historical ethical theories, how far would this advance us on our difficult way of finding out how to behave wisely in society? For this, I take it, is our ultimate object. I cannot believe that any one, no matter how wedded to a particular ethical theory, can fail to recognize this. The ultimate good may be what you will, — pleasure, self-realization, the greatest good of the greatest number, or the will of God — but in any case its practical manifestation must be in rela- tions with men in some society; and I think that students — professional students — of ethics have largely lost sight of this fact. They leave the applica- tion of their theories to clergymen and social reformers, thinking their duty to be merely to discover the correct principles upon which all should act. Doubtless this would be a sufficient task if it were performed. But it is not performed; and one of the reasons, at least, why it is not performed is that the students have not borne in mind what the ultimate object of the study 16 THE PUBLIC CONSCIENCE was. It is always possible to consider ethics a branch of esthetics, and there are those who limit ethics en- tirely to its esthetic side. It may be that they are right. In any case one would by no means exclude this possibility from his investigation. That would be to become partisan and propagandist at the start. Still there can be no protest against the assumption that ethics deals with the conduct of men in society and that the chief object of it, scientific or dogmatic, is to improve the condition of man, to make society both more rational and more happy. Now every his- torical ethical theory has contributed something of final value. A society dominated by any one of them would be dignified and worthy, — it would have a sort of completeness — but in the case of intuitional sys- tems, at least, it would certainly be static; and, if evolution and the Heracleitan tradition of constant change have taught us nothing else, they have con- vinced us that no principles which are not susceptible of constant adaptation to new conditions can possibly be of the maximum value. And so we reject the norm- ative ethical tradition en bloc as essentially unfitted to our purpose. But, aside from the difficulty of choosing between the various normative ethical traditions, and aside from the objection just made that the normative is frequently static, there remains the possibility that there may be no universal basis of ethics. The common prejudice that there must be a universal law of conduct, a position stated most unequivocally by ETHICS AS SCIENCE AND AS ART 17 Kant, is probably closely connected with the nearly universal monism which characterizes the general public even more than the philosophical world. With- out declaring for monism or pluralism, the possibility that our investigation may lead to the latter, must be foreseen; and, in that case, we may be certain that there can not be any universal rules of conduct, but that conduct will always have to be adapted to the special conditions under which men live. Moreover, there will not only, possibly, be many ethical stand- ards, but none of them will be static. Men hate change almost as much as they love it, and it is a risky business to announce beforehand that there may be no absolute abiding-place for the soles of our feet; but the quest of the scientific in ethics is not for the timid. IV One of the few reviews of Durkheim describes his work as nominally sociology, but actually ethics; and it has been an objection to the case method that it is nominally ethics, but actually sociology.^^ There is no need to be disturbed by criticisms so little inte- grated. " The way to resume is to resume," said a trenchant personality of specie payment, after the Civil War. The way to make ethics a science is to begin the work. The many controversies of the past ages have done little to teach men how to behave wisely in society. Controversy will never do this. There is a certain amount of destructive criticism in- ^^ Cf. Levy-Bruhl, op. cit., pp. 64-65. 18 THE PUBLIC CONSCIENCE separable from any new enterprise; and all criticism is deemed destructive by those criticized. But there comes a time when it may fairly be demanded of those who criticize an older order that they do something constructive. It has seemed to me that I could aid the cause of this new science, which is not mine but that of all who think with me, not by further critical statements of what ought to be done, but by doing something, however slight, in the way of exposition. Hence the greater part of this volume consists of cases of conduct so arranged that they speak for themselves ; so certified that they are not my examples merely, but the examples of all who care to use them. A certain vagueness and formlessness is inseparable from such beginnings and must be anticipated and forgiven. Nothing could have seemed a more unlikely subject for science than the weather; but meteorology is playing an increasingly important role in modern life, even in commercial life. We may laugh at the weather man but when storm signals are up we run for harbor or get in our hay as fast as possible. This science of ethics will make great use of sociology with its tremendously valuable and significant array of facts about the influence upon conduct of geography, of race, of climate, of economic conditions; with its statistical method so admirably developed. The em- bryo sciences of criminology and penology, offspring of sociology, will be especially valuable, but none of these is ethics. The nature of a science is determined, not by its material, but by its purposes. All sciences ETHICS AS SCIENCE AND AS ART 19 must study bodies; there is nothing else for them to study. Science is necessarily materialistic qua science. For it the classic rule is Hobbes's " All that exists is body; all that occurs is motion." But this materialism must not be misunderstood. It is not the final phil- osophic word, it is only a method; and this method can apply only to bodies. Ethics will study the attained results of sociology and like sciences in order to know how individual men — not their wills or per- sonalities, but the men as organisms, — act upon one another: and also how various groups — not their principles avowed or tacit, but the groups as groups — act upon one another. We want to find out what the individual Thomas Brown did to John Smith under various conditions, what France did to England, or the United States to Panama; and this in their total rela- tions, for, as has recently been said of biology, the entire organism must be considered. We want also to find out what were the judgments of the group to which they belonged, for the purposes of the judgment, through the recognized authorities of that group. Every group to which any man be- longs has already, in some fashion, formulated its definite ethical standards, whether those of church, state, municipality, or of family, race, or merely a social or political club.^^ Any infraction of these standards is an offense against the group and is pun- 13 " Morals are ' givens.' It is a fact that for the average con- sciences of our civilization, for example, certain ways of acting appear obligatory, others forbidden, still others as indifferent. There is no room for ' edicts ' determining the rules of moral prac- 20 THE PUBLIC CONSCIENCE ished, as any signal devotion to them is rewarded, in a conspicuous fashion. These judgments, for the state, are formulated in the decisions of courts; and law today is not only studied, but taught by the considera- tion of these particular judgments. At least it is so taught in the United States. Any widespread scien- tific consideration of ethics, however, must not only study cases as in the United States, but it must also study the judgments made in those countries where the Roman Law is the model rather than the Common Law of England and her dependencies. There is an evident analogy between the method of the Roman Law and the method of intuitional ethics. The case system in ethics must follow, primarily, the case sys- tem in law of this country. Its use of cases, however, will be for a quite different purpose. It will not be concerned to differentiate between first and second degree murder, between burglary and larceny, between grand and petit larceny, between arson and accidental burning, etc.; it will not deal with procedure as such tice, in the name of theory. These rules are the same sort of reality as other social facts, a reality which may not with impunity be misconstrued." — Levy-Bruhl, op. cit., p. 99. " For a normal individual, living in any society whatsoever, our own for example, there is imposed a social reality which existed before his time and which will survive him. He knows neither its origin nor its structure. Obligations, interdicts, customs, laws, even usages and conventions — he must conform to all these prescriptions under pain of divers sanctions, sometimes exterior to himself, some- times internal, more or less determined, more or less diffuse, which yet make themselves felt in the most incontestable fashion by the effects which they produce and by the intimidation which they exercise." — Ibid., p. 192. ETHICS AS SCIENCE AND AS ART 21 at all; but, taking the identical facts in each case from the law records, it will seek simply to show exactly what happened, in what the offense consisted, what the authorities said about it, how far they held the person responsible for his actions and exactly what penalty was imposed. Cases should be taken chiefly from records of higher courts in order to avoid the obvious objection that many decisions of lower courts are reversed and are never considered to be law.'° These cases will be grouped by similarity of offense and conditions; and great care will be taken to indi- cate whether a judgment was made a few centuries ago or at present, whether in England or America, whether in Massachusetts or in Arkansas, whether in a com- munity dominated by strong religious or racial feeling or not, whether during times of war, or threatened war, or in times of peace. From law cases alone much is to be learned of those principles which actually do govern men in society. But a supplementary and more difficult field is to be investigated next; more difficult, not in essence, but because, i^i it, it is harder to get at the facts. I refer to the judgments of groups whose records are not 20 The Supreme Court of the United States of America has re- versed itself — The House of Lords has probably done the same thing. There is no conceivable decision which will not conceivably be reversed. We can never be sure that we have reached the final irrevocable decision. This is simply a matter of fact, of observation. It is possible, of course, that some decisions never will be reversed, but we cannot know this. The bearing of this fact upon a theory of knowledge is quite obvious; but the fact itself needs no apology. It is theories of knowledge that need apologizing for. 22 THE PUBLIC CONSCIENCE carefully kept and are not open to the public, such as the actions of corporations, of churches, of educa- tional institutions, of families, of private clubs, and loosely knit social or political groups. These are not compelled by any law to keep accurate records. When some action of theirs is of so serious a nature that they are sued, either by civil authorities or by private persons, their records are often found to be incomplete or to have disappeared altogether. Officers prove to have faulty memories. " I don't know " is a frequent answer to questions; and the suspicion in the minds of court and general public that the man is lying has no immediate cogency because it can not be justified. Groups of all kinds, through their appointed officers, frequently give no reason at all for their actions, deny- ing the pertinence of an inquiry, or else assigning reasons evidently false, but not provably false. How shall we get at the real judgments of groups which have no formal records, or whose records are notoriously inexact or untrue? One way is to use our imaginations, — if we have any, — use the artist's method of painting what we see. This might be of value if there were any way of getting rid of the per- sonal factor. That there is no such way at present known is obvious. Robert Browning's groat poem " The Ring and the Book " is probably the greatest psychological study that has ever been made of the various judgments of different people upon the same set of facts — and it requires a reader of more than usual sympathy, patience and discernment to discover ETHICS AS SCIENCE AND AS ART 23 what it was that Browning, even, took to be the ulti- mate truth of the Pompilia tragedy. Such a method can have no scientific value at all. The search for judgments must be pursued with scrupulous care. The " heart " motive may only be studied by the psycho-analytic methods of Freud, — unsatisfactory, like Touchstone's Audrey, but the beet we have. These are diflficulties, but they are not greater than the difiiculties which anatomy, physiology, and histol- ogy have to face, and these latter have successfully surmounted many of their obstacles. Then, finally, there are the loose, floating, intangibles; like gossip, " public opinion," etc., which are chiefly valuable as clues, since they can not be presented in evidence. I have elsewhere called such a study as this, the physics of ethics.^^ The study of cases of conduct, as above outlined, must, in my judgment, form the core of any future scientific ethics. It is the proper be- ginning and logically precedes other studies contribu- tory to such a science. Such a study of cases by no means excludes the work of Professor Sharp which, while casuistical in character, is yet always dealing with actual cases referred to the tribunal of the con- science, rather than to any external authority or power. The authorities of groups generally mete out the same rewards and punishments to members, regardless of -1 I find that this expression is practically used by both Comte and Levy-Bruhl. I used it in the first article I wrote on this subject in ignorance of that fact. 24 THE PUBLIC CONSCIENCE their ethical standards or ideals. The theory is that this is always done, men are equal before the law; but in fact there are many exceptions. For example, Quakers are nearly always excused from military serv- ice or police duty while no such tenderness is shown to Presbyterians or Methodists. Next in importance comes the study of biological facts — not, necessarily, of biology as such. Suppose that one has some ideal of human conduct, such as Jesus or Socrates or the Magnanimous Man of Aris- totle or the Stoic Gentleman, and wishes, not only to conform his own life to it, but also to bring about an approximation to it on the part of society. He has been brought up under a psychology which assumes a will, separable from the body and not subject to the laws of the body. He assumes that such a will can be changed by appeals, by the force of example, by submission, turning the other cheek, etc.; and there is just enough truth in these generalizations to make them plausible. Now let such a man make a comparative study of the nervous system. He will discover that there can be no action and no thought, since thought is an action too, without a definite reaction of the nervous system to a stimulus which must always be initiated from without the organism.'' Moreover, while all human organisms are more or less alike — in fact, very much 22 More exactly, from without the nervous system. The initiated will not need to be told what I mean and I do not want to clog the argument with an explanation here. ETHICS AS SCIENCE AND AS ART 25 alike — nevertheless there are characteristic differences between them; and, given the same stimulus, there will inevitably be different reactions — including thoughts — especially if one or other of these nervous systems be abnormal.^^ He will find that, if there are certain lesions of the brain, or certain diseases of the spinal cord, there are whole ranges of action — and thought — utterly impossible to the being thus afflicted. This is not imagination ; the psychopathic wards of our hos- pitals are teeming with corroborative material. And, so far as I know, there is no remedy for any affliction with such a basis. The bearing of such facts as these upon a science of ethics, upon questions of what duty and responsi- bility are, is all too plain. But, some one may object, we have always held free from responsibility the very young, idiots, and the insane. There is nothing new in this. No, nothing essentially new, in very truth! It is strange, however, that so few have ever con- sidered its significance. It has been there to see for centuries; but now, the careful observations of re- sponses to particular situations, coupled with minute autopsies of the unfortunate, have made it plain to the meanest intelligence that there are hundreds of thousands of human beings who can by no possibility ever do what is expected of them by society. "^^ Society must give over expecting such things. 23 I am omitting, for the sake of clearness again, any reference to the influence of the total organism; but this can not be omitted in any complete account of the matter. 2* Cf. Levy-Bruhl, op dt., pp. 261, 262. 26 THE PUBLIC CONSCIENCE Compare now, with such facts as the above, the equally striking facts uncovered by sociological plus biological studies of the effects of heredity and the possibilities of eugenics. Take the hackneyed com- parisons of the Juke family with its terrible fruit of criminals, prostitutes, and degenerates to several gen- erations and the Jonathan Edwards family with its glorious fruit of scholars, publicists, philanthropists, successful and honored men of affairs, and one sees why some men are praised and exalted and others are abased. The working out of the Mendelian law is one of the most significant things in the history of biol- ogy; an apparently inexorable process is indicated. The theory that, by an appeal to the will or by the grace of God, the meanest wretch may turn to a life of righteousness and honor, vanishes in thin air. The modern comparative study of religion and of religious psychology has brought to light many facts of great importance for a science of ethics. It is quite apparent that, however different men's reactions may be to the same stimulus, yet, given a group training of one kind, it is quite as easy for men to grow up with the religious ideas of Mohammedanism, Buddhism, Christianity or Paganism, to be Presbyterians or Roman Catholics or Jews; and that the consciences of men are dominated by the traditions in which they have been bred. One finds criminals and saints among all these classes. Their consciences justify them ac- cording to the religious, ecclesiastical, political, or social traditions of their environment. ETHICS AS SCIENCE AND AS ART 27 This is the proper place for the study of casuistry — as objective as any study, under right conditions. But, again it may be objected, the " normal man " will act always and can act always, according to duty. Who is the " normal man " and how is normality to be de- termined? Some one (was it Pascal?) once shrewdly remarked, merely from observing mankind, that we were all a bit mad at times. There is more than a little truth in this statement. And the studies in re- cent years by Professor Theodore Flournoy, of Geneva, and Dr. Morton Prince, of Boston, on multiple person- alities, show how abnormality of still another kind may be found even in those whose nervous systems are not overtly diseased or defective. Enough has been said to indicate the fields in which we may look to find new material for a scientific in- vestigation of the problems of duty and of obligation ; for it must never be forgotten that ethics deals pri- marily with such problems. Ever since man has been rational at all, he has learned not to hold responsible any one who could not help himself. Even the law, with all its rigidity and apparent brutal indifi"erence to capacity, has recognized in principle, and in occa- sional practice, that some people could not be punished by the state because, in strict fact, they were not persons. And now we are learning that the number of those who are, either at times or all the time, irre- sponsible, is enormously greater than we had suspected. The discussion of what to do with them belongs under Ethics as an Art, to which we now turn. 28 THE PUBLIC CONSCIENCE The ancient controversy over the relation between the theoretical and the practical will not be here re- vived. It is a dead issue nowadays for all but a very few. All men recognize that the pursuit of " pure science " has brought in its wake untold practical blessings to the world; and most men agree that it is by the pursuit of " pure science " without ulterior commercial motive, that we are most likely to get these blessings. The dispute is settled by the dis- covery that there is no possible separation of the theo- retical and the practical except in a purely formal way. Theory always eventuates in practice, practice becomes dull and inoperative unless constantly vivified by theory; and, moreover, it always proceeds upon some theory. Scientific ethics is, potentially, applied ethics. Man- kind would be very little interested in ethics if such a study were not expected to have very definite prac- tical effect in influencing the conduct of men in society. The Robinson Crusoe- Alexander Selkirk kind of specu- lation regarding the possible morals of a solitary being who must always remain solitary, is idle and vain. It may be left safely to those who like it. Now, given the ethical theory of any people, race, state, or church; these have not done so badly in application. The " line upon line, line upon line, pre- cept upon precept, precept upon precept, here a little and there a little " plan is admirably effective — up to ETHICS AS SCIENCE AND AS ART 29 a certain point. The force of example, leading to imitation ; the power of secret orders, and the influence upon the imagination of initiations, sacraments, and decorations, the importance of taking men while they are young and plastic if one would mold them to any pattern, — these have all been well known, though not scientifically known, to the past ages. There are many practical devices for influencing men to follow any particular ethics, which grow out of the studies indicated in section four, above. There are — according to the newspapers ! — operations upon the skull which turn criminals into honest men. The thing is at least plausible. The mere investigation, by competent school physicians, of the physical condi- tion of children, with especial reference to sight, hear- ing, and the presence of adenoids, is worth much moral preachment and persuasion; and is more generally effective. The study of the hookworm disease ^^ and the campaign for its eradication by the Rock&feller Foundation have moral consequences absolutely in- calculable and all for good, if we do not criticize the accepted standards of our generation; probably they are for good on any standard. But by far the most important agency for bringing about any scheme of ethics already existing and ac- cepted is that which is revealed in Professor Edwin B. Holt's little book, " The Freudian Wish." This book 25 For a statement regarding the beneficial effects of biological study, see the presidential address of Dr. C. W. Eliot in Science, December 31, 1915. 30 THE PUBLIC CONSCIENCE contains a good deal of Freud and more of Holt, while the combination strongly suggests Avenarius. The mechanism of the will is clearly revealed. The method by which the will may be trained and modi- fied is brought into the light of day and shown to be in perfect harmony with what has been intuited by the best minds of the past. The old phrase, " As a man thinketh in his heart, so is he," is shown to have neural and muscular basis. The ancient concep- tion of the will as something entirely apart from neural paths, motor tendencies, and bodily " sets," is over- thrown. Incidentally, there is much light shed upon the problems of choice; the idea of unmotivated, i.e., uncaused choices, is discredited — not by dialectics, but by a demonstration of the method of all conation. In my judgment, it not only points out how wills may be modified, checked, or suppressed, but it " scraps " that ancient and hoary " freedom of the will " which has been called the " freedom of indifference " — free to do anything at all regardless of the ancestry, char- acter, or present situation of the person supposed to be in possession of it. Professor Holt's book is not a manual of practical ethics; but it contributes notably to our knowledge of how to make such a manual. Much is known today of those influences which disturb, impair, or destroy altogether the neural mech- anism without which there can be no training. This material has never been brought together in any form to make it available for ethical practice. To bring it together in definite fashion would be a valuable ser- ETHICS AS SCIENCE AND AS ART 31 vice. I refer to what is known of the influence of alcohol, for example, upon the system — what is known, not guessed or projected by the perfervid imaginations of prohibitionists; of the effects of vari- ous poisons and drugs; of the influence of various foods upon types of organisms; of the destroying ef- fects of fatigue, especially upon those charged with the public safety, such as railroad signalmen, locomo- tive engineers, chauffeurs, officers of steamships, and the like. We may add also the effects of under- nutrition and of anxiety as well as of over-nutrition and idleness.^*' Then there is a different kind of in- fluence upon which there is not at present much accu- rately known, which may be indicated, viz., the in- fluence of the economic struggle. If I have seemed, at times, to cross the line between science and art, it is not to be wondered at; for there is no sharp delimitation to be made. It would be perfectly proper to consider some of the subjects just mentioned under either. It is manifest that the art of ethics can be practiced only when one is sure of his ethics. The relation between ethics as science and as art has been admir- ably treated by Dewey and Tufts." The practical aids which I have mentioned or indicated will be equally useful for all ethical systems, for they simply help to carry into effect the various principles; and 26 cf 'I 'pjjg Biological Point of View in Psychology and Psy- chiatry," E. Stanley Abbot, Psychological Review, March, 1916. 27 Ch. XVI, § 4, "The Place of General Rules." Of, A. F. Shand, "The Science of Character." 32 THE PUBLIC CONSCIENCE every one of them has been foreshadowed in the prov- erbial sayings of mankind, although every proverb has, as it were, an anti-proverb which needs to be considered. VI To summarize: 1. Ethics can be and will be treated as a natural science. 2. To insist upon its normative character is to darken counsel and keep it from being studied in any fruitful way. If normative in the absolutist and aprioristic sense, it is impossible to study it as a science at all. 3. The case method, which is in social sciences the analogue of the laboratory method, must be used for the discovery of ethical laws. It is not casuistical, since it does not assume a knowledge of these laws ab initio. 4. The results already attained by many sciences, notably, biology, anthropology, and sociology, with their subordinate divisions, notably, psychiatry and economics, will be used for the purpose of discovering what man can do. 5. The influence of what may be called social heredity, through racial, national, and religious tradi- tions, will also be an object of study as well as casuistry properly so called. Since this science is but just conceived, we must remain for a long time on the basis of various tradi- tional or accepted ethical systems. To apply them ETHICS AS SCIENCE AND AS ART 33 better and make them more effective, modern knowl- edge contributes much, notably, an acquaintance with the mechanism of the will through Freud, Holt, and Avenarius. Such an undertaking as has just been outlined will necessarily meet with neglect or with opposition, criti- cism of an unfriendly character and misunderstanding. It is, at any rate, an honest attempt to find light in a region where there has been much darkness. It can not hurt any moral imperatives to have them investi- gated. If they refuse to " show their books " one will indeed suspect them. At a time such as this, when myriads of men have lost their ethical moorings in the great tidal wave which has swept over the world, it is wise to examine ourselves and our situation in life; to see if there is anything to which we can hold fast in the wreck of worlds and cultures ; to ask whether we have any ideals which can be held in the face of all the facts; and finally, to ask how we shall act so as to make those ideals incorporate. For when one has once found his ideals he is a propagandist; and he must fight with every weapon he can seize or forge to make his ideals prevail. CHAPTER II THE EMPIRICAL USE OF CASES I HAVE elsewhere^ told of the manner in which I came to experiment with the study and teaching of ethics by the Case Method. Some of those details are irrelevant here but others need to be set forth. The first thing that needs emphasis is that one does not assume that he knows what right conduct is. That is the thing to be sought. The teaching of law by the Case Method dates back about forty years. When President Eliot was introduced to explain the formal adoption of this method at the Harvard Law School, he said : ^ " Professor Langdell told me that law was a science ; I was quite prepared to believe it. He told me that the way to study a science was to go to the original sources. I knew that was true, for I had been brought up in the science of chemistry my- self; and one of the first rules of a conscientious student of science is never to take a fact or a principle out of second-hand treatises, but to go to the original memoir of the discoverer of that fact or principle. Out of these two fundamental propositions — that law is a 1 Cf. " The Case Method, in the Study and Teaching of Ethics," Journal oj Philosophy, etc. Vol. X, p. 342. 2 American Law Review, Vol. XXII, p. 18. 34 THE EMPIRICAL USE OF CASES 35 science, and that a science is to be studied in its sources — there gradually grew, first, a new method of teach- ing law; and, secondly, a reconstruction of the curriculum of the school." Professor J. C. Gray, writing later in the same Review ^ said: " The best material for a legal educa- tion would be real cases. . . . The method of study by cases is the best form of legal education that has yet been discovered. It is the best because it is most in accordance with the constitution of the human mind; because the only way to learn to do a thing is to do it. No man ever yet learned to dance or to swim by reading treatises upon saltation or natation. No man ever learned chemistry except by retort and crucible. No man ever learned mathematics without paper and pencil." It is to be observed that Professor Gray is here speaking especially of the value of the case method in teaching law. Whether the case method is used in law schools for the purpose of discovering what law is may well be doubted. It has been doubted ; and a very acute critic of this method, whether used in law or in ethics, has declared that such studies are essen- tially casuistical. It is assumed that one knows what the law is; the cases are used simply that one may find the exact place in legal teaching where each case be- longs. The case study, he claims, is not an unbiased, empirical, inductive attack upon the problem, What is the law? 3 Ibid., pp. 756 ff. 36 THE PUBLIC CONSCIENCE Doubtless much might be said for this view. In the recent decisions of Courts under the Employers' Liability and Workmen's Compensation Acts, it is plain that the procedure is largely casuistical. What- ever ingenuity is employed, is devoted to fitting the case in hand to some particular aspect or interpreta- tion of the statute. But this is inseparable from the interpretation of statute law. The statute is manda- tory. The court's business is simply to find out whether the statute applies; * and in doing this it is quite customary to revert, for comparison, to cases under the Common Law — since these have been used, invariably, in the early interpretations of statutes. II But I am not here concerned to defend the Case Method in the study of law. I am sufficiently in- debted to it for the idea of studying ethics in this manner, and, whatever the law purpose, viy purpose is clear, viz., to investigate through a study of actual behavior, what are the moral principles upon which men conduct their lives. It is a study of what is rather than a study of what ought to be. Such a declaration as this promptly damns my •* Except where the question of constitutionality arises. Cf. for this a paper by Morris R. Cohen on " Legal Theories and Social Science," read before the New York State Bar Association in January, 1915, wherein Professor Cohen shows the considerable part that judges have in the interpretation and application of statutes and also in the making of constitutional law. It is generally acknowl- edged that Chief Justice Marshall played a great part in the estab- lishment of constitutional law through his judicial opinions. THE EMPIRICAL USE OF CASES 37 project in the eyes of most ethical students, since these insist that ethics is concerned with the ought exclu- sively. But the actual condition of things must be studied first; and since legal decisions have an objec- tive character, I have chosen them as the most promis- ing material to work with. My thought has been sufficiently naive. If we can learn more about animal life by studying actual ani- mals than by reflecting in our closets on the essential nature of animals, is it not likely that, if we should study actual decisions of mankind in situations ordi- narily called moral, we should discover something really worth while about morals? We are accustomed to contrast the legal and the moral; and doubtless some things which are strictly legal most of us would consider immoral and some things of an exalted morality, by common consent, are certainly not required by the law. But the body of law is the pro jessed morality oj states; and that which holds throughout generations and ages, essen- tially unchanged, may, without impropriety or exag- geration he called the actual morality oj states.^ Then too the law cases have the important quality 5 An interesting and valuable essay might be written upon the morality of international law, comparing this latter, in the case of each nation, to the idealistic aspirations of individuals. For, as there is in strictness no international law as yet, there being no power which can enforce it, so, in strictness, there is no ethical behavior which corresponds to the vague aspirations of most men. This is found only in moral heroes, and the motive for putting svich ideals into practice is nearly always, or quite always, a motive which has to do with faith rather than knowledge. 38 THE PUBLIC CONSCIENCE that they are complete and completely objective. The cases used for this study are, almost all, decisions of higher courts. I have endeavored to give a suf- ficiently full statement of the facts upon which deci- sion is based; and always to give the decision, even if it be only the " Judgment Affirmed," " Judgment Reversed," " Case remanded for new trial," indicating which side has obtained the verdict. There is no record published of those cases which do not go beyond the Trial Courts, cases which are not appealed. And even the Federal Reporter, which takes account of cases in the Circuit Courts of the United States, usually states only the law points in- volved and indicates the decision; it does not give any statement of the case. Sometimes, very often in fact, this is unobtainable without an expenditure of time and labor quite ruinous. But in all cases which come before courts of final appeal, whether the highest courts of individual states or of the United States, there is a summary of the facts of the case, agreed upon by both sides. Wherever a jury passes upon facts, the facts remain, for purposes of the judgment, whatever the jury has found them to be. That the facts may often be, in important particulars, quite other than the jury found, does not invalidate the judgments passed upon them by courts. Lawyers are accustomed to distinguish sharply be- tween obiter dicta, things said by the Court as an explanation of its mental processes in coming to a judgment, and the judgment itself. Of course, the THE EMPIRICAL USE OF CASES 39 more important thing is the judgment. The boy whose father tells him that he is greatly pained to be compelled to punish, is more interested in the fact that the punishment comes just the same. If courts keep on condemning murderers and thieves, it 'would be little to the point if their dicta favored these classes of criminals. One of the criticisms passed upon my first proposal to study ethics through cases, was that this would be a study of opinion. It is rather a study of opinions; but opinions backed by the full " majesty of the law " and all the power of the state. When the Supreme Court of the United States dissolves the Standard Oil Trust, so called, the opinion of the world may be mani- fold in nature; but this dissolution did in fact affect the conduct of the Standard Oil Company enormously; and it does not matter in the least for our purpose whether this increased or diminished its profits. That is a matter, possibly, for sociological reform. The de- cision of the Court was an enormously important act. We lose sight of this fact because no force was neces- sary to bring about the dissolution. As in the famous case of the Pullman Car Strike, the strikers themselves declared that it was not the military force which broke up the strike, nor any other force; it was simply the power of the United States Courts; so every court decision is an act of over- whelming importance. It is a thing to be observed like a chair or a table, with as much objective signifi- cance for us as chairs and tables. Doubtless the ques- 40 THE PUBLIC CONSCIENCE tion of the purely objective character of chairs and tables is not one which is easily decided. But, as one does not take a long course in philosophy before he studies chairs, tables, amoebae, cacti, or coleoptera, so one need not solve the question of subjectivity before he makes use of social facts.^ Ill The question, where to begin, belongs properly in the next chapter where there will be a brief discussion of method ; but it belongs here too. It will be obvious that many of my cases are taken from contemporary life. In this first attempt at a Case Book, I might perhaps be forgiven for taking the easiest way even if it were not the best way; but I am convinced that to begin with the study of contemporary cases, easily verified, is scientifically sound. I would indeed have confined myself entirely to cases in our own country and, within those bounds, in the State of New York, had I been able to find the variety of cases desired, which were adjudicated and reported. But many of the principles of the common law which have now be- come incorporated in our statutes and constitutions, are exemplified only in English and early American cases. This rapid disappearance of the common law through the incorporation of its principles in statutes is a matter of very great interest.'' 8 Compare for this the work of E. Durkheim, especially " Les Regies de la Mt'thode Sociologique," Chap. II, "Regies relatives a robservation des faits sociaux," p. 20 f. 7 " There is little legislation that is original. Legislatures imi- THE EMPIRICAL USE OF CASES 41 Another reason for choosing present-day cases, and for not making a comparative study of decisions in the different states, is that the decisions of New York and Massachusetts, for example, may be taken as rep- resentative of the best decisions of the whole country, furnishing a standard which is more and more approxi- mated from year to year.^ An examination of the points of cases under the well-known captions, in Digests which cover the entire country, shows that a comparative study of the statutes of the different states of the Union would be a waste of time; but it may not be amiss to dwell for a moment on the differ- ence between statute and common law on the one hand, and the real practise of the people on the other. Professor Ehrlich,^ speaking of the variance between tate one another. One may number on his fingers the landmarks of legislation in common law jurisdictions, and copies or adaptations of them have gone round the world." — Roscoe Pound in Columbia Law Review, 5:343. 8 A layman in the law thinks that he observes a deterioration in the quality of judicial decisions since these have been confined largely to the interpretation of statutes — because statutes are now- adays so explicit. And what will be the effect upon legal education? The Case Method in law would seem to be doomed, and a study of statutory enactments with an investigation into their enforcement would take its place. 3 Professor E. Ehrlich is the distinguished investigator of what he has called the " living law " who, before the Great War, was teaching and investigating at Czernowitz in Austria-Hungary. One of the minor losses, from the ordinary point of view, a major loss from the point of view of science, caused by the Great War, is the interruption or destruction of his studies among the numerous races of that interesting district. For the quotation I use, cf. Schmoller's " Jahrbuch," 1911, p. 136. 42 THE PUBLIC CONSCIENCE the law of families in France, particularly as concerns women, and the facts, says: "Whether the law has lost control over life or perhaps never had it, whether life developed away from the law or never corresponded to the law, may be set aside; but science fulfills its task as teacher of law {Recht) very badly if it barely presents what the statute (Gesetz) says and not also what actually occurs." He seems here to be making a distinction between law as commandment of a law- giver, whether individual or legislative body, and law as a description of what invariably happens. The thing which we are looking for is law in the latter sense ; and some who agree with our desire to find this natural law will be surprised to find our constant cita- tion of cases decided under Common Law and statute law. Let there be no mistake about our position. The declaration of the conscience oj the state in its con-' stitutions and statutes is indeed explicit; hut the exposition oj its real purposes is found in the way in which these statutes and constitutions are interpreted and enforced. The most common and obvious cases of neglect or betrayal of statutes are in the neglect of numerous sumptuary laws, " Connecticut blue laws," the constitutional guarantee of manhood suffrage in states south of Mason and Dixon's line, and the like. A recent glaring case was ignoring the laws against betting on elections, which disfranchise all who should make wagers on the result. In the Presidential elec- tion of 1916 many millions of dollars were openly THE EMPIRICAL USE OF CASES 43 wagered on the result of the election and the names of prominent bettors were printed in the newspapers. An editorial calling attention to this was printed in the New York Times; but no one was prevented from voting and no one dreamed of arrests. Many statutes die of inanition every year. But the cases which come before courts of final appeal are not based upon such statutes. There is a hard core of public senti- ment which is indicated in the recurrence of certain types of cases, which I have given in the classifications which follow. But here we find another difficulty, another lack of frankness, more evasion. Nothing could be nobler than the sentiments expressed in many a judicial opinion ; but those who have known the inside history of the cases have known also what a miserable travesty of justice was there. The law can be the biggest Pharisee on record. In adherence to the letter it can murder justice. This is a commonplace. It would not be worth uttering except that it must be taken into account in weighing some of the dicta cited. Some day there should be a statistical account of decisions of certain types — say in murder cases — with a curve plotted. When that day comes, the statistics should be based wholly on the decisions, with no attention paid to the dicta, which are always full of noble and sometimes Pecksniffian sentiments. Again we must observe that many of the decisions of the courts would be noble not only in sentiment but in fact, if the facts upon which they were based 44 THE PUBLIC CONSCIENCE only happened to exist. Given the facts before an Appellate Court, the principles upon which the deci- sions are based are often beyond reproach. The trouble has been that a jury has decided upon the facts and, under the obsession of the Anglo-Saxon mind that there are no oracles equal to jury oracles, we think that a dozen men picked from among the less energetic and capable — for the more energetic and capable usually know how to escape jury duty — by the spir- itual unction bestowed upon them through being drawn in a panel, are capable of deciding questions of fact in realms where the most expert intelligence is often baffled. But this is a difficulty which I do not feel called upon to meet, here at least. It belongs to the re- formers of legal procedure. A study of the public conscience has no concern with it until it becomes a " case," that is to say, until some tribunal of, say, the Bar Association, has passed upon it. IV Nor can we at present reproach judges that they do not give decisions upon the basis of what they believe to be the evidence rather than upon the basis of what a possibly ignorant jury may have reported. Judges cannot go back of this evidence if they would. There is no personal reflection upon them for this any more than for the dodo-like decisions which we find em- balmed in past cases and even peacefully slumbering in present-day cases. If an awakening of the public THE EMPIRICAL USE OF CASES 45 conscience takes place, that will be a fact ; if it does not, the present facts are all we have to go upon. This seems to be a good place to try to make clear that there is no underlying purpose of edification hi this volume. Nor is there any room for praise or blame of conduct. When I show a certain impatience with the archaic procedure of our courts I am doing nothing more than expressing the sentiments of the most con- servative as well as the most radical of men. Every- one knows that procedure is in need of reform. But I am not here trying to reform it or anything else. I am simply trying to set forth in as coolly dispas- sionate a fashion as possible what the decisions of our tribunals are. There are many tribunals, as I have indicated above.^° These tribunals of families, clubs and partnerships, which are more elusive, I have set aside for a future day or for another worker in this field. For myself, and as an indication of what this study should be, I have chosen the decisions of the law courts and / have no slightest interest in whether they are right or wrong, good or bad, so far as this study is concerned, any more than a physician would get in a temper over a fever or a chill and praise a patient for returning to the normal. In class-room work I have not allowed the use of the word ought at all as indicating a course of conduct which student or instructor deemed right. We are here seeking to find out what oughts there are, i.e., what duties society has declared to be owed to it. 1° Cite passage in Ch. I. 46 THE PUBLIC CONSCIENCE These duties may be quite irrational, based upon an- cient taboos. N'importe! What are they? Edification may come later on, when enough shall have been discovered about the science of ethics to enable us to begin to build up an art/^ We know- nothing yet. Besides, edification always assumes that what ought to be is known, the only difficulty being how to bring it about. It has often been asked whether men are interested in the purely theoretic study of anything — whether there is not always some practical purpose either in the background or else openly avowed. It does not greatly matter what answer we give to this question. It depends largely upon temp- erament and training; but one thing seems evident to me, in this connection, which is of the greatest im- portance. There are great underlying powers of man- kind which, if we could reach them and utilize them, would revolutionize society. Their using belongs in the art of ethics ; their discovery belongs to the science. Pope's hackneyed line recurs because it is so much truer than that dapper thinker thought: " The proper study of mankind is man." Men have scratched the surface of society with their theologies and their phi- losophies — man has marched along sublimely regard- less of them all. We still study history obsessed by these theological and philosophical prepossessions and are as blind to the facts as an Aristotelian naturalist before the days of Cuvier or Buffon. We tried a few years ago to estimate the economic 11 Cf. " The Case Method, etc.," op. cit. THE EMPIRICAL USE OF CASES 47 resources of our country, to use them in case of war. This is of an importance which I would not minimize ; yet it is a truism to say that, could we learn how to utilize the great underlying ethical powers of man, they would have a value compared with which all the economic forces were as nothing. And the philoso- pher's stone is as useless here as it was in the physical sciences. A patient study — arduous, long continued, disappointing, but finally rewarding — is all that will ever give us access to those untouched " energies of men " of which the great William James dreamed. Now our enterprise may be an entirely futile one but let it at any rate be known for what it is. Levy- Bruhl has said that the science des moeurs will not itself be moral. That seems an excellent statement of the case. As we can investigate logical relations and build up a science of mathematics; as we can in- vestigate neurones and dendrites and receptors, etc., and build up a science of neurology; as we can study the forms of all living things and build up a science of biology ; so we believe that a study of duties, obliga- tions, rights, powers, penalties and rewards, will lead us to a science of duty, obligation, right, et cetera. There have been those who found in my programme for the study of ethics an attack upon duty simply because I excluded duty from employment as a term explanatory of that which we were seeking to define. This seems to me preposterous, but it is none the less 48 THE PUBLIC CONSCIENCE true. So I wish simply to state categorically that we are studying Duty and nothing else. We could hardly study that which we do not believe to exist. But we study Duty by way of " duties," and life is full of duties which we are not allowed to forget. To be sure, men like better, today to talk of their rights than of their duties; but it is another commonplace that for every right there is a duty. I have not relied upon Professor D. G, Ritchie's admirable book "Natural Rights" to justify my position; the cases cited will do that — but I might appeal to it with perfect confidence and I very gladly acknowledge the immense influence it has had on my thinking.^^ The cases chosen for use in this book all illustrate some definite obligation imposed upon men in society. Those obligations are the most definite ever imposed anywhere, since they even include the duties of soldiers in regular armies. The penalty for the infraction of some of these duties is death. Nothing could be less equivocal than these duties. Moreover, where dif- ferent societies and different periods are indicated there is an opportunity to see whether, under similar condi- tions, similar duties are imposed. There can be no doubt that such is the case. The principle would be- come still more apparent had there been much effort made in this book to give a genetic sketch of ofifenses. That work must be reserved for another time, perhaps 12 This has been rather in the way of corroboration than of incitation since I had come to the same general conclusions before reading Ritchie's book. For any one who will read it there can be no further belief in rhetorical Natural Rights. THE EMPIRICAL USE OF CASES 49 for another investigator better equipped for that particular work. This case book is a sort of cross-section of contempo- rary society's judgment about the obligations of its jnembers to the group. It is far from being a complete cross-section. There are sub-classifications given without any cases. Some- times this is because the point made in classifying was obvious and uncontradicted, supported by a multitude of commonplace cases not worth quoting; but some- times it was because I could not find in legal decisions any case bearing upon that point. This is in no way strange or unexpected. Case books on the law are usually very full in some parts, very scant in others, while the hiatus is not unknown. Man has not devel- oped symmetrically in things moral and legal any more than he has in things physical. We look in vain for the Venus of Melos and the Hermes of Herculaneum when we go to the sea shore ; and we look in vain for a well rounded system of social judgments when we ex- amine the law. We must build up our ideal system from a study of actual parts where we can find them. We have that ideal in physical things and we have got it from the actual in every case. If the sculptors of genius took here a throat, there a brow, here a torso, there a leg or arm, and put them all together in such a fashion that the world wonders and loves and desires no more — but sighs because there are none in the flesh to compare ; so we may take the procedure of one state at one time for the offense — if it be an offense 50 THE PUBLIC CONSCIENCE — of homicide and the procedure of another for the offense — if it be an offense — of adultery, and we may then build up an ideal state which will not have that character of utter unreality and extreme undesir- ability that we find in all Utopias from Plato's to Bellamy's and Wells's. What the state — any state — requires of its citi- zens, it is the duty of those citizens to bring to pass if they would continue to live and prosper in that state. One may not find out what his duty to God is by studying the Penal Law of New York State; but he will be much less apt to offend his neighbor if he lives in New York. A personal friend, not a philosopher or special stu- dent of this subject, but a lawyer of acute mind, has said that the Case Method of studying ethics might make clear to a man what he ought not to do, but it would hardly tell him what he ought to do; and it is unquestionably true that the state proceeds entirely by prohibitions, leaving a man's positive duty to his own impulses and innate dispositions. This fact may fur- nish us with a valuable clue to the nature of positive duty; but I have no wish to suggest any type of theory at this point. It does seem to me, however, that we can answer that criticism without much trouble, es- pecially at this stage of our inquiry, where we are merely seeking to show the morality by which men do actually live with reference to one another as citizens. If there is indicated a sufficient number of points, THE EMPIRICAL USE OF CASES 51 we can plot a curve ; and we don't need a great many points. It will depend, somewhat, on the nature of the curve. If a subject is bounded in any way what- soever, its positive character, as well as its negative limits, appears, for if it is bounded only at certain points, it is obvious that the rest of its activity is unhindered; and that activity will depend entirely upon the nature of the thing which acts. The federa- tion of states which went to the formation of the United States will furnish us with an example. The Constitution set aside certain things as the province of the Federal Government. In these respects all the component states must yield to the United States; in every other respect they were free to do as they pleased. Later in this book I state what seem to me the con- clusions, positive as well as negative, which can be drawn from the study of the cases here given and in- dicated. But let me say that, however ambitious the programme of Chapter I of this volume, the purpose of the volume as a whole is distinctly more modest. This purpose is, to furnish examples of the cases which I have used for several years in the hope that, many persons being made acquainted with the method, and many observers set to work, there might grow up gradually a body of cases more truly representative and free from the bias inevitable to a single in- vestigator. I have not been conscious of any parti pris in this study; but it is quite possible that I may have been unconsciously guilty. I have not excluded any case 52 THE PUBLIC CONSCIENCE from consideration, so far as I know; and the classifi- cations, while entirely my own in their present form, have been criticized, at my request, by many people — students, former colleagues and professional friends. In many instances I have adopted the criticisms which, while valuable and already recognized by me person- ally, do not call for further comment, since they have not changed the original nature of the book in any way. In the following chapter, in an account of method, I explain how the classification came to be made and how the cases were originally found. CHAPTER III METHODS Mill has said/ " Popular notions are usually founded on induction by simple enumeration. In science it carries us but a little way. We are forced to begin with it; we must often rely on it provisionally, in the absence of means of more searching investiga- tion. But, for the accurate study of nature, we re- quire a surer and more potent instrument. It was, above all, by pointing out the insufiEiciency of this rude and loose conception of Induction, that Bacon merited the title so generally awarded to him, of Founder of the Inductive Philosophy . . . physical investigation has now far outgrown the Baconian conception of In- duction. Moral and political inquiry, indeed, are as yet far behind that conception." Political inquiry has made considerable strides since Mill wrote these words; but, aside from the work of Levy-Bruhl and the investigators mentioned above, moral inquiry remains about where it was. Induction by simple enumeration is then the first step; but even for this there must needs be a principle of in- quiry, a heuristic to keep us from mere maunderings. These studies were originally undertaken in connection with a class in Dartmouth College, in the year 1911, 1 "System of Logic," Vol. I, p. 361, 8th ed. 53 54. THE PUBLIC CONSCIENCE on a frankly empirical basis. After deciding that those cases should be called moral which were approved or disapproved by some group, with the iinplication oj ability to have acted otherwise, we sought in no way to judge the morality of their judgments. For ex- ample, the Irish of the Sinn Fein in many revolts of recent years may or may not have been justified in their apparent conviction that they owed no allegiance to Great Britain; that, though defeated, they could not be traitors; but, whatever our sympathies, this is plainly a case of moral conduct. The class at Dartmouth was invited to bring in every sort of moral case imaginable; and during four years through which the study was pursued in con- nection with classes, a large variety of cases was pro- duced, some important, some trivial, most of them taken from newspapers. Rude and tentative classifica- tions were made, out of which grew the classifications which follow. It is important to note that the classi- fications were not even attempted until large numbers of cases had been studied to see what lines of cleavage were plainly apparent. Mill has somewhere said " The ellipse was in the facts before Kepler recognized it; just as an island is an island before it has been sailed around." The principle of division into cases relating to the Preservation of Life and Limb, the Preservation of Property, the Preservation of Security in the first two and the Preservation of Liberty, had no conscious basis in any Eighteenth Century theories. But, while undoubtedly influenced by these theories in subtle METHODS 55 ways, we believed that the classifications had their basis in the same sets of facts which we found. The third classification is distinctly new in any event and presents a view of conduct which I have found no- where else. Mill says ^ " a preliminary work of prepa- ration is performed on the observed facts, to fit them for being rapidly and accurately collated (sometimes even for being collated at all) with the conclusions of theory." Before there can be any of that genuine science des moeurs there must be a guess, a scientific guess, at the meaning of the multifarious facts. My guess was as follows: Life is the thing to be defended at all costs, since the first business of any organism is, to survive; hence, the most seriously reprobated offenses will be those which threaten life. Property — by which is meant private property, for reasons which I think are sufficiently obvious — is valued fundamentally because it ministers to life.^ Hence, we may expect to find that offenses against property will be punished and reprobated in direct pro- portion as these (in the judgment of the owners of the property) threaten life. Security in the possession of life and property is a good realized the more as society becomes more com- plex and developed. Offenses against security are essentially offenses against life, in the final analysis; 2 Op. ciL, Vol. II, p. 502, 10th ed. ^ The esthetic valuation of property has something to be said for it, but it is hardly fundamental. 56 THE PUBLIC CONSCIENCE but it takes a considerable degree of intellectual de- velopment to recognize this. Liberty is a good even more characteristic of a de- veloped society; and the highest form of liberty, the liberty of self-expression, will be valued only by the most sophisticated of peoples. Cases under the three categories, property, security, liberty, culminating in liberty of opinion and speech, must all be taken to be but shadings away from cases of life. In the end all ethics is a question of survival of personality, linked to the survival of the body. "All that a man hath will he give for his life," but that life may mean the death of the body. The apex of my pyramid I have called liberty of propaganda, for if a man may not express himself, he might as well be dead. This is a principle of inquiry solely. I have no wish to make it a Procrustean bed to which all cases must be fitted either by stretching or by cutting off. I have found some cases which do not, at first blush, seem to fall naturally within any of the categories; it has needed but a little more intense observation to see that they do indeed fit. A. F. Shand says ^ that " Mill con- ceived that the Science of Character should be ' founded on the laws of psychology ' and should con- nect the many popular generalizations as * the common wisdom of common life,' and calls them ' empirical ' because they are based on experience, and distinguishes them from the scientific or 'causal laws,' because they * A. F. Shand, " The Foundations of Character," p. 13. METHODS 57 are not universally true. They hold, he tells us, within certain limits, but we do not know what those limits are. The proverbs, ' When your fortune increases, the columns of your house appear to you crooked,' and ' Love is blind,' would be empirical laws in Mill's sense. They are true of a great number of cases but not of all. And of any new case we could not predict whether this would be an exemplification of the law, or an exception to it. But if we can discover why it is that Love is so often blind, or why it is that as a man's fortune in- creases he notices the defects in his property or imagines such as do not exist, then ' in the propositions which assign those causes will be found the explana- tion of the empirical laws, and the limiting principle of our reliance on them.' " Now the study of cases alone, bare cases, cases which should indicate merely that one man had killed, stolen, betrayed, etc., and that society had done so and so, would lead us only to Mill's empirical laws; but fortunately, the cases usually include opinions which assign reasons on behalf of society for the punishments inflicted.^ And while some of these reasons may be purely traditional, while there is a vast deal of mere copying of the opinions of preceding judges, there is always to be observed the influence of original minds upon old problems. Not the least significant thing about judicial opinions is the change which comes over 5 Where statute law is very plain, and where the offense is of an old type like murder or theft, the opinions are usually not given. Either they are obvious or they must be sought in the social his- tory which led up to the legislation. 58 THE PUBLIC CONSCIENCE them from time to time. And these opinions, justifi- cations of society's behavior, are just so many attempts at theory. They are, moreover, the attempt at theory made by men who have observed and reflected much. Their opinions are interpenetrated with the generaliza- tions, the attempts at true causal explanation, given by the great commentators on the law ; the Cokes, the Fosters, the Austins, the Holmeses, philosophers of law. If the presentation of cases as arranged in this book is of no further value, it will at least serve to clarify the ordinary judgments of society, upon what basis soever they are or have been made. It will have the value of glimpsing from a height the road which we have traversed. Its variation from the road we thought we were taking will be apparent. II For the purpose of this study we need not consider the atomistic character of individuals — since even the law does not. The boast of equity that all men are equal before the law, is not only contradicted by the greater use which the intelligent and the well-to-do may make of the law, but by the fact that there are many classes of people who cannot be held criminally liable — idiots, children and the insane. Still, within a given class, say of male citizens of New York State of full age and of sound mind, all are treated alike; they are treated as atoms. And as this is not a study of " the ought " but of " oughts " it is of distinct value METHODS 59 to observe that all are treated alike. If one man has influence — a " pull " with the court — and another can spend money freely, these are interesting facts which explain some otherwise inexplicable decisions; but they do not invalidate the professed morality of the state toward all citizens, nor the atomism which is not only latent but expressly stated in constitutions and declarations which proclaim the equality of all men. That this equality exists only in name I have indicated in the first chapter of this book. It would be no part of the purpose of the cases here used to say that all culprits before the law should be treated in- dividually, for we do not use the word which implies an obligation not yet in force. It is part of our pur- pose however to indicate, however briefly, that the law already approaches this ideal in the giving of inde- terminate sentences, in the establishment of Children's Courts and the creation of probationary officers. Ill My method is also frankly behavioristic in character. It takes no account of frustrated or incomplete intents. The man who hates may be a murderer, the man who lusts an adulterer; but unless the hate of the one or the lust of the other has effect in a blow or a ravish- ment, the law of the land is indifferent. It is on this basis that Becker and the Haymarket Anarchists here- after cited were condemned ; that their influences were acts, observable by all men. The modern behavior- istic psychology seeks to tell the nature of the mind 60 THE PUBLIC CONSCIENCE from the character of the organic acts. So we seek to know the conscience of the public through its overt acts. Where the State imposes no penalty the State is indifferent. It will be well to remember, however, that the individual does not go scot free merely be- cause he never gets in jail, never is fined by a court. Our study would still be behavioristic if it extended to social ostracisms, etc., as it properly might do. There can be no social ostracism without an act, even if that act be merely a refusal to act. It is obvious that we cannot use the method so common to laboratory work in other sciences, the method of experimentation; but, as Comte has said, that is unnecessary since history has done our experi- menting for us. A study of origins and a comparison of social practises in various states and times with respect to similar offenses will give us abundant scien- tific material. I am convinced that this study, even more than most, requires the meeting of many minds; and I have found great practical difficulty in getting aid from others because few if any scholars seemed to know just what I meant by " cases of conduct " until they had seen some of the actual cases used. Ever since the publication of my first paper on this subject in June, 1913, I have received requests from teachers of philosophy and others to publish cases. Now cases, to be really instructive, must be in considerable bulk; and the columns of philosophic publications have not been open to such bulky contributions. This book is METHODS 61 therefore published as soon as possible in order that by actual use in class rooms other cases may be found, specially those " negative instances " which Bacon rightly deemed of such importance. Law Case Books are very bulky affairs, containing hundreds of cases, set forth at great length. A future " Case Book in Ethics " should contain much more material than is here; but until many investigators are at work, that is hardly possible. I shall look too, hopefully, for drastic criticism of method, especially from teachers and stu- dents of sociology. IV I anticipate that the charge of sociology will be brought against this work; and it is indeed, in its present state, largely a sociological study. I do not yet put forth any ethical theory growing out of this study which would put me on my defense. But I re- ply in anticipation by referring critics to Durkheim and to Levy-Bruhl, who are amply able to support the claim that social facts are objective whether ethical or other. And as all my purpose in this collocation of cases has been to present significant ethical facts for study, I may rest my case. It may be asked, what principle of selection has been used? What guarantee has the reader that the cases here used are not abnormal cases? There are no abnormal cases for such a study as this. The abnormal is sufiiciently difiicult to estab- lish in any event, as economists have discovered in 62 THE PUBLIC COXSCIEXCE the matter of prices; so that we may be thankful. James and Starbuck were accused by many of having dealt wholly with abnormal cases in their studies of religious phenomena, and Durkheim has been at some pains to define what the normal may be in sociology. We have no such difficulty, yet should this study by cases secure sufficient attention from students of ethics, doubtless the normal and the abnormal will eventually develop. At present we have not the problem. All is grist that comes to our mill. But we may at any rate note that the cases used as standards in all of our classifications are taken either from approved law case books or from constitutions and statutes, or from the decisions of the most eminent judges, though in some instances, for want of reported cases in a par- ticular category, I have had recourse to the newspapers and to generally known conditions. They are not freak cases. We might indeed say that there is a normality of procedure in peace which is completely overthrown in times of war; we might say that deci- sions like that in the Frank case are abnormal inas- much as race prejudice was so undeniable. I would prefer not to call either of these instances abnormal but rather to consider them the limits of ordinary beha\dor. Finally, it is obvious that the method is the method of legal case study. Professor Powell has said,^ " That « Thomas Reed Powell, " The Study of Moral Judgments by the Case Method," in the Jownai of Philosophy, etc., 1913, at pp. 485 ff. METHODS 63 this system of case study furnishes valuable training in subtlety of judgment or of intuition, is generally conceded by those most familiar with it " ; and he further enlarges upon its value for teaching, but he cites the " fond saying at the Harvard Law School that the case method does not teach us the law, but that it gives us the legal mind." I submit, with defer- ence, that if this is not teaching the law, it is teaching nothing. While it may seem merely to be training men in a certain expertness, in what I have called art, it is clear from the character of the expertness that students have really learned the law itself, though, for particular occasions, they may find it necessary to look up authorities and cite decisions. I protest that the law is discovered in this fashion and I beheve that, even from the few cases collected here, there may be gleaned a very clear knowledge of the great outlines of the morality actually practised in states. And, while it has been no part of my plan to write a manual for the teaching of ethics, it seems to me that the method set forth by Professor Powell m the article referred to may well be applied to teaching ethics by the Case Method. I hope that this book may prove useful in class room teaching whatever any man's views of ethics may be. There is in it nothing of propaganda, except the idea. There is no position taken for or against any social reform. I have desired honestly to find out how states behave, especially our own State — the United States of America; and the Great Britain from which we de- 64. THE PUBLIC CONSCIENCE rive not only our Common Law but also our Common Morals. Such conclusions as I shall draw at the end of each large classification are sincerely deduced from the facts, so far as I know; and if these conclusions do not follow from the facts, I shall be most grateful to any one who will point it out or produce new facts which will otherwise invalidate my tentative laws. In conversation with Professor Josiah Royce some years ago I humbly disclaimed any power to know the absolute Truth about anything; but declared my alle- giance to a less arrogant and more satisfactory mis- tress, the Goddess Veracity. That great and lamented scholar laughingly retorted that she was a barren god- dess. My answer is that she is barren only when not espoused. I can think of nothing more likely to advance the well-being of mankind than a frank, sincere, unafraid scrutiny of its actual behavior. It is often painful to know that kind of verifiable truth ; but it is generally — perhaps always to a sound and healthy soul — salu- tary. And I have some satisfaction in thinking that, whether my readers agree or disagree with the conclu- sions I tentatively draw, if they will but read the cases themselves and be incited, even by indignation it may be, to find others, my main purpose will have been accomplished. PART I PRESERVATION OF LIFE AND LIMB PRECEDED BY EXPLANATORY INTRODUCTORY MATTER AND A BRIEF HISTORY OF HOMICIDE PRESERVATION OF LIFE AND LIMB The cases which form the material for a science of ethics have a wide range of objectivity and, as I may say, of density. One can study only those cases which are characterized by overt and measurable action. Moreover the subtler cases of jealousy, malignancy, envy, and their converses, will always elude any kind of analysis except that of the great masters of fiction. We can learn more of human nature and its springs from Goethe, Cervantes, Moliere, Shakespere, Dickens, Ibsen, Henry James and George Meredith than we can from any statistical study however profound and accu- rate. But these same subtler passions cannot exist without producing action which, sooner or later, brings about punishments and rewards in courts of law and other tribunals, tribal or familial, of a similar character. It would be as idle to expect to understand man as man by the study of the bony skeleton or of anatomy as to expect to understand his conduct from a study of that extremest form of it which results in his de- stroying another man or men. Yet as anatomy is fundamental, so is homicide. The most serious of offenses in the present state of society, one whose punishment is usually the death sentence, is homicide. But the mere taking of life is not in itself and perhaps never has been the most serious of offenses. 67 68 THE PUBLIC CONSCIENCE Sacrilege ^ in many ages and places and treason always, in its extreme form of direct attack upon the integrity of a state, are more serious ; but they cannot be punished more severely than murder. Indeed murder and high treason may be put on a par ; though punishment of high treason was until a comparatively late date in England (1870) of a most barbarous character.^ We tend to form our moral judgments through epithets which praise or condemn. Murder and treason are, of course, murder and treason, i.e., we have no words of a severer kind, no things which are habitually condemned more fully; but the particular acts which are now called by those names were not always re- garded in the same light — and we can see, in our own lifetime, changes coming over the judgments of men. Moreover, while we may pass statutes declaring that wilful, malicious and premeditated homicide is murder (following common law practice) and shall be punished 1 But for this cf. Hobhouse, " Morals in Evolution," p. 76. " Our Leges Henrici still distinguish emendable offenses, in which sacrilege and wilful homicide without treachery are included, from unemendable offenses such as house breaking, arson, open theft, aggravated homicide, treason against one's lord and breach of the church's or the King's peace." Observe also that many of the punishments for what we would call murder contemplate no objection to murder as a sin but are merely precautions — a man has the death infection about him or the ghost of the slain is after him. It is well to avoid him or dispose of him in some way. 2 Cf. for the whole subjoct of Treason the article on that sub- ject in the Encyclopedia Britannica, 11th ed. There was, in its punishment, an attempt to carry over the punishment beyond de- struction of the physical life into posthumous disgrace. PRESERVATION OF LIFE AND LIMB 69 by death or by life imprisonment at hard labor or by some other punishment, the obvious state of things is that a great many people have unquestionably com- mitted murder who are not thus punished — and so- ciety as a whole is not much disturbed, if at all. And when one uses the word " society " in this way it is well to be somewhat more explicit. We cannot use the behavior of a tyrant to express the will of a society; rather should we observe the revolts against his will in the face of danger or death. Absolute mon- archs may believe that they represent the will of God but it would hardly be an empirical study if we ex- amined their conduct in order to find out what the will of God is! It would be hopeless and useless to attempt to col- late all the behavior of men with respect to homicide, for it is obvious that some of the worst crimes have been committed in the name of the law. The powerful can always override justice; but the time during which they can do this is usually strictly limited. What we want to observe is the action of groups where there is the substance as well as the form of law, i.e., where, however ignorantly, the group lays down a principle which it could wish to see applied to every member of the group. This throws light upon actual moral procedure. Let us guard, however, against too strict an interpretation of the word " principle." No one laid down principles until the days of the great commentators upon the law. The " principle of be- havior " which was recognized as binding upon mem- 70 THE PUBLIC CONSCIENCE bers of a group may have any origin you wish. It could never be violated with impunity. What we seek is a natural history of Killing.^ Such a subject is large and might be handled, profit- ably, in many ways. Any ultimate study must take up the change in attitude towards Killing in the differ- ent races and nations. As a preliminary to such a study I submit the following brief outline of the history of homicide. Inasmuch as it is not my purpose to make a purely jural study, this outline must suffice. In the light of Professor Ehrlich's studies* in what he calls the living law, I question whether there would be any advantage in making a purely jural study. An Outline History of Homicide The facts in respect to homicide have been collected by many scholars, with a fulness which I could not hope to rival here even if it were desirable. Some of the sources are here indicated. " Origin and Gro\\^h of the Moral Instinct," A. Suther- land; especially Vol. II, pp. 160-161. " Origin and Development of the Moral Ideas," E. Westermarck. " Morals in Evolution," L. T. Hobhouse. " Evolution of Law Series," Vol. I, Kocourek and Wig- more. 3 Cf . Stephen " Criminal Law (History of) in England," Vol. I, pp. 107, 108. * Professor Eugen Ehrlich, an account of whose work may be found in an article by Professor W. H. Page in the Proceedings of the Association of American Law Schools. Chicago, 1914, p. 46. PRESERVATION OF LIFE AND LIMB 71 " The Structure of Greek Tribal Society," H. E. Seebohm. " The Tribal System in Wales," F. Seebohm. " The Ancient Hebrew Law of Homicide," M. Sulzberger. " Ancient Society," L. H. Morgan. " A Manual of Greek Antiquities," Gardner and Jevons. " Folkways," W. G. Sumner. 1. (a) The earliest times and primitive societies today either approve whole-heartedly or at least do not con- demn killing of members of other groups, whether in war (when of course it is honorable) or in peace. The blood fine was paid when necessary to the injured group, or, in some cases, another person was handed over to be killed in the stead of the first killed. Blood feuds in some kind persists today in Corsica, Albania and the southwest of the United States of America. (b) Homicide appears to have been very rare within the group in early days — and is so now among primitive peoples. Among some there was the lex talionis; but generally the blood fine was paid to the injured family or to the tribe as a whole as represented in the person of the chief or king. (c) In the earliest codes — which represent a very ad- vanced state of society — legal killing of offenders was universal and inflicted for a great variety of offenses. {d) Homicides are all of one kind — accidental and murderous killing pay the same penalty. 2. (a) The second stage may be illustrated by the case of the Hebrew people who, at least after the codification of their laws, recognized individual guilt; and gradu- ally repudiated the blood fine. They also separated kinds of homicide and developed the crime of murder and blood guiltiness — though the idea of a Cain with the curse of man and God on him must be very late in Hebrew history. 72 THE PUBLIC CONSCIENCE (6) Here belong the homicides of Greek mythical his- tory, wherein — though the idea of murder is not de- veloped — guilt because of sacrilege for one reason or another was found. 3. Among the Greeks of a later time, intent to kill became necessary to the crime of murder. The penalty was death and confiscation of property if the accused chose to stand trial. He could withdraw before the end of the trial into exile — in which case his property was confiscated and he was exiled for life. A possible ex- ception to the privilege of exile was the case of parricides. For involuntary homicides, exile alone was the penalty, and small distinction was made between its different kinds. The involuntary homicide might compound with the next of kin of the clan and reduce his exile to a merely nominal thing. It is a highly modern and sophisticated attitude here revealed; e.g., instigation to crime incurred the same penalties as murder — but for the murder of a slave all one had to do was to purify himself for religious reasons. 4. " In England under the Norman rule homicide became a plea of the Crown and the rights of the kindred to private vengeance and to compensation were gradually superseded in favor of the right of the King to forfeitures where the homicide amounted to a crime (felony)." "After the Conquest and for the protection of the ruling class a fine (called murdrum) was levied for the King on the hundred or other district, in which a stranger was found dead, if the slayer was not brought to justice and the blood kin of the slain did not present Englishry, there being a presumption (in favor of the Exchequer) that the deceased was a Frenchman. After the assize of Clarendon (1166) the distinction between the killing of Normans and Englishmen gradually evaporated and the term murder came to have its present meaning of PRESERVATION OF LIFE AND LIMB 73 deliberate as distinct from secret homicide. . . . But at that date and for a long time after homicide in self- defense required a pardon. It was not until 1828 that the innocence of excusable homicide was expressly declared." ^ 5. The modern law of homicide is now a matter of pretty general agreement among the civilized nations. It is stated in Commonwealth v. Webster, q. v.^ The modern law makes no distinctions as to persons killed, fellow countryman or foreigner, Lund or free; though extradition laws are not universal. The killing of any man for private reasons, not in the order of duty to the state, is a crime against society, though we shall see that the old distinction still holds as to foreigners and subject people, or those who have been subject, how- ever attenuated it may be in practice. The outline is given in lieu of cases under the dif- ferent civilizations mentioned which cannot now be had. The law indicates the intent rather than the practise — and practise is much more significant than formal principles or edicts. For example, it is plain that the blood feud as nominally practised in the past — and even in our own Southwest — would result in the speedy extermination of the feudists. We must remember also that no truly democratic or constitutional governments existed until modern times. The law, in its rigor, never held for privileged classes. The most striking example of this was that " benefit of clergy " which exempted all in orders, of any sort, from the temporal jurisdiction in England until a comparatively late date. 5 Encyc. Brit., 11th ed. « See below, p. 83. 74 THE PUBLIC CONSCIENCE I have not attempted to give any outline of the history of assaults, which are all lesser degrees of homicide; since they are always, when felonious, but incomplete attacks upon the person; though many of them are not intended to be homicidal. The outline which follows is self-explanatory. I. Always repro II. Sometimes rt often not. KINDS OF KILLING PRACTISED IN HUMAN SOCIETY ILLEGAL I. Always reprobated. Murder Manslaughter Killing by wilful neglect (of wliifh there II, Sometimes reprobated, often not. Accidental — In ancient times the thing or pers ishcd. In modern times, no pimishment except liability to damages under civil action. Self-Defense — In ancient times this was homicide Uke any other. In modern days it is approved. Defense of others — Same as Self-Defense. It is usually praised. Suicide — In former times generally considered sacrilegious. In modern tinios, no punishment, if successful. Dueling — Laws generally condemn, but public opinion divided. Punish- ment often negligible. Euthanasia — The merciful killing of the unfortunate. No laws per- mitting, generally condemned by public opinion. in. l^ot reprobated by the group as such; but considered painfully necessary rather than attractive or honor- able. LEGAL Executions of all kinds — The acts of hiingmen, of judges and juries, executive officers, including police. (n) Formal executions. {b) Killing of prisoners attempting to escape. (c) Shooting down rioters, quelling mutineers, etc. • SEMI-LEGAL f All the above acts when dtme by Vigilantes, lynchers, Ku Klux Klan, etc. / Assassination of political tyrants — Condemned and punished by the party \ of tlie tyrant but approved by many others. VI. Praiseworthy. I All killing of enemies in war; But only within the rules of warfare. \ Sacrificing victims in worship — Suttee, etc. SOME EXCERPTS FROM HISTORY Solon, in " Plutarch's Lives " " First, then, he repealed all Draco's laws, excepting those concerning homicide, because they were too se- vere and the punishments too great; for death was appointed for almost all offenses, insomuch that those who were convicted of idleness were to die, and those that stole a cabbage or an apple to suffer even as villains that committed sacrilege or murder." Draco had been asked why he made death the punishment of most offenses. He replied " Small ones deserve that, and I have no higher for the great crimes." This is the sum of what is recorded about Solon. The implication is plain that homicide, probably with little discrimination, was punished with death — at least that such was the statute. There was no ransom for the slayer. " Caesar's Commentaries," Book VI, Ch. XIX " Husbands have power of life and death over their wives, as well as over their children; and when the father of a family, born in a more than commonly distinguished rank, has died, his relations assemble, and, if the circumstances of his death are suspicious, hold an investigation upon the wives in the manner 75 76 THE PUBLIC CONSCIENCE adopted towards slaves; and, if proof be obtained, put them to severe torture and kill them." Tacitus. A Treatise on the Situation, Manners and People of Germany, Ch. XII " In this council of the state, accusations are ex- hibited and capital offenses prosecuted. Pains and penalties are proportioned to the nature of the crime. For treason and desertion, the sentence is to be hanged on a tree; the coward, and such as are guilty of un- natural practises, are plunged under a hurdle into bogs and fens." Ch. XXI. " Injuries are adjusted by a settled measure of compensation. Atonement is made for homicide by a certain number of cattle, and by that satisfaction a whole family is appeased." The Tribal System in Wales (F. Seebohm, Longmans, Green & Co., New York, 1895.) (P. 58, from the Gwentian Code) " Three persons hated by a kindred; a thief, and a deceiver, and a person who shall kill another of his own kindred; since the living kin is not killed for the sake of the dead kin everybody will hate to see him." Such a criminal as the last-mentioned, whose crime, being within his own kindred, was outside the law of galanas or " blood fine," could not be slain. He might, however, with the consent of his kindred, relinquish the privilege of kinship. {Comment by Seebohm) SOME EXCERPTS FROM HISTORY 77 (Also p. 57, quoted from " Ancient Laws of Wales" II, pp. 315 ff.) If a person be killed and his kindred shall not obtain right and his kinsmen proceed to avenge their kin . . . (P. 59) By one thing alone could the tie of kinship be absolutely broken, viz., by a man's life being for- feit for crime, such as the murder of his chief of kin- dred. For such a criminal the gulf was opened and could only be bridged by his descendents ... in the ninth generation. ... In such a case the criminal was banished from Cymru, and " it was required of every one of every sex and age within hearing of the horn to follow that exile, and to keep up the barking of dogs, to the time of his putting to sea, until he shall have passed three score hours out of sight." (Pp. 104-105) *' The payment of galanas (blood fine) was ... a matter between two kindreds." At first it may have been the subject of bargain be- tween two kindreds. Later it became a matter of tribal law. " There was then, so to speak, the inter- vention of a kind of international law and authority, superseding the lynch law or blood feud between the kindreds." (P. 106) " Even within the tribe and the kindred the value of one man's life was greater than another's." (Morgan, L. H., " Ancient Society." H. Holt, 1878, p. 95.) " When a murder had been committed it was usual for the gens of the murdered person to meet in council (said of the phratries of the Iroquois) ; and, after ascertaining the facts, to take measures for aveng- 78 THE PUBLIC CONSCIENCE ing the deed. The gens of the criminal also held a council, and endeavored to effect an adjustment or condonation of the crime with the gens of the murdered person. But it often happened that the gens of the criminal called upon the other gentes of their phratry, when the slayer and the slain belonged to opposite phratries, to unite with them to obtain a condonation of the crime. . . . They offered reparation to the family and gens of the murdered person in expressions of regret and in presents of value. . . . The Grecian phratry, prior to civilization, assumed the principal, though not exclusive, management of cases of murder." Kajir Laws with Respect to Murder ("Evolution of Law" Series, Vol. I, pp. 296 ff.) Persons are considered the property of the chief. Fines are imposed for acts of violence committed on the person — cases of " blood " are accordingly claimed by him, and the person or family, whose blood has been shed, receives no part of it. A man's goods are his own property but his person is his chief's. " No man can eat his own blood " is the maxim which regulates procedure; and as the fines levied for per- sonal injuries are considered the price of blood, who- ever shall receive any part of such fine in a case where he had himself been the sufferer, would be regarded as violating this maxim. The penal sanctions of Kafir law resolve themselves into the general system of pecuniary fines, varying SOME EXCERPTS FROM HISTORY 79 according to circumstances from a single head of cattle to the entire confiscation of property. The exceptions to this are, cases of assault on the persons of wives of the chiefs, and what are deemed aggravated cases of witchcraft. These usually involve the punishment of death, very summarily inflicted. This punishment, however, seldom follows even murder, when committed without the supposed aid of supernatural powers ; and as banishment, imprisonment and corporal punishment are all unknown to Kafir jurisprudence, the property of the people constitutes the great fund out of which the debts of justice are paid. Personal influence and favoritism affect the amount of the fine. Tambooki (Kafir) Usages ("Evolution of Law," Series, Vol. I, p. 315.) There is little distinction between murder and any other kind of homicide. Compensation is insisted on even when a person charged with sorcery dies under official torture; and all fines go to the chief. So with fights; and even death from natural causes unless the chief is formally and immediately made acquainted with the facts. Among the Fantis (" Evolution of Law " Series, Vol. I, p. 328) When a member of the family was sold or pawned he ceased to be a member and lost all his rights — 80 THE PUBLIC CONSCIENCE but he could be reclaimed and regain his rights — but " when a person through misconduct was expelled from the family, or was sold and got rid of by the family after due deliberation, he ceased to be a member of the family, even if his master gave him his freedom." Illustration of punishment which is, by analogy, the same as death. Ancient Times — Law of Hammurabi (2250 [?] B.C.) Killing a free-born man, penalty ^ mina of silver. Killing a freedman, penalty ^ mina of silver. For assaults, lex talionis and compensation, includ- ing case of death from assault.^ The death penalty is imposed for the following causes : False accusation, or serious accusation not properly attested; selling stolen goods, robbing temples (sacri- lege) — (sometimes, restitution 30 fold and if one has nothing to pay with, then death) ; kidnapping; burg- lary; highway robbery; malfeasance in office; getting a substitute (if a soldier) when on the King's business; rape; adultery (both parties to be drowned though they may be pardoned) ; remarriage of a woman whose husband is captive in war, unless she is forced to it by hunger; gadding about and extravagance; killing a ^ Observe that this is not entirely consistent since the lex talionis would require a life for a life always. SOME EXCERPTS FROM HISTORY 81 husband (she shall be impaled) ; incest with a mother (both to be burned) ; negligence in building which results in death of owner (if it kill son of owner, son of builder shall be put to death; if it kill a slave, just give him another!) Ancient Hebrew Law of Homicide ^ The Canaanite law of homicide is inferred from the laws of Hammurabi (c. 2250 b.c.) which, although they antedated the crossing of the Jordan (1280 b.c.) by nearly a thousand years were yet " still studied in Assyria fifteen hundred years after publication and five hundred years after that were made a textbook in the Babylonian schools." The Canaanite law then did not make the killing of a man a crime cognizable by the state, but a trespass, " which gave the family of the deceased a right to re- dress. There was no inquiry as to the motive, and there were no degrees of liability. This absolute right of redress . . . was the right to kill the perpetrator or an equally important member of his family . . . the blood feud or vendetta." The Hebrew law declared that homicide could never be a trespass. It was an ofi"ense against God. Family interests in it were wiped out. Killing was not neces- 8 The Hebrew law is familiar to everybody through the Old Testament. It has seemed better to me to condense a scholarly study of the law by a modern Jew than to go into the intricacies of documentary study, especially as the conclusions are so simple, so obvious and so inwrought in our entire social life. .(Mayer Sulzberger, p. 142 et passim.) 82 THE PUBLIC CONSCIENCE sarily murder. It might have been due to casualty, to misadventure, to an unthinking blow given in hot blood. It was then manslaughter and punished much as now. Murder was murder and punished with death. The wer-gild was abolished. CRIMES AGAINST THE PERSON To make up the crime of homicide or murder there must be these three concurring circumstances : " I. The party must be killed (anciently a barbarous assault with an intent to murder, so that the party was left for dead but recovered again, was adjudged murder). 11. The second consideration that is common both to murder and manslaughter is, who shall be said a person, the killing of whom shall be said manslaughter or murder. If a woman be quick or great with child, if she takes or another gives her any potion to make an abortion, or if a man strike her, whereby the child within her is killed, it is not murder or manslaughter by the law of England, because it is not yet in rerum natura, though it be a great crime, and by the judicial law of Moses was punishable with death ; nor can it legally be made known whether it were killed or not. So it is, if after such a child were born alive, and baptized, and after die of the stroke given to the mother, this is not homicide. If a man kills an alien enemy within this Kingdom, yet it is felony, unless it be in the heat of war, and in the actual exercise thereof. 83 84 THE PUBLIC CONSCIENCE III. The third inquiry is, who shall be said a person killing? If there be an actual forcing of a man, as if A by force take the arm of B and the weapon in his hand and therewith stabs C whereof he dies, this is murder in A but B is not guilty. But if there be only a moral force, as by threatening, duress or imprison- ment etc., this excuseth not. Rape is an offense in having unlawful and carnal knowledge of a woman by force and against her will. Robbery is a felonious and violent taking away from the person of another goods or money to any value putting him in fear. Such hurt of any part of a man's body whereby he is rendered less able, in fighting, either to defend him- self or to annoy his adversary, is properly a maim. . . . An assault is an attempt, or offer, with force and violence to do a corporal hurt to another; as by striking at him with or without a weapon ; or present- ing a gun at him at such a distance to which the gun will carry; or pointing a pitchfork at him standing within reach of it; or by holding up one's fist at him or by any other such-like act done in an angry, threat- ening manner, from whence it clearly follows that one charged with an assault and battery may be found guilty of the former, and yet acquitted of the latter. But every battery includes an assault. . . . No words whatsoever can amount to an assault. Any injury whatever, be it never so small, being actually done to the person of a man in an angry, re- vengeful, rude or insolent manner, as by spitting in ILLEGAL — ALWAYS REPROBATED 85 his face, or any way touching him in anger, or violently jostling him out of the way, are batteries in the eye of the law." ' I. ILLEGAL — ALWAYS REPROBATED Murder COMMONWEALTH v. WEBSTER Supreme Judicial Court of Massachusetts, 1850 (Reported 5 Cush. 296. Beale, 3d ed.) The defendant, professor of chemistry in the medical college in Boston, attached to the university at Cam- bridge, was indicted in the municipal court at the January term, 1850, for the murder of Dr. George Parkman, at Boston, on the 23d of November, 1849. The indictment having been transmitted to this court, as required by the Rev. Sts. c. 136, Sec. 20, the defend- ant was tried at the present term, before the Chief Justice, and Justices Wilde, Dewey, and Metcalf.^'^ The government introduced evidence that Dr. George Parkman, quite peculiar in person and manners, and very well known to most persons in the city of Boston, left his home in Walnut Street, in Boston, in the forenoon of the 23d of November, 1849, in good health and spirits; and that he was traced through various streets of the city until about a quarter before ^ Quoted from Hale, " Pleas of the Crown " and Hawkins, ditto, as cited by Beale in his " Cases on Criminal Law," 3d ed. ^° Part of the case is omitted. 86 THE PUBLIC CONSCIENCE two o'clock on that day, when he was seen going to- wards and about to enter the medical college. That he did not return to his home. That on the next day a very active, particular, and extended search was commenced in Boston and the neighboring towns and cities, and continued until the 30th of November; and that large rewards were offered for information about Dr. Parkman. That on the 30th of November, cer- tain parts of a human body were discovered in and about the defendant's laboratory in the medical col- lege ; and a great number of fragments of human bones and certain blocks of mineral teeth imbedded in slag and cinders, together with small quantities of gold, which had been melted, were found in an assay furnace of the laboratory. That in consequence of some of these discoveries the defendant was arrested on the evening of the 30th of November. That the parts of a body so found resembled in every respect the corresponding portions of the body of Dr. Parkman, and that among them all there were no duplicate parts; and that they were not the remains of a body which had been dissected. That the artificial teeth found in the furnace were made for Dr. Parkman by a dentist in Boston in 1846, and refitted to his mouth by the same dentist, a fortnight before his disappearance. That the defendant was indebted to Dr. Parkman on certain notes, and was pressed by him for payment; that the defendant had said that on the 23d of Novem- ber, about nine o'clock in the morning, he left word at Dr. Parkman 's house that, if he would come to the ILLEGAL — ALWAYS REPROBATED 87 medical college at half-past one o'clock on that day, he would pay him ; and that, as he said, he accordingly had an interview with Dr. Parkman at half-past one o'clock on that day, at his laboratory in the medical college. That the defendant then had no means of paying, and that the notes were afterwards found in his possession. The opinion of the court on the law of the case was given in the charge to the jury as follows: Shaw, C. J, Homicide, of which murder is the highest and most criminal species, is of various degrees, according to circumstances. The term, in the largest sense, is generic, embracing every mode by which the life of one man is taken by the act of another. Homi- cide may be lawful or unlawful ; it is lawful when done in lawful war upon an enemy in battle; it is lawful when done by an officer in the execution of justice upon a criminal, pursuant to a proper warrant. It may also be justifiable, and of course lawful, in neces- sary self-defence. But it is not necessary to dwell on these distinctions ; it will be sufficient to ask atten- tion to the two species of criminal homicide, familiarly known as murder and manslaughter. In seeking for the sources of our law upon this sub- ject, it is proper to say, that whilst the statute law of the commonwealth declares (Rev. Sts. c. 125, Sec. 1) that " Every person who shall commit the crime of murder shall suffer the punishment of death for the same," yet it nowhere defines the crimes of murder or manslaughter, with all their minute and carefully- 88 THE PUBLIC CONSCIENCE considered distinctions and qualifications. For these, we resort to that great repository of rules, principles, and forms, the common law. This we commonly desig- nate as the common law of England ; but it might now be properly called the common law of Massachusetts. It was adopted when our ancestors first settled here, by general consent. It was adopted and confirmed by an early act of the provincial government, and was formally confirmed by the provision of the constitution (c. 6, art. 6) declaring that all the laws which had theretofore been adopted, used, and approved, in the province or state of Massachusetts bay, and usually practiced on in the courts of law, should still remain and be in full force until altered or repealed by the legislature. So far, therefore, as the rules and prin- ciples of the common law are applicable to the adminis- tration of criminal law, and have not been altered and modified by acts of the colonial or provincial govern- ment, or by the state legislature, they have the same force and effect as laws formally enacted. By the existing law, as adopted and practiced on, unlawful homicide is distinguished into murder and manslaughter. Murder, in the sense in which it is now understood, is the killing of any person in the peace of the common- wealth, with malice aforethought, either express or im- plied by law. Malice, in this definition, is used in a technical sense, including not only anger, hatred, and revenge, but every other unlawful and unjustifiable motive. It is not confined to ill-will towards one or ILLEGAL — ALWAYS REPROBATED 89 more individual persons, but is intended to denote an action flowing from any wicked and corrupt motive, a thing done malo animo, where the fact has been at- tended with such circumstances as carry in them the plain indications of a heat regardless of social duty, and fatally bent on mischief. And therefore malice is implied from any deliberate or cruel act against another, however sudden. Manslaughter is the unlawful killing of another without malice; and may be either voluntary, as when the act is committed with a real design and purpose to kill, but through the violence of sudden passion, occa- sioned by some great provocation which, in tenderness for the frailty of human nature, the law considers suflBcient to palliate the criminality of the offence; or involuntary, as when the death of another is caused by some unlawful act, not accompanied by any inten- tion to take life. From these two definitions it will be at once per- ceived that the characteristic distinction between murder and manslaughter is malice, express or implied. It therefore becomes necessary in every case of homi- cide proved, and in order to an intelligent inquiry into the legal character of the act, to ascertain with some precision the nature of legal malice, and what evidence is requisite to establish its existence. Upon this subject the rule, as deduced from the authorities, is that the implication of malice arises in every case of intentional homicide; and, the fact of killing being first proved, all the circumstances of acci- 90 THE PUBLIC CONSCIENCE dent, necessity, or infirmity, are to be satisfactorily established by the party charged, unless they arise out of the evidence produced against him to prove the homicide and the circumstances attending it. If there are, in fact, circumstances of justification, excuse, or palliation, such proof will naturally indicate them. But where the fact of killing is proved by satisfactory evidence, and there are no circumstances disclosed tending to show'justification or excuse, there is nothing to rebut the natural presumption of malice. This rule is founded on the plain and obvious principle that a person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and that he must intend all the natural, probable, and usual consequences of his own acts. Therefore, when one person assails another violently with a dangerous weapon likely to kill, and which does in fact destroy the life of the party assailed, the natural presumption is that he intended death or other great bodily harm; and, as there can be no presumption of any proper mo- tive or legal excuse for such a cruel act, the conse- quence follows that, in the absence of all proof to the contrary, there is nothing to rebut the presumption of malice. On the other hand, if death, though wil- fully intended, was inflicted immediately after provo- cation given by the deceased, supposing that such provocation consisted of a blow or an assault, or other provocation on his part, which the law deems adequate to excite sudden and angry passion and create heat of blood, this fact rebuts the presumption of malice; but ILLEGAL — ALWAYS REPROBATED 91 still, the homicide being unlawful, because a man is bound to curb his passions, is criminal, and is man- slaughter. In considering what is regarded as such adequate provocation, it is a settled rule of law that no provoca- tion by words only, however opprobrious, will mitigate an intentional homicide so as to reduce it to man- slaughter. Therefore, if, upon provoking language given, the party immediately revenges himself by the use of a dangerous and deadly weapon likely to cause death, such as a pistol discharged at the person, a heavy bludgeon, an axe, or a knife, if death ensues, it is a homicide not mitigated to manslaughter by the circumstances, and so is homicide by malice afore- thought within the true definition of murder. It is not the less malice aforethought, within the meaning of the law, because the act is done suddenly after the intention to commit the homicide is formed ; it is suf- ficient that the malicious intention precedes and accompanies the act of homicide. It is manifest, therefore, that the words " malice aforethought," in the description of murder, do not imply deliberation, or the lapse of considerable time between the malicious intent to take life and the actual execution of that intent, but rather denote purpose and design in contra- distinction to accident and mischance. In speaking of the use of a dangerous weapon, and the mode of using it upon the person of another, I have spoken of it as indicating an intention to kill him, or to do him great bodily harm. The reason is this; 92 THE PUBLIC CONSCIENCE Where a man, without justification or excuse, causes the death of another by the intentional use of a dan- gerous weapon likely to destroy life, he is responsible for the consequences, upon the principle already stated, that he is liable for the natural and probable conse- quences of his act. Suppose, therefore, for the purpose of revenge, one fires a pistol at another, regardless of consequences, intending to kill, maim, or grievously wound him, as the case may be, without any definite intention to take his life; yet, if that is the result, the law attributes the same consequences to homicide so committed, as if done under an actual and declared purpose to take the life of the party assailed. . . . The true nature of manslaughter is that it is homi- cide mitigated out of tenderness to the frailty of human nature. Every man, when assailed with violence or great rudeness, is inspired with a sudden impulse of anger, which puts him upon resistance before time for cool reflection; and if, during that period, he attacks his assailant with a weapon likely to endanger life, and death ensues, it is regarded as done through heat of blood, or violence of anger, and not through malice, or that cold-blooded desire of revenge which more properly constitutes the feeling, emotion, or passion of malice. The same rule applies to homicide in mutual com- bat, which is attributed to sudden and violent anger occasioned by the combat, and not to malice. When two meet, not intending to quarrel, and angry words suddenly arise, and a conflict springs up in which blows ILLEGAL — ALWAYS REPROBATED 93 are given on both sides, without much regard to who is the assailant, it is a mutual combat. And if no un- fair advantage is taken in the outset, and the occasion is not sought for the purpose of gratifying malice, and one seizes a weapon and strikes a deadly blow, it is regarded as homicide in heat of blood ; and though not excusable, because a man is bound to control his angry passions, yet it is not the higher offence of murder. Comment. With the question whether Webster committed this crime we have no concern. That was a question for the jury which decided, on the evidence, that he had. Chief Justice Shaw has most clearly and exhaustively laid down the distinctions in homicide. The points for our notice are: 1. Malice is necessary to murder. 2. In manslaughter, the punishment seems to be an attempt at the lex talionis — " to make the punish- ment fit the crime." There being no malice of the kind above referred to, there can be no murder. The punishment for manslaughter is, however, very severe. 3. Everyone is presumed to intend to do that which he actually does. 4. Insults never justify murder or manslaughter before the law. We shall see that juries often override the law. THE BECKER CASE (Taken from Court Records, the daily press and current magazines.) One Herman Rosenthal was shot to death at about two A.M., July 16th, 1912, in one of the most public portions of New York. He was a gambler and law 94 THE PUBLIC CONSCIENCE breaker but his murder aroused great public interest and excitement, first, because of the barbarous defiance of law displayed in the manner of his killing, and, second, because he was about to appear before a grand jury and give evidence to establish improper relation- ship between members of the police force in said city and unlawful resorts, and wherefrom arose the possi- bility for suspicion that the police had participated in or encouraged the murder. On August 20th, 1912, Charles Becker^ a police lieu- tenant, and four professional law-breakers, commonly known as gunmen, to wit, Whitey Louis, Dago Frank, Lefty Louie and Gyp the Blood, as they were com- monly designated, as well as Jack Sullivan and Wil- liam Shapiro were jointly charged with murder in the first degree, as having killed Rosenthal. All but the last two named were subsequently convicted and exe- cuted ; but not until Becker had been twice tried. The first appeal for a new trial was granted, the second re- fused. The others made an appeal which was refused. There is nothing peculiar or noteworthy about the case of the four gunmen who committed the murder in the presence of a number of witnesses, though they escaped in an automobile and fought conviction when caught, denying their guilt. The interest of the case and its importance lies in the following circumstances. There was no suggestion that Becker directly par- ticipated in the shooting. It was claimed that he hired Rose, Webber and Vallon, gamblers, who in turn hired the " gunmen " to put Rosenthal out of the way in ILLEGAL — ALWAYS REPROBATED 95 order that he, Rosenthal, might not betray Becker. Rose, Webber and Vallon were promised immunity from prosecution for murder if they would testify against Becker, which they did. They were un- doubtedly guilty of hiring the men who actually killed Rosenthal. In granting a new trial Justice Hitchcock criticized severely the method of Justice Goff in the original trial and declared that Becker had not had a fair trial within the meaning of the law, and that not in mere matters of technicality but in essentials. The character of the witnesses against Becker and the fact that they were to save their own lives by testi- fying against him aroused fierce criticism. In the second trial other witnesses were produced who cor- roborated the accomplices. Chief Justice Bartlett in his opinion (second appeal) said " the public prose- cutor appears to have considered that the community would gain more by the conviction of a faithless public oflBcer than it would suffer by the escape of three con- fessed murderers from any punishment for their par- ticipation in the crime. This was a matter for him to determine under the responsibility of his official oath." Becker went to the electric chair protesting his in- nocence. His friends have claimed that time would vindicate him and show him to have been the victim of a conspiracy. The gunmen killed Rosenthal simply as a matter of business for which they were paid. The case is important for many reasons, — chiefly 96 THE PUBLIC CONSCIENCE because the public was so outraged at the thought that its trusted ofificers for the prevention of crime were themselves guilty of the worst of crimes. There was little criticism of the immunity granted to the three accomplice witnesses because it was believed the price was not too high to pay. While many have questioned the guilt of Becker in directly causing the death of Rosenthal, there is a general feeling that he was morally if not legally guilty, in that he could have prevented the crime had he chosen to do so. He was shown to have grown rich (relatively) in a very short time upon a very small salary, immediately following raids upon gamoiing houses. But many believe that the murder of Jack Zelig, after Rosenthal's, put out of the way one who would have been able to testify about the man " higher up." (This case is equally a case under Security and Liberty.) Comment. The characteristics of murder, in the case of Becker, were all present. The act was premeditated, malicious, effectual. The fact that the deed was actually committed by another makes no difference whatever, since the law has for a long time recognized the principle, qui facit per alium facit per se. Rose, Webber and Vallon were doubtless as guilty as Becker in every respect save one, that theirs was not the initial malice which sought to abolish Rosenthal. The natural (social) law of New York State that he who commits murder as defined by civilization and is caught, will be killed, was nullified by another law which ILLEGAL — ALWAYS REPROBATED 97 may here be tentatively assumed, that society will do anything which ministers to its own preservation. So- ciety is in less danger from the release of three convicted murderers, released consciously and under observation, than from one of its now trusted servants who has be- trayed his trust. Any price will be paid to guarantee the trustworthiness of our police system. The four gunmen were actual murderers, dangerous and to be abolished — but abolished more because the letter of the law is so specific than because society has definitely come to a conclusion about them. Perhaps one might make the surmise that they are rather open enemies of our own group than traitors within it; as they show no social conscience at all. PLEW-WAKEFIELD CASE (Sources: Court Records and Daily Papers.) William Wakefield was murdered by James Plew in June, 1912, near Bristol, Conn. His body was found two weeks later and Plew confessed, implicating Mrs. Wakefield, as they wished to marry when they could get Wakefield out of the way. Plew's case was plain and he was summarily convicted and hanged. Mrs. Wakefield was found guilty Nov. 4, 1913, of murder in the first degree and sentenced to be hanged. The Connecticut statute made this possible. Under the common law she would have been simply an acces- sory before the fact and could not have been tried as a principal. At the time of Mrs. Wakefield's trial Plew had not yet been convicted of the crime although he had 98 THE PUBLIC CONSCIENCE pleaded guilty. It was necessary then for the state to prove both his and Mrs. Wakej&eld's guilt in order to convict her. She had also to be convicted of having " procured, counseled and encouraged " him to do it. Silent acquiescence would not be suflBcient. She was found guilty as stated, but, on appeal, a new trial was granted on error. Meanwhile a great hubbub arose among those opposed to capital punishment and among women's organizations to keep a woman from being hanged. On July 30th she was found guilty of murder in the second degree and sentenced to prison for life. There can be little doubt that the second verdict was influenced by popular clamor — a sentimental objection to having a woman hanged being a promi- nent feature of the protests. There was quite as much evidence of her instigation of the crime as was found in the Becker Case. She had frequently made remarks which encouraged Plew to believe that she wished to have her husband killed. She was not even remotely suspected of having taken part, directly, in the killing. Comment. There can be no doubt that Mrs. Wakefield was guilty in exactly the same way as Becker. She would doubtless have been hanged but for the fact that she was a woman. There are not many women mur- derers and the State has not felt them as a menace. ILLEGAL — ALWAYS REPROBATED 99 OURISH CASE Connecticut, 1786. — Anonymous Hannah Ourish, 13 years old, killed a playmate, Eunice Bolles, 7 years, by pounding her on the head with a stone. She was given the death penalty and hanged. Hannah was the daughter of a colored man and a Pequot squaw. Her mother was addicted to drink and her home situation was of the poorest. Under these circumstances she became addicted to lying, and she was often cruel. Her parents, to get rid of her, bound her out to a widow. After Hannah and Eunice went berry picking one day, Eunice complained that Hannah had stolen some of her berries. Hannah was punished, and after that took every opportunity to torment Eunice. It appears that in the trial little weight was given to the age of the defendant and the peculiar conditions which had surrounded her life. Comment. Given as an indication of the attitude of a former day. No child so young could be hanged under law in the United States today: on the ground, declared in statutes, that at such an age full recognition of the consequences of one's acts is not possible. The surface evidence here, in addition, points to the abnormality of the girl. 100 THE PUBLIC CONSCIENCE REGINA V. HOLLAND Liverpool Assizes, 1841 (Reported 2 Moody & Robinson, 351. Beale 3d ed.) " The deceased had been waylaid and assaulted by the prisoner and, among other wounds, he was severely cut across one of his fingers by an iron instrument. On being brought to the infirmary, the surgeon urged him to submit to the amputation of the finger, telling him, unless it were amputated, he considered that his life would be in great hazard. The deceased refused to allow the finger to be amputated. It was thereupon dressed by the surgeon, and the deceased attended at the infirmary from day to day to have his wounds dressed; at the end of a fortnight, however, lock-jaw came on, induced by the wound on the finger; the finger was then amputated but too late, and the lock- jaw ultimately caused death. The surgeon deposed that if the finger had been amputated m the first in- stance, he thought it most probable that the life of the deceased would have been preserved. " For the prisoner, it was contended that the cause of death was not the wound inflicted by the prisoner, but the obstinate refusal of the deceased to submit to proper surgical treatment, by which the fatal result would, according to the evidence, have been prevented. Maule, J., however, was clearly of opinion that this was no defense, and told the jury that if the prisoner wilfully, and without any justifiable cause, inflicted ILLEGAL — ALWAYS REPROBATED 101 the wound on the party, which wound was ultimately the cause of death, the prisoner was guilty of murder; that for this purpose it made no difference whether the wound was in its own nature instantly mortal, or whether it became the cause of death by reason of the deceased not having adopted the best mode of treat- ment; the real question is whether in the end the wound inflicted by the prisoner was the cause of death." (Guilty) Comment. There are no degrees of murder in England. It is probable that the death penalty was not inflicted; but doubtless the prisoner received a much more severe punishment than he would have received in the United States under the same conditions. REX V. SMITH Old Bailey — 1804 (Reported 1 Russ. Cr. & M. 458. Beale 2d ed.) " The neighborhood of Hammersmith had been alarmed by what was supposed to be a ghost; the prisoner went out with a loaded gun to take the ghost; and, upon meeting with a person dressed in white, immediately shot him. " M' Donald, C. B., Rooke and Lawrence, JJ., were clear that this was murder, as the person who appeared as a ghost was only guilty of a misdemeanor; and no one might kill him though he might not otherwise be taken. 102 THE PUBLIC CONSCIENCE " The jury however brought in a verdict of man- slaughter; but the court said they could not receive that verdict, and told the jury that if they believed the evidence, they must find the prisoner guilty of murder, and if they did not believe the evidence they should acquit the prisoner. " The jury then found the prisoner guilty, and sen- tence was pronounced, but the prisoner was afterwards reprieved." Conwient. The prisoner was deUberately taking the law into his own hands. He was possibly terrified, possibly headstrong. The case is admirably reported in Beale and leaves no room for comment, except the observation that the forms of law were preserved by the judge in refusing to allow a verdict contrary to the evidence. 67 Alabama 157. Nov. 1897 A husband beat his wife while she was quick with child, inflicting injuries from which it died shortly after birth. The court held that, if a woman be quick with child and be beaten by one intentionally and knowing her to be so, and the child, after being born alive, die because of such beating, then the offense was murder in the second degree. The jury found the de- fendant guilty of murder in the second degree. There was no evidence of express malice or of an intent to take life, but malice was implied because the husband beat his wife unlawfully and in a manner dangerous to life. Implied malice is the distinguishing characteristic of murder in the second degree. ILLEGAL — ALWAYS REPROBATED 103 Comment. Note that if the child had died before birth, the defendant could have been convicted of neither murder nor manslaughter. ALABAMA v. PIXLEY (Student report) Barr Pixley lived in a cabin. Contemplating a trip away, he fixed a gun near the door so that any one entering the door in the absence of the owner would receive the charge full in the body. He also removed his valuable possessions to a nearby house, and left the door insecurely locked. While Pixley was away, Nels Anderson, in company with two other men sought shelter in the cabin. An- derson, being the first to enter was killed by the dis- charge of the spring-gun. The court in finding Pixley guilty of murder in the second degree said : A vindictive desire to take human life was evidenced by these facts: The valuable property was removed. The door was insecurely locked. The spring-gun was so arranged that the charge of the gun would kill anyone entering the door. Pixley was sentenced to life imprisonment. Comment. The only palliation of his offense was that he had not sought out any particular person to kill. The killing of any person by an act felonious in itself but not aimed at any particular person, will not be punished with death. W-k THE PUBLIC CONSCIENCE New York Times (?) Nov. 12, 1914 Thomas B. lived with Hudson W., his step-father, and his mother at Bortins Landing, N. J. The step- father abused B.'s mother, who was blind, striking her in the face. B. saw W. strike and wound his mother. Crazed with anger he got a shot gun but could find no cartridges. He went to a neighbor's house and borrowed some cartridges saying " I'm going to kill a dog that has just bitten my poor old blind mother." He then ran back, stepped in the doorway and dis- charged both barrels at his step-father, killing him almost instantly. He was found binding up his mother's wounds when the police arrived and arrested him. He was sentenced to serve not less than 15 nor more than 30 years at hard labor. Comment. There can be no doubt that the severity of this sentence is due to the element of deliberation in the act. B. intended to kill. Cf. the case of Robert W. 17 years of age who on November 15th of the same year, killed his father at Bristol, Tenn. The elder W. had whipped two of his children and had threatened Mrs. W. with a revolver. The boy was exonerated. Here there had been a threat to kill, — also the case occurred in Tennessee. (Source: Student report from daily papers.) Cf. also the case of Arthur B. who confessed to the murder of his mother and sister, after having first de- clared that they had been killed and that he was hunt- ILLEGAL — ALWAYS REPROBATED 105 ing for the murderers. The crime occurred at Maidstone, Vermont, March 9th, 19 IL There was a farm willed to B. by his father, which he declared had been taken away from him by his family. Judge Butler said the most charitable view he could take of the affair was that the defendant's mind had dwelt upon the loss of property that his father had willed to him and had been excited and controlled by passion. This condition was further aggravated by the use of in- toxicating liquor furnished by his own brother. He was declared guilty of murder in the first degree and sen- tenced to life imprisonment at hard labor in Windsor jail, November 15th, 1911. (Daily paper November 15, 1911.) New Mex. Code, 1915, Sec. 1645 Provides that tampering with a locomotive in such a manner as to threaten life or cause its loss shall be treated either as an assault with intent to commit murder or else as murder. Manslaughter (Daily Papers, Media, Ills. Nov. 2, 1914. — Student report.) St. Lewis Pinkerton, a tax collector, was found murdered after an absence of several weeks, upon the confession of George R. Marsh, who with Roland S. Pennington was suspected of the crime. Marsh led the officers to the woods where the body was hidden. He had found evidence of improper relations between 106 THE PUBLIC CONSCIENCE Pinkerton and Marsh's wife. He told his suspicions to Pennington. The three men met in a barn where Pinkerton was killed by a black jack wielded by Marsh, Pennington holding him. About $300 in money which Pinkerton had in his pockets was taken by Pen- nington, Marsh refusing any of the money, but mak- ing no objections to Pennington's taking it. In view of the fact that Marsh believed that there were improper relations between Pinkerton and the former's wife, the jury held that the crime was com- mitted in the heat of passion by him. Their verdict gave him fifteen years for second degree manslaughter. (Pennington, however, having suggested the crime and taken the money was convicted of murder in the first degree. Life imprisonment.) Comment. An interesting case of discrimination. Marsh actually committed murder. There was evident premedi- tation and such malice as Justice Shaw construed in the Webster Case; but the "unwritten law " that a man has some right to avenge the betrayer of his honor, influenced the jury. Pennington was of the character of the gunmen in the Becker Case. In him it was simply sordid murder with no individual malice apparent. Brooklyn Daily Eagle, December 12, 1913. Charles Christman, 19 years old, of 534 Cleveland Street, was this afternoon convicted of manslaughter in the first degree by a jury in the County Court, be- fore Judge Dike. Christman was charged with having ILLEGAL — ALWAYS REPROBATED 107 prompted Daniel Sullivan, a gun man, to shoot and kill Thomas Ryan, of 1432 Boyd Avenue, on August 16th, last. The murder resulted over a quarrel between Ryan and Richard Surdez, a chauffeur. Ryan won the affec- tions of Surdez's sweetheart, Fannie Albers, of 390 Crescent St., and the jilted suitor hired Christman to " do up " Ryan. Christman got Sullivan to do the shooting. Sullivan last week pleaded guilty to man- slaughter in the second degree. Christman will be sentenced on Monday. The jury was out about two hours. Comment. I find no mention of Surdez's part in the kill- ing. It is important to compare this with the Becker Case. Christman would correspond to Rose, Webber and Vallon in the role he played; Sullivan to the gun- men. The killings occurred within about a year of one another, in the same municipality. The great difference in the cases is their importance to the safety of the group. The Christman case was the result of a private quarrel, vicious enough but not threatening the security of the city. COMMONWEALTH v. MINK Supreme Judicial Court of Massachusetts, 1877. (123 Mass. 422. Beale 3d ed.) Charles Ricker of Lowell was engaged to the de- fendant Mink. There was an interview in her room in which he declared his intention to break off the 108 THE PUBLIC CONSCIENCE engagement. She declares that she thereupon went to her trunk, took a pistol from it and attempted to kill herself. Ricker struggled with her to prevent this and in the course of the struggle was shot and killed. The defendant was tried and, supposing her story to be true, the jury did not find her guilty of murder but of manslaughter on the ground, that, while she had not intended the death of Ricker, his death was brought about by her while she was trying to commit a felony, namely, suicide. " By the common law of England suicide was considered a crime against the laws of God and man, the lands and chattels of the criminal were forfeited to the King, his body had an ignominious burial in the highway, and he was deemed a murderer of himself and a felon, felo de se." But suicide in itself is not now a felony, in Massa- chusetts, and, in any case, the offender is outside the province and reach of the law. An attempt to commit suicide is a misdemeanor. It is a malum in se not merely malum prohibitum. And " it isn't disputed that any person who, in doing or attempting to do an act which is unlawful and criminal, kills another, though not intending his death, is guilty of criminal homicide, and, at least of manslaughter." Guilty of manslaughter. Comment. It should be noted that the difference between mala prohibita and mala in se is one which has been hekl by some to be either purely fictitious or at most one of degree, and that a point has been strained here to make the offense the same as a felony. The milder attitude of ILLEGAL — ALWAYS REPROBATED 109 the public toward suicides is not here reflected. The ancient letter of the law has convicted this woman of an offense which, according to the evidence, she never intended. REGINA V. SALMON (14 Cox C. C, 494. Beale, 3d ed.) Three men were tried for the manslaughter of William Wells, ten years old. The prisoners went into a field and each fired a shot from a rifle at a target. One of the shots killed the boy who was at the time in a tree in his father's garden, distant about four hun- dred yards from the spot where the shot was fired. The rifle was sighted for nine hundred and fifty yards, and would probably be deadly at a mile. It did not appear which one of the prisoners fired the fatal shot. The person who fired the fatal shot was clearly guilty of manslaughter since if a person does a thing which is dangerous without taking proper precautions against danger arising and in the course of his act kills anyone, it is a criminal act. These prisoners were commonly engaged and were commonly guilty of culpable negligence under the circumstances; hence were guilty of manslaughter. Conviction affirmed. Comment. Notice that there are no degrees of man- slaughter in England. These men had in no way intended the death of the child. 110 THE PUBLIC CONSCIENCE Wilful Neglect THE TRIANGLE WAIST COMPANY CASE In April, 1912, a destructive fire broke out in the Asch Building, New York City, occupied by the Tri- angle Waist Company, employing large numbers of girls and women in crowded quarters, filled with in- flammable materials. Stairways were narrow and in- sufiicient, some of them inaccessible because doors were found locked, and the single fire escape ended in a cul-de-sac. One hundred and forty-seven people were killed, mostly girls and women, being either burned to death or killed when they jumped to avoid the flames. The fire swept instantaneously over large quantities of inflammable materials. Harris and Blanck of the Triangle Waist Company were indicted for manslaughter; the case of two girls especially, who were killed because they could not get through a door supposed to have been locked, being made the basis of the indictment. Judge Crain said " Because they are charged with a felony, I charge you that before you find these defendants guilty of man- slaughter in the first degree you must find that this door was locked. If it was locked and locked with the knowledge of the defendants, you must also find be- yond a reasonable doubt that such locking caused the death of Margaret Schwartz. If these men were charged with a misdemeanor, I might charge you that they need have no knowledge that the door was locked, ILLEGAL — ALWAYS REPROBATED 111 but I think that in this case, it is proper for me to charge that they must have had personal knowledge of the fact that it was locked." Testimony was conflicting and it was manifestly impossible to prove their guilty knowledge. Consequently, they were acquitted. No one probably has the slightest doubt that the defend- ants Harris and Blanck were perfectly cognizant of the conditions of work in their factory. Two years and a half after the Triangle fire they were fined for having an exit door locked in another of their factories. An unusually intelligent coroner's jury had found Harris and Blanck responsible because of culpable and criminal negligence. This is one of the rare cases in which deaths not due directly to malice and not brought about by the direct agency of any one, result in so much as an indictment for manslaughter. Sources: Court records, daily papers and current magazines. Comment. Judge Grain's remark that since defendants • were charged with a felony and not a misdemeanor it would be necessary for the prosecution to prove " guilty knowledge " is an indication of the demand of the public conscience that, in more serious matters, intent be proven. It is not sufficient that it should be evidently present; it must be demonstrably present. The certainty required is for the security of the group. If the intent is estab- lished, the offense is inevitably more serious. 112 THE PUBLIC CONSCIENCE COMMONWEALTH v. CAMPBELL Supreme Judicial Court of Massachusetts, 1863. (Reported 7 All. 541. Beale, p. 350, 2d ed.) A riot occurred near the armory in Cooper Street in Boston which grew out of the enforcement of a draft of men for the army. The evidence offered by the government tended to show that the prisoner was there participating in the riot, with a large number of other persons. A military force was called out to suppress the riot and was stationed in the armory. The mob fired on the soldiers and the soldiers on the mob. Dur- ing this firing one William Currier was killed and one Campbell was indicted for his murder, but he was acquitted. Bigelow, C. J., said that it was clear that the general rule of law was that a person engaged in the commis- sion of an unlawful act was legally responsible for all the consequences which naturally or necessarily flow from it. Yet no person can be held guilty of homicide unless the act is either actually or constructively his, and it cannot be his act in either sense unless com- mitted by his own hand or by some one acting in con- cert with him or in furtherance of a common object or purpose. Certainly that cannot be said to be an act of a party in any just sense, or on any sound legal principle which is not only not done by him . . . but is committed by a person who is his direct and immedi- ate adversary, and who is, at the moment when the ILLEGAL — ALWAYS REPROBATED 113 alleged criminal act is done, actually engaged in oppos- ing and resisting him and his confederates and abet- tors. . , . The jury will accordingly be instructed that, unless they are satisfied beyond a reasonable doubt that the deceased was killed by means of a gun or other deadly weapon in the hands of the prisoner, or of one of the rioters with whom he was associated and acting, he is entitled to an acquittal. (Opinion greatly condensed but given in the Justice's own words.) " The case of the Philadelphia rioters, cited by the attorney-general ... is obscurely reported. If it can be supported at all as a true exposition of the law, it can only be upon the ground that both parties or sides had a common object in view, namely, a breach of the peace, and that both went by agreement or mutual understanding to engage in an affray or riot. If such was the fact, then, as in the case of a duel, although to accomplish the common purpose they took opposite sides, — still they might all well have been deemed to have confederated together in an unlawful enterprise, and thus to have become responsible, on the principle already stated, for a criminal act done in pursuance of the common design by any one of their confederates, with whichever side he may have acted in the affray." Comment. It was rather absurd to charge Campbell with murder in any case; for he could hardly have been con- victed of murder had it been certain that he fired the shot, since he plainly was not trying to kill a particular person. In the Salmon Case where all three men were 114 THE PUBLIC CONSCIENCE convicted of manslaughter though it remained unknown which of them had accidentally but culpably killed the boy, they were all engaged in an act whose consequences they could have foreseen; and it was definitely known that one of them had done the killing. Of. Becker Case. SPIES V. PEOPLE Supreme Court of Illinois, 1887 (Reported 122 111, 1. Beale, p. 432, 3d ed.) On August 20th, 1886, in Chicago, 111., a jury re- turned a verdict of murder against August Spies, Michael Schwab, Samuel Fielder, Albert R. Parsons, Adolph Fischer, George Engel and Louis Lingg and fixed death as the penalty. Oscar Neebe was found guilty of murder and the penalty was fixed at fifteen years in the penitentiary. The case was appealed. A part of the opinion of Magruder, J., follows: " About the first day of May, 1886, the workingmen of Chicago and of other industrial Centres in the United States were greatly excited upon the subject of inducing their employers to reduce the time during which they should be required to labor on each day to eight hours. In the midst of the excitement growing out of this eight hour movement, as it was called, a meeting was held on the evening of May 4th, 1886, at the Haymarket ... in the West division of the City of Chicago. This meeting was addressed by the ILLEGAL — ALWAYS REPROBATED 115 defendants, Spies, Parsons and Fielder. While the latter was making the closing speech, and at some point of time between ten and half past ten in the evening, several companies of policemen, numbering one hundred and eighty men, marched into the crowd from their station on Desplaines Street, and ordered the meeting to disperse. As soon as the order was given, some one threw among the policemen a dyna- mite bomb which struck Degan, who was one of the police officers, and killed him. As the result of the throwing of the bomb and of the firing of pistol shots, which immediately succeeded the throwing of the bomb, six policemen, besides Degan, were killed, and sixty more were seriously wounded. " It is undisputed that the bomb was thrown and that it caused the death of Degan. It is conceded that no one of the convicted defendants threw the bomb with his own hands." The Illinois statute abolishes the distinction be- tween accessories before the fact and principals. The defendants had formed a common purpose to ac- complish murder by concerted action. " Where there is a conspiracy to accomplish an unlawful purpose, and the means are not specifically agreed upon, or understood, each conspirator becomes responsbile for the means used by any co-conspirator in the accom- plishment of the purpose in which they are all at the time engaged." State v. McCahill, 72 Iowa, 111. The jury found that the facts constituting a conspiracy were established. The court of appeals sustained the 116 THE PUBLIC CONSCIENCE verdict of the lower court and the men were duly executed. The final words of Judge Magruder's opin- ion are as follows: " If the defendants, as a means of bringing about the social revolution and as a part of the larger con- spiracy to effect such a revolution, also conspired to excite classes of workingmen in Chicago into sedition, tumult and riot and to the use of deadly weapons and the taking of human life, and for the purpose of pro- ducing such tumult, riot, and to the use of weapons, and taking of life, advised and encouraged such classes by newspaper articles and speeches to murder the authorities of the city, and a murder of a policeman resulted from such advice and encouragement, then defendants are responsible therefor." Comment. A case of responsibihty for any movement to whose ends one consents. There would have been no doubt of the guilt of the defendants except that the issue was clouded by a confusion with the right of free speech. For the extent to which that right actually exists compare cases under that heading. The conclud- ing words of Judge Magruder give the formal opinion of the court on that subject. This is yet another case where those who incite to murder are counted to be as guilty as if they had done the deed themselves. With reference to the philosophy of anarchy the case is sig- nificant. No social philosophy is, at this point, deemed to be justified in overthrowing the society that exists; at least, it cannot be justified by the sworn officers of that existing society. SOMETIMES REPROBATED, OFTEN NOT 117 11. SOMETIMES REPROBATED, OFTEN NOT Accidental THE GENERAL SLOCUM CASE United States v. Van Schaick (134 Federal Reporter 592, 159 Federal Reporter 847, also daily papers and magazines.) The Steamship General Slocum, Captain Van Schaick, Master, was inspected May 5th, 1904, and given a license in her usual waters near New York to navigate for one year. On June 15th of the same year, while navigating the East River with a church excursion of between 1000 and 1100 persons, largely women and children, she took fire and, the fire rapidly spreading and being quite uncontrolled by the crew, about 1000 persons lost their lives, though none of the crew was lost. Subsequently, the owner of the vessel, the Knicker- bocker Steamship Company, the master of the vessel, and the directors of the company were all indicted for manslaughter and the inspector who had examined the vessel on May 5th, the charges being that the vessel was unfit for service on account of rotten life pre- servers, filled with cork dust and useless, lack of disci- pline on the vessel and inadequate fire prevention apparatus. All of these charges were abundantly sus- tained in detail. 118 THE PUBLIC CONSCIENCE Sec. 5344, Title 70, Revised Statutes of the United States, reads, " Every captain, engineer, pilot or other person employed on any steamboat or vessel, by whose misconduct, negligence or inattention to his duties on such vessel, the life of any person is destroyed, shall be deemed guilty of manslaughter, and, upon conviction thereof before any Circuit Court of the United States, shall be sentenced to confine- ment at hard labor for a period of not more than 10 years." It was shown that there had been no fire drill, that Van Schaick was aware of the inflammable contents of the forward hold in which the fire started, that he knew the need of many things to make his vessel safe. Judge Thomas, at the first trial, said that it was no part of a master's duty to make an inspection of life preservers and other safety apparatus, once made by supposedly competent authorities, but that it was his duty to use ordinary observation and not to leave port with his vessel in an unsafe condition. The directors were not named in the statutes but by common law would be principals in the second degree. On January 27th, 1906, Captain Van Schaick was found guilty of manslaughter and sentenced to ten years imprisonment at hard labor. An appeal was taken but conviction was afiirmed and the captain was again sentenced February 12th, 1908. He was paroled from Sing Sing in August, 1911, after serving a few months more than three years of his sentence and SOMETIMES REPROBATED, OFTEN NOT 119 was pardoned outright by President Taft on Christmas Day, 1912, he being then over 72 years of age. Lundberg, the inspector, was tried twice, the jury disagreeing in both cases. I can find no record of a third trial. There was ample evidence to show that the owners and directors were aware that new life preservers had not been furnished in from 9 to 13 years, and that the fire prevention equipment was of a poor quality and not kept in working order. Captain Van Schaick when about to leave for prison was interviewed regard- ing his knowledge of poor and inadequate equipment. — " It is all very well," he said, " to talk of proper equipment, but to put a vessel in first class shape costs a lot of money and the chances are that if I had ordered all the things the Slocum required I would have been out of a job." The directors were also condemned but I can find no record in newspapers or court reports of the penalty imposed. Apparently they never suffered any punish- ment from the State. REGINA V. BRADSHAW Leicester Assize 1878 (Reported 14 Cox, C. C. 83. Beale, 3d ed. p. 212.) William Bradshaw killed Herbert Dockerty in a football game at a match held at Ashby-de-la-Zouch. The killing occurred in the course of the game, by 120 THE PUBLIC CONSCIENCE the prisoner's " charging " Dockerty in a manner de- scribed variously as within the rules of the game and not within such rules. Bramwell, L. J. " The question for you (the jury) to decide is whether the death of the deceased was caused by the unlawful act of the prisoner. There is no doubt that the prisoner's act caused the death, and the question is whether that act was unlawful. No rules or practice of any game whatever can make that lawful which is unlawful by the law of the land. . . . Independent of the rules, if the prisoner intended to cause serious hurt to the deceased, or if he knew that, in charging as he did he might produce serious injury, and was indifferent and reckless as to whether he would produce serious injury or not, then the act would be unlawful." Verdict, not guilty. Comment. There can be no doubt that, had the jury accepted the judge's charge at its face value, they would have found the prisoner guilty of manslaughter; as every one knows that " charging " or " rushing " under certain conditions may very well result in death. But popular opinion would never uphold such a ver- dict inasmuch as the element of malice or enmity toward an individual is — in all probability — totally lacking; and those who play football accept all such risks. Unnecessary roughness in playing does fre- quently bring about the disqualification of players and breaks up agreements between friendly rivals; but no football players could be found to believe that there was a real criminal element involved. SOMETIMES REPROBATED, OFTEN NOT 121 RAILROAD ACCIDENTS Outlook, 100 : 247, Feb. 3, 1912. (Last week) several high raih'oad officials were killed in a preventable accident. There was a wooden car on the rear of a steel train. — Rear end collision, many prominent men killed. Five years ago Samuel Spen- cer, President of the Southern Railway, was killed in the same manner. Block signals are sometimes overrun by engineers. The only safety is in the automatic stop system now in successful operation on the New York Subway system, which, however, cannot be used on surface roads on account of snow and ice, etc. Scientific American, 107 : 342, Oct. 26, 1912. The Westport wreck was preventable; cross-overs could be lengthened and " stiffening discipline " is not enough. We look in vain for evidence that the New Haven has made any effort to improve physical con- ditions. With the example of the Pennsylvania and New York Central, the public asks — WHY? The Bridgeport wreck preceded Westport by fourteen months — in that time nothing was done to change conditions. (See illustration in same number of Sci. Amer.) The same article states that while cross-overs are much easier and of far greater radius on the Pennsyl- vania, still on the shorter cross-overs where there is a speed limit, constant tests are made of the actual 122 THE PUBLIC CONSCIENCE speed at which engineers cross, without their knowl- edge. If they exceed the limit they are punished. Railroad Accidents Due to Poor Quality of Rails. Nation, 94 : 279, Mar. 21, 1912. Rail makers contend that present day traffic is too heavy for a rail which used to serve all ordinary pur- poses. Some railway men allege that the quality of rails turned out today is deteriorating, but in the re- cent wreck on the N. Y. Central (week before) it was a 112-lb. rail, the heaviest now laid down that was broken. The Vice-President of the Great Northern Railway made a statement that the 68-lb. rails laid down twelve or thirteen years before were giving better service than the 90-lb. rails laid down within three years. And the Railway Age Gazette sharply criticizes the Steel Cor- poration for making poor rails. They could not be brought up to specification because of monopoly con- ditions. Opposition to Safety Through Automatic Devices ON Railroads from Operators in the Interest of Their Caste. Am. Rev. of Rev., 47 : 334. The questions are brought up. (1) Are such de- vices in the interest of good railroading and will they not tend to weaken the skill and responsibility of the engineer, who today is one of the most respected and efficient of railway employes? (2) Will not his status, SOMETIMES REPROBATED, OFTEN NOT 123 and incidentally his salary be reduced towards the level of the subway and elevated engineer, or motor- man, who, as a cynical manager remarked with a de- gree of exaggeration at the time of a strike, could be reproduced with some two hours of training? (3) If an engineer is going to disregard signals, is he competent to handle a train with its many lives, and if he is con- stantly checked up automatically will he develop the skill, keenness, and self-reliance necessary to his work? The operating men of the railways are by no means a unit in favor of automatic train stops and emergency brakes, nor are such individuals as Mr. J. 0. Fagan, the author of the " Confessions of a Signalman," and many of the representatives of the Brotherhood of Locomo- tive Engineers, who see in their introduction the open- ing wedge toward the automatic operation of trains and a system of central control. Labor unions are blamed for retaining incompetent and mediocre men. But the unions claim that they have greatly improved the standard of the individual workman both in intelligence and sobriety, and that they have protected competent men who incurred the dislike of autocratic managers. Railway Accidents Rev. of Rev., 47 : 327. Article by Herbert T. Wade (1913) During 24 years for which statistics are available, 188,037 persons have been killed, 1,395,618 " " " injured on railroads in the United States. 124 THE PUBLIC CONSCIENCE During year ending June 30th, 1912, 10,585 persons killed 169,538 " injured. More than half the killed were trespassers (53%). Many of these accidents are due to the temperament and habits of the American people. Though many millions have been spent recently on track elevation and other protective devices, the percentage of losses remains about the same. An indication of one cause lies in the fact that on the Chicago Elevated Roads (which alone have spent $70,000,000 recently) tres- passing continues; and out of 339 arrested for this in a three months period but 67 were punished. It is safe to add that their punishment was probably light. In 1902 there were 78 accidents due to broken rails, in 1912, 363. Rev. of Rev., 47 : 335. From 1893-1911 there was a reduction from 11,710 to 3175 in the total of deaths and injuries in coupling accidents with vastly greater tonnage carried by the railways. This was due chiefly to inspection and prose- cution carried on by the Interstate Commerce Com- mission. Stamford Wreck Sci. Am., 109 : 46, July 19, 1913. This was due to the inexperience of the engineer. It was broad daylight, signals were set and the engi- SOMETIMES REPROBATED, OFTEN NOT 125 neer was doing his best — but he was inexperienced. The Pennsylvania Railroad said that, on their road, in case it was necessary to send an inexperienced man, a traveling engineer, or road foreman would have been sent with him. This was the first run of a new man with an impor- tant train, totally unsupervised. Also expert testimony declared the train to have been in unfit condition to leave the yards. There is no way, on the New Haven, of finding out whether repairs to locomotives have actually been made. List of New Haven accidents Fairfield, Conn. June 8,1911, 4 Killed, Bridgeport, Conn. July 12, 1911, 12 " 54 Injured Middletown, Conn. Aug. 28, " 60 Berlin Jc, Conn. Oct. 15, " 2 " 5 Clinton, Mass. June 11, 1912, 8 Stonington Jc, Conn. July 25 " 3 " 4 Dorchester, Mass. Aug. 8, " 5 " 16 So. Boston, Mass. " 9, " 7 " 40 Westport, Conn. Oct. 3, " 7 " 15 Greens Farms, Conn. Nov. 16, " 17 Putnam, Conn. " 17, " 1 " 2 Willimantic, Conn. " 30, " 5 Waterbury, Conn. Feb. 12, 1913, 15 Stamford, Conn. June 12, " 6 " 22 Wallingford, Conn. Sept. 6, (?) 1913, 21 Killed At the Westport wreck four women passengers were burned to death — wooden Pullman. Within a few 126 THE PUBLIC CONSCIENCE hours the wrecked car was taken away and burned. No one was held cruninally Hable. Trespassers Killed During twenty years (1912 end) 86,733 trespassers killed, 94,646 " injured on rail- ways, 75% of them not tramps but ordinary wage earners, and many women and children. General Comment on Railroad and Steamship Wreck and Similar Cases In the great majority of cases under this heading it is extremely difficult to fix responsibility. The engineers and firemen of colliding railway trains are, more than half the time, killed ; and can receive no punishment from society. The captain of a steamship frequently goes down with his ship. In cases of pure accident, due to no negligence, criminal or other, it is not surprising that there is no public disapproval expressed. Sometimes a manslaughter charge is made, seldom pressed, still more seldom carried through. In America, at least, passengers on railways, steam- ship lines, trolley lines, etc., seem to be expected to take a sporting chance of survival. The captain of the Gen- eral Slocum was found guilty of manslaughter and served a prison term (see case above) ; but he was plainly a scapegoat; and he was pardoned after serving a short sentence. There has never been any trial of the " man higher up " responsible for the frequency of fatal acci- dents. Various individuals and newspapers from time to time declare that these are guilty of murder in running the kind of trains they do, with such equipment; they also protest against the violations of fire ordinances and SOMETIMES REPROBATED, OFTEN NOT 127 the laws for safety appliances on steamships, in theaters and under similar conditions. Civil damages for injury- are fairly easily recovered by the survivor or by the heirs of a person killed; but there seems to be little or no criminal responsibility. The reasons for this may be many. For one thing the practice of the common law is plainly against holding men responsible except in the degree in which they in- tend harm ; and no one believes that either train crews or directors desire to murder the passengers. Riding on trains and steamships, in elevators and trolley cars, is taken to be a sportsman's risk so far as criminality is concerned. Another element in these decisions is the unwillingness of the public to suffer delay of business. If safety de- mands fewer trains or more elaborate precautions which would delay traffic, the public would apparently prefer risk to delay. The same thing may be said of crowded cars or flimsy building construction which can be had at a reasonable cost. Even where the still inadequate laws for safety are plainly violated, while there will be civil damages assessed, criminal responsibility is not imposed. WILLY V. MULLEDY 78 New York, 310—1879 (Smith 89) A fire took place in an apartment house in Brooklyn wherein the wife and child of the plaintiff were killed. There were no fire escapes and there was no ladder giving access to the scuttle in the roof. The statutes provided,' that both such means of 128 THE PUBLIC CONSCIENCE escape should be furnished and the court held that the defendant was guilty — but damages alone were sought and obtained. There was no criminal prosecution. The statute was mandatory. The defendant could not wait until notified to provide fire escapes. An absolute duty was imposed for the sole benefit of tenants. " It is a general rule that, whenever one owes another a duty, whether such duty be imposed by voluntary contract or by statute, a breach of such duty causing damage gives a cause of action. Duty and right are correlative ; and where a duty is imposed, there must be a right to have it performed." Self-Defense PEOPLE V. TOMLINS 213 New York, 240. Newton Tomhns shot and killed his son, a young man of twenty-two on August 26th, 1913, at Stony Point (N. Y. ?). The father claimed that "he acted without premeditation when blinded by passion be- cause of blows and insults and that he had acted justi- fiably in lawful self-defense in his own house." He was judged guilty of murder in the first degree. The judge who renders the opinion on appeal says that this verdict is based upon ample evidence. Neverthe- less judgment of conviction was reversed and a new trial ordered upon the ground that the father was in his own home, that he was not bound, as in other cases SOMETIMES REPROBATED, OFTEN NOT 129 of self-defense, to escape and take refuge somewhere. His natural place of refuge was where he then was in his own home. THROWING PERSONS OVERBOARD TO LIGHTEN LEAKY BOAT UNITED STATES v. HOLMES (1 Wall. p. 1. From " Milburn's Curious Cases," pp. 382 ff. 1842.) The American ship William Brown was wrecked on an iceberg two hundred and fifty miles S. E. of Cape Race on the 19th of April, 1841. On the following morning two boats put off from the ship containing all of the crew and thirty-three passengers. Thirty-one passengers perished on the ship itself. The long boat contained the first mate, eight seamen, of whom the prisoner was one, and thirty-two passengers. Holmes, an admirable seaman, had behaved with great gallantry at the time of the wreck. The long boat was danger- ously overloaded and leaky. By hard work, in a quiet sea, the boat was kept afloat for two days. Then the sea rose and rain fell heavily. The danger became ex- treme and Holmes, under the orders of the mate, who had had similar orders from the captain before leaving the ship, cast overboard fourteen persons, all the male passengers, with the exception of two married men and a small boy. No one of the crew was cast over. The mate directed the crew " not to part man and wife and not to throw over any women." There was 130 THE PUBLIC CONSCIENCE no other principle of selection. There was no evidence of combination among the crew. No lots were cast; nor had the passengers, at any time, been either in- formed or consulted as to what was now done. The boat was picked up shortly after and the re- mainder of the company rescued. Holmes was tried for manslaughter. His admirable character was testi- fied to without dissent and it was recognized that he had been a most valuable man in the preservation of boat and boat's company. It was he who discovered the rescuing vessel and signaled to it. At the trial much weight was placed upon his neces- sary obedience to the orders of the mate (who, for some reason, appears not to have been tried). It was recog- nized by all that the emergency was desperate and that, at the time when danger threatened and the fourteen were cast overboard, it was night and stormy. The law of necessity was not held to apply to make this a case of justifiable homicide. The sailor is held to " owe more benevolence to another than to him- self." Doubtless there would have been an acquittal had lots been cast to include the crew. As it was the jury declared him guilty, with a recom- mendation to mercy; and the judge with all humanity and evident reluctance, pronounced the very light sen- tence of six months' imprisonment and twenty dollars fine; which penalty was subsequently remitted. SOMETIMES REPROBATED, OFTEN NOT 131 GENERAL COMMENT ON SUICIDE Obviously the State cannot punish a successful suicide ; but attempted suicide is a crime throughout the entire Western world. Under certain conditions in Japan it is considered heroically virtuous; but the laws of practi- cally all occidental states punish the attempt with heavy penalties — nominally. Actually, very little attention is paid to it. Both its punishment in our own civilization and its praise in certain parts of the Orient seem to be connected with religious ideas, although one may sur- mise that there is a scarcely conscious feeling that the life of the individual belongs to the state and that he may not take it without the sanction of the state. The attitude of insurance companies toward suicide has changed of recent years. The fact that most policies are valid even in case of death by suicide, after they have been in force for one year, points, I think, to a cer- tain confidence that the great majority of cases of sui- cide are due to a disordered mind and that the small residue of cases is negligible, rather than to any modern approval of self-killing ; though there is evident a distinct lightening of the social disapproval. The old custom of burying the suicide at a cross roads with a stake driven through his heart never prevailed in this country and there is no bill of attainder or forfeiture of goods permitted under our Constitution. 132 THE PUBLIC CONSCIENCE Assault and Battery A few assault cases are given as throwing light on the general nature of killing. COMMONWEALTH v. WHITE (Massachusetts 1872) The defendant was driving a wagon along a highway which Harrington, one Sullivan and others were re- pairing; that Sullivan called out to the defendant to drive in the middle of the road; that the defendant made an offensive reply ; that thereupon Sullivan came toward the defendant and asked him what he meant; that Sullivan and Harrington were about fifteen feet from the defendant, who was moving along all the time; that the defendant took up a double-barrel gun which he had in the wagon, pointed it towards Sullivan and Harrmgton, took aim at them, and said, " I have got something here that will pick the eyes of you." This was all the evidence. Sullivan testified that he had no fear; but it was evident that Harrington was in fear. The defendant testified that the gun was not loaded. The judge ruled that it was not necessary to prove a threat to shoot. The defendant asked the judge to instruct the jury that the facts testified to did not constitute an assault. The instructions required the jury to find that the acts were done " menacingly." SOMETIMES REPROBATED, OFTEN NOT 133 It is not the secret intent of the assaulting party nor the undisclosed fact of his ability or inability to commit a battery that is material. It is the outward demonstration that constitutes the mischief which is punished as a breach of the peace. Defendant found guilty. Exact punishment not stated. REGINA V. DADSON Crown Case Reserved, 1850 (Reported 4 Cox C. C. 358. Beale, p. 502.) George Dadson was a constable employed to guard a copse. He saw William Waters coming from the copse carrying wood which he was stealing and called on him to stop. He would not stop but ran. Dadson fired and wounded him in the leg. Waters had him tried and convicted on a criminal assault charge. The case was appealed or referred. Pollock, C. B. said, " We are all of opinion that the conviction is right. The prosecutor not having com- mitted a felony known to the prisoner at the time when he fired, the latter was not justified in firing at the prosecutor; and having no justifiable cause, he was guilty of shooting at the prosecutor with intent to do him grievous bodily harm, and the conviction is right." ' - 1 Cf. with Foster C. L. 267 above. Cf. also cases of strikers killed by special constables in Colorado, at Roosevelt, N. J. and other places. 134 THE PUBLIC CONSCIENCE Assault — Self-Defense ANONYMOUS Common Pleas, Easter Term, 1455. (Year Book, 33 Henry VI, folio 18, placitum 10, Ames 106.) Prisot, C. J. This is no plea to the threats, without more; for if one assaults you to beat you, it is not lawful for you to say that you will kill him, and to threaten his life or limb; but if the case is one where he has you at such an advantage that by intendment he would kill you, as if you should flee from him, and he, being swifter than you, should pursue you so that you could not escape; or, again if you are under him on the ground; or if he has chased you to a wall, or hedge, or dike, so that you cannot escape him, . . . then it is lawful for you to say that if he will not de- part from you, you, to save your life, will kill him, and so you may threaten him for such special cause. By the Penal Law of Neiv York, Art. 20, Sec. 246, the use of force is not unlawful when necessarily com- mitted by a public oJBficer in the performance of a legal duty, or by any person assisting him, etc.; in self- defense or defense of another whose person or property is assailed, providing the defense is not excessive; or by parents and their agents for correction of children ; or by carriers of passengers and their agents in ejecting offenders, the vehicles first having been stopped and no undue force having been used; or by the proper restraint of insane persons, idiots, etc. SOMETIMES REPROBATED, OFTEN NOT 135 COMMONWEALTH v. ADAMS Supreme Judicial Court of Massachusetts, 1873. (Reported 114 Mass. 323. Beale 291, 3d ed.) The defendant was driving in a sleigh down Beacon Street and was approaching the intersection of Charles Street, when a team occupied the crossing. The de- fendani endeavored to pass the team while driving at a rate prohibited by an ordinance of the City of Boston. In so doing he ran against and knocked down a boy who was crossing Beacon Street. No special intent on the part of the defendant to injure the boy was shown. The defendant had pleaded guilty to a com- plaint for fast driving, in violation of the city ordi- nance. He was held guilty by the trial court on the ground that intent to violate the city ordinance supplied the intent necessary to sustain the charge of assault and battery ; but the Supreme Court reversed this decision and ordered a new trial on the ground that the defend- ant was merely doing a prohibited act — not an act evil in itself. It was not necessary to prove evil in- tent in violating the city ordinance. Violation in it- self is sufficient and he can be punished for that — but the violation of an ordinance is not necessarily either a felony or anything resembling it. Therefore a mis- adventure resulting from this violation does not make one liable to punishment for assault. Cf. also State v. Horton (Beale 293, 3d ed.) where 136 THE PUBLIC CONSCIENCE a man who had been hunting mistook another for a wild turkey and killed him. He had violated a local ordinance of the legislature in so hunting on another man's land but had not been hunting carelessly nor was hunting forbidden at that season of the year. He was adjudged guilty of manslaughter by the trial court but given the very light punishment of four months in the county jail. On appeal to the Supreme Court he was declared innocent on the ground that the act he had committed was merely a prohibited act and in- dicated no felonious intent. STATE V. WM. BECK and Others So. Carolina, 1833 (1 Hill L. 363. " Milburn's Curious Cases," p. 294.) One of the defendants had lost leather, and sus- pecting it was stolen, got Beck and other defendants to aid him in the search. They found the leather on the premises of Noble Anderson, and immediately took him into custody, whether under a warrant or not did not appear. Whilst in this state, some one, not Beck, asked Anderson if he would not rather be whipped than go to jail. He replied that he would and then requested Beck to whip him. Beck at first hesitated, but finally, at the earnest entreaty of Anderson, and saying, " If it will obhge you, I will do it," consented; and Anderson putting his arms around a tree, he gave him a few stripes with a switch. Anderson was then SOMETIMES REPROBATED, OFTEN NOT 137 released, but was afterwards prosecuted, convicted and punished for stealing the leather. Thereupon the defendants were charged with assault and battery and the presiding judge declared Beck clearly guilty. He moved for a new trial. The Court of Appeals reversed the decision of the lower court. A battery is generally defined as injury done to the person of another in a rude, insolent or revengeful way. Negligence may also give ground for such a charge. But where there is no intention to injure and no negligence, no offense may be imputed. However ill judged the act may have been, it did not constitute an assault and battery. Military Discipline New York Times, July 23, 1916. Private Henry Scheiner was charged with an attempt to escape from the guard-house and an assault on Cor- poral Zenger while serving with Battery D, First Field Artillery, on the Mexican border during our trouble with Mexico. It was alleged that Scheiner had thrown Zenger to the ground and taken his pistol and had bitten the hand of Private Segrist when the guard tried to re- strain him. He was found guilty by a military court and sen- tenced to dishonorable discharge, forfeiture of all pay and allowances, and a term of one year at hard labor in the Federal Penitentiary at Leavenworth, Kansas. 138 THE PUBLIC CONSCIENCE THE WAGER OF BATTLE By Hayne Davis Outlook, 73 : 927. In our day, if two individuals have a dispute over the ownership of land, they go to the courts of that nation in which the land is situated and produce the evidence on which each claims to be the owner of the land, and the court adjudges that the land belongs to him who proves the better title to it. It is hard to realize that, for the trial of such controversies in Eng- land, there was at one time no way provided by the laws except battle between the adverse claimants or their champions. Yet such was the fact prior to the time of Henry 11. In his time (middle of the twelfth century) the Government authorized the trial of such controversies by jury, if the parties were so disposed, at the same time leaving the disputants free to prove their contentions in the old way of battle. Under the laws of England, certain crimes are pun- ishable by death; others, in former centuries, were punished by mutilating the body of the convict, on the idea of an " eye for an eye." In all crimes punishable by death or by mutilation of the body, two accusations for the same offense were allowed, one by the State, the other by the next of kin of the person injured. The accusation by the next of kin was called " appeal " of murder or arson, etc., and the trial in such accusa- tions was by evidence to court and jury, or by battle SOMETIMES REPROBATED, OFTEN NOT 139 between the accuser and accused, as the latter pre- ferred. Such being the law of England, the right to wage battle was demanded under the following circum- stances : At seven o'clock in the morning on May 27, 1817, the dead body of a girl named Mary Ashford was found in a pond near Birmingham. She had left a dance at midnight of May 26th in company with Abra- ham Thornton. They were seen together going home- ward at three a.m. At the dance Thornton was heard (not by Mary Ashford, but by another) to say some- thing which pointed to him as the murderer. When arrested, blood was found upon Thornton, so as to point to him as the criminal even without the other circumstances. Thornton was indicted on a charge of murder and rape, and was acquitted by a jury on both charges. Thereupon William Ashford, the brother of the dead girl, brought an appeal of murder against him. It was in such accusations of crime that the right of battle existed, and on March 16, 1818, Thorn- ton pleaded to the appeal " Not guilty, and I am ready to defend the same by my body," and thereupon, tak- ing off his glove, he threw it upon the floor of the court. The prosecution was surprised. They expected another trial by jury. A discussion followed, in which counsel for Ashford undertook to show that the right of trial by battle was not allowable in the case, but the court decided unanimously that it was. Lord Ellenboro, the Lord Chief Justice of England, 140 THE PUBLIC CONSCIENCE said, in delivering the opinion : " The general law of the land is in favor of wager of battle, and it is our duty to pronounce the law as it is, not as we may wish it to be. Whatever prejudice may exist against this mode of trial, still, as it is the law of the land, the court must pronounce judgment for it." Ashford's counsel took time to consider, and a few days later notified the court that Ashford would not accept the wager. Thereupon, on Monday, April 20, 1818, the case was dismissed and Thornton released. He came to America and was lost sight of. William Ashford, one of the parties to this suit, lived until 1867. Comment. Had the prosecutor of the " appeal" of murder taken up this challenge and been killed by the defendant, the said defendant could not have been held by any law of England, although he might have been guilty of the original murder as well as this — in such a case — legal killing. And had the prosecutor killed the defendant, who might have been innocent, there would equally have been no law to touch him. The Wager of Battle was a legal duel closely akin to trial by ordeal which presup- posed that God would judge in favor of the innocent. The Wager of Battle is no longer legal in England nor, so far as I know, anywhere. It is an interesting combina- tion of the original method of combat between opponents and of state action. SOMETIMES REPROBATED, OFTEN NOT 141 Duel — Wager of Battle TRIAL BY COMBAT George Neilson, p. 330 In this book the Ashford-Thornton case of appeal of murder is given and then Neilson adds " The case did not stand alone. In Ireland in 1815 a murderer, named Clancy, had escaped similarly by an unex- pected offer of battle, when he was put on trial at the assizes. Immediate legislation was therefore necessary to prevent the thing from becoming a standing obstacle to justice. The appeal of murder of which wager of battle formed an inherent part had been defended in Parliament in 1774 as " that great pillar of the con- stitution." In 1819 this great pillar has become a dangerous nuisance, and a bill was brought in to take it away. After not a little parliamentary eloquence and several petitions, it was read a third time in the House of Commons on 22nd March by a majority of 64 to 2. On 22nd June it received the royal sanction and became law. . . . This provision made an end of wager of battle. Comment. Duehng has now been for many years for- bidden by law in the United States and Great Britain in the army and navy as well as in civil life. In past times, however, the most celebrated and distinguished men have fought duels which were not only contrary to law but fully approved by a certain public opinion. The 142 THE PUBLIC CONSCIENCE popular sympathy with Hamilton in the famous duel be- tween Aaron Burr and Alexander Hamilton had much to do with the change of public opinion which led to the de- legalizing of the duel. It is unnecessary to say more on the subject here as the duel hardly exists anywhere in a recognizable form either in Great Britain or the United States and is fast dis- appearing everywhere. It is questionable, however, whether public opinion would justify the execution of a man who should even to-day kill a man in a duel; for, however unfair his conduct might be, it would still be considered by the majority of people a " fair fight" or one in which, at least, the other had a " sporting chance." Dueling Austria, 1900 A young lieutenant of Hussars, the Marquis Antoine Tacoli, who had served for seven years in the army; taking upon himself to defend an Archduke whom another officer, Monsieur Szilay, was speaking against, was insulted by the latter. Immediately everything was done to force Tacoli to challenge Szilay to a duel. Tacoli refused on the ground that he was a Catholic. He was branded as a coward, deprived of his commis- sion and placed in the reserve as a private soldier. Later he was registered as a common soldier as the rank of private was considered too honorable for him. In 1911, Emperor Francis Joseph issued an order directing that, wherever possible, his officers should SOMETIMES REPROBATED, OFTEN NOT 143 seek redress for indignity and insult, not through the practice of dueling but through the law courts. No duels are to be fought among oflGicers for trifling causes but only for the most serious matters, and then not until a court of honor, composed of the disputants' fellow officers, has declared that no other course is open to them. (Outlook, 99 : 400.) Duels on the Continent of Europe (See Cur. Lit. 28 :168. Fortnightly Rev., August 1908. R. of R.'s, 38 : 495.) Prince Alfonso de Bourbon et Autriche-Este formed an Anti-Dueling League. In the spring of 1900 two Austrian officers, excellent friends, agreed to fight a duel because of some re- marks made by one of them, but they made up their dispute almost immediately and no longer wished to fight. In spite of this their seconds obliged them to do so. Although one of the two thought he fired in the air, he actually shot the Comte de Bissengen dead on the spot. The Comte left a yomig wife, who was enceinte, and two little children. Outlook, 103 : 518, March, 1913. In the Bundesrath a resolution adopted in the Reichstag a year and a half before, asking that duel- ing in the army be effectually prohibited, was rejected. The Bundesrath gave countenance to dueling when conducted " upon ideal grounds." It declared that no 14.4 THE PUBLIC CONSCIENCE end could be put to dueling until measures were taken to apply not only to the army but to all classes. But, as noted, the Austrian Emperor endeavored to restrict if not to abolish the duel. The late Russian Emperor opposed it for all but the most serious offenses. General Kuropatkin had urged the Czar to abolish it entirely among officers and the Italian King is most seriously opposed to the duel. (Article in Fortnightly, 90: 169, 1908, gives full his- tory of Anti-Dueling League.) Century Magazine, Vol. 59 : 478. Date, 1900. Sir Walter Scott, whose fine sense of honor is thrice proven, was charged by General Gouraud, one of Napo- leon's attendants at St. Helena with making improper reflexion upon him in Sir Walter's " Life of Napoleon." It was rumored that he would call the historian to personal account for this. Scott was entirely willing to settle the matter off the field of honor. He would show the general his authorities, but if he should ask " any apology or explanation for having made use of his name " it was " his purpose to decline it and stand to consequences." He was aware he could " march off upon the privileges of literature " but he had no taste for that species of retreat; " if a gentleman says to me, I have injured him, however captious the quarrel may be, I certainly do not think as a man of honor, I can avoid giving him satisfaction without doing intolerable injury to my own feelings, and giving rise to the most mahgnant animadversions." SOMETIMES REPROBATED, OFTEN NOT 145 Fortunately he was not called upon to fight a duel; but he showed unmistakably that, in spite of his age, he would have so fought had he been challenged. In the same article reference is made to a duel be- tween a friend of his son-in-law Lockhart and one who had assailed Lockhart in a literary controversy, — " Sir Walter was shocked at his (the assailant's) death but the moral he drew was not abstention from the field of honor but the desirability of a less satirical style on the part of Lockhart." Mention is made also of Robert Browning's approval and Elizabeth Barrett's disapproval of dueling. Euthanasia In Chicago, November 17th, 1916, Dr. J. Haiselden refused to operate to save the life of the child of Mr. and Mrs. A. Bollinger, on the ground that the child, born defective in body and also probably in mind, would be better permitted to die than live an imbecile. The child died. The coroner's jury declared that it found no evidence that the baby would have become mentally or morally defective and expressed the belief that its physical defects in a measure might have yielded to plastic treatment. The physical defects found included many malfor- mations — fusion of the two kidneys into one located on the left side, absence of the right external ear, and of the external auditory canal, etc. The jury, composed of six leading physicians and surgeons, declared that Dr. Haiselden was " morally 146 THE PUBLIC CONSCIENCE and ethically {sic) within his rights in refusing to operate." State's Attorney Hogue refused to prosecute, saying that Dr. Haiselden had only obeyed the parents of the child. (Article in Information Annual, 1915.) Independent, 60 : 291. 1906. A bill was recently introduced into the Ohio Legisla- ture providing that when an adult of sound mind has been fatally hurt, or is so ill that recovery is impos- sible, or is suffering extreme pain without hope of re- lief, his physician, if not a relative and if not interested in any way in the person's estate, may ask his patient in the presence of three witnesses if he is ready to die. If the answer is in the affirmative, then three other physicians are to be summoned in consultation, and if they agree that the case is hopeless they are to make arrangements to put the person out of pain with as little discomfort as possible. The bill did not pass. The project was bitterly op- posed by The Independent which expressed surprise that Charles Eliot Norton should approve of anythmg so crude, cruel and barbarous. III. LEGAL: BUT NOT ALWAYS APPROVED BY THE GROUP Foster, C. L., 267. The execution of malefactors under sentence of death for capital crimes hath been considered by former writers as a species of homicide founded in necessity. I think it hath with propriety enough been so considered ; for the ends of government LEGAL BUT NOT ALWAYS APPROVED 147 cannot be answered without it. . . . Where persons having authority to arrest and imprison, using the proper means for that purpose, are resisted in so doings and the party making resistance is killed in the strug- gle, this homicide is justifiable. . . . Where a felony is committed, and the felon fleeth from justice, and a dangerous wound is given, it is the duty of every man to use his best endeavors for preventing an escape ; and if in the pursuit the party fleeing is killed, where he cannot be otherwise overtaken, this will be deemed justifiable homicide; for the pursuit was not barely warrantable, it is what the law requireth and will punish the wilful neglect of. Foster, C. L., 262. Parents, masters, and other per- sons, having authority in foro domestico, may give reasonable correction to those under their care; and if death ensueth without their fault, it will be no more than accidental death. But if the correction exceedeth the bounds of due moderation, either in the measure of it or in the instrument made use of for that purpose, it will be either murder or manslaughter according to the circumstances of the case. REX V. COMPTON Assizes, 1349 H. de Compton was indicted for feloniously killing H. Vesey. It appeared that said Vesey and others had been indicted for various felonies and that de Compton 148 THE PUBLIC CONSCIENCE and others had warrants for their arrest. These war- rants were shown and their surrender demanded. They would not surrender but fought with the officers. Divers persons were killed in the melee, among them Vesey. The indictment of de Compton was for this killing. The jury found him not guilty. Thorp, C. J. " They have acquitted you of this charge, and we acquit you. And I say well to you that when a man kills another by his warrant he may well avow the fact, and we will freely acquit him with- out waiting for the King's pardon. . . . And in many other cases a man may kill another without impeach- ment, as if thieves come to rob a man, or to commit burglary in his house, he may safely kill them, if he cannot take them. And note, how it was with a gaoler who came to the gaol with a hatchet in his hand, and just then the prisoners had broken their irons, and were all ready to have killed him, and they wounded him sorely, but with the hatchet in his hand he killed two, and then escaped, etc. And it was adjudged in this case by all the council that he would not have done well otherwise, etc. Likewise he said that every person might take thieves in the act of larceny, and felons in the act of felony, and if they would not sur- render peaceably, but stood on their defense, or fled, in such case he might kill them without blame, etc." LEGAL BUT NOT ALWAYS APPROVED 149 STOREY V. STATE Supreme Court of Alabama, 1882. (Reported 71 Alabama 329. Beale, p. 511.) Storey was convicted of the murder of Josiah Hall whom he had killed when in pursuit of him for the purpose of recapturing a horse " which the deceased had either stolen, acquired by fraud, or else unlaw- fully converted to his own use." Somerville, J. cites many authorities, text book writers as well as judicial opinions. From his opinion I may quote the following: " The question is presented ... as to the circum- stances under which one can kill in order to prevent the perpetration of a larceny which is made a felony by statute ... a subject full of difficulties and conflict- ing expressions of opinion from the very earliest his- tory of our common-law jurisprudence. The broad doctrine intimated by Lord Coke was that a felon may be killed to prevent the commission of a felony with- out any inevitable cause or as a matter of mere choice with the slayer ... (3 Inst. 56). If such a rule ever prevailed, it was at a very early day, before the dawn of a milder civilization, with its wiser system of more benignant laws; for Blackstone states the principle to be, that ' where a crime, in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting ' (4 Comm. 150 THE PUBLIC CONSCIENCE 181). . . . Both of these views have been repudiated by the later authorities. . . . One may, as Mr. Bishop expresses it, ' oppose another who is attempting to per- petrate any felony, to the extinguishment, if need be, of the felon's existence' (1 Bish. Cr. Law 849-850). . . . but ' the practical carrying out of the right thus conceded, is, in some circumstances, dangerous, and wherever admitted, it should be carefully guarded ' (Par. 855). Mr. Greenleaf confines the rule to 'the prevention of any atrocious crime attempted to be com- mitted by force ; such as murder, robbery, house break- ing in the night time, rape, mayhem, or any other act of felony against the person.' " It is said by Nicholas, J. (Gray v. Coombs) that the right to kill in order to prevent the perpetration of crime should depend ' more upon the character of the crime, and the time and manner of its attempted perpetration, than upon the degree of punishment attached by law.' There is much reason in this view, and a strong case might be presented of one's shooting a felon to prevent the asportation of a stolen horse in the night-time, where no opportunity is afforded to recognize the thief, or obtain speedy redress at law. Both the Roman and Athenian laws made this dis- tinction in favor of preventing the perpetration of theft by night, allowing, in each instance, the thief to be killed when necessary, if taken in the act (4 Black. Comm. 180, 181). •' The alleged larceny in the present case, if it oc- curred at all, was in the open daylight, and the defend- SEMI-LEGAL 151 ant is not shown to have been unable to obtain his redress at law. ' No man, under the protection of the law/ says Sir Michael Foster, ' is to be the avenger of his own wrongs.' " Punishments under the Articles of War. The following offenses are punishable by death; striking a superior officer, mutiny, sleeping at sentinel duty, misbehavior before the enemy, compelling a surrender, disclosing the watchword, corresponding with the enemy, desertion in time of war or advising to desert, forcing safeguards during a rebellion. These punishments are, of course, those allotted to soldiers and they are to be tried by courts martial. Comment. Needless to say there are few such cases tried and fewer still result in convictions and the actual carry- ing out of the death sentence. They are all, however, closely akin to treason and doubtless there may be cases of each; but the records are exceedingly private and scanty. IV, SEMI-LEGAL CASES OF LYNCH LAW From " Lynch Law," by J. E. Cutler (P. 44.) " In the Province of New Hampshire in June, 1753, two white men killed two Indians who were accused of having carried off two negroes the pre- ceding year. After several months the men were ar- 152 THE PUBLIC CONSCIENCE rested, indicted for the murder, placed in the jail at Portsmouth, and their trial set for March 21st, 1754. The night previous to the day appointed for the trial a party of their neighbors appeared in Portsmouth, broke open the jail and set them free. This outrage produced great excitement in the community — some endeavoring to discover and retake the murderers, and others favoring their escape. Both the murder and the rescue, however, were generally justified in the com- munity, and, although rewards were offered by Gov- ernor Wentworth for the apprehension of Bowen and Morrill, yet in a short time they went openly about their business, without fear of molestation, and the men engaged in breaking the jail at Portsmouth, though well known, were never called to account, but, on the contrary, were considered as having performed a most meritorious act. In fact, some of the most sub- stantial men in the country were engaged in the rescue, — by act or advice, — and the Government could not have made an arrest had they made the attempt. Pres- ents were afterwards made to the relatives of these Indians by the Government of New Hampshire, and thus the ' blood was wiped away ' to the satisfaction of the Indians." (New Hamp. Provincial Papers, VI, 262-66.) During the 22 years from 1882 to 1903 inclusive, the total number of persons lynched in the United States was 3337, the number decreasing during the last decade; of these 2385 were in the South and 752 in the SEMI-LEGAL 153 North; of those lynched in the East and West 602 were white and 75 black, and of those in the South 567 were white and 1985 black (South, former slave states, West, territory west of Mississippi River excluding Mo., Ark., La., Tex. and Okla.; East, east of Miss, excluding slave states. E. & W. make up North.) Lynchings occur mostly in periods of idleness of the lower classes ; in the summer more are lynched for crimes against the person and in the winter (in the West) for crimes against property; more blacks than whites were lynched between 1882 and 1903, the num- bers being 2060 negroes of whom 40 were women, and 1169 white, of whom 23 were women; of the 707 blacks lynched for rape 675 were in the South; 783 blacks were lynched for murder, and 753 of these were in the South; most of the lynchings of whites were in the West, the lynching of negroes increased somewhat out- side the South and decreased somewhat in the South. (Ency. Brit., 11th ed.) Lynch Law in North Carolina, 1765-71 (Condensed from Cutler's Book, pp. 48 ff.) In Noith Carolina at this period frontier conditions were utterly lawless. Prior to 1769 the only court of civil and criminal jurisdiction in the Province was at Charlestown : which was so far away as to give practi- cal immunity to those lawlessly inclined. The inhabi- tants had early petitioned for the establishment of more local courts, but, failing to secure them there was 154 THE PUBLIC CONSCIENCE established an association known as the Regulators, whose raison d'etre was primarily the regulating of " public grievances and abuses of power." But they were much like earlier Regulators in their procedure. These Regulators, in number about 150, September, 1770, " attacked the Superior Court which was in ses- sion at Hillsboro, severely whipped several men who had incurred their enmity, and destroyed considerable property." They were not put down until after a pitched battle between them and the Militia. Comment. This case is interesting as exemplifying revolt against insufficiency and tyranny of their government rather than as a necessary means of enforcing order against bandits and murderers (see especially p. 49 in Cutler). FRANK CASE See Supreme Court of the U. S., Feb. 25, 1915. Also Inf. Ann., 1915, p. 267. Leo M. Frank was sentenced on May 10th, 1915, to be hanged on June 22nd, for the murder of Mary Phagan. The details of this killing are familiar through many newspaper accounts and do not concern us here, whether Frank was guilty or innocent. Many unprejudiced persons believed him to be innocent. The Georgian Supreme Court had refused to release him on habeas corpus proceeding. His attorneys had con- tended that the trial court lost jurisdiction by abdicat- SEMI-LEGAL 155 ing its functions through fear of mob violence and by- arranging for Frank to remain out of court when the verdict was announced. This decision was appealed from to the Supreme Court of the United States which affirmed the decision of the Georgia Court. The United States Supreme Court held that Frank's allegations of hostile tumult in and about the court room had been rejected by competent state tribunals as untrue. Jus- tices Holmes and Hughes dissented. They contended that Frank had made out a prima facie case of inter- ference with the deliberations of the jury through the prevalence of mob spirit in and about the court room which should entitle him to a review. Thousands of letters and telegrams requesting a commutation of the sentence to imprisonment for life were received by Governor Slaton and other author- ities. Governor Slaton did so commute the sentence on June 21st after the Georgia Prison Commission had refused to recommend it. This decision was reached barely twenty-four hours before the time set for the execution and after Frank had been taken secretly from the Fulton County Jail to the state prison farm at Milledgeville. " Feeling as I do about this," said the Governor, in giving his statement, " I would be a murderer if I allowed this man to hang. It means that I must live in obscurity the rest of my days, but I would rather be plowing in a field than to feel for the rest of my life that I had that man's blood on my hands." Mobs threatened the Governor's home for several 156 THE PUBLIC CONSCIENCE days, but were quieted by troops. On the 26th a demonstration occurred at Atlanta when Governor Slaton retired from the executive office. With cries of "Lynch him! " the rioters attempted to seize the Governor who escaped bodily harm only through the protection of a large force of police and state troops. Frank, while serving his sentence, was attacked while asleep July 17th, by William Green, a fellow convict, who was serving a sentence for murder. Though his neck was nearly cut in two, he did not die of these in- juries. He was kidnapped by a mob who overpowered the prison authorities on August 16th, taken by auto- mobile to Marietta and hanged in a grove within a stone's throw of the birthplace of Mary Phagan. An investigation of the lynching was made by the Grand Jury of Cobb County which reported that there was no evidence sufficient to enable them to indict any one. Five guards and deputy wardens were discharged as a result of this lynching. Comment. The points to be observed are that mob spirit ruled throughout and completely superseded the ordinary processes of law. Governor Slaton's career was ruined, the persons who committed the lynching were evidently approved by the spirit of the community. Frank's chief crime apparently was that he was a Jew. KU KLUX KLAN — VIGILANTES New York Times, Editorial, Sept. 26, 1916. Apropos of the proposal to erect a statue to Colonel McAfee, the founder of the Ku Klux Klan, the editor SEMI-LEGAL 157 quotes the Montgomery, Ala. Advertiser as follows: " Kukluxism is an interesting phase of Southern civili- zation, an institution that rose up to do a definite thing and disappeared when its purpose had been accom- plished. It will live always in the lore of this people." The editor then comments that, owing to Mr. Thomas Dixon, this generation is being taught to idealize the Klan. "After the Mcx\fees let go of it, it fell into the hands of scoundrels and committed many bloody and shameful outrages. In the begin- ning, however, it was an uprising like that of the San Francisco Vigilance Committee, for which no Cali- fornian will ever dream of apologizing. It was the uprising of Confederate soldiers against an intolerable tyranny. It was violent and lawless, but so was the San Francisco revolt ; both were cases where civilization was prostrate under the feet of ignorance and vice." The Ku Klux afterwards became the instrument of tyranny and crime; the Vigilance Committee did not. " It is more the North than the South that has rea- son to blush at the name of the Ku Klux Klan ; that name recalls a time when men took the law into their own hands, but it recalls still more the unclean tyranny that forced them to do so; and of that tyranny the North has long repented." 158 THE PUBLIC CONSCIENCE GENERAL COMMENT ON LYNCH LAW Lynch law is peculiarly characteristic of American life but not confined to it ; nor is it limited to any one section of the United States, as the records show. The crime for which people are usually lynched is the crime of being a member of a race both despised and feared ; but this is not always so. There can be no doubt that lynching at present is a manifestation of barbarism, a complete negation of law and government ; but that was not true of the early lynchings, of the Vigilantes in California nor perhaps of the Ku Klux Klan at the beginning. Those movements represented law and order and were a terror to evil doers. That they degenerated into pure lawlessness must not blind us to their initial char- acter, which was quasi-judicial. The killings and burn- ings of which lynchers and the like are guilty today are then murder pure and simple, mob murder. The simple fact is that no one has yet been executed for this type of murder. It is an apparent exception to the law that murder always results in total exclusion from the society in which it is committed. It would seem that this toleration of murder is explained, not by the fear that the accused will not get the full penalty of the law, but by the determination to impose something more than the law and to strike terror into the negroes especially, since a negro is emphatically looked upon as an alien, member of another and hos- tile group, whom one may kill without impropriety and SEMI-LEGAL 159 with positive credit. It seems likely that this will always be the case to some extent. Lynchings of negroes occur in the South very much more frequently than in the North, since the negroes are a menace, they being in so great numbers, often in large majority, whereas there are so few of them relatively in Northern States that there is no fear of dominance. Judge A. W. Tourgee says (53d Congress Senate Re- port 113, Part 2, p. 11) : " The victims of these outrages (Ku Klux) in almost every case belonged to one of the following classes : (a) colored men; (b) white men who acted with the blacks politically; (c) renegade members of the Ku Klux Klan, or of the Democratic party." " Fraud in elections was excused in reconstruction days in the South. Everyone who has been at all familiar with the state of feeling there knows that this wholesale system of fraud is a matter of boastful jest with the very best of citizens. They do not deem it a matter of wrong or evil because, as they say, ' it pre- vents nigger rule.' This public opinion is the safe- guard of any unlawful act having alike object in view." (In the same report there are excerpts from various codes of Southern States, of great interest.) The Governor of North Carolina June 27, 1894, in a letter to a clergyman in New York, after recounting the orderly process of the law even in some horrible cases of rape and murder, adds " if now and then there are cases of lynching, it is not because the person who committed it is a negro, but because the circumstances 160 THE PUBLIC CONSCIENCE surrounding the commission of the crime is (sic) so revolting, that the people are aroused and under the influences of the moment, the idea takes possession of the crowd that swift vengeance must be meted out to such a villain and brute." Note that five Italians were lynched in Louisiana in 1894 for a murder not entirely unprovoked. They were probably regarded as aliens to a considerable ex- tent — members of a hostile group ; but this will not explain all lynchings, nor the failure to punish them. V. DOUBTFUL Assassination New York Times, August 9, 1916. The jury that will hear a $100,000 suit filed yester- day in the Supreme Court will be called on to deter- mine if an assassin is a murderer. The plaintiff is Miroslav Sichinsky, a Ukranian lecturer and editor, who, on April 12, 1908, shot and killed Count Andreas Potocki, Governor of Galicia, in Lemberg. Sichinsky is suing George Raffalovich of the same nationality, who is a writer under the name of " Bedwin Sands." Sichinsky admits in the complaint against Raffalo- vich that he killed Count Potocki, but he contends that to call him a murderer merely on that account is to impute moral turpitude, whereas the Department of Commerce and Labor decided last December, when he was admitted at Ellis Island after protracted hearings DOUBTFUL 161 in his case, that the assassination of the Galician Gov- ernor was a political act, which did not affect his right to enter this country or unfit him to become a citizen if he chose. Sichinsky's chief complaint against the defendant is that Raffalovich, in a circular letter addressed to Ukra- nians in this country, called him a " murderer " and " gunman," and he denies very stoutly that he is either. CASE OF COLONEL SEXBY Author of the Pamphlet " Killing No Murder," Published in 1657. "A direct incitement to the assassination of Oliver Cromwell. On its title page it professed to be by William Allen but its real author seems to have been the Colonel Sexby, a leveller, who had gone over to the Royalists and in 1656, having come from Flanders to shoot Cromwell, joined the Protector's escort in Hyde Park and almost secured his opportunity. But he went back to Flanders leaving . . . money . . . with Miles Sindercombe who was to do the deed." Various attempts failed. Many aided and abetted and the thing was known " to the prince who was afterwards Charles II." Sindercombe was betrayed by Henry Toope, a Life- guardsman, was arrested, tried, convicted and sen- tenced to death, but took poison on the day before that which had been appointed for his execution. Then 162 THE PUBLIC CONSCIENCE Sexby wrote and printed his pamphlet and traveled about England in disguise distributing it. He was after a time arrested and sent to the Tower, where he became mad and died within a year. Taken from the Introduction to Henry Morley's " Famous Pamphlets," G. Routledge & Sons. RITUAL MURDER MYTH Independent, Nov. 20, 1913. The jury in the Yuchinsky murder case, after de- liberating an hour and a half, brought in a verdict of acquittal for Mendel Beihs on November 10th. The verdict is ambiguous because the two questions put to the jury were so framed as to leave an imputation of ritual murder. A Christian boy employed at the Zaiteff brick works, a Jewish concern, was wounded in 47 places and then murdered with the same instrument. Beilis and others were accused of the murder as having been performed for ritual purposes. The prosecution endeavored to establish the ancient accusation of the use of Christian blood in Hebrew ceremonies ; but without success. Im- mense excitement was produced throughout the world by this trial. The Russian Government refused to re- ceive the petition to the Czar signed by the Roman Catholic and Episcopalian bishops or any other of the American remonstrances. Similar protests in Russia resulted in punishment for the remonstrants. One hundred and twenty members of the St. Petersburg DOUBTFUL 163 Bar Association signed a protest against the Beilis trial and tlie Court of Appeals has ordered them prose- cuted for it. Comment. The guilt or innocence of the accused did not seem to matter at the trial. There can be little doubt that the whole trial was ex- cited by anti-semitic prejudice or that the victim was saved by the indignant public opinion of the world. THE UNWRITTEN LAW The Nation, New York, July 25, 1907. Mrs. Mary E. Bowie in La Plata, Maryland, was acquitted in July, 1907, for the killing of Hubert Posey for a wrong done to Mrs. Bowie's daughter. The offense here consisted in the failure to marry the in- jured woman. Mrs. Bowie and her son demanded that the ceremony be immediately performed, a license having been secured. Posey refused, and Mrs. Bowie made good her alternative " that he would die right here." The killing was therefore premeditated, and no attempt was made to deny it. The jury unanimously found both not guilty. Contrasting case — Mrs. Birdsong killed her physi- cian after making the most serious charges against him and giving him no chance to clear his reputation. The courts condemned her to life imprisonment, but the Nation anticipated that she would be pardoned. A negro case of the same kmd occurred in Columbia, S. C. The offense was admitted and the jury was 164 THE PUBLIC CONSCIENCE white. The judge clung to the written law but the jury's verdict was not guilty. The Lynchburg News (Va.) editorial is quoted: " Let it be known that under given circumstances her laws (Virginia's) will by implication give to man the right to kill, and the time would not be long coming when the condition would serve as excuse and shelter of de- fense, behind which the murderer would attempt to hide, and often succeed in the essay. A ' trumped up ' pretext, collusion, conspiracy, and what not, would be the means by which many a guilty wretch could escape his just deserts." Yet, The Nation adds, " it finally concludes that the law should be left unwritten." A case called the " Loving Case," similar to the Bowie case above cited, had recently occurred in Virginia with an acquittal. Statute and Common Law From MITCHELL v. STATE Supreme Court of Ohio, 1884 (Reported 42 Ohio State, 383. Beale, 6, 3d ed.) Okey, J. In Ohio, as under the federal government, we have no common law offenses. No act, however atrocious, can be punished criminally, except in pur- suance of a statute or ordinance lawfully enacted. Judge Tappan, in Ohio v. Lafferty, held that common law crimes were punishable in Ohio, but Judge Goode- DOUBTFUL 165 now completely refuted the soundness of that view; but it is proper to say that while the rule is well settled that a statute defining a crime and prescribing therefor must be strictly construed; still, where the legislature in defining a crime, adopts the language employed by writers of recognized authority in defin- ing the crime at common law, the presumption is that it was intended the commission of acts which at com- mon law would constitute such a crime, should consti- tute a crime under the statute, and the statute will be so construed. (Cf. Parke, J., in Mirehouse v. Ren- nell, 1 CI. & F. 527, 546.) Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and incon- venient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judi- cially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. Cf. also Blackstone's Commentaries, Book I, passim. " The only method of proving that this or that maxim is a rule of common law, is by showing that it hath been always the custom to observe it." " The doctrine of the law then is this ; that prece- 166 THE PUBLIC CONSCIENCE dents and rules must be followed, unless flatly absurd or unjust." The general rule is " that the decisions of courts of justice are the evidence of what is common law." Attempts to Commit Crimes or Misdemeanors Summarized from United States v. Stephens (Reported 8 Sawyer, 116) " There are acts which may be fairly said to be done in pursuance of or in combination with an intent to commit a crime; but are not, in a legal sense, a part of it, and therefore do not with such intent constitute an indictable attempt; for instance, the purchase of a gun with a design to commit murder, or the pur- chase of poison with the same intent. These are con- sidered in the nature of preliminary preparations — conditions, not causes — and although co-existent with a guilty intent, are indifferent in their character, and do not advance the conduct of the party beyond the sphere of mere intent. They are, it is true, the neces- sary conditions without which the shooting or poison- ing could not take place, but they are not, in the eye of the law, the cause of either." Dr. Wharton says (1 Wharton, C. L., sec. 181) "To make the act an indictable attempt, it must be a cause as distinguished from a condition; but it must go so far that it would result in the crime unless frustrated by extraneous circumstances." DOUBTFUL 167 Bishop (1 Bish. C. L., Sec. 669) says: " It is plain that if a man who has a wicked purpose in his heart does something in its nature entirely foreign from that purpose, he does not commit a criminal attempt to do the thing proposed. On the other hand, if he does what is exactly adapted to accomplish the evil meant, yet proceeds not far enough in the doing for the cog- nizance of the law, he still escapes punishment. Again, if he does a thing not completely, as the result dis- closes, adapted to accomplish the wrong, he may under some circumstances be punishable, while under other circumstances he may escape." In People v. Murray, Field, C. J. said : " The evi- dence shows very clearly the intention of the defend- ant ; but something more than mere intention is neces- sary to constitute the offense charged. Between preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures neces- sary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made. . . . The attempt contem- plated by the statute must be manifested by acts which would end in the consummation of the particular offense, but for the intervention of circumstances in- dependent of the will of the party." Cf. Glover v. Commonwealth, Virginia, 1889, where Lewis, P. delivered the opinion of the court. The Code (of Virginia) enacts that " on an indictment for felony, the jury may find the accused not guilty of the felony, 168 THE PUBLIC CONSCIENCE but guilty of an attempt to commit such felony." Judge Lewis further said : "An attempt in criminal law is an apparent unfin- ished crime, and hence is compounded of two elements, viz.: (1) The intent to commit a crime; and (2) a direct act done toward its commission, but falling short of the execution of the ultimate design. ... It must be something more than mere preparation." Cf. also Commonwealth v. Kennedy, Massachusetts, 1897, Holmes, J." . . . We assume that an act may be done which is expected and intended to accomplish a crime, which is not near enough to the result to con- stitute an attempt to commit it, as in the classic in- stance of shooting at a post supposed to be a man. As the aim of the law is not to punish sins, but is to pre- vent certain external results, the act done must come pretty near to accomplishing that result before the law will notice it." [Italics mine, G.C.C.] ..." Im- possibility of achievement is not necessarily a defense . . . Commonwealth v. Taylor, 132 Mass. 261 ... In the case of crimes exceptionally dealt with or greatly feared [e.g., treason or offenses against the honor of women. G.C.C.] acts have been punished which were not even expected to effect the substantive evil un- less followed by other criminal acts." In another opinion by Holmes, then Chief Justice (Commonwealth v. Peaslee, 117 Mass. 267, in 1901) a series of illustrations is used, as follows: " When the servant of a contractor had delivered short rations of meat, by the help of a false weight DOUBTFUL 169 which he had substituted for the true one, intending to steal the meat left over, it was held by four judges, two of whom were Chief Justice Erie and Mr. Justice Blackburn, that he could be convicted of an attempt to steal. ... So lighting a match with intent to set fire to a haystack, although the prisoner desisted on •discovering that he was watched. So getting into a stall with a poisoned potato, intending to give it to a horse there, which the prisoner was prevented from doing by his arrest. . . . The same has been held as to paying a man to burn a barn. On the other hand, making up a false invoice at the place of exportation with intent to defraud the revenue is not an offense if not followed up by using it or attempting to use it. So in People v. Murray, 14 Cal. 159, the defendant's elopement with his niece and his requesting a third person to bring a magistrate to perform the marriage ceremony, was held not to amount to an attempt to contract the marriage. . . . However it may be at common law, under a statute like ours, punishing one who attempts to commit a crime ' and in such attempt does any act towards the commission of such offense,' it seems to be settled that the defendant could be convicted. . . ." In Walsh v. People (Illinois, 1872) Mr. Justice Thornton after quoting Lord Mansfield, in a bribery case, as saying: " In many cases, especially in bribery at elections to parliament, the attempt is a crime. It is complete on his side who offers it," adds " Why is the mere unsuccessful attempt to bribe criminal? The 170 THE PUBLIC CONSCIENCE officer refuses to take the offered reward and his in- tegrity is untouched, his conduct uninfluenced by it. The reason for the law is plain. The offer is a sore temptation to the weak or the depraved. It tends to corrupt ; and as the law abhors the least tendency to corruption, it punishes the act which is calculated to debase, and which may affect prejudicially the morals of the community." Comment. From these and similar decisions and opinions, the author may hazard two conclusions: — 1. The principle of legal decisions seems to be not to punish any act which will not probably bring into being a felony. 2. The law punishes only those offenses which inter- fere seriously with public safety. This is in accord with the fundamental legal maxim, De minimis non curat lex. NATURAL LAW OF KILLING 171 THE NATURAL LAW OF KILLING It is obvious, from the cases cited and from the his- tory of homicide, that society as such has never im- posed any such law as, Thou shalt not kill. The law is rather the reverse of this. Pacifism has been the policy of individuals and of some religions, never the policy of states or civic bodies of any character what- soever. The killing of an enemy of the group has al- ways been a meritorious act. The apparent exceptions to this are not real exceptions. No man may kill an alien enemy of England or America, for example, even in time of war except under conditions of war ; but this is because the alien enemy within one's land is considered to be under the pro- tection of the civil law and in so far not an alien. Ex- tradition laws are now in force between most civilized countries, even between the most bitter natural enemies ; but this only means that, for the civil govern- ment of criminals, the nations so allied are one, to the extent of the extradition policy. The law then is, no dangerous enemy of the group shall survive, if the group believes him to be an enemy, and is able to compass his destruction. The grada- tions follow: 1. Killing enemies in war is always approved. 2. Strikers, rioters, mutineers, etc., are shot down 172 THE PUBLIC CONSCIENCE without compunction under the orders of the state when they refuse to disperse peaceably. 3. Execution by the state of those whose action threatens the existence of the state or the idea of the state, is universally practiced. The modern tendency to abolish capital punishment ajid substitute life imprisonment is no real exception, inasmuch as, un- less this purpose is thwarted by sentimental or political pardons, life imprisonment effectively abolishes a man's membership in the group. 4. Lynch law, however corrupt it may have be- come, has usually arisen as a protest against weak- ness, negligence and inefficiency on the part of authorities. The tacit approval given to it — omit- ting those cases where the community is terrorized — stamps these acts as semi-legal. 5. Killing in self defense or in the defense of others, when plainly necessary to self preservation or the preservation of others, is probably a part of group opposition to enemies. 6. Sir Michael Foster's dictum was " No man under the protection of the law is to be the avenger of his own wrongs." This makes murder, as here- tofore defined, a crime which must be punished by the abolition of the offender, in some way. The state has definitely taken over the avenging of private wrongs, and, however negligent the state may be in this respect, will not tolerate interference with its function. Murder and treason are fatal to the ex- istence of any society; hence the murderers or traitors must be abolished or the society will perish. No society as such has ever committed suicide. Manslaughter and assaults are not fatal to the idea of society but threaten its peace. Euthanasia, practised by individuals, while not NATURAL LAW OF KILLING 173 falling under Sir Michael's dictum, would be assum- ing the function of God or of the state by an in- dividual or individuals. Unless practised under state sanction and control it would be a disintegrat- ing force and hence will not be allowed. The patria potestas is now much weakened. Any punishment by a parent which should result in the death of a child would probably be deemed immoder- ate today by court and jury; but unless something more than parental discipline were proven, there would be no criminal action by the state in case of a death. 7. The duel could not logically survive in a state which expressly states that no words, however scur- rilous and insulting, justify killing. As a matter of fact, they often do, to the extent that provocation is reckoned with in the sentence imposed. Besides, the duel is extraneous to the state. 8. With the change of religious faith the opposi- tion to suicide and the condemnation thereof by society tends to disappear. 9. The modern practise, which begins to hold men responsible, criminally, for what were formerly deemed " acts of God " or accidental killings, is a substantiation of the principle enunciated. The present failure to punish as manslaughter, food adulterations which result in death, drug purveying, the reckless use of unseaworthy vessels, employing men in deadly trades for profit, and the like, is probably due to the lack of recognition on the part of Society that these things are inimical to its welfare. 10. No one is punished who is not responsible. The attempts to define sanity, age of responsibility, etc., have been thus far very inaccurate. No in- 174 THE PUBLIC CONSCIENCE sanity murders have been included here, because the judgments of courts thereon are but a mass of incoherencies. The quotations from Foster and Hawkins, as well as numberless decided cases, show that an act must always be established as an act of the accused. The act need not be physical. Qui facit per alium facit per se is one of the most established maxims of the law. The law of agency is but a long variation on this theme. The competency of all not insane, nor imbecile nor very young, is never brought in ques- tion. 11. Malice is defined by Judge Shaw in the Web- ster case from the legal point of view. Our query is as to its significance. It is, in homicide, an appeal to the primitive method of settling differences and is a denial of society, like many lynchings. Society's verdict upon it is an illustration of the old saying " Whoso sheddeth man's blood, by man shall his blood be shed." One can hardly say that the individual has usurped the function of the state since killing was originally the function of the individual; but he is claiming a function which has been entirely assumed by the state. 12. Intent as found in the law implies a will with power to choose another course of action. "A person must be presumed to intend to do that which he voluntarily and wiljully does in fact do, etc.," (Italics mine.) "A man is bound to curb his pas- sions, etc.," " guilty knowledge," and similar phrases are constantly found. This is closely connected with 13. Causation: Which is sometimes very re- mote, and other causes enter in which appear to be more effective than the act of the accused. In the NATURAL LAW OF KILLING 175 Holland case the wounded man's life could probably have been saved except for his own stubbornness, yet his stubbornness is not considered anti-social while the assault was — hence the assailant must assume the consequences of his act. Compare also the Mink case where there was the same kind of remote causa- tion, and also burglary and arson (where killing en- sues), in which causation is direct. But in the Bradshaw case the element of sport, chivalry, vol- untary combat approved by society, entered in. Nothing but a foul blow and proven enmity or malice could have overcome the initial disposition to regard this accident as at the player's risk. So with railroad accidents and such like — they seem to be regarded as a part of the inevitable evil in the world. Many of the families of victims of the Slo- cum disaster appealed for the pardon of Captain Van Schaick. 14. Killing is thus, as a consequence of all that precedes, seen to be approved by society whenever the person killed is shown to be either an open enemy without the group or a traitor to it within. The principle is well illustrated in the oration of Demosthenes against Aristocrates where he quotes the law — "And if any one shall kill a murderer or be the cause of his death, while he keeps away from the border market and from the games and Amphic- tyonic sacrifices, such person shall be liable to the same penalties as if he had killed an Athenian. . . . What does this mean? He considered that, if a man who has fled from his country on a charge of murder and been condemned, has once escaped and saved himself, though he ought to be expelled from the native land of his victim, it is not righteous to kill him in every place. What was the legislator's view? 176 THE PUBLIC CONSCIENCE That, if we slay people who have fled to other countries, others will slay those who have fled to Athens. And should this be the case, the only refuge that is left for the unfortunate will be abol- ished. What is this? The power of removing from the land of the murdered to a land where none have been injured, and there dwelling in security." (Italics mine.) When, by virtue of treaties, groups hitherto^ hostile become for any purpose one, then killing of the members of either group will be disapproved and punished. Should all groups become one in any legal sense, the crime of killing will become of universal character. Only as all human beings are recognized, legally, as belonging to the same group, with no alien outsiders, can we have the universal law. Thou shalt do no murder. Of the Unwritten Law, so called, we can only say that it seems to be a survival of the primitive lex talio7iis which finds favor in communities where there is a sentimental chivalry persisting but not necessarily any higher standard of sex honor. It is certain, however, that public opinion in America would nowhere support the execution of any one who had thus avenged woman's honor. Perhaps this is an obscure but genuine adhesion to our principle, in that it indicates a determination to preserve the sanctity of the home. OFFENSES OF INDIVIDUALS AGAINST PROPERTY WITHIN A CIVILIZED GROUP Intentional wrong — always condemned I. Directly affecting the person II. Larceny under peculiar conditions <•/ life III. Fraud, victims deceived IV. Appropriation by compulsion {not physical) V. Breaches of trust VI. Attack upon rights of property in personality f Burglary Robbery I Brigandage Larceny — (a) petit I (6) grand r Horse and cattle stealing I IVicliing — game aud seal I Theft of provisions or supplies of vifal [ consequence to owners in, e.g., war timos Forgery Swindling Cheating, in weights and measures in misrepresentation of quality or character of goods sold Obtaining money or goods under false pretences Disseminating false news Creation of holding companies to evade Reorganizations to evade law and to defraud Smuggling f Extortion 1 Biiickmail iEndiezzlement Alit^conding with or misappropriating funds Combinations and reorganizations of rail- roads and other companies (but see above under "Frauds") Dishonest bankruptcy False entries of charges Alienation of affection Adultery^ based upon the ehattel nature of woman under the law Bigamy Seduction Breaeli of promise of marriage Dower rights Libel and Slander Aiding escape of slavi larceny Damages for death i Personal insurance - when not simple Not necessarily intentional wrong To air, earth Liens Vlt. Rights as between two parlies not neca sarily dishonest or wishing to defraud i any way id wate Franchises Limitation of liability, tickets, baggage, damage to person, etc. Trade marks and names Trade agreements Rates and taxes (public service corpora- tions) Inheritances Fixtures Trespass — all kinds Negligent cases — Riots Responsibility of tlie perso nbccile: (infants, lunatics, etc. civilly respon- The property nf an r group, never the priva Kmiiicnt domain Contracts Nuisances Accidental and negligent destructic property ,- is always to be seized or destroyed, but it is only the cnemv c m PART II PRESERVATION OF PROPERTY INTENTIONAL WRONG — ALWAYS CONDEMNED I. DIRECTLY AFFECTING THE PERSON Burglary Staunford, Pleas of the Crown, 30 a " Burglars are those who feloniously in time of peace break houses, churches, walls, towers or gates, for which burglary they shall be hanged though they took nothing away. But yet they ought to have felonious intent to rob or kill or do other felony. All indict- ments for burglary are for nocturnal breaking. " Burglary is a felony at the Common Law, in break- ing and entering the mansion-house of another, or (as some say) the walls or gates of a walled town in the night, to the intent to commit some felony within the same, whether the felonious intent be execdted or not. " There are some opinions, that burglary may be committed at any time after sun-set and before sun-ris- ing; but it seems the much better opinion that the word noctanter, which is precisely necessary in every indict- ment for this offense, cannot be satisfied in a legal sense, if it appear upon the evidence, that there was so much daylight at the time that a man's countenance might be discerned thereby. . . . Both an actual entry and breaking are required to complete this offense. (1 Hawk. p. C. Ch. 17) 179 180 THE PUBLIC CONSCIENCE "Any the least entry with the whole, or but with part of the body, or with any instrument, or weapon, will satisfy the word enter in an indictment for burglary. "A house wherein a man dwells but part of the year . . . may be called his dwelling house . . . whether any person were actually therein or not, at the time of the offense. "All out buildings ... are looked upon as a part (of the house) and consequently burglary may be com- mitted in them." This was law in England as early as 1554. It has been held ^ by all the judges of England, that breaking glass in a window and with hooks drawing carpets, etc. out of the window was burglary (1584); that breaking and puttmg the inmates of a house in terror of their lives was burglary though there was no entering (1607); that obtaining admission by fraud and then robbing was burglary (1650); that opening the chamber door of his mistress by a servant, the said door fastening with a bolt and the servant's intent be- ing to commit a rape, was burglary (1722); but that breaking and entering a house not yet occupied by its recent purchaser but in charge of a care-taker, was not burglary as the place could not be regarded as a dwell- ing house. A thief may enter a house through a door or window left open accidentally without being a burglar; but he is one, if, after entering thus, he turn the key or unlatch 1 Cf. cases under Burglary — Beale's Cases on Criminal Law, p. 1028 S. DIRECTLY AFFECTING THE PERSON 181 the door of a chamber with the intent to commit felony (1786). All the above cases are from English courts. In Massachusetts in 1829 it was decided that the break- ing through a net work of cords, covering a window otherwise open, constituted burglary when entering was joined to it. " It is enough that the house be secured in the ordinary way; so that by the careless- ness of the owner in leaving the door or window open, the party accused of burglary be not tempted to enter." Emott, J. (New York) in 1863 held, in the case of entering by an inner door a tenement in a house occu- pied by several families that "Any and every settled habitation of a man and his family is his house or his mansion, in respect to its burglarious entry." Folger, J. (New York, 1878) in a case where the prisoner had broken into a room used for business purposes only but within the four outer walls and under the same roof as the other rooms of the build- ing affirmed the judgment of the lower court that this was burglary. " I will say that the definition of the crime of burglary in the first degree, given by the Re- vised Statutes, does not, so far as this question is con- cerned, materially differ from the crime of burglary as given at the common law, to wit, ' a breaking and entermg the mansion house of another in the night, with intent to commit some felony within the same ' . . . the essence of the crime of burglary at common law is the midnight terror excited, and the liability created by it of danger to human life, growing out of 182 THE PUBLIC CONSCIENCE the attempt to defend property from depredation. . . . Any out-house within the curtilage, or same common fence with the dwelling house itself, was considered to be parcel of it, on the ground that the capital house protected and privileged all its branches and appurtenants, if within the curtilage or home-stall." It was held by Buckill, C. J. (Alabama, 1899) that a thief who bored a hole in the floor of a corn-crib filled with shelled corn, and stole by holding a sack under the hole so that the corn ran of itself into the sack, had committed burglary — since he had broken and entered in the spirit of the law though there was no " midnight terror, etc." Comment. In England and in the United States burglary has been clearly defined by statute and, in many places, there are degrees of burglary. It is quite unnecessary to compare the statutes of the different states on an offense so well defined as burglary. " There is little in legislation that is original. Legis- latures imitate one another. One may number on his fingers the landmarks of legislation in common law jurisdictions, and copies or adaptations of them have gone around the world." Roscoe Pound. Do we need a Philosophy of Law? (Col. Law Rev., 5: 343.) The New York Penal Code, article 38, defines bur- glary in three degrees and gives the penalties therefor. First degree — "A person who, with intent to com- mit some crime therein, breaks and enters, in the night time, the dwelling house of another, in which there is at the time a human being. DIRECTLY AFFECTING THE PERSON 183 1 Being armed with a dangerous weapon ; or 2 Arming himself therein with such a weapon; or 3 Being assisted by a confederate actually present ; or 4 Who, while engaged in the night time in effecting such entrance, or in committing any crime in such a building, or in escaping therefrom, assaults any person, is guilty of burglary in the first degree." Punishment — imprisonment in a State Prison for not less than ten years. Second degree — "A person who, with intent to commit some crime therein, breaks and enters the dwelling house of another, in which there is a human being, under circumstances not amounting to burglary in the first degree, is guilty of burglary in the second degree." Punishment — State Prison not exceeding ten years. Third degree — "A person who, 1 with intent to commit a crime therein, breaks and enters a building, or a room, or any part of a building; or 2 being in any building, commits a crime therein and breaks out of the same, is guilty of burglary in the third degree." Punishment — State Prison not exceeding five years. Comment. The offense of burglary being clearly defined, the interest and instruction lies largely in the way in which the law is administered. There are few appeals 184 THE PUBLIC CONSCIENCE in burglary cases and the records of courts of first in- stance are too voluminous to be searched. And it would be of questionable value to search them. The same thing may be said of larceny, assaults and many other offenses and is not repeated under those headings. I have before me however the reports of the Chief Clerk of the Dis- trict Attorney's Office in New York City for the years 1912-15 inclusive and I quote from them certain figures of average sentences. Males No. Term o. f Sentence Average Term, Each Person 1912 Years Months Years Months Burglary First Degree 2 70 35 Second " 16 100 6 3 Third " 173 612 11 3 6 1913 1st 2 10 ^5 2nd 20 132 11 6 7 3rd 156 527 2 3 4 1914 1st 3 43 14 4 2nd 15 91 5 6 1 3rd 171 547 3 2 1915 1st . . 2nd 12 67 2 5 7 3rd 188 547 5 2 10 1 Note that the minimum term is, by statute, 10 years, think there must be error in the printing. DIRECTLY AFFECTING THE PERSON 185 Robbery REX V. FRANCIS King's Bench, 1735 (2 Strange, 1915. Beale, 3d. ed. p. 731.) The defendants in this case were charged with high- way robbery in that they tricked Samuel Cox, traveling on horseback to Somerton Fair, into producing money under the pretense of changing some for them. One of them then gently struck his hand and the money rolled on the ground. When Cox tried to take up the money they swore that if he touched the gold they would knock his brains out. " Whereby he was then and there put in bodily fear of his life, and then and there desisted from taking up the pieces of gold." The prisoners then took up the money and rode off. Cox pursued them for about half a mile but they struck him and his horse and swore that if he pursued them any further, they would kill him. He then desisted. This was accounted robbery and the prisoners con- victed accordingly. Boston Paper — Probably November, 1913. John H., the 18-year-old youth who with 15-year-old John L., held up and robbed William C, the proprie- tor of a tea store at 43 Washington Street of $67.70, on the evening of October 23d, was sentenced to five 186 THE PUBLIC CONSCIENCE years and one day at the Concord reformatory. L. was sent to the Shirley School. H. returned to his home soon after the robbery and, when questioned by his mother about the amount of money he had, broke down and confessed. She took the boy to the municipal court the next morning and turned him over to Sergt. Tom O'Donnell. Restitu- tion was made. According to C.'s story, as told by O'Donnell, the tea store proprietor was counting his money when H., pointing a revolver at him, ordered him to hold up his hands. When he reached for his gun, he said that H. cried: " Don't do that; we're bandits. Pass over that money." L., who is large for his age, bound and gagged the only clerk in the store, according to C.'s story, and after securing the proprietor's revolver backed out of the store with H., the revolver covering C. Arson (1 Hale P. C. 569. Beale, 3d. ed. p. 133.) "Arson must be a wilful and malicious burning, otherwise it is not a felony, but only a trespass; and therefore if A. shoot unlawfully in a hand-gun, suppose it to be at the cattle or poultry of B. and the fire thereof sets another's house on fire, this is not felony, for though the act he was doing was unlawful, yet he had no intention to burn the house thereby. . . . But if A. have a malicious intent to burn the house of B. and in setting fire to it burns the house of B. and C. DIRECTLY AFFECTING THE PERSON 187 or the house of B. escapes by some accident, and the fire takes in the house of C. and burneth it, though A. did not intend to burn the house of C, yet in law it shall be said the malicious and wilful burning of the house of C. and he may be indicted for the malicious and wilful burning of the house of C." Comment. It would be interesting and valuable to com- pare the punishments assigned in actual cases for this more or less unintentional arson as compared with the malicious and wilful arson; but there are no statistics to be had. (Quoted from Beale.) 1 Hawk. P. C. ch. 18, Sects. 1, 2 "Arson is a felony at common law, in maliciously and voluntarily burning the house of another by night or by day. " Not only a mansion house, and the principal parts thereof, but also any other house, and the out-buildings, as barns and stables, adjoining thereto, and also barns full of corn, whether they be adjoining to any house or not, are so far secured by law, that the malicious burning of them is arson, and it is said, that in an in- dictment they are well expressed by the word domus, without adding mansionalis. " But it seems that at this day the burning of the frame of a house or of a stack of corn, etc., is not accounted arson, because it cannot come under the 188 THE PUBLIC CONSCIENCE word domus, which seems at present to be necessary in every indictment of arson, yet it is said that anciently the burning a stack of corn was accounted arson." HOLMES'S CASE King's Bench, 1634 (Reported Croke Car. 376. Beale, 3d. ed. p. 833.) Wilham Holmes was indicted for the burning of a house which he was occupying under a long lease. He was found guilty at Newgate; but before judgment his case was referred to the court of King's Bench. Rich- ardson, C. J., Jones and Berkley, JJ., held that it was not felony for him to burn his own house. Britton, Bracton and other authorities held that the burning of houses is not felony unless they belong to another. The indictment had charged him with feloniously, voluntarily and maliciously attempting to burn adja- cent houses. — Yet intent only without fact is not felony. An apparently dissenting opinion is given which holds that this was a felony because it is a " capital crime, perpetrated with felonious mind " which is the definition of a felony in Co. Lit. 391, a. He also holds that it is not accidental but malicious. Also the burn- ing of his house in a street of the city adjoining to the houses of others, is to the endangering of the city, and therefore ought to be construed to be felony; but so DIRECTLY AFFECTING THE PERSON 189 peradventure is not the burning of his house in the fields. And whereas it was said, that the intention here is coupled with an act of burning, and with the intend- ment of an act which is felony, . . . Also every in- dictment is vi et armis et contra pacem, where an act is done against the commonwealth; so it is where a servant runs away with goods committed to his trust above forty shillings, although it cannot be said to be vi et armis, because they were in his custody. And in this case the ill consequence which might have fallen out by this act makes the offense the greater; and the Year Books (cited) put the case of burning houses generally, and not of the burning of other men's houses; and it is an equal mischief in a commonwealth to burn his own in a city or village as to burn the houses of others, for the danger which may ensue. But the other three Justices resolved ut supra, that it was not felony ; wherefore he was discharged thereof. But because it was an exorbitant offense, and found, they ordered that he should be fined £500 to the King, and imprisoned during the King's pleasure, and should stand upon the pillory, with a paper upon the head signifying the offense, at Westminster and at Cheap- side, upon the market-day, and in the place where he committed the offense, and should be bound with good sureties to his good behaviour during life. Ency. Brit., 11th ed., article Arson. According to the Malicious Damage Act (Great Britain, 1861) the following crimes are made felonies: 190 THE PUBLIC CONSCIENCE (1) Setting fire to any church, chapel, meetmg house or other place of divine worship; (2) Setting fire to a dwelling house, any person being therein; (3) Setting fire to a house, outhouse, manufactory, farm building, etc., with intent to impose and defraud any person ; (4) Setting fire to buildings appertaining to any railway, port, dock or harbor; or (5) Setting fire to any public building. Punishment may be penal servitude for life but less punishments are permitted. In New York one who wilfully burns property (in- cluding a vessel or its cargo) with intent to defraud or prejudice the insurer thereof, though the offense of arson is not committed, is punishable by imprisonment for not more than five years (N. Y. Pen. Code, ss. 575, 578). There must be an intent to destroy the building (ibid. s. 490; California Code, s. 447). An agreement to commit arson is conspiracy (ibid. s. 171). Killing a person in committing the crime of arson is murder in the first degree (ibid. s. 183) ; this is so in California, even where the crime is merely an attempt to commit arson (Calif. Pen. Code, s. 189). Explosion of a house by gunpowder or dynamite is arson (Texas Pen. Code, art. 761), but a charge of arson by burning will not be sustained by proof of exploding by dynamite, even though part of the building is burnt by the explosion (Landers v. State (Tex), 47 S. W. 1008). DIRECTLY AFFECTING THE PERSON 191 Larceny (Defined in Penal Law of New York, Article 122, Sec. 1290, Birdseye's Consol. Laws.) A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person : — 1 Takes from the possession of the true owner, or of any other person; or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing; or secretes, withholds, or appropriates to his own use, or that of any other person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind ; or 2 Having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or ofl5cer of any person, association, or corporation, or as a public officer, or as a person authorized by agreement, or by competent authority, to take or hold such pos- session, custody or control, any money, property, evi- dence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof. Steals such property, and is guilty of larceny. 192 THE PUBLIC CONSCIENCE Larceny Bracton, De Legibus, 150 b. — Larceny is, according to the law, the fraudulent taking of the property of another, with intent to steal, against the will of the owner. It has been held^ that a forester is not guilty of larceny, whatever his offense may be, in cutting down trees on property of which he was the keeper (1338). Wild animals cannot be stolen because they are no man's property until taken, but " peacocks are com- monly of the same nature as hens or capons, etc., and the owner has property in them" (1528). Ferrets, though tame and salable, were considered of so base a nature that they could not be the subject of larceny (1818). Pigeons are (1851). A piece of paper, being an unstamped agreement between two parties, was taken by one of them to his own advantage. It was ruled that it could not be the subject of larceny, be- cause it was an agreement of a kind which, if stamped, would have been called a " chose in action " or rather evidence of such a thing. And the court held that, even unstamped, it was essentially the same thing. The common law rule was that " for a chose in action larceny cannot be supported." This is a clear case where theft undeniable is counted not to be larceny for purely technical reasons (1854). Tame partridges, hatched and reared by a common hen were taken 1 Cf. cases under Larceny, Beale's Cases on Criminal Law, p. 696 ff. Dates are quoted to show the progress of legal decisions. DIRECTLY AFFECTING THE FERSON 193 animo jurandi and their taking was held to be larceny, because " from their inability to escape (they were three weeks old and could fly a little) they were prac- tically in the power and dominion of the prosecutor." In Mullaby v. People, New York, 1881 (Beale, p. 710) concerning the steaUng of a dog, the prisoner's counsel contended that stealing a dog is not larceny. At common law, his contention was just, though dogs were regarded as property. Erie, J. says " The com- mon law rule was extremely technical, and can scarcely be said to have had a sound basis to rest on. . . . In the reign of William I it was made grand larceny to steal a chattel valued at twelve pence and upwards, and grand larceny was punishable by death, and one reason hinted at by Lord Coke for holding that it was not larceny to steal dogs was that it was not fit that * a person should die for them ; ' and yet those ancient law givers thought it not unfit that a person should die for stealing a tame hawk or falcon. ... If the com- mon-law rule referred to ever prevailed in this State no doubt it has been changed by legislation. It is provided in 2 R. S. 690, Sec. 1, that every person who shall be convicted of stealing ' the personal property ' of another, of the value of $25.00 or under shall be ad- judged guilty of petit larceny — personal property is defined to mean ' goods, chattels, effects, evidences of rights of action ' ^ and certain written instruments. This definition of personal property is certainly com- prehensive enough to include dogs. We think it was 1 Cf. with the case referred to above in 1854. 194. THE PUBLIC CONSCIENCE intended to be taken literally, and that the law-makers meant to make it the crime of larceny to steal any chattel which had value and was recognized by the law as property." Larceny of Electricity Daily Paper — New York, December llth, 1911. A jury verdict of $400 was returned yesterday before Judge Finelite in the City Court in favor of Herman Cordes, a confectioner of 524 Columbus Avenue, against Charles O'Connor, an electrician. The suit was brought to recover for electricity used by O'Connor, who is alleged to have tapped the wire leading from the meter of Cordes in the basement of their adjoining establishments. The verdict was based on the increase in Cordes's electrical bills since 1910. Judge Finelite said that the case was the j&rst of its kind on record. Comment. This is notable merely as an intelligent appre- ciation of the fundamental nature of private property; there is no other question involved. IL .LARCENY UNDER PECULIAR CON- DITIONS OF FRONTIER LIFE The codes of such states and territories as Arizona, New Mexico, Texas, Montana and Alaska are espe- cially severe on the theft of animals whose value in LARCENY IN FRONTIER LIFE 195 more settled parts of the country would be less great not only in money but in the needs of the people. In Texas, driving stock to market without a bill of sale, fine not to exceed $2,000. Butchering unmarked animals, fine $50 to $300. Wilfully driving stock from range, confinement in the penitentiary for not less than two or more than five years or fine of not more than one thousand dollars or both. (1886). In 1858 article 881 of the Texas Penal Code read: " If any person shall steal any horse, ass or mule, he shall be punished by confinement in the penitentiary not less than five nor more than fifteen years." Sec- tion 1923 of the Alaska code says: *' If any person shall commit the crime of larceny by stealing any horse, gelding, mare, ass, . . . cow, calf, reindeer, such person, upon conviction, shall be punished by imprisonment in the penitentiary not less than one nor more than fifteen years." Altering marks upon animals is larceny. Imprisonment one to five years. Arizona — Grand larceny is committed when any stock animal is stolen. It is punishable by imprison- ment for not less than one nor more than ten years. Driving stock off a range is a felony. In New Mexico unlawful branding is punished with from one to five years in the penitentiary and a fine of three times the value of the animal. All cases of larceny and in all cases of felonious tak- ing, stealing, riding, driving away, etc., of any animal or animals is grand larceny and punishable with im- 196 THE PUBLIC CONSCIENCE prisonment of not less than one nor more than ten years even should the value of the animal be less than twenty dollars. New Mex. Code 1915, sec. 1614, provides that the theft of stock animals be regarded as grand larceny regardless of their value. A penalty of not less than one year nor more than ten years in the penitentiary is imposed. Judge Crumpacker (in Wilburn v. Territory, 1900) says: " The object of . . . the act was not to prevent larceny in general, but to protect the ownership of a certain class of property, its title being 'An act for the protection of livestock and other purposes,' and per- taining to no other subject than livestock. We suppose that in the opinion of the Legislature the (earlier) act was needed either to prevent a kind of theft peculiarly easy of commission and diflBcult of discovery and pun- ishment, or else to afford special protection to the important industry of stockraising, etc." III. FRAUDS, VICTIMS DECEIVED Swindling CLARK V. STATE Court of Criminal Appeals of Texas, 1904 (Reported 81 Southwestern Reporter, 722.) In a case where there was a conflict between the Penal Code, the general regulations of the municipality of El Paso on the subject of gambling and an express FRAUDS, VICTIMS DECEIVED 197 municipal ordinance punishing bunco games very severely, Davidson, P. J. said: "All parties engaged in a gambling transaction, whether under the gaming laws or under the bunco-business ordinance, would be guilty of violating the gaming laws of the state. If the bunco business was carried on in such manner that it was a swindling operation, and for the purpose of getting the money of the bettor by means of loaded dice or other contrivances by which the bettor would not have the ordinary chances in gambling, he would be guilty of theft. ... He could be punished by im- prisonment in the penitentiary if the amount of money obtained was $50 or more, or as a misdemeanor if less than $50." Insurance Fraud New York Times, 1913. Louis M , President of the M Company, lace and embroidery importers, of 14 West Twenty- first Street, was sentenced by Justice Gavegan in the Criminal Branch of the Supreme Court to not less than two nor more than three years and six months in Sing Sing Prison for filing a false proof of loss by fire. M , who was convicted a week ago, said he had suffered a loss of $145,600 in a fire on April 12th. Investigation disclosed that he had disposed of $60,000 worth of goods before the fire. 198 THE PUBLIC CONSCIENCE Cheating REGINA V. HUDSON Crown Case Reserved, 1860 (Reported 8 Cax, C. C. 305. Beale, 218 3d ed.) Charge, conspiracy to cheat. This was a common enough case of trickery, placing an object by sleight of hand in a place different from that where it ap- peared to go and betting on the result. The prisoner was equally guilty in desiring to cheat the cheaters; but the trial court found the prisoners guilty of con- spiracy to cheat by false pretences. Price, for the prisoners said: "At the trial the present case was likened to that of Rex v. Barnard, where a person at Oxford who was not a member of the University, went for the purpose of fraud, wearing a commoner's gown and cap, and obtained goods. This was held a suflS- cient false pretence. The present case, however, was nothing more than a bet on a question of fact, which the prosecutor might have satisfied himself of by look- ing at the pencil case. It is more like an ordinary con- juring trick." Pollock, C. B. " . . . It is not necessary that the words ' false pretences '. . . should be understood in the technical sense contended for by Mr. Price. There is abundant evidence of a conspiracy by the prisoners to cheat the prosecutor, and though one of the ingredi- ents in the case is that the prosecutor himself intended to cheat one of the prisoners, that does not prevent the prisoners from liability to be prosecuted upon this indictment." (Conviction affirmed). FRAUDS, VICTIMS DECEIVED 199 False Pretences OHIO V. HORTON (Student Report.) John Horton was paid $65.00 to deliver $3,000.00 in counterfeit money. He did not deliver it. The Supreme Court held that an agreement to deliver counterfeit money to a man was an agreement to deliver " nothing " to him. Therefore, since Horton agreed to deliver " nothing," and in actuality did de- liver nothing at all, he could not be prosecuted under false pretences. Inasmuch as it could not be proved that he ever had in his possession the counterfeit which he agreed to deliver, he was not liable for counterfeiting or for passing bad money. Comment. This is a very curious instance of the deleteri- ous effect of metaphysics upon the common sense of a court. The " concept of nothing " was never in more flagrant case. The counterfeit money was indeed not legal tender; but it was a commodity in which, unfor- tunately, there has been considerable traffic. One would not perhaps wish to see the person who trusted him re- cover. Where both sides to a controversy are criminal, it matters little to society that one of them should get the better of the other, but it would be a little more re- assuring to think that our courts were less governed by bad metaphysics than the present instance would indi- cate. 200 TPIE PUBLIC CONSCIENCE The finer distinctions between crimes are always made through metaphysical analysis whether the judges are aware of it or not. In this case their subtlety is a little too absurd. Here no unit of government was threatened by Hor- ton's act. There was no entity to feel offended and act of itself; but the state is threatened by the presence of cheats of any kind. Daily Paper. The following advertisement has appeared from time to time in many reputable papers: "A genuine steel engraving of George Washington will be sent postpaid to any address on receipt of 25 cents. The engraving is perfectly made on first quality paper and is suitable for framing. Address . . ." When the advertiser opened his first mail after the insertion of the above advertisement, he found that more than $8,000 had been sent in. The people who had made the remittances soon received one cent stamps in return for their money. The advertiser on one occasion was indicted for fraudulent use of the mails. He was acquitted because his advertisement had not misrepresented the facts in any way. APPROPRIATION BY COMPULSION 201 IV. APPROPRIATION BY COMPULSION — NOT PHYSICAL Extortion REX V. SEYMOUR King's Bench, 1740 (Reported 7 Mod. 382. Beale 49 3d ed.) Extortion was proven against one Seymour and three justices of the corporation of Colchester in the matter of licenses for public houses. It was their habit to make all foreigners pay ten shillings on pain of having their licenses refused, the usual fee being but one shilling. Power to issue licenses lay in the hands of the jus- tices. They claimed that the practice of requiring foreigners to pay more for their licenses, though con- trary to law, had continued for twenty-five years and that the money was not appropriated by them per- sonally but was devoted to the good of the corporation of Colchester. The Court held them to have been guilty of a breach of trust and fined them one hundred pounds each. Seymour, the agent of the justices, was fined one hundred and twenty pounds, forty pounds on each information. 202 THE PUBLIC CONSCIENCE Usury New York Times, 1914. The Appellate Division (of the Supreme Court) unanimously dismissed Daniel M. T.'s appeal from conviction and sentence to serve six months in the Blackwell's Island Penitentiary, the result of a trial in the Court of Special Sessions. T. was one of the most widely known salary loan brokers in the world. He had offices in sixty-three American and Canadian cities and formerly had operated abroad. He had not personally participated in the transaction. As is customary in this business, a woman employed in the broker's office conducted all the negotiations with the victim. Women are em- ployed because courts are reluctant to convict them and because to be dunned by a woman is more embar- rassing and may lead to domestic complications. The particular offense was charging $15.00 to repay a loan of $10.00, twelve monthly payments of $1.25 each being required, and a note to make the amount secure. Blackmail DEFINITION AND PUNISHMENT Sec. 856, N. Y. Penal Code "A person, who knowing the contents thereof, to ex- tort or gain any money or other property, or to do, abet, or procure any illegal or wrongful act, sends, de- APPROPRIATION BY COMPULSION 203 livers, or in any manner, causes to be forwarded or re- ceived, or makes and parts with for the purpose that there may be sent or delivered any letter or writing threatening : 1 To accuse any person of a crime; or, 2 To do any injury to any person or to any prop- erty; or 3 To publish or continue at publishing any libel; or 4 To expose or impute to any person any deformity or disgrace. Is punishable by imprisonment for not more than fifteen years." In People v. Thompson, 97 N. Y. 313 — The defend- ant, an attorney, appeared for the complainant on the examination of J., arrested on a warrant issued by a justice of the peace. J. was discharged. Afterwards defendant wrote a letter to C, the father of J., repre- senting that he was a deputy district attorney. The letter purported to come from the district attorney's office. It stated that there was immediate danger of a movement to indict J. and that the writer had power to arrest the matter, that he had talked with the dis- trict attorney and had thus far managed to kill the movement — That he would like to make the district attorney a present, and asked C. to send him $75.00, adding: "This will save you and your folks some trouble and expense as well as the stink." There was no complaint whatever before the district attorney against J. Court held that a conviction of blackmail- ing was warranted. 204 THE PUBLIC CONSCIENCE A conviction was sustained under this section in the case of People v. Triscalli (1907), 117 App. Div. (N. Y.) 120, where the complaining witness had re- ceived two " Black Hand " letters demanding payment of $500 in default of which he and his family would be destroyed. The complainant also testified that the de- fendant had called upon him and demanded the money in compliance with the letters. In People v. Wicks (1906) 112 App. Div. (N. Y.) 39, a conviction was affirmed, where the defendant, an attorney at law, knowing the contents of a letter sent by him to compel the settlement of a civil action, which threatened to accuse the recipient of perjury, had sent it with an intent to extort or gain money. Sec. 857 of the N. Y. Penal Code provides — "A per- son, who, under circumstances not amounting to rob- bery, or an attempt at robbery, with the intent to ex- tort or to gain any money or other property, orally makes such a threat as would be criminal under any of the foregoing sections of this article or under sec- tion 551, if made or communicated in writing, is guilty of a misdemeanor." Sec. 551 provides: "A person, who, knowing the contents thereof, sends, delivers, or in any manner causes to be sent or received any letter or other writing, threatening to do any unlawful injury, to the person or property of another, or any person who shall know- ingly send or deliver or shall make and for the purpose of being delivered or sent, shall part with the pos- session of any letter, postal card or writing, with or BREACHES OF TRUST 205 without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark or other desig- nation, with the intent thereby to cause annoyance to any person is guilty of a misdemeanor." V. BREACHES OF TRUST Embezzlement REGINA V. BARNES Devizes Assize, 1858 (Reported 8 Cax, C. C. 129. Beale, 3d ed. 742.) The prisoner was a coal and timber merchant, who fell into diflBculties and made an assignment of all his goods, effects and book debts. After his assignment, he received two sums of money, £68 10s. and £29 9s. 7d., which had been debts previously to him and he did not account for the receipt of those sums. After the execution of the deed of assignment the prisoner had been employed by the trustees, at a salary, to con- duct the business for the benefit of the trustees. It was contended by his counsel that this money was his of right — he received his own money. The prose- cutors held that immediately on receipt of the money it became the property of the trustees, and then the prisoner was guilty of embezzlement. The prisoner's counsel gave a definition of embezzle- ment as the stopping of money in transitu to the em- ployer. If rightly received by the prisoner the keep- ing of it afterwards was not embezzlement. 206 THE PUBLIC CONSCIENCE Byles, J. said, the diflBculty was to make out the status of the prisoner before the law. The moment he received those moneys, they were his own moneys — he received what was, in point of law, his own money. How then could he be guilty of embezzlement ; or how could he be said to be clerk or servant to the trustees? He could not, in point of law, pass the property in the debts due to him before the deed was executed. His assignees were only equitable assignees; they could only sue in his name. The deed could only pass that which he actually had in his possession at the time the deed was executed. (The prisoner was therefore acquitted.) Comment. This is a case where the law's ways are mysteri- ous to the layman. If book debts can be assigned by law, it seems very strange that they cannot be collected. It is plain that the prisoner expected to assign such sums and that the trustees expected to receive them. But it seems they were both mistaken. COMMONWEALTH v. HAYS Supreme Judicial Court of Massachusetts, 1858 (Reported 14 Gray, 62. Beale, 3d ed. 743.) The indictment was on St. 1857, c. 233, which de- clares that " if any person, to whom any money, goods, or other property, which may be the subject of larceny, shall have been delivered, shall embezzle or fraudu- BREACHES OF TRUST 207 lently convert to his own use, or shall secrete, with in- tent to embezzle or fraudulently convert to his own use, such money, goods, or property or any part thereof, he shall be deemed by so doing, to have committed the crime of simple larceny." The facts were that the person accused presented a deposit book to the Charlestown Five Cent Sav- ings Bank, the amount of deposit being One hundred and thirty dollars. He asked for his money and the treasurer paid him by mistake two hundred and thirty dollars. When the mistake was discovered, the man was sought and found. He did not deny the facts but maintained the bank would have to prove that he had received the excess money. The court instructed the jury " that if the sum of two hundred and thirty dollars was so delivered to the de- fendant, as testified, and one hundred dollars, parcel of the same, was so delivered by mistake of the treas- urer, as testified, and the defendant knew that it was so delivered by mistake, and knew he was not entitled to it, and afterwards the money so delivered to him by mistake was demanded of him by the treasurer, and the defendant, having such knowledge, did fraudulently, and with a felonious intent to deprive the bank of its money, convert the same to his own use, he would be liable under this indictment." The jury declared him guilty — but he alleged ex- ceptions and the matter came before the Supreme Court. Bigelow, J., speaking of the statutes relating to em- 208 THE PUBLIC CONSCIENCE bezzlement, said that they were designed to reach and punish persons who were in a position of confidence toward their employers. Bankruptcy — Dishonest PARKER V. GODIN, 1728 (Reported in 2 Strange, 813.) Ames, Cases on Torts, p. 319. A bankrupt left some plate in his wife's possession. She, in order to raise money on it, delivered it to her servant who went with the defendant (presumably Godin. G.C.C.) to the door of Mr. Woodward, the banker, and there the defendant took the plate into his hands and went into the shop and pawned it in his own name, gave his own note to repay the money and immediately upon receipt of the money went back to the bankrupt's wife and delivered the money to her. And when suit was brought to recover for the assignees of the bankrupt, the jury found a verdict for the de- fendant, considering that he had acted only as a friend and that it would be hard to punish him. This verdict was afterwards reversed. Comment. The significance of the case here is that the bankrupt, through his wife, used valuables which prop- erly belonged to his assignees. Cf. Perkins v. Smith (Reported in Ames at the same place) where one Hughes became a bankrupt. The BREACHES OF TRUST 209 assignee sued one Smith because he, the servant of Mr. Garraway, to whom the bankrupt was consider- ably indebted, received goods from him, and sold them for his master's use. The action here concerned the agency of Garraway. It has nothing to do with our interest which is met by the statement of Lee, C. J. that " Hughes, the bankrupt, had no right to deliver these goods to Smith." Stephens and Others v. Elwall (quoted from the same place) gives another case of a bankrupt who sold goods which belonged to the assignees. Comment. In none of these cases were the proceedings directed against the defrauding bankrupt but in all of them he is plainly held to have committed a wrong. Doubtless proceedings were brought against him in each case as well as against the defendants- who received goods from him. Fraudulent Entry New York Times, Nov. 23, 1913. After a trial lasting 114 days, Herr Ohm, Managing Director of the Nieder Deutsche Bank, which failed with liabilities of $12,000,000 on July 27, 1910, was sentenced November 22nd to seven years' imprison- ment for wrecking the institution by appropriating funds. A public accountant, Herr Hartwig, was at the same time sentenced to three years' imprisonment and a number of other bank employees to terms of from four to six months each. The bank had been started some years ago on a small capital and Ohm appealed to the poorer classes to make 210 THE PUBLIC CONSCIENCE deposits, spurring them on to do so by the use of re- ligious quotations. Later on the capital was increased until it reached $3,000,000. The evidence showed that Ohm made fraudulent entries and published false balance sheets to cover up the bank's condition. VI. ATTACK UPON RIGHTS OF PROPERTY IN PERSONALITY Libel and Slander Newell, in the third edition of his work on " Libel and Slander " states in paragraph 25 of Chapter I, " The History of the American Law of Defamation must always be identical with the English law." Libel and slander is a violation of the individual's right to reputation and Pollock on Torts (7th Ed.) 233 speaks of it in these words: "Reputation and honor are no less precious to good men than bodily safety and freedom. In some cases they may be dearer than life itself. Thus it is needful for the peace and well being of a civilized commonwealth, that the law should protect the reputation as well as the person of the citizen." F. A. Erwin, in the second edition of his work on Torts, at page 110, defines libel and slander as follows: " When defamation is accomplished by speech or its equivalent, we call it slander; when it is accomplished by writing or its equivalent we call it libel. The former is a civil wrong only; the latter is a criminal as well as a civil wrong." ATTACK UPON RIGHTS OF PROPERTY 211 Statutory definition of Libel — "A malicious publi- cation by writing, printing pictures, effigy, sign or otherwise than by mere speech, which exposes any liv- ing person, or the memory of any person deceased to hatred, contempt, ridicule or obloquy, or which causes or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corpo- ration or association of persons in his or their business or occupation is a libel." N. Y. Penal Code, Para- graph 242. In the case of Sorenson v. Balahan, 11 App. Div. (N. Y.) 164, the plaintiff was the mother of an un- married, deceased infant in the service of her mother. The defendant was a physician who had attended the deceased infant in her last illness. The action was brought on two causes of action. The first charged the defendant with mal-practice, as the result of which plaintiff's daughter died. The second cause of action charged that after the death of plaintiff's daughter " The defendant maligned her memory by repeating to the plaintiff and to divers other persons, a false, un- true and malicious charge that the said Clara had been pregnant and had had a miscarriage." The court states at page 167 — " The only redress for slander is a civil action. A libel however, both at common law and under our statute is a crime and for it the offender may be prosecuted civilly or criminally also; both at common law and by the Penal Code (242) a libel upon the memory of the dead is punishable as a crime . . . The objection that there could not be a proper plaintiff 212 THE PUBLIC CONSCIENCE in a civil action for a libel on a deceased person would seem equally applicable to an action for slander. We are therefore of the opinion that such an action (i.e. a civil action for maligning the memory of the dead) will not lie." In the case of Colby v. Reynolds (6 V. 489 at page 493) the court distinguishes between libel and slander as follows — "A distinction has long been known and recognized between verbal and written slander. Words, when committed to writing and published are con- sidered as libelous which if only spoken would not subject the person speaking to any action. Perhaps it is to be regretted that a distinction was ever made be- tween oral and written slander, and if it was a new question, no distinction would now be made. The reasons which have been given for the distinction, have been questioned both by writers and judges of emi- nence. It has been made, however, and has become part of the law, and as such we must receive it. There can be no question that a slander written and pub- lished, evinces a more deliberate intention to injure, is calculated more extensively to circulate the accusa- tion, and to provoke the person accused, to take the means of redress into his own hands and thus to com- mit a breach of the peace, than mere oral slander which is spoken and soon forgotten." The imputation of unchastity is actionable per se by statute. Imputing unchastity to a women was not actionable at common law unless special damage was alleged and proved ; but today in New York State, " In ATTACK UPON RIGHTS OF PROPERTY 213 an action of slander brought by a woman for words imputing unchastity to her it is not necessary to allege or prove special damage." N. Y. Code of Civil Proc, paragraph 1906. In the case of Finch v. Uifguain, 11 Neb. 280, the plaintiff occupied the position of grand worthy chief templar in a temperance organization and also that of secretary of the State Temperance Alliance and was constantly engaged in the duties connected therewith. The defendants, as the petition alleged, falsely and maliciously published of him that he was a " seducer of innocent girls " and instanced an attempt on his part to debauch and ruin a young school girl, who was at the time a member of his own household. Also that he was " an arch hypocrite and scoundrel who was simply using his talents for money making purposes and not through any sincerity in the cause in which he was laboring." The court held that each of these charges was actionable per se, and without proof of special damage. In the case of Young v. Kuhn, 71 Tex. 131 — The court held that a charge that a butcher slaughters and sells diseased and unwholesome meat is actionable per se. In the case of Toye v. McMahon, 21 La. Ann. 308, the court held that charging a white man with being a negro under the existing social habits and prejudices of that state was calculated to inflict injury and damage and the charge was recognized as slander actionable per se under the constitution of Louisiana 214 THE PUBLIC CONSCIENCE of 1868 although the common law distinction between words actionable per se and words not actionable per se, did not exist, because Louisiana followed the civil law of France. In the Northern States very few cases have been re- ported where a charge that a white man is a negro has been held to be slanderous per se. On the other hand most of the Southern States so hold as in the case of Eden v. Legare, 1 Bay (S. C). The calling a person a mulatto, thereby imputing a lack of civil rights en- joyed by the whites was held slanderous per se. In the state of Massachusetts an action will lie for calling a woman a drunkard, it having been so decided by the court in the case of Brown v. Nickerson, 5 Gray (Mass.) 1. In the case of Franklin v. Browne, 67 Ga. 272, the court held that words charging that a minister of the gospel collected money for a particular purpose and embezzled it for his own wrongful use and that he was unfit to be a minister, is actionable without proof of special damage. In the early English case of Ogden v. Turner, 6 Mod. 104, Holt, 40, 2 Salk. 696, the defendant said to the plaintiff, " Thou art one of those that stole my Lord Shaftsbury's deer." The court held, " That words to be themselves actionable without regard to the person or foreign help must either endanger the party's life or subject him to infamous punishment, and that it is not sufficient that the party may be fined and im- prisoned; and yet that no one will assert that to say ATTACK UPON RIGHTS OF PROPERTY 215 one has committed a trespass will bear an action, or that at least the thing charged upon the plaintiff must be scandalous." In the leading case in U. S. of Brooker v. Coffin, 5 Johns (N. Y.) 188, the following is given as the test of words actionable per se: " In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in them- selves actionable." In the case of Truth Pub. Co. v. Reed, 13 Ky. L. Rep. 323, it was held that to publish in a newspaper that a member of the board of equalization would re- duce the taxes of anybody who would render him cer- tain political favors was libelous. In case of Larrabee v. Minn. Pub. Co., 36 Minn., 141, it was held that a publication charging a county attor- ney with culpable neglect of his official duty in fail- ing to prosecute — " purely out of political fear " — a certain person suspected of having committed a crim- inal offense, was actionable, because neglect, from such a motive must be a gross offense for which he might be removed from office. In the English case of How v. Prin., Holt 652, 2 Salk 694, Lord Holt states: "It has been adjudged that to call a justice of the peace blockhead, ass, etc., is not a slander for which an action lies because he was not accused of any corruption in his employment or any ill design or principle; and it was not his fault that he was a blockhead, for he cannot be otherwise 216 THE PUBLIC CONSCIENCE than his Maker made him ; but if he had been a wise man and wicked principles were charged upon him, when he had not them, an action would have lain; though a man cannot be wiser, he may be honester than he is." ^ Truth is a complete defence in a civil action. In case of Joannes v. Jennings, 6 T. & C, 138 at page 141, the court states: " In civil actions where the truth of the alleged libel is pleaded in justification, it may be proved as a complete bar to the suit ; and in such case the motives with which the publication was made are not material. . . . Our laws allow a man to speak the truth although it be done maliciously." A better rule applies in criminal actions as it is stated in the N. Y. Penal Code, Par. 244, which is as follows : In criminal actions for libel, " The publication is justified, when the matter charged as libelous, is true and was published with good motives and for justifi- able ends. The publication is excused when it is honestly made, in the belief of its truth and upon rea- sonable grounds for this belief, and consists of fair comments upon the conduct of a person in respect of public affairs or upon a thing which the proprietor thereof offers or explains to the public." Comment. It will be noted from the foregoing that even though the writing complained of be true, in the case of a criminal libel it must have been published with good motives and without malice, for truth to prevail as a defence. 1 One may question the wisdom of the author of this sage remark, however one may respect his integrity! ATTACK UPON RIGHTS OF PROPERTY 217 Bigamy REGINA V. TOLSON Crown Case Reserved, 1889 (Reported 23 Q. B. Div., 168. Beale, 236 3d ed.) Wills, J. In this case the prisoner was convicted of bigamy. She married a second time within seven years of the time when she last knew of her husband being alive, but upon information of his death which the jury found that she upon reasonable grounds believed to be true. A few months after the second marriage he re-appeared. The statute upon which the indictment was framed is in these words : " Whoever, being married, shall marry any other person during the life of the former husband or wife shall be guilty of felony, punishable with penal servitude for not more than seven years, or imprisonment with or without hard labor for not more than two years," with a proviso that " nothing in this act shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years last past, and shall not have been known by such person to be living within that time." (The rest of the opinion, which is very long, has been greatly con- densed. G.C.C.) It is a principle of English law that ordinarily speak- ing a crime is not committed if the mind of the person 218 THE PUBLIC COXSCIENXE doing the act in question be innocent. But although this is the general rule it is not inflexible. Z»*Iuch municipal law today must be obeyed whether there is a guilty mind of not. The acts are properly construed as imposing the penalty when the act is done, no mat- ter how innocently. If a man fails to observe the statutorj^ provision it is at his own peril. Yet even in such cases, the nature of the offense wiU be aU important. In the present case one consequence of holding that the offense is complete if the husband or wife is de facto alive at the time of the second marriage — would be that though the evidence of death should be suffi- cient to induce the Court of Probate to grant probate of the will, etc., the wife of the person supposed to be dead who had married six years and eleven months after the last time she had known him to be aUve would be guilty of felony in case he should turn up twenty years afterwards. Any construction of a statute is justifiable which will avoid such monstrous conse- quences. The intention of the legislature cannot be decided upon simple prohibitory' words without reference to other considerations. Stephen, J., said that in every case knowledge of fact is to some extent an element of criminality as much as competent age and sanity. An alleged offender is deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offense. RIGHTS AS BETWEEN TWO P.\RTIES 219 Wills. Stephen and other J J. were of opinion that the conviction should be quashed. Manist>', J. and others v::v : ; ± ;..ation. The con\'iction was quashed. Cornrr.iT.t. Points —no crime is committed if the mind of the person doing the act is innocent; but this is affected by statutes which are mandatory. StiU we must take account of facts, (Stephen. J.» and of absurdities which strict construction woiild entaiL VII. RIGHTS AS BETWEEN TWO PARTIES Ownership of Aerolite GODD.IED ■■:. WIXCHELL. 1S92 S6 Iowa. 71 (Mhb-- 5 C-i: IS Cases, p. 41 5.) An aerolite fell upon land owned by the plaintiff (Goddard) on May 2, 1890. The day after it was dug out by Peter Hoagland in the presence of Elictson. tenant of the grass pri^nlege at the time. Hoagland claime'i it because it was treasure trove. On May 5th he sold it to the defendant Winchell for One Hundred and Five DoUars- Goddard claimed it and the " dis- trict court found that the aerolite became a part of the soil on which it fell." On appeal the language of Blackstone was cited: " Occupancy is the taking possession of those things 220 THE PUBLIC CONSCIENCE which before belonged to nobody " and " whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are sup- posed to be abandoned by the last proprietor, and as such are returned into the common stock and mass of things, and therefore they belong as in a state of nature, to the first occupant or finder." The judge of the appellate court decided that such reason did not apply. The aerolite was one of nature's deposits and it was in a very real sense " immovable." " Except for the peculiar manner in which it came, its relation to the soil would be beyond dispute." It was "never lost nor abandoned." He further said that his " conclusions were an- nounced with some doubts as to their correctness but they arise not so much from the application of known rules of law to proper facts as from the absence of defined rules for these particular cases." Judgment jor the plairitiff affirmed. Lien HANNA V. PHELPS Supreme Court of Judicature of Indiana, 1855 (7 Ind. 21.) Phelps, the plaintiff in the original case (who won it), delivered to Hanna and Burr, engaged in the busi- ness of rendering lard from hogs' heads by steam and RIGHTS AS BETWEEN TWO PARTIES 221 barrelling the lard so rendered for hire, three thousand hogs' heads to be rendered and returned to him for a reasonable compensation. Hanna and Burr returned a part of the lard so rendered but retained in their pos- session over 3000 pounds, claiming that Phelps was indebted to them $200 for rendering lard and that this amount exceeded their indebtedness to him. They declined to deliver any more lard. This amounted to a conversion, that is the forcible taking possession of property which did not belong to them. They had an action at law for the debt due them. They could sue for payment ; but they forcibly withheld the lard which they had agreed to make and deliver for a price. The question here is whether they had a lien on the lard. The court held that they had not. "An unqualified refusal, upon a demand duly made, is evidence of a conversion; because it involves a denial of any title whatever in the person who makes the demand. In the case before us the defendants declined to deliver any more lard. This was, in effect, an assumption that they had in their possession no more belonging to the plaintiff." Judgment affirmed for Phelps. NAYLOR V. MANGLES, 1794 (Reported 1 Esp., 109.) Lord Kenyon said, liens were either by common law, usage or agreement. Liens by common law were given where a party was obliged by law to receive goods, 222 THE PUBLIC CONSCIENCE etc., in which case, as the law imposed the burden, it also gave him the power of retaining, for his indemnity. This was the case of innkeepers, who by law had such a lien. That a lien from usage was a matter of evi- dence. The usage in the present case had been proved so often, he said, that it should be considered as a set- tled point that wharfingers had the lien contended for. BEVAN V. WATERS, 1828 (Reported Mood, and M., 235.) The question in the cause was whether the defend- ant was liable to the plaintiff for the training of a race horse, which the defendant had bought of a third person, whilst in the plaintiff's possession, and which had been given up to the defendant under an agree- ment, as was contended, to pay for the training, in consideration of the plaintiff's lien. The defendant contended that there was no lien. Best, C. /., held that in this case, on the principle of the common law, where the bailee expends labor and skill in the improvement of the subject delivered to him, he has a lien for his charge. I think that the trainer has a lien for the expense and skill bestowed in bringing the horse into condition to run at races. yerdict jor the plaintiff. RIGHTS AS BETWEEN TWO PARTIES 223 JUDSON V. ETHERIDGE, 1833 (Reported 1 Cr. & M., 743.) A horse was delivered by the plaintiff to the de- fendant to be stabled and taken care of, and fed and kept by the defendant for the plaintiff, for remunera- tion and reward. The plaintiff became indebted to the defendant in the sum of £10 for care of the horse, and the defendant detained the horse until the sum should be paid. " The question is, whether, on the state of facts dis- closed the defendant has or has not a lien upon the horse. I am of opinion that he has no lien. The present case is distinguishable from the cases of work- men and artificers, and persons carrying on a particular trade, who have been held to have a lien, by virtue of labor performed in the course of their trade, upon chattels bailed to them. The decisions on the sub- ject seem to be all one way." Lord Chief Justice Best expressly draws the distinc- tion between a trainer, who bestows his skill and labor, and a livery stable keeper ; between horses taken in by a trainer and altered in their value by the application of his skill and labor, and horses standing at livery without such alteration. Judgment for the plaintiff. 224 THE PUBLIC CONSCIENCE CALDWELL v. TUTT, 1882 Tennessee (Reported 10 Lea, 258.) Plaintiffs are livery stable keepers in the city of Clarksville. Mr. Mumford had placed his horse in the stable to be kept by the owners of the stable. He was in the habit of taking the horse from the stable occasionally for a ride, by and with the consent of the keepers of the stable. While riding him on one of these occasions, the horse was levied on by defendant, a constable, by virtue of an execution against the owner. Had the livery stable keeper whose bill for board of the horse was unpaid, a lien on the horse for its pay- ment, or was the execution levy superior to it? The circuit judge decided in favor of the defendant. Appeal to the Supreme Court. Freeman, J., said, the case turns mainly on sections 1993a and 1993e of the Code. The first provides: " Whenever any horse or other animal is received to pasture for a consideration, the former (i.e. the person caring for it) shall have a lien upon the animal for his proper charges, the same as the innkeeper's lien at common law." The latter section is: "Livery-stable keepers shall be entitled to the same lien provided for in Section 1 of this act, on all stock received by them for board and feed, until all reasonable charges are paid." RIGHTS AS BETWEEN TWO PARTIES 225 The right of the innkeeper is to detain or hold the horse till the price of his provender be paid. (3 Par- sons, 249) . Mr. Parsons adds : " What shows the spirit and principle of the rule, if he permit his guest or horse to depart on credit, he loses his lien, and can never arrest it after for that debt if the guest come again." Apply this rule and the sections of the Code to the circumstances of this case. The innkeeper permitted the owner to take his horse out to ride. It cannot be maintained that he thereby intended to permit the party to depart with the horse — it was well understood that the possession would be in a short time restored. Neither party thought of terminating the contract, so as to release thereby the lien of the livery-man. Thp livery stable keeper would retain his lien against Mumford; and Mumford's creditor, who caused the execution to be made, can have no higher rights than Mumford himself. His claim is subject to the livery- man's lien. JACKSON V. CUMMINS 1838, England (Reported 5 M. & W., 342.) Trespass for breaking and entering an outhouse and premises belonging to the plaintiff, and seizing and driving away ten cows, the property of the plaintiff, 226 THE PUBLIC CONSCIENCE and converting and disposing of the same to the de- fendant's own use, etc. It was contended by the defendants that two of said cows for the space of eight months had been pas- tured and fed by the defendant Charles Cummins for the plaintiff at the plaintiff's request, and for reward and remuneration. There was and still is due and owing to Cummins the sum of £16 5s., for this care. It was further agreed that Cummins was to keep the cows so long as this sum remained unpaid. These two cows were in Cummins' possession until the plaintiff fraudulently, unlawfully and wrongfully took them away whilst Cummins had a lien upon them. Cum- mins maintained that he peacefully and lawfully re- gained his own property. He pleaded not guilty as to the other cattle. The court of first instance found for the plaintiff, the jury declaring that no such agreement existed between plaintiff and defendant. On appeal before Parke, B., the question of lien was discussed very fully. He said : " I think by the general law no lien exists in the case of agistment. The general rule is, that by the general law, in the absence of any special agreement, when- ever a party has expended labor and skill in the im- provement of a chattel bailed to him, he has a lien upon it." And he did not find that one who simply took animals to pasture had done anything to improve them. The verdict was confirmed to the plaintiff.^ 1 For a full discussion of the agistor's lien cf. " Cases on Prop- erty " Gray, Vol. 1, p. 162, Editor's Note. " The agistor has a lien RIGHTS AS BETWEEN TWO PARTIES 227 BROADWOOD v. GRANARA Exchequer, 1854 (Reported 10 Exch., 417.) In March, 1853, a Monsieur Hababier, a foreigner anci professional pianist, went to reside at the hotel of the defendant. Hotel I'Europe, Leicester Square. On the 28th of that month he went to the manufactory of the plaintiffs, Messrs. Broadwood, and requested the use of a pianoforte. It is usual to lend pianofortes to professional musicians free of cfjj^ge. One was sent him, later taken away and replaced by another. It was understood by the proprietors of the hotel that the piano was not the property of Monsieur Hababier. (He claimed it was.) It was admitted, for the purposes of this case, that the hotel of the defendant was and is an inn ; and that by the Scotch law and in many jurisdictions, a lien is given by statute to agistors and stable-keepers." Cf. also Steinman v. Wilkins, Pennsylvania, 1844 (Reported 7 W. & S. 466) where Gibson, C. J. says, " It is difficult to find an argument for the position that a man who fits an ox for the shambles, by fattening it with his provender, does not increase its intrinsic value by means exclusively within his control," also " The truth is, the modem decisions evince a struggle of the judicial mind to escape from the narrow confines of the earlier precedents, but with- out having as yet established principles adapted to the current transactions and convenience of the world . . . Lord Ellenborough, alluding to the old decisions, said that if they ' are not supported by law and reason, the convenience of mankind certainly requires that our decisions should not be governed by them ' and Chief Justice Best declared that the doctrine of lien is so just between debtor and creditor that it cannot be too much favored." 228 THE PUBLIC CONSCIENCE the defendant was and is entitled to the rights of an innkeeper. Pollock, C. B. We are all of opinion that the lien claimed by the defendant cannot prevail . . , there is no case which decides that an innkeeper has a right of lien under such circumstances as these. This is a case of goods, not brought to the inn by a traveler as his goods either upon his coming to or whilst stay- ing at the inn, but they are goods furnished for his tem- porary use by a third person, and known by the inn- keeper to belong to that person. Piatt, B. The c&,3 of Johnson v. Hill shows the principle of law which is applicable to the present case. If a person brings the horse of another to an inn, the innkeeper may detain it from the owner until its keep is paid. But if the innkeeper knew that the person bringing the horse illegally got possession of it, and therefore had no right to pledge it for his debt, then the lien does not attach. Judgment for the plaintiffs. THREEFALL v. BORWICK^ Queen's Bench, 1872 (Reported L. R. 7 Q. B., 711.) One Butcher lodged at the Ferry Hotel on Lake Windermere, with his wife and sister, bringing with him a pianoforte which defendant thought was ^ Cf. also Robins and Co. v. Gray, Queens Bench Division, 1895. Reported 2 Q. B., 501. RIGHTS AS BETWEEN TWO PARTIES 229 Butcher's own but which in reality was the property of the plaintiff from whom he had hired it. After several weeks Butcher left the hotel owing £45; and, on demand of the plaintiff, defendant claimed to de- tain the piano in exercise of his lien as innkeeper for the debt due by Butcher. It was objected by counsel for the plaintiffs that pianos were not such personal goods as were commonly brought to inns by travelers. The court overruled this ..." Whether the defendant was bound to re- ceive the piano or not, he did receive it as the goods of the guest, and so must become liable for it, and there- fore must be entitled to his lien. Verdict for defendant — the innkeeper. Lord Esher, M. R., " The duties, liabilities and rights of innkeepers with respect to goods brought to inns by guests are founded, not upon bailment, or pledge, or contract but upon the custom of the realm with regard to innkeepers. Their rights and liabilities are dependent upon that, and that alone; they do not come under any other head of law. What is the lia- bility of an innkeeper in this respect? If a traveler comes to an inn with goods which are his luggage — I do not say his personal luggage but his luggage — the innkeeper by the law of the land is bound to take him and his luggage in. The innkeeper cannot discrimi- nate and say that he will take in the traveler but not his luggage. ... He has not to inquire whether the goods are the property of the person who brings them or of some other person." 230 THE PUBLIC CONSCIENCE New York Times {Probably Nov.) 1913. The clause printed on its passenger tickets and baggage checks by the New York, New Haven & Hart- ford Railroad, limiting its baggage liability in case of loss to $150 in New York State, and $100 in Massa- chusetts unless the owner declares a higher value and pays a premium, was upheld by the Appellate Di- vision yesterday in a suit brought by Mrs. Katherine B. against the road. Mrs. B. sued for $1,300 as the value of a lost trunk and its contents checked on a passenger ticket from Gardner, Mass., to this city. She said she had not noticed the clause limiting bag- gage liability and that no one had called her attention to it. She refused therefore to be bound by it. The Appellate Division, by a divided vote, Justice Scott dissenting, held that Mrs. B. could collect only $100 for the loss of her trunk. Trespass RACE V. WARD Queen's Bench, 1855 (Reported 4 E. & B., 702. Gray II, p. 10.) The defendants in this case broke and entered the plaintiff's close in the township of Horsley, justifying themselves under an immemorial custom in that town- ship for all the inhabitants for the time being to have the liberty and privilege to take water from a certain well or spring and to use it for domestic purposes. RIGHTS AS BETWEEN TWO PARTIES 231 The trespass was acknowledged but justified by the defendants. Lord Campbell said, among other things, in his opinion, that " the water which they claim a right to take is not the produce of the plaintiff's close; it is not his property; it is not the subject of property. Blackstone, following other elementary writers, classes water with the elements of light and air." It was held that water in a spring or well could be taken under immemorial custom, though, had it been in a cistern, there would have been no such right. Judgment for the defendants. HIGGINSON V. YORK 5 Mass. 341 (Supreme Judicial Court of Massachusetts, 1809. Ames, p. 84.) In the year 1805 the defendant, the master of a vessel employed in the coasting trade, was employed by one Kenniston, a trader, to take a cargo of wood from Burnt Island to Boston. The defendant went to the island with Kenniston, took on board thirty or forty cords of wood, carried it to Boston, where it was sold, and gave the proceeds to Kenniston. One Phinney, without right or authority had cut the wood in question, and had sold it to Kenniston, previously to the agreement between the defendant and Ken- niston. 232 THE PUBLIC CONSCIENCE There was no evidence that the defendant had any knowledge of the trespass committed by Phinney, or that he was in any manner concerned, or aiding or assisting therein, other than by going to the island and taking the wood upon freight. The court observed that the defendant was plainly a trespasser in going, without the license of the owner, upon the land of the plaintiffs. Phinney acquired no property in the wood by cut- ting it, as against the owners of the soil; Kenniston could acquire none from him and could transfer none to the present defendant. Verdict for the plaintiff. BULLOCK V. BABCOCK Supreme Court of Judicature, New York, 1829 (3 Wendell, 391. Ames, 76.) In 1816 the defendant, then being about twelve years of age, accidentally shot a schoolmate in the eye with an arrow. The shooting was accidental al- though the arrow was aimed at him in playfulness. There had been no quarrel between the boys but the plaintiff had been afraid that he would be shot. The shot destroyed one eye and affected the sight of the other. His family was poor and he was unable to re- ceive an education. Suit for damages was commenced in 1827, within RIGHTS AS BETWEEN TWO PARTIES 233 a year after the plaintiff became of age. The judge of the trial court charged the jury that shooting the arrow in the schoolroom where there were a number of boys assembled was an unlawful act; that it ap- peared to him to have been, at the least, grossly negli- gent and unjustifiable; and that if the jury thought so, they ought to find a verdict for the plaintiff with damages. They accordingly gave damages in the sum of $180.00. A motion was made to set aside the verdict. This was denied by Marcy, J., who said : " It is not, I appre- hend, necessary for us to say whether the judge erred or not in his remark to the jury that, etc." for, if the act in itself was lawful, and there was not a proper care to guard against consequences injurious to others, the actor must be held responsible for such conse- quences. In ordinary cases, if the injury is not the effect of an unavoidable accident, the person by whom it is in- flicted is liable to respond in damages to the sufferer. Where, in shooting at butts, the archer's arrow glanced and struck another, it was holden to be a trespass. So where a number of persons were lawfully exercising themselves at arms, one, whose gun accidentally went off, was held liable in trespass for the injury occasioned by the accident. Where, in a dark night, the defend- ant got on the wrong side of the road, and an injury ensued to the person of the plaintiff, trespass for the damage was sustained. // the accident happen entirely without the jault oj the defendant, or any blame being 234 THE PUBLIC CONSCIENCE imputable to him, an action will not lie. (Italics mine. — G.C.C.) (Wakeman v. Robinson.) In that case, the blame imputable to the defendant was, that, his horse being young and spirited, he used him with- out a curb rein ; and that he ought to have continued on a straight course. Unless a rule is to be applied to this case different from that applicable to a transaction between adults, the proof was most abundant to charge the defendant with the consequences of the injury. Infants, in the same manner as adults, are Hable for trespass, slander, assault, etc. Where infants are the actors, that might probably be considered an unavoidable accident which would not be so considered where the actors are adults ; but such a distinction, if it exists, does not apply to this case. The liability to answer in damages for tres- pass does not depend upon the mind or capacity of the actors; for idiots and lunatics are responsible in the action of trespass for injuries inflicted by them^' In Brown v. Kendall (Ames, p. 79) the remark is made by Shaw, C. J. that " to make an accident or casualty, or, as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed." 1 Note that there can be no criminal charge where the injuiy is unintentional. (Italics mine.) RIGHTS AS BETWEEN TWO PARTIES 235 Caveat Emptor — Let the Buyer Beware WARREN V. BUCK Vermont Reports, October Term, 1898 The defendant, a farmer, sold the plaintiff, a butcher, seven hogs on inspection, at the full market price per pound, live weight, knowing that they were to be cut up and sold. Two of the hogs had tuberculosis, a latent defect which destroyed their food value. The court held to the rule, caveat emptor (the buyer's risk) and dismissed the complaint. Comment. The rule caveat emptor has been greatly modi- fied by statute and it may be said that the present day practice holds that deceit is fraud in most cases whether there have been any formal representations or not. In Saltus V. Everett, 20 Wend. 267, 275, it is said: " The universal and fundamental principle of our law of personal property is, that no man can be divested of his property without his consent, and consequently that even the honest purchaser under a defective title cannot hold against the true proprietor." Fletcher, J., from whom the above is quoted, giving judgment in the case of Robinson v. Baker, (cf. Gray I, p. 183, [1849]) said: " Upon this settled and univer- sal principle . . . the books are full of cases, many of them hard and distressing cases, where honest and in- nocent persons have purchased goods of others ap- 236 THE PUBLIC CONSCIENCE parently the owners, and often with strong evidence of ownership, but who yet were not the owners, and the purchasers have been obliged to surrender the goods to the true owners, though wholly without remedy for the money paid. . . . These are hazards to which persons in business are continually exposed by the operation of this universal principle, that a man's property cannot be taken from him without his con- sent." Comment. Here the principle of caveat emptor still holds and statutes are, so far as I know, powerless to remedy such cases. Business men now protect themselves in the transfer of real estate by having the titles guaranteed or insured, for a fee, by companies having large capital, who make this their business. Of course criminal action may be brought against the offenders but the property lies in the legal owner and no other. Eminent Domain GARRISON V. THE CITY OF NEW YORK 88 U. S. 196 The New York legislature in 1869 passed an act providing for the widening and straightening of Broad- way in New York City, and for the purchase by con- demnation of all property necessary to the carrying out of the project. Under this act the measures authorized were taken and various awards were made by three commissioners of estimate — among others RIGHTS AS BETWEEN TWO PARTIES 237 one of $40,000 to one Garrison as his damages for taking a portion of leasehold estate held by him. The case in question has no further bearing upon eminent domain but is wholly devoted to the right of the legislature of New York to pass an act providing for the review of these awards in case unfairness or fraud should be discovered. The case referred to inter- feres with contract rights but was decided adversely to this contention. Contract FLETCHER v. PECK 6 Cranch 87, 1810 This case concerned lands sold to one John Peck of Georgia under an act of the legislature authorizing such sale. It was afterwards claimed that the State of Georgia had no authority to dispose of such lands as they really belonged to the United States as heir of the British Crown. With the ramifications of the case in the matter of various deeds and authorities, we have no concern here. There was a charge also that certain members of the legislature were induced to vote for the act enabling the land to be sold, on the promise that they should share in the proceeds. The case finally came to the Supreme Court of the United States and Chief Justice Marshall delivered the opinion. 238 THE PUBLIC CONSCIENCE The Chief Justice, while deploring the contamina- tion of the sources of legislation in an infant republic, remarks " How far a court of justice would be compe- tent, on proceedings instituted by the state itself,^ to vacate a contract thus formed, and to annul rights acquired, under that contract, by third persons having no notice of the improper means by which it was ob- tained, is a question which the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, operating on members of the supreme sovereign power of a state, to the formation of a contract by that power, are examinable in a court of justice." The legislature of Georgia was a party to this trans- action " If (it) was not bound to submit its preten- sions to those tribunals which are established for the security of property, and to decide on human rights, if it might claim for itself the power of judging in its own case, yet there are certain great principles of jus- tice, whose authority is universally acknowledged, that ought not to be entirely disregarded." The legislature of Georgia, like a private person, cannot disregard the rules of equity. If this sale was brought about by fraud, nevertheless there were inno- cent third parties to whom conveyance was made, whose property rights must be protected. " In this case the legislature may have had ample proof that the original grant was obtained by practises which can 1 Not the case here. RIGHTS AS BETWEEN TWO PARTIES 239 never be too much reprobated, and which would have justified its abrogation so far as respected those to whom crime was imputable. But the grant, when issued, conveyed an estate in fee simple to the grantee, clothed with all the solemnities which law can bestow." It was claimed that one legislature was competent to repeal the acts of its predecessor without doubt; but, if an act be done under a law, a succeeding legisla- ture cannot undo it. " When a law is in its nature a contract, when absolute rights have rested under that contract, a repeal of the' law cannot devest those rights." "A grant, in its own nature, amounts to an extin- guishment of the right of the grantor, and implies a contract not to reassert that right." " It is then the unanimous opinion of the court, that, in this case the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles which are cormnon to our free in- stitutions, or by the particular provisions of the Con- stitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally im- paired and rendered null and void. The judgment of the lower court was affirmed, with costs; thus establishing the validity of the contract. 240 THE PUBLIC CONSCIENCE Nuisance BAMFORD V. TURNLEY Exchequer Chamber, 1862 (Reported 3 B. & S., 62.) This was a case where damages were claimed be- cause of a nuisance which was injuring the property of the plaintiff". It appeared on the trial in 1860 that certain lands in Norwood were offered for sale in lots at public auc- tion in accordance with certain printed particulars and conditions of sale. One of the statements was as follows : " There is abundance of brick earth and gravel, which . . . present an unusually advantageous opportunity of carrying out safe and profitable build- ing operations." One Captain Strode bought one of the lots, built a house upon it, and leased it to the plaintiff in this case. Shortly after, the defendant bought several lots. In 1860 he, having in mind to use some of the clay in building, erected what is called a " clamp of bricks " as far away as possible from the plaintiff's house. Bricks had previously been burned on many lots in the neighborhood even on the site of the plaintiff's house. The defendant had endeavored to make the necessary burning of bricks as little offensive as possible. The Lord Chief Justice directed the jury that, " if they thought the spot was convenient and proper, and RIGHTS AS BETWEEN TWO PARTIES 241 the burning of the bricks was, under the circumstances, a reasonable use by the defendant of his own land," the defendant would be entitled to a verdict — which was accordingly given. The plaintiff appealed. Williams, J., delivered the opinion. He said that the judgment was plainly based upon a passage in Comyn's Digest upon the Case for a Nuisance. " So an action does not lie for a reasonable use of my right, though it be to the annoyance of another; as if a butcher, brewer, etc., use his trade in a convenient place, though it be to the annoyance of his neighbor," but Hide, C. J., has said, " a tan house is necessary, for all men wear shoes, and nevertheless it may be pulled down if it be erected to the nuisance of another." As the use of an offensive trade will be indictable if it be carried on in an inconvenient place, i.e., a place where it incommodes a multitude of persons, so it will be actionable if it be carried on in an inconvenient place, i.e., a place where it greatly incommodes an individual. The question is, what is inconvenient? In arguing for the plaintiff Mr. Mellish pointed out that if such a doctrine as that of convenience be carried out " it must be maintained to the extent that, however ruinous may be the amount of nuisance caused to a neighbor's prop- erty by carrying on an offensive trade, he is without redress if a jury shall deem it right to find that the place where the trade is carried on is a proper and convenient place for the purpose." Bramwell, B., said, agreeing with Williams, J., that 242 THE PUBLIC CONSCIENCE the judgment should be reversed. The defendant had infringed the maxim, " So use thine own as not to in- jure what is another's." The instances put during the argument, of burning weeds, emptying cesspools, mak- ing noises during repairs, and other instances which would be nuisances if done wantonly or maliciously, nevertheless may be lawfully done. Such cases are not extreme. There must, then, be some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and in this, viz., that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action. The present case does not come under this principle. The fact that the nuisance was temporary makes no difference. It is too hard to establish what is temporary. Nor can it be claimed that a thing is lawful if for the public benefit unless it can be clearly shown on the balance of loss and gain to all. No one thinks it would be right to take an individual's land without compen- sation to make a railway. It is for the public benefit that there should be railways but it would not be unless the gain of having the railway was sufficient to compensate the loss of land required for its site. If we look to analogous cases I find nothing to countenance the defendant's contention. A riparian owner cannot take water for the public benefit; he cannot foul it for the public benefit, if to the prejudice RIGHTS AS BETWEEN TWO PARTIES 243 of another owner. A common cannot be enclosed on such principle. A window, the fee simple of which is 5s., cannot be stopped up by a building worth £1,000,000, of the greatest public benefit/ This nuisance was not a case of necessity.^ Verdict for the plaintiff. Comment. This is, as are all trespass cases, a question of relative rights to property. The EngHsh law as here recorded seems to be very strict to protect the least thing whose property character is established; yet the maxim is the same for England and America. '' So use thine own as not to injure what is another's." The whole difficulty lies in its application; and the principle of eminent domain would seem to indicate that the English law would yield if once the public interest grew sufficiently strong, whatever the prescriptive right of the individual might be. An examination of practice in England during the recent war would doubtless support my contention, but there is no access to such records under present conditions. 1 There is a difference in principle between English and Ameri- can decisions on this point. Light and air are held to become private property by easement in England. In America this prin- ciple has been denied. Cf. Ely, op cit., p. 113. 2 This case has been greatly abridged. 244 THE PUBLIC CONSCIENCE ST. HELEN'S SMELTING CO. v. TIPPING House of Lords, 1865 (Reported 11 H. L. C, 642.) This was an action brought by the plaintiff, Tipping, to recover damages for injuries done to his trees and crops by their works. The damage was done by noxious gases, vapors, etc., which were diffused over the lands of the plaintiff. The plaintiff acknowledged having seen the large chimney of the factory before he purchased his land but he said that he did not know the works were in operation. It was shown by the de- fense that the whole neighborhood was studded with chimneys and that it was impossible to say which works produced the injury complained of. The judge told the jury (Mr. Justice Mellor at Liverpool) that " an actionable injury was one pro- ducing sensible discomfort; that every man, unless en- joying rights obtained by prescription or agreement, was bound to use his property in such a manner as not to injure the property of his neighbors ; that there was no prescriptive right in this case ; that the law did not regard trifling inconveniences; that everything must be looked at from a reasonable point of view ; and there- fore, in an action for nuisance to property, arising from noxious vapors, the injury to be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it. That when the RIGHTS AS BETWEEN TWO PARTIES 245 jurors come to consider the facts, all the circumstances, including those of time and locality, ought to be taken into consideration; and that with respect to the latter it was clear that in countries where great works had been erected and carried on, persons must not stand on their extreme rights and bring actions in respect of every matter of annoyance, for if so, the business of the whole country would be seriously interfered with." The jury found that while the defendants' business was a proper one and conducted in a proper manner it nevertheless damaged the plaintiffs and was not car- ried on in a proper place. They found for the plaintiff in the sum of £361 18s. 4^d. Appeal was taken to the Exchequer Chamber and judgment affirmed. Appeal was then taken to the House of Lords, which again affirmed the judgment on the ground that the property destroyed was very valuable and that there was no excuse for the offensive vapors and other harmful effects produced by the works in question. Comment. The last sentence in this case is sufficient comment on it. The damage done was very great and unnecessary. GILBERT V. SHOWERMAN Supreme Court of Michigan, 1871 (Reported 23 Mich., 448.) This was a suit to enjoin the operation of a flour mill. The plaintiff had owned and Uved in a building 246 THE PUBLIC CONSCIENCE for more than twenty years. The lower floor was rented as a store or warehouse, the upper part as a dwelling by the owner. Adjoining his building was one in which had been set up machinery and fixtures to run a flour mill and such a mill was being run. The plaintiff maintained that it was a nuisance in that it shook his house^ weakened its walls, rattled the win- dows and dishes in his home, made much extra soot and dirt and many unpleasant noises, etc. The evidence showed that the two buildings were part of a long continuous block in the city of Detroit, all the buildings of which appeared to have been con- structed for business purposes. There have been numerous families occupying parts of houses but the tendency has been for them to remove to make way for business. There was no question that the mill did cause annoyance to the plaintiff but there was no lack of due care in the management of the mill. The pres- ent bill was filed more than a year after the machinery was put in and more than eight months after the mill was in operation. The defendants acted in good faith in installing their mill but the plaintiff was doubtless injured to some extent both personally and in business. Cooley, J., said: "Generally speaking, it may be said that every man has a right to the exclusive and undisturbed enjoyment of his premises, and to the proper legal redress if this enjoyment shall be inter- rupted or diminished by the act of others. The re- dress, if the injury is slight or merely casual, or if it RIGHTS AS BETWEEN TWO PARTIES 247 is in any degree involved in doubt, should be by action for the recovery of damages; but if permanent in its nature, so that by persistence in it the wrong doer might, in time, acquire rights against the owner, it is admissible for the court of Chancery to interfere by injunction, provided the injury is conceded or clearly established." The Court further found that the defendants were carrying on a legitimate business in a proper place and that there were other businesses in the block quite as likely to be offensive against which no complaint was made. " We cannot shut our eyes to the obvious truth that if the running of this mill can be enjoined, almost any manufactory in any of our cities can be enjoined upon similar reasons. Some resident must be incommoded or annoyed by almost any of them. In the heaviest business quarters and among the most offensive trades of every city, will be found persons who, from motives of convenience, economy or necessity, have taken up there their abode; but in the administration of equi- table police, the greater and more general interests must be regarded rather than the inferior and special. The welfare of community cannot be otherwise sub- served and its necessities provided for. Minor incon- veniences must be remedied by actions for the recov- ery of damages rather than by the severe process of injunction." The case was dismissed and costs were assessed but the dismissal was without prejudice to any proceeding 248 THE PUBLIC CONSCIENCE the plaintiff might be advised to take at law, as, e.g. action for damages. Comment. The court's opinion here is sufficiently exphcit and agrees well with what comment we have made on Bamjord v. Turnley — but it deals wholly with the question of injunction and does not invalidate an action for damages which may well lie even if the offender may legitimately continue his business. — Cf. the numerous suits for damages when railroads of all sorts are built. STURGES V. BRIDGMAN Court of Appeals in Chancery, 1879 (Reported 11 Ch. Div., 852.) The plaintiff in this case was a physician who built a consulting room in his garden right against the estab- lishment of a confectioner who, with his father before him, had occupied the premises and carried on the business for sixty years. The physician did not build a separate wall of his own, accordmg to the defendants, and he was constantly annoyed by the noise made in two large marble mortars set in brick work against the wall which separated confectionery and consulting room. The physician complained that the noise seriously interfered with his business, particularly preventing him from examining patients by auscultation for diseases of the chest. In May, 1878, Jessel, M, R., held that the plaintiff RIGHTS AS BETWEEN TWO PARTIES 249 was entitled to an injunction. The defendant appealed. Thesiger, L. J., confirmed the injunction, maintaining that " an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence." " Until the noise became an actionable nuisance, which it did not at any time before the consulting room was built, the basis of the presumption of the consent, viz., the power of prevention, physically, or by action, was never present." It might be objected that if such a principle were carried to its logical consequences, it might result in serious practical inconveniences. A man might go into an unsavory neighborhood and build a private residence and then complain of nuisances. But " whether anything is a nuisance or not, is a question to be determined, not merely by an abstract considera- tion of the thing itself, but in reference to its circum- stances ; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey ; and where a locality is devoted to a particular trade or manufac- ture carried on by the traders and manufacturers in a particular and established manner not constituting a public nuisance, judges and juries would be justified in finding, and may be trusted to find,! that the trade or manufacture so carried on in that locality is not a private or actionable wrong." ^ Appeal dismissed with costs. 1 Cf. also Wilde, J., in Dana v. Valentine, 5 Met. 8, 14 (1842). "Another objection to the defendant's title by prescription is that 250 THE PUBLIC CONSCIENCE Comment. Thesiger's comment establishes the principle that one cannot protest against that which merely may some day be a disadvantage to him. Negligent Destruction BROWN V. ROBBINS Exchequer, 1859 (Reported 4 H. & N, 186.) Plaintiff had a house one lot east from Bill Hay Lane. The lot next the lane had been mined in 1831 and in 1838 the lot west of the lane was mined, pillars and ribs of coal being left as supports. In 1857, the defendant again worked the lot west of the lane, re- moving the pillars and ribs and the plaintiff's house began to crack. The jury found that the defendant knew that the plaintiff's house and the mined lots had been there for twenty years and that the defendant's mining had caused the plaintiff's land to slide. The land would have slid had there been no house on it at all. The land slid of its own weight. It was held that the plaintiff had acquired the right of support of his house and that he should recover damages.^ until lately the plaintiffs suffered no damage from the alleged nui- sance, and therefore could not interpose to prevent its continuance. But it is very clear that where a party's right of property is in- vaded, he may maintain an action for the invasion of his right, without proof of actual damage." 1 Cf. judgment of Erie, C. J., in Smith v. Thackerah (Reported L. R. 1 C. P., 564) " There is no doubt that a right of action accrues RIGHTS AS BETWEEN TWO PARTIES 251 Comment. Reiteration of principle — that is wrong which injures a neighbor, but the further principle given that such injuries as are the necessary result of proper action with one's lawful property are not to be considered actionable. STOCKPORT WATER WORKS COMPANY v. POTTER Exchequer, 1864 (Reported 3 H. & C, 300.) The plaintiffs had taken water from the Mersey River for the town of Stockport ever since 1853. In that year they had acquired the right from the Wood- whenever a person interferes with his neighbor's rights, as, for ex- ample, by stepping on his land or interfering with his right to vote. But for a man to dig a hole in his own land is in itself a perfectly lawful act of ownership, and it only becomes a wrong if it injures his neighbor; and since it is the injury itself which gives rise to the right of action, there can be no right of action unless the damage is of appreciable amount.'' Also — Williams, J., in Robertson v. Youghiogheny Coal Co., 172 Pa. 566, 571 — "The grant of a mineral estate, or of the right to mine, is a grant of the right to penetrate the earth in search of the mineral stratum, and, when found, to quarry and re- move the mineral in a proper manner. Such injuries as are the necessary result of this process do not afford a cause of action to the owner of the surface. If his springs are drained or his well destroyed as the natural result of the excavation made to reach and remove the coal, he has no right to complain. But a sale of all the coal under a tract of land is not in terms nor by necessary impHcation a release of the right to surface support any more than the sale of the first story of a building, two or more stories in height, would be a release of the floor so sold from its visible servi- tude to the remainder of the building." 252 THE PUBLIC CONSCIENCE bank Estate which had been in the habit of taking water for fourteen years previous to 1853. The de- fendants, owning property further up the stream, had fouled the stream, not mahciously but in the pursuit of their legitimate business. No riparian rights had been granted to the Stockport Waterworks Company, as they acquired none of the shore but only what was known as the Nab Pool Weir and the right to draw water. The plaintiffs were neither themselves riparian owners nor the assignees of such. Pollock, C. B., in his opinion said, among other things : " It seems clear that the rights which a riparian proprietor has with respect to the water are entirely derived from his possession of land abutting on the river. If he grants away any portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights. But if he grants away a portion of his estate not abutting on the river, then clearly the grantee of the land would have no water rights by virtue merely of his occupation. Can he have them by express grant? It seems to us that the true answer to this is that he can have them against the grantor but not so as to sue other persons in his own name for an infringe- ment of them." He also said that there had been no continuous use of the water for twenty years constitut- ing what is called an easement. The water had been used by the plaintiffs only since 1853. Before that it was used by others in the enjoyment of riparian rights. Moreover there was no right by prescription, adverse holding against all comers, since the right had been dis- puted and an award made. RIGHTS AS BETWEEN TWO PARTIES 253 Judgment was therefore given for the defendants but Bramwell, B., in a dissenting opinion, said, " Sup- pose the person fouling the water was not a riparian proprietor but a mere wrong doer, why should not an action lie against him? I can see no reaspn, nor can I see that his being a proprietor makes any difference. Upon these considerations (Others had been cited, G.c.c.) it seems to me this action is maintainable. I think it might fairly be asked to what extent I would carry the principle upon which I decide this. My answer is, to the extent to which the analogous case extends of a grantee of a right of way. Where a gran- tee of a right of way could maintain an action for dis- turbance of his way, so do I think the grantee of a right of water might. ... I am aware of the case of Keppell V. Bailey, 2 Myle & K. 516, and agree that new rights of property cannot be created, but I think that rule does not interfere with the present case. There, an owner of land was resisting a burden put upon it by a former owner, and it was held that burden could not be attached to the land in the hands of the assignee. Here, no doubt, it can be, that is to say on the lands of the riparian proprietors (the Messrs. Marsden, owners before 1853). The question is not with them, but with one who would be a wrong doer if he had no riparian estate or occupation, and is not the less so because he has (i.e. the defendant). Baron Bramwell would give the decision to the plaintiffs. 254 THE PUBLIC CONSCIENCE Comment. Baron Bramwell's analogy seems to be sound; but the whole case depends upon what the property rights were. The majority opinion settles that for us. Had the Stockport Water Works been publicly owned, prob- ably the defendants would have been found guilty; but on the ground of public policy, not because they were violating any individual's property rights. ROBERTS V. GROYFRAI DISTRICT COUNCIL Chancery Division, 1899 (Reported 1 Ch., 583.) The plaintiff owned and occupied an ancient water mill. At the head of the stream which supplied it was a lake from which the defendants desired to supply sur- rounding towns with water for domestic purposes. They tried to get the plaintiff's permission but this was refused. Defendants then dammed up the lake, leaving a place for the water to get out. It was con- ceded that the flow was more regular than it had been before and was sufficient for the use of the plaintiff. Indeed it was somewhat better for his mill than it had been. But the plaintiff sought an injunction to restrain the defendants from taking any water from the lake and from doing any act whereby the flow of water in the stream through and by the plaintiff's mill and lands would be diminished. The defendants claimed riparian rights including the right to supply their district with water. They RIGHTS AS BETWEEN TWO PARTIES 255 admitted that their action would cause the abstraction of about one-sixteenth of the water in the lake. Kekewich, J., held that the law on the subject had been threshed out again and again. "A riparian pro- prietor or owner is entitled to say that the water which flows by his property and which is used by him for ordinary, or it may be for extraordinary, purposes shall flow in the future as it had done in the past. This seems to be the common law right; and unless that common law right has been affected by statute he is entitled to insist upon it." Judgment for the plaintiff later affirmed in (1899) 2 Ch. p. 614, where Lindley, M. R., said, " The defendants have in fact most mate- rially altered the flow of the water to which the plain- tiff is entitled. His rights are infringed by persons who admit that they have no right to do what they are do- ing; and under the circumstances unless the in- fringers are prepared to stop what they are doing, an injunction to restrain them is almost a matter of course. ... I cannot appreciate the difference, for the present purpose, between claiming a right to do a thing, and saying, ' I admit I have no right to do it, but I intend to go on doing it.' If there is any difference, it is rather against the man who admits that he has no right to do a thing, but insists on doing that which he admits to be wrong." Comment. This case appears at first sight to be decided adversely to the principle, " So use thine own, etc.," be- cause it was granted that the flow of water to the mill was improved, if anything, by the change; but it is 256 THE PUBLIC CONSCIENCE important to add that the flow of water had been mate- rially changed and that it would be dangerous indeed to allow others to be the judge of what our desires were. If the plaintiff here may be judged a somewhat disoblig- ing person he was nevertheless strictly within his rights. PITTS V. LANCASTER MILLS Supreme Judicial Court of Massachusetts, 1847 (Reported 13 Met., 156.) The declaration alleged that Samuel Carter was seized and possessed of a close, water mill, ancient dam and the water privileges thereto appertaining, situate on the north branch of Nashua River, in Lancaster, and the right of having the whole water of said stream flow without obstruction, for the benefit of said mill, and of having the uninterrupted use and occupation of said mill and privileges ; and that said Carter, being so seized and possessed, leased the premises for a term of years to Hiram Pitts, who underlet the same to the plaintiffs; that the defendants, a corporation estab- lished by statute in 1845, wrongfully built and raised, above its usual height, their dam, situate across said stream, above the mill, etc., occupied by the plaintiffs and thereby hindered the water from flowing in its usual course, and thereby, for the space of two days in June and four days in July wholly cut off the water from the plaintiff's mill. The case was submitted to the court upon the following agreed statement of facts: RIGHTS AS BETWEEN TWO PARTIES 257 " The plaintiffs are the lessees of said mill, dam and privileges. The defendants were the owners of a privilege on the said stream, above the mill of the plaintiffs, whereon a mill had stood for some years; they erected a new mill thereon, and, for the purpose of using the whole power, raised the dam higher than it had formerly been, and kept the water back, so long as was necessary to fill their pond and no longer. To have delayed filling said pond, until a freshet or flow of water should have raised the same, would have endangered said dam ; and by keeping the water back as aforesaid, the operations of the plaintiffs' mill were retarded or wholly suspended." Shaw, C. J., said: " Every proprietor of land, through which a current of water flows, has a right to the use of it on his own land, amongst other things for mill purposes, making such reasonable use of it, and of the mill power furnished by it, as he can consistently with a like reasonable use by other proprietors, above and below, through whose land it passes. What is a reason- able use must depend on circumstances; such as the width and depth of the bed, the volume of water, the fall, previous usage, and the state of improvement in manufactories and the useful arts. " It appears . . . that having erected a new dam, which they had a right to do, they, (the defendants) detained the water no longer than was necessary, etc. — this was not an unreasonable use." ^ Judgment for defendants. 1 Cf. also Wheatley v. Chrisman, 24 Pa. 298, 302 (1855). 258 THE PUBLIC CONSCIENCE " The proposition of the defendant was, that he had a legal right to use a reasonable quantity of the water for the purposes of his business. The court replied that his business might reasonably require more than he could take consistently with the rights of the plain- tiff : We cannot see how or on what principle the cor- rectness of this can be impugned. The necessities of one man's business cannot be the standard of another's rights in a thing which belongs to both. The true rule was given to the jury. The defendant had a right to such use as he could make of the water without mate- rially diminishing it in quantity or corrupting it in quality. If he needed more he was bomid to buy it." Comment. The decision here seems to be in contradiction of the preceding case of Roberts v. Groyfrai, etc. The latter is an English casC; the present one is American, but Wheatley v. Chrism/in here cited agrees rather with the Roberts case and it also is American. There is thus no harmony obtainable here. Property — Accidental or Negligent Destruction CITIZENS RAPID TRANSIT CO. v. DEW 100 Tennessee, 317, 1898 (Milbum's Curious Cases, p. 310.) A valuable bird dog was killed in plain sight of the conductor and motorman (one person) on the highway known as the Charlotte Pike. The dog was running RIGHTS AS BET^VEEX TvVJ PAHTIES 259 along the pike some one hundred and fifty yards in front of the plaintiff's vehicle when he started across the trolley track. He saw some little birds and stopped to " set " or " point " them. While thus absorbed the trolley car came noiselessly upon him not sounding its bell or making any effort to stop. The dog was so badly injured that his master shot him and then brought suit for damages. The negligence of the motorman was plainly estab- lished. The dog was not a trespasser and it was per- fectly proper for his master to put him out of his misery — so held the court of appeals, the master hav- ing been awarded damages in the lower court. Much effort was made to establish the worthlessness of dogs/ but " it is a matter of common knowledge " that certain strains add materially to if they do not quite establish the value of dogs,, horses, etc. This was a valuable dog and the lower court rightfully awarded damages of $250.00. Recovery for Negligence Judge Brown in Perpich v. Leetonia Mining Co., 112 B. L. S. 151. It is well established, though perhaps not by a uniform line of decisions by all the courts, that when, through the negligence of one person, another is placed in imminent peril of his life, a third person standing by, who successfully rescues or unsuc- 1 Dogs have had their status as property established by statute in many states and they are now generally accepted as having value. Cf. Ely. op cit., p. Ill for references to the statutes and various decisions. 260 THE PUBLIC CONSCIENCE cessfuUy attempts to rescue the imperilled person may- recover for injuries received by him in the attempt, in an action against the one whose negligence imperilled the life of the rescued person, unless it appears that the attempt to rescue was clearly one of rashness or recklessness under the circumstances presented. The authorities are collected in a note to Corbin v. CifAj of Philadelphia, 49 L. R. A. 715. Comment. The fact that money damages can be collected puts this in the property classification. Taxation In Kirtland v. Hotchkiss, 100 U. S. 491, it was held that a state (in this case Connecticut) can tax its citizens in any way which does not conflict with the Constitution of the United States; and that the Con- stitution does not prohibit the taxation of its citizens for debts held by them against a non-resident. KENTUCKY RAILROAD TAX CASES 115 U. S. 321 State statutes which provide for the raising of money by assessment and collection of taxes, which provide for the proper protection of owners and offer them the opportunity, in a suit at law for the collection of the tax, to judicially contest the validity of the proceed- ing, do not necessarily deprive owners of their property " without due process of law." Nor are different NATURAL LAW IN PROPERTY OFFENSES 261 Classifications of property a denial of the " equal pro- tection of the laws " if they provide for the impartial application of the same means and methods to all con- stituents of each class. THE NATURAL LAW IN PROPERTY OFFENSES All property offenses seem to be variations of theft. The essential act is to take to oneself what belongs to another. We have no concern with the definition of property. The civil law has many interesting things to tell us of the distinction between property in a thing and possession of it; but in itself this distinction does not interest us, nor are we concerned either to uphold or to attack the institution of private property. Through all the changes which the conception of pri- vate property has undergone, and is now undergoing, a most admirable and interesting account of which can be found in Professor Richard T, Ely's book " Property and Contract," the various types of offenses here indi- cated have persisted. The particular offense is often an ephemeral matter. I think that my seven main classifications are permanent. They must hold wher- ever the institution of property holds, and that will be everywhere — because even under Communism of a more extreme type than we know of historically or dream of as an ideal, property would be in the com- munity and it would be both possible and probable that men would offend against it. The nature of private property is indeed most illuminatingly set forth by the mere statement of the 262 THE PUBLIC CONSCIENCE different kinds of offenses against it; but there is no interesting gradation as in killing, between those kinds invariably condemned and those which are universally approved. We may, to be sure, note that there is made a different logical classification from that under killing, since that classification was based upon different atti- tudes of society toward killing and degrees of assault, throughout human history. The Spartans taught their children to steal and made discovery the only crime, but our knowledge of this people is after all very slight and from remote sources. Theft is univer- sally a crime, punished with death until modern times, or with penalties so severe that death would seem preferable. The gradations are perhaps as follows: 1 Taking possession of enemy property in war, or. when unhampered by commercial treaties, by fraud or deceit in time of peace, is not condemned by the group. " Spoiling the Egyptians " has ever been considered meritorious by the group. 2 Burglary, arson, brigandage, highway robbery, because accompanied with violence, and all forms of larceny which by their nature threaten the in- stitution of property itself, and those forms which are peculiarly dangerous to life, like horse stealing in border states, are severely condemned by the group, but no longer punished by death. 3 Frauds, appropriation by compulsion, breaches of trust, attacks upon personality — while highly RIGHTS AS BETWEEN TWO PARTIES 263 differentiated by the law as to exact punishment, are classifiable together as offenses which society- does indeed often punish with great severity ; but there has been little poignancy of emotion over them, and the plain thief who steals a pair of shoes or a loaf of bread suffers social condemnation of a kind frequently not visited upon the offenders in these classes. The attitude of the civil law toward the inn- keeper's lien is strongly analogous to its approval of self-defense in killing cases. The innkeeper may take the law into his own hands to the extent of re- taining the property of a guest until all just charges made by him are paid. But he cannot sell the property at will to satisfy his claim; and prop- erty might be left with him so long that the cost of keeping it would be more than it was worth. In that case he could bring the matter before the proper court which would order the property sold to pay his bill. His inability to go to an extreme in recovering his property thus is comparable to the refusal of the law to permit a man in self- defense to do more than defend himself. Those property offenses which I have classed* under 7 — " Rights as between two parties, etc.," show by the very title that there is not here neces- sarily anything approaching theft. There may in these cases, especially those concerned with tres- pass, riots, nuisances and negligent destruction of property, often be something very close to malice. 264 THE PUBLIC CONSCIENCE This may even be true in tax cases, eminent do- main, contracts and infringement of trade marks — but there need not be. Hence, as property- cases, they approach the indifference point. The whole question to be resolved by a court is — In whom does the property vest in reality? or per- haps — How will social good best be conserved? This last is evidently the case with eminent do- main. And while we have a constitutional guar- antee that no man's property may be taken from him without due process of law and proper com- pensation, this is an ideal only. A notable ex- ample of the failure of this constitutional guaran- tee was in the appropriation by the United States of the whole of the compensation given by France for the destruction of American shipping at the time of the French Revolution, No claims against the United States were allowed for about one hun- dred years; and then only a very small amount was appropriated by Congress for the purpose of payment — and no interest was allowed. (Note that there must always be damages in this class — though there be no guilt.) 6 One can detect no logic in the gradation of penal- ties for infringement of property rights. It is hopeless to attempt to bring order out of this chaos. Penalties vary in the different states and in different countries. Some are exceedingly severe and others amazingly light. They have just " growed " like Topsy in Mrs. Stowe's romance. RIGHTS AS BETWEEN TWO PARTIES 265 To be sure, the penalties for forgery and breaches of trust are very heavy, much heavier than for petit larceny or, in some cases, even for grand larceny, but there can be no doubt that, socially, the forger and the embezzler are more respectable than the plain thief — and there is a glamour still about the brigand and the highway robber which certainly does not attach to the burglar or the " fire bug." One may with some confidence conclude that the offenses against property are equally with those against life, offenses against the group. This will more prom- inently appear in security cases. Property cases are, after all, somewhat obvious. When one has said " thief," he has said the last word. The thief cannot be tolerated ; though it has taken the world a long time to realize that the " respectable " forms of theft are as dangerous as, yes, much more dangerous than, simple larceny. Three points (1) Steal anything or take anything from an enemy of the group; but only in so far as he is plainly enemy. (2) All forms of theft within the group will be pun- ished — in the degree that they threaten the sta- bility of the group — but this is modified by feudal custom and failure to realize what really threatens the group. (3) Eminent domain expresses the principle that all property, in the final analysis inheres in the group. Salus populi suprema lex. In the Preservati I. Preservation o) Life and Limb. OFFENSES AGAINST SECURITY In the Preservation of Life and Limb, and the Preservation of Property, of Reputation and Public Order (Attacks on the army and navy, "the flag," courts, police and quarantine Treason (security of State threatened) Mutiny ( " " ship, little state pro tempore) False imprisonments Unfair trials Neglect of precautions Violations of fire and factory laws, etc. (Employment of minors) Violations of Pure Food and Drug Act, of traffic regu- lations, of ordinances relating to Railroads, Rivers and Harbors, highways Excessive hours of labor, especially on railroads, steam- ship lines, etc. Neglect of safety devices, sanitaiy precautions, etc. Carrying concealed weapons Practising medicine without a license, etc. NegUgent running of automobiles, steam engines, etc. (Hcense cases) NegUgence in electric wiring, etc. Negligence in keeping up fences and other boundaries Keeping unsafe animals Negligence in hunting, etc Forgery Counterfeiting Raising checks Kiting checks Falsifying accounts Using mails to defraud Stealing from mails, express com- panies, etc. Insurance frauds "Blue Sky" laws Creating panics, publishing false news Combinations in restraint of trade Cornering markets "Gentlemen's Agreements" to evade law or defraud Rebates Strikes and lockouts Labor Unions and Manufacturers* II Preservation of property {cf. also "Offenses against property") (a) Attacks upon credit ■nipt.K ///. Public Order (Decency) Bnlj<.-ry :ind ( [ Kidnapping Adultery (wife property of husband — (c) Personal many laws of adultery based on that) ] Seduction I Akenating affections ( Breach of promise of marriage {Blackmail Libel Slander Invading privacy Maintaining or encouraging commercial prostitution (Red Light Districts, Mann White Slave Law, etc.) Public nuisances (noises, smells, sounds'! Maintaining or erecting spite fences Indecent exposure " publication Keeping disorderly houses, saloons, etc. Violating Sunday laws Unnatural practices, sodomy, etc. Blasphemy, disturbing public worship, etc. Desecrating graves, public monuments, etc. Neglecting education Breaches of the peace Cruelty r thnt the above classifit^ation i: tfora tch all" PART III PRESERVATION OF SECURITY SECURITY A SUPREME NEED Gilchrist, C. J., in Beach v. Hancock, 27 New Hamp. 223: "One of the most important objects to be at- tained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security." Comment. Gilchrist's opinion is a classic expression. It may be taken as a generalization of the highest import- ance which will illuminate all the cases in this section. It is obvious that no body of laws can give this " sense of perfect security ; " but the content of the laws and of judgments will indicate at least the purpose of their enactment. I. SECURITY IN LIFE AND LIMB ATTACK ON ARMY New York Times, February 19, 1916. The proprietors of the weekly journal Bystander were fined £100, the former editor, Vivian Carter, was fined £50, and Lieutenant Bernard, cartoonist, £50, today for publishing a cartoon depicting a British 269 270 THE PUBLIC CONSCIENCE soldier lying intoxicated beneath a tree and clasping a bottle of rum. Beneath the cartoon were the words, " Reported Missing." The charge was preferred under the Defence of the Realm act on the ground that publication of the car- toon was prejudicial to discipline and recruiting. An appeal was entered. Comment. Probably no notice would have been taken of such a cartoon had it not been published at such a time in the nation's history. Attack on Courts King's Bench, 1688 (Reported Comberbach, 46. Beale, 71, 2d ed.) A man was indicted for words spoken of a justice of peace (a buffle-headed fellow) and an exception was taken that the words were not indictable. But the Court held that, because it appears they were spoken of him in the execution of his office, the indictment is good. All actions for slandering a jus- tice in his office may be turned into indictments. STATE V. HOLT Supreme Judicial Court of Maine, 1892 (Reported 84, Maine, 509. Beale, 78, 2d ed.) The defendant, knowing that one Fred N. Treat had been summoned to appear before and give evidence to SECURITY IN LIFE AND LIMB 271 the Supreme Court, and intending to obstruct the course of justice, caused Treat to become intoxicated and then removed him so that he could not give testimony. Walton, J., held that " a wilfull and corrupt attempt to prevent the attendance of a witness before any law- ful tribunal organized for the administration of jus- tice is an indictable offense at common law." Comment. Various opinions quoted uphold the principle that anything tending to obstruct the course of public justice is indictable at common law. Bribing, intimidat- ing, and persuading witnesses, to prevent them from tes- tifying, or to prevent them from attending court, have been among the most common and the most corrupt of this class of offenses. Authority of the State — Courts STATE OF KANSAS v. GEORGE LEWIS (19 Kan. 260. 1897.) The defendant was imprisoned in the county jail of Atchison County on the criminal charge of burglary in the second degree, awaiting a trial upon such a charge; and while so imprisoned he broke jail and escaped. Afterward a warrant was duly issued for his arrest upon the charge of breaking jail and custody. He was apprehended, hand-cuffed and taken before a jus- tice for a preliminary examination. He was then tried on the charge of burglary and acquitted. The county 272 THE PUBLIC CONSCIENCE attorney then had him arrested on the charge of break- ing jail and custody. He endeavored to escape this charge on several grounds; but his pleas were all swept aside. The statute reads " If any person, lawfully impris- oned in any county jail or other place of imprisonment, or in the custody of any officer upon any criminal charge, before conviction for the violation of any penal statute, shall break such prison or custody and escape therefrom, he shall upon conviction be punished by confinement and hard labor for a term not exceeding two years, or in a county jail not less than six months." The offense was in flouting the laws of the state. It made no difference that he was not guilty of the first offense with which he was charged. Both the court of first instance and the court of appeals found him guilty. Comment. For unlawful imprisonment there is the legal remedy of habeas corpus. Where imprisonment is law- ful there would be, logically, no one more certain to be punished than the man who should endeavor to escape. The error of the state — if it was an error — in charg- ing defendant with burglary is no excuse for his contemptuous attitude towards the institutions under which all justice is administered, insofar as it is admin- istered at all. SECURITY IN LIFE AND LIMB 273 QUARANTINE STATE V. MAYOR AND ALDERMEN OF KNOXVILLE Supreme Court of Tennessee — 1883. (Reported 12 Lea, 146. Beale, p. 494, 2d ed.) In 1882-3 the small-pox as an epidemic prevailed to a considerable extent in Knoxville, Tenn. Among the quarantine provisions established a small-pox hos- pital was installed at the fair grounds, and the bedding, bedsteads, clothing, etc., of persons suffering with the disease, were burned in pits dug for the purpose. The burning was done some four hundred yards from the nearest houses but the smoke and scent from the burn- ing clothing, etc., was offensive. The Mayor and alder- men were indicted for a nuisance and found guilty. On appeal to the Supreme Court this judgment was reversed and a new trial ordered. Freeman, J., in his opinion acknowledges the nuis- ance on the basis of the facts but questions whether there were not perhaps sufficient justification and au- thority for the acts. It was clear that the means taken by the defendants were calculated to put an end to the epidemic as soon as possible, and that they were approved by hospital authorities. " If this be so, then the simple question is, whether parties using such means so accredited, in good faith, 274 THE PUBLIC CONSCIENCE shall be held criminally liable if they should produce temporary inconvenience to other parties nearby. . . . The loss to the individuals was only a temporary one . . . offensive though it was ; yet if this was done in order to, and did reasonably tend to, prevent the spread of a loathsome and dangerous disease . . . then it is too clear to doubt that the interest of the life of many cannot be permitted to be imperilled that others may enjoy the air untainted by smoke from clothing infected by the disease being burned at a rea- sonably safe distance from their dwellings. If you may rightfully destroy the house in which a man dwells in order to prevent the spread of a fire or the ravages of a pestilence, it follows you may much more destroy for a time the salubrity of the air, provided it shall tend reasonably to the result demanded by the public interest." Comment. Security of group clearly made paramount, no matter what damage may be done to individuals. Treason In the United States the Constitution defines and limits the crime by declaring that " treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort." In English Statutes (25 Edw. 3 c. 2), treason is de- clared to consist (1) in compassing or imagining the death of the King or Queen or their eldest son or heir; SECURITY IN LIFE AND LIMB 275 (2) in violating the King's companion, or the King's eldest daughter unmarried, or the wife of the ICing's eldest son or heir; (3) in levying war against the King in his realm; (4) in adhering to the King's enemies in his realm, giving them aid and comfort in his realm or elsewhere; (5) slaying the chancellor, treasurer, or the King's justices of the one bench or the other, jus- tices in eyre, or justices of the assize, and all other justices assigned to hear or determine, being in their places and doing their offices. The crime was further extended in England by later statutes, particularly 11 Vict. C. 12 P. 11, which in effect declares it to be treason for any person or per- sons within the realm or without to compass, imagine, invent, devise or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment, or restraint, of the person of the King, or his heirs, successors, and such compass- ings, imaginings, inventions, devices or intentions, or any of them, to express, utter or declare, by publishing any printing or writing, or by any overt act or deed. Courts have been unwilling to recognize any defense to treason. The only defense is in the case where it is committed under duress and compulsion, as in United States v. Greiner, 26 Fed. Cas. No. 15,262, 4 Phila. (Pa.) 396. The statutory punishment for treason is death, or, at the discretion of the Court, imprisonment at hard labor for not less than five years, together with a mini- mum fine of $10,000 and incapacity to hold any office under the United States. 276 THE PUBLIC CONSCIENCE THE SINN FEIN REBELLION Information Quarterly, July, 1916, p. 228. On April 22, 1916, Sir Roger Casement landed in Ireland from a German submarine, but was promptly- arrested. Almost simultaneously, a serious revolt broke out in Dublin. The insurgents issued a proclamation of independence and revolt against England. Risings occurred in other parts of Ireland as well. Ireland w^as placed under martial law and on May 1st the '' seven days " revolt came to an end with the surrender of Pro- visional President Pearse and his orders to his followers to lay down their arms. Much damage was done and many lives were lost. On May 3d, Premier Asquith announced that, after a court martial, Patrick H. Pearse, Thomas J. Clarke and Thomas McDonough had been shot that morning in the Tower of London ; others had been sentenced to penal servitude. Later, others were executed and fif- teen sentenced to death had their sentences commuted to ten years' penal servitude. The premier stated that three classes of men had been executed. 1. Those who signed the proclamation of the provisional government — actual leaders of the rebellion, five out of seven hav- ing been shot. 2. Men in command of rebels actually shooting down troops and police (124 killed, 388 wounded, and 9 missing) and 3. Murderers. The two remaining signers of the proclamation were later shot. May 10th the government admitted that F. Sheehy SECURITY IN LIFE AND LIMB 277 Skefifington, editor of The Irish Citizen, and two other journalists, had been executed without the knowledge of the military authorities and before martial law was actually in operation. The officer responsible for the shooting acted without the knowledge of his superiors and would be court martialed. He was later court martialed, found " guilty but insane " and sent to a criminal lunatic asylum. Sir Roger Casement was tried for high treason May 15th. The hearings were public. He was found guilty, having endeavored to raise an Irish regiment for Ger- many among Irish prisoners in Germany and having landed with hostile intent against the government of Great Britain, in Ireland. Sir Roger appealed his case, alleging. First, that no crime had been committed under the statute of Edward III by which he was tried, because no such crime as treason " without the realm " was indicated in the statute; Second, that the Lord Chief Justice erred in the use of the term " aiding and comforting the enemy; " Third, because the Lord Chief Justice in his charge to the jury did not properly set forth the defendant's side of the case. The appeal was dismissed after hearing the attorneys of Sir Roger. Many signed a petition for clemency and Justice Darling announced that he would sit on July 28th to " hear a possible application on behalf of the convict." The nature of the application was not dis- closed. On the following day the defense abandoned any contemplated action. 278 THE PUBLIC CONSCIENCE Sir Roger Casement was hanged at 9 o'clock in the morning of August 3d, 1916, in Pentonville jail. Comment. There can be no doubt that all of these men were traitors to the British Government, in spite of the technical defense of Sir Roger. They had for years talked seditiously and had fomented a spirit of denial of the right of the British Government to rule Ireland. Sir Roger received his title from the Crown and none of those sentenced had any other civil standing or allegiance. New York Times, February 27, 1916. Mrs. Nellie Best, Secretary of the Women's Anti- Conscriptionist League, was sentenced today to six months' imprisonment in the Westminster Police Court for circulating literature urging men not to enlist. On being asked whether she was represented by counsel, Mrs. Best said: " I am defended by the Lord, who told us not to kill." " I have been responsible for keeping hundreds of lads from recruiting into the trade of war/' she con- tinued, " and each night I have thanked God for giving me the opportunity, and have asked strength to do the same thing the next day." Comment. Mrs. Best's highest allegiance was given to what she believed to be the voice of God. For the state, whether theistic or antitheistic, its own interests are para- mount. If theistic, it always claims an identity of purpose and motive with the will of its God. In September, 1775, James Smith, a judge of the Court of Common Pleas for Dutchess County, New SECURITY IN LIFE AND LIMB 279 York, together with Coen Smith of the same place, were " handsomely tarred and feathered " for acting in open contempt of the resolves of the County Commit- tee. " The judge undertook to sue for, and recover the arms taken from the Tories by order of said Commit- tee, and actually coimnitted one of the Committee, who assisted at disarming the Tories, which enraged the people so much, that they rose and rescued the prisoner, and poured out their resentment on this villainous retailer of the law. (Cutler's Lynch Law, p. 70, quoting from Frank Moore's '' Diary of The Revolution.") At Charleston, S. C, in 1776, " John Roberts, dis- senting minister, was seized on suspicion of being an enemy to the rights of America, when he was tarred and feathered; after which, the populace, whose fury could not be appeased, erected a gibbet on which they hanged him, and afterwards made a bonfire, in which Roberts, together with the gibbet, was consumed to ashes." (Ibid., p. 7L) TREASON TREATED BY LYNCH LAW In the days of the American Revolution there were in the mountainous sections of Virginia both many desperadoes who stole horses and committed other out- rages, and also many convinced Tories who opposed the patriots with skill and vigor. There were none but county courts nearby and these were merely examin- ing courts. In order to have felonies tried it was neces- 280 THE PUBLIC CONSCIENCE sary to take prisoners to Williamsburg, more than two hundred miles away from Bedford County where Charles Lynch lived. After deliberation with his neighbors, he decided to take matters into his own hands " to punish lawless- ness of every kind, and so far as possible to restore peace and security of their community." A court was formed of which Lynch was the head and William Preston, Robert Adams, Jr., and James Callaway were assessors. Regular legal procedure was employed. When news of the invasion of Virginia by Cornwallis was received, there arose great activity among the Tories. "A con- spiracy was formed to overthrow the county organiza- tion and seize, for the use of Cornwallis on his arrival, the stores that Lynch had collected for Greene's army in North Carolina." Several men were arrested, tried and condemned to severe penalties. One of them, Robert Cowan, who had formerly been a fellow justice on the county bench and who was believed to have been the ring leader, was sentenced to a year in prison and to pay a heavy fine. Even if this court could be considered a regular county court, it had transcended its powers. "After the war the Tories who had suffered at his hands, threatened to prosecute Colonel Lynch and his friends. To avoid lawsuits and as a means of finally settling the matter. Lynch brought the whole matter before the Virginia legislature." The legislature passed an act in- demnifying and exonerating them all. Similar acts SECURITY IN LIFE AND LIMB 281 were passed at other places and times under similar conditions. (Cf. Cutler's Lynch Law, pp. 25 ff. and passim.) Comment. In justification for classifying this as a case of Treason, note that the act was called " An act to indem- nify certain persons in suppressing a conspiracy against this state " and that it says " certain evil disposed per- sons . . . formed a conspiracy and did actually attempt to levy war against this state." It is evident that in earlier days, notably in the 17th Century, charges of treason were frequently pre- ferred on purely political grounds. The offenses were great enough to deserve punishment but the trials were conducted with such manifest unfairness (Cf. Stephen, Vol. I passim) that even partisans were revolted. And these cases are not contradictory of my claim that treason is always punished with death, when known to be such, at least in time of war. It is pertinent here to set down the opinion of Sir J. F. Stephen (Vol. I, p. 425) : " Criminal justice was originally a rude substitute for, or limitation upon, private war, the question of guilt or innocence, so far as it was entertained at all, being decided by the power of the suspected person to produce compurgators or by his good fortune in facing an ordeal. The introduction of trial by combat, though a little less irrational, was in principle a relapse towards private war, but it was gradually restricted and practically superseded many centuries before it was formally abolished." 282 THE PUBLIC CONSCIENCE Modem criminal procedure described in Ch. XII, p. 428 — for the past 150 years now — " Litigation of all sorts, and especially litigation which assumes the form of a criminal trial, is a substi- tute for private war, and is, and must be, conducted in a spirit of hostility which is often fervent and even passionate, etc/' (P. 432.) Mutiny Mutiny is to usurp the command of a vessel from the master or deprive him of it for any purpose, by violence, or in resisting him in the free and lawful exercise of his authority; the overthrowing of the legal authority of the master with an intent to remove him against his will and the like. See Thompson v. The Stacey Clarke, 54 Fed. 533. In the United States, mutiny or revolt is made a crime by statute. (See Par. 5360 U. S. Comp. St. (1901), P. 3640.) The Act of April 30th, 1790 (1 U. S. St. at L. 114), by which the making of a revolt in a ship was first made a crime, declared that if a seaman should make revolt in a ship, he would be adjudged a pirate and a felon, and upon conviction should suffer death, without enumerating the acts that would constitute a revolt. The Courts, however, declared that the crime was com- mitted when the crew, or any part of them, threw off all obedience to the commander and took forcible pos- session of the vessel by assuming and exercising the SECURITY IN LIFE AND LIMB 283 command and navigation of her, or by transierring their obedience from the one lawfully in command of her to one who had usurped command. {U. S. v. Haskell, 26 Fed. Cas. No. 15,321.) False Imprisonment False imprisonment is the unlawful and total re- straint of the liberty of the person. The imprisonment is false in the sense that it is unlawful. The right violated by this tort is the freedom of the right of locomotion. The right invaded by false imprisonment is of such character that the liability of the wrong-doer is not dependent primarily upon intent. Neither malice nor, ordinarily, want of probable cause, is an essential element of the right of action. Arrest is not essential. (See Garner v. Squires, 62 Kan. 321.) Arrest is sufficient notwithstanding immediate re- lease. {Harness v. Steele, 159 Ind. 286.) False imprisonment may be committed by words alone, or by acts alone, or by both ; it is not necessary that the individual be actually confined or assaulted or even touched. (See Camer v. Knowles, 17 Kan. 436; Bennett v. Sweet,- 171 Mass. 600; Johnson v. Tompkins, 13 Fed. Cas. 7,416.) The wrong may be committed at any time or place, as in Woodward v. Washburn, 3 Den. (N. Y.) 369. The locking of the door of a bank at a usual and known hour was held to be a sufl&cient wrongful detention. 284 THE PUBLIC CONSCIENCE Whenever it appears that the person complaining was restrained without legal authority for an appre- ciable time, however short, a case of false imprisonment is made out, as in Callahan v. Searles, 78 Hun (N. Y.) 238, a few minutes were deemed sufficient. Unfair Trials STOKES V. STATE Tennessee, 1875 (5 Baxt. 619. Milbum's Curious Cases, p. 304.) The prisoner was indicted for the murder of Mrs. Housen in the Criminal Court of Davidson. He was tried, convicted of murder in the second degree, and sentenced to twenty years in the penitentiary. Mrs. Housen was taken from her house at night and carried some distance and hung to what the witnesses term a " hog pole." Near the place where she was hung a track was found in the mud, made by a bare foot. The inference from all the surrounding circum- stances is that the person who made that track was one of the parties engaged in the murder. Lea, Sp. J., was convinced that the jury in part based their conviction upon the belief that the track found in the mud was made by the foot of the prisoner. During the trial the prosecuting attorney had a pan of soft mud brought into court and repeatedly asked the prisoner to put his foot in it. The court did not re- SECURITY IN LIFE AND LIMB 285 quire him to do this, but said that he might if he wanted to. According to the record he did not so put his foot in; his refusal to do so may have seemed evi- dence of guilt to the jury; and it is no sufficient answer that the judge told the jury that his refusal was not to be taken as evidence against him. The court of appeals was satisfied that the case of the prisoner had been prejudiced by this action, saying, " although we might be satisfied of the prisoner's guilt, yet it is our duty to see that he has a fair and impartial trial, and this he must have though costs may accumu- late and punishment be long delayed." Classes of cases which have to do with neglect on the part of employers, etc. FELLOW SERVANT DOCTRINE OF RESPONSIBILITY Employees on entering service take upon themselves as incident to the hiring the risks from negligence or carelessness of their fellow servants. Cunningham v. Syracuse Improvement Co., 20 A. D. 171.) In the case of Brick v. Rochester, N. Y., etc., Ry. Co., 98 N. Y. 211, a railroad employee engaged in travelling on a construction train, knowing that he is not work- ing on a completed road in good repair, assumes the hazards incident to the same, and the company can- not be held liable for his death through the negligence of an employee whose duty it was to keep the track in 286 THE PUBLIC CONSCIENCE good condition, but who allowed frozen mud to ac- cumulate at a crossing and thereby caused a construc- tion train to run off the track. Comment. This rule has been modified by the Workmen's Compensation Law, and cases which follow will indicate the change. Master and Servant — Risk STREETER v. WESTERN WHEELED SCRAPER COMPANY Supreme Court of Illinois, 1912 (98 Northeastern Reporter, 54L 112 Bui. Lab. St., 69.) " The doctrine of the assumption of risk is firmly established as a part of the law of master and servant. The relation of master and servant exists only by virtue of contract, and to that relation, the instant it is created, the law attaches the doctrine of the assump- tion of risk. Under that doctrine the servant assumes all the ordinary risks incident to the business, all the extraordinary risks of which and of the danger of which he has knowledge, and all other obvious risks, and this whether any of such risks existed at the time of his employment or may have come into existence subse- quently, provided, only, they have come to his knowl- edge. This condition attaches at the time of his employment and continues unchanged during his em- ployment. It is an incident of the relation and has its SECURITY IN LIFE AND LIMB 287 origin in the contract by which that relation is formed. It becomes a part of the contract because the law attaches the liability or obligation to the contract. It may be that the ground of the doctrine of assump- tion of risk, as well as of its extension to known extraor- dinary risks and to obvious risks, is the maxim volenti non jit injuria; but, nevertheless, it is only as an in- cident of the contract of employment — as a part of such contract — that it comes into existence at all. A waiver of the benefit of the statute is in the nature of a contract. It is an assent to a change in the serv- ant's rights and liability under his contract of employ- ment. His conduct may be evidence of such assent, but it does not change the character of the relation. The assumption of risk by the servant is not differ- ent in its character from the obligation of the master to use reasonable care to furnish the servant a reason- ably safe place in which to work and reasonably safe tools to work with. In neither case is the obligation an express term of the contract, but in each case it arises out of the contract by operation of law. While the master is bound to reasonable care for the safety of the servant's place and tools, he is not bound to the highest degree of care. He is not bound to furnish a place that is absolutely safe or the safest possible place, but only one that is reasonably safe. He is not bound to furnish the safest tools or machinery or the best and most improved, but only such as are reason- ably safe. The master may conduct his business in his own way, though another way would be less hazardous 288 THE PUBLIC CONSCIENCE and the servant who enters his employ knowing the method in which the business is conducted assumes the risk of such method. The doctrine of assumption of risk in this class of cases is of modern origin. Its application to the law of master and servant was first suggested by Lord Abinger in Priestly v. Fowler, 3 M. & W. 1, and was first declared in this country in Farwell v. Boston & Worcester Railroad Corporation, 4 Mete. (Mass.) 49, 38 Am. Dec. 389, in 1842. The opinion in that case, written by Chief Justice Shaw, places the doctrine squarely on the basis of contract, and its reasoning has been universally adopted by the courts of this country. Speaking of the exemption of the master from liability to his servant for an injury through the negligence of a servant of the same master engaged in a difi'erent department of duty, it is said : " The master is not excused from liability, in such case, because the serv- ant has better means of providing for his safety when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself, and he is not liable in tort as for the negligence of his servant because the person suffering does not stand in the relation of a stranger, but is one whose rights are regulated by contract, express or im- plied." The mutual rights and liabilities of master and servant were universally determined upon this basis for half a century without question, until legisla- SECURITY IN LIFE AND LIMB 289 tion of the character of that now in question, which is of much more recent origin than that of the assump- tion of risk, began to be adopted in various states. Then the theory began to be asserted that the doctrine had its origin, not in contract, but in the maxim volenti non fit mjuria, and that the maxim applied equally whether the risk assented to arose from mere neglect or the violation of a statutory duty. Whatever the origin of the doctrine, in the end it is the servant's agreement that creates the assumption of risk. The servant must be volens (that is, willing, consenting, agreeing), and to apply the maxim amounts to nothing other than to say the law regards the servant as con- senting to existing conditions by continuing his serv- ice with knowledge of the conditions (that is, that he agrees to them and assumes them as a part of his con- tract). It has been doubted whether the maxim has any application where there has been a breach by a defendant of a statutory obligation. (Baddeley v. Granville, L. R. 19 Q. B. Div. 425; Yarmouth v. France, Id. 647; Wilson v. Merry, 19 L. T. (N. S.) 30.) The passage of a law like that now under considera- tion implies that the class of employees for whose pro- tection it was intended had not been able to protect themselves without it. Its object, as indicated by the title of the act, is to provide for the health, safety, and comfort of employees in factories, mercantile establish- ments, mills, and workshops in this state, and the authority for it is found in the police power of the state. The effect of it is to create a new situation in 290 THE PUBLIC CONSCIENCE the relation of master and servant, and to present the new question whether the doctrine of assumption of risk heretofore applied to that relation should apply- in the same way to the new conditions. The duty of the master has been changed. He may no longer con- duct his business in his own way. He may no longer use such machinery and appliances as he chooses. The measure of his duty is no longer reasonable care to furnish a safe place and safe machinery and tools, but in addition to such reasonable care he must use in his business the means and methods required by the statute. The law does not leave to his judgment the reasonableness of mclosing or protecting dangerous machinery, or permit him to expose to increased and unlawful dangers such of his employees as may be driven by force of circumstances to continue in his employ rather than leave it and take chances on secur- ing employment elsewhere under lawful conditions. The guarding of machinery mentioned in the statute is a duty required of the master for the protection of his workmen, and he owes the specific duty to each person in his employ. To omit it is a misdemeanor subjecting him to a criminal prosecution. The neces- sity for such legislation is suggested by a consideration of a sentence from the opinion in the Knisley case which says: " There is no rule of public policy which prevents an employe from deciding whether, in view of increased wages, the difficulties of obtaining employ- ment, or other sufficient reasons, it may not be wise and prudent to accept employment subject to the rule SECURITY IN LIFE AND LIMB 291 of obvious risks." Notwithstanding the theoretical liberty of every person to contract for his labor or serv- ices and his legal right to abandon his employment if the conditions of service are not satisfactory, practi- cally, by stress of circumstances, poverty, the depend- ence of his family, scarcity of employment, competi- tion, or other conditions, the laborer frequently has no choice but to accept employment upon such terms and under such conditions as are offered. Under such circumstances, experience had shown, before the pas- sage of the statute, that many employers would not exercise a proper degree of care for the safety of their workmen. The servant had to assume the risk of in- jury, and the master took the chance of a suit for damages. It was to meet this precise situation and protect employees in such situation that this legisla- tion was adopted. It imposes upon the master an abso- lute, specific duty — one which he cannot delegate and against his neglect of which he ought not to be allowed to contract. If the employee must assume the risk of the employer's violation of the statute, the act is a delusion so far as the protection of the former is con- cerned. He is in the same condition as before it was passed. He is compelled to accept the employment; he must assume the risk; when he is killed or crippled, he and those dependent on him have no remedy, and the law is satisfied by the payment of a fine. The more completely the master has neglected the duty imposed upon him by statute for the servant's protection, the more complete is his defense for the injury caused by 292 THE PUBLIC CONSCIENCE that neglect. Justice requires that the master, and not the servant, should assume the risk of the master's violation of the law enacted for the servant's protec- tion, and in our opinion this view is in accordance with sound principles of law." Streeter had sued the Scraper Company for an injury- received while in its employment resulting from the slipping of his hand so that it struck a rapidly revolv- ing wood jointer, which was unguarded, resulting in the loss of three fingers. This was actionable under an Illinois statute requiring dangerous machinery to be fenced in. Judgment in the Trial Court and in the Appellate Court had been for the company; but the Supreme Court reversed this decision and ordered a new trial. Comment. This case marks a complete change in social philosophy and, one might say, if the new principle had not aheady been found in other contexts, a totally new legal principle. The entire case deserves close study, but we may note especially the old doctrine of risk as part of the law of master and servant to be based upon two things, viz.: (1) freedom of contract, a protection of the individual as an all important part of society and (2) volenti non fit injuria,'^ a highly abstract conception of individuals as ideally complete independent sovereign- ties, with which it was not the law's business to interfere. The new type of law, Employer's Liability, is not op- posed to the essential meaning of freedom of contract; but the reasoning of Judge Dunn here indicates that, under modern social conditions there is no real freedom ^ Harm cannot be done to a man who willingly suffers it. SECURITY IN LIFE AND LIMB 293 of the kind. While he does not specifically take up the question of police power, the cases presented under that title in the classification following the present one/ show us plainly that the paramount law today recognizes the necessity of protecting all individuals so far as possible and that the principle of laissez-faire is very much in disrepute. The modern doctrine of the police power of the state seems somewhat vague. In Mitchell v. Reynolds there is a more satisfactory particularizing of the person. Food Adulteration PLUMLEY V. MASSACHUSETTS 155 U. S., 461 A statute of Massachusetts provides as follows: " No person by himself or his agents or servants, shall render or manufacture, sell, offer for sale, expose for sale or have in his possession with intent to sell, any article, product or compound made wholly or partly out of any fat, oil or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, which shall be in imita- tion of yellow butter produced from pure unadulterated milk or cream of the same; provided: That nothing in this act shall be construed to prohibit the manufac- ture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the customer of its real character, free from coloration or ingredient that causes it to look like butter." 1 Cf. especially Munn v. Illinois and State v. J. J. Newman Lumber Co. 294 THE PUBLIC CONSCIENCE Proper penalties, etc., were provided and Plumley was convicted in the Municipal Court of Boston on the charge of having violated this statute on October 6th, 1891. He appealed on the ground, among other grounds, that the law was unconstitutional. Congress alone has the power to regulate commerce between states ; and the article which he sold was a package of oleomargarine manufactured in Illinois by a firm of which he was the agent only. He sold the article in the original package which was properly marked in ac- cordance with the act of Congress. The court held that the statute of Massachusetts was not unconstitutional. Massachusetts is not regu- lating interstate commerce but has a perfect right to say what shall be sold within her own borders. The act of Congress relating to oleomargarine does not interfere with the exercise by the states of any author- ity they possess of preventing deception or fraud in the sales of property within their respective limits. The Massachusetts statute was aimed at deceit and fraud. The judgment of the lower court was affirmed and Plumley fined. A strong dissenting opinion on this case was given by Chief Justice Fuller, Justices Field and Brewer con- curring. This opinion held that the possibility that the appearance of certain articles might deceive those who sought to purchase them, ought not to bar such articles from commerce. SECURITY IN LIFE AND LIMB 295 Food Supply The New York Globe, September 25, 1916. Arthur Plaut, a director in the Brooklyn slaughter- ing establishment of Robert Plaut & Son, charged with bribing an ofl&cial of the Health Department to pass the carcasses of tubercular cows for human consump- tion, was found guilty by a jury sitting before Judge Cropsey in Part III, Supreme Court, Brooklyn, on Saturday, the 23d. This conviction was the first fruits of a long cam- paign directed against such dealings, by Alfred W. McCann and the New York Globe. The law against such dealings is plain — the more important part is the conviction of an offender. New York Globe, January 29, 1916. In the Supreme Court of New York State, a jury sitting before Judge Dugro found the Globe guilty of libel because of an article published over the signature of A. W. McCann. The case grew out of the prosecution by the corpora- tion counsel of a number of provision dealers for keep- ing rotten eggs. Many dealers were sent to the peni- tentiary. Armour & Co. and Swift & Co., both large dealers, had been heavily fined. In the article by McCann referred to he said: "Winfield H. Mapes, wholesale butter and egg merchant, etc., etc., was also convicted by the same court of trafficking in rotten eggs and heavily fined." 296 THE PUBLIC CONSCIENCE The case for the prosecution rested upon technical errors in the statement of McCann. As a matter of fact Winfield H. Mapes was not con- victed nor fined. It was the corporation Winfield H. Mapes & Co., of which he was president, which was convicted ; and the charge was of " holding, keeping or offering for sale spot eggs under the provision of the sanitary code which provides as follows: "Any spot eggs in possession of, or held, or kept or offered for sale by a dealer in food shall prima facie be deemed to be held, kept and offered for sale as human food." Abundant proof had been produced that such eggs were sold in large quantities to bakers and were incor- porated by them in pound cake. The jury was instructed by Judge Dugro that the Globe having admitted its error in omitting & Co. from the name of the person accused, verdict must be rendered in favor of Winfield H. Mapes. The jury gave him six cents damages. Counsel moved to set the verdict aside but the motion was denied. Comment. Plumleij v. Mass., and Other Food Supply Cases. The Plumley Case is doubly a security case. It comes under a statute which provides for the security of the public in the matter of pure food and the decision of the court confirms the security of the state of Massa- chusetts in looking after purely domestic affairs. The dissenting opinion seems to be based upon the principle of caveat emptor. SECURITY IN LIFE AND LIMB 297 The Globe libel case is here included because, while technically it secures a firm against misrepresentation (with damages assessed at six cents), in reality it was a defense against impure food; and the newspaper account quoted implies the statute under which the attack was considered justifiable. Health — Practicing Medicine PUBLIC HEALTH LAW OF NEW YORK STATE L. 1909, Ch. 49, Art. VIII The practice of medicine is defined as follows: A person practices medicine within the meaning of this article, except as hereinafter stated, who holds him- self out as being able to diagnose, treat, operate, or prescribe for any human disease, pain, injury, deform- ity, or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition. There is a section which deals with the qualifications of medical practitioners, making very strict require- ments. 298 THE PUBLIC CONSCIENCE Nuisance — Danger to Life ANONYMOUS Nisi Prius, 1699 (Reported 12 Modern, 342. Beale, 99, 3d ed.) One was indicted for a nuisance for keeping several barrels of gunpowder in a house in Brentford town, sometimes two days, sometimes a week, till he could conveniently send them to London. Wherein Holt, C. J., resolved : First. That to support this indictment there must be apparent danger; or mischief already done. Second. Though it had been done for fifty or sixty years, yet if it be a nuisance, time will not make it lawful. Third. If at the time of setting up this house, in which the gunpowder is kept, there had been no houses near enough to be prejudiced by it, but some were built since, it would be at peril of builder. Fourth. Though gunpowder be a necessary thing, and for defense of the Kingdom, yet if it be kept in such a place as it is dangerous to the inhabitants or passengers, it will be a nuisance. Comment. The fourth point made by Justice Holt con- tains the kernel of our nut. It could be made only in a constitutional realm. Gunpowder is necessary for the defense of the kingdom — but that is no reason for en- dangering the lives of constituent members of that king- SECURITY IN LIFE AND LIMB 299 dom. It is assumed that it could be kept where it would not endanger life — at least in time of peace. In time of war, government needs come first, whatever the danger to individuals. Cf. the Kingsland and Haskell, N. J., cases in 1916 where enormous damage to property was done, but very little loss of life occurred. The Canadian Car Co., at the former place, had enjoined the authorities from inter- ference with their plant. Public Safety — Explosives New York Times, Summer of 1916. Following the immensely destructive explosion at Black Tom pier, caused by the storage of large quan- tities of munitions ready for shipment to the war in Europe, the Board of City Commissioners of Jersey City passed regulations forbidding the shipment of high explosives into or from Jersey City. The embargo which was passed was sweeping in character and was framed so as to end for all time the utilization of the port facilities of Jersey City for the handling of high explosives. On August 10th, Federal Judge Rellstab of Trenton granted a temporary injunction restraining the author- ities of Jersey City from enforcing these regulations. Judge Rellstab held that there cannot be two sources of power to regulate the same thing. The control of interstate commerce is vested exclusively in the Federal Government through its proper agent, the Interstate Commerce Commission. If the municipahty of Jersey 300 THE PUBLIC CONSCIENCE City has a grievance the proper place to take that grievance is to the commission. The Deputy Commissioner of Public Safety of Jersey City said that the city would obey the injunction and would not interfere with the passage of explosives through the city; but it would prevent the storage of explosives in the city and would see to it that any shipments hauled into Jersey City were immediately transferred to ships in the harbor or to points outside the city limits. {Times, Aug. 11, 1916.) The regulation of the sale and storage of explosives within the harbor of New York, whose limits extend to the Jersey shore, was formerly provided for under the State Fire Marshal's law. This department had been recently discontinued. Comment. Various aspects of security are here represented: 1. Desire of authorities of Jersey City to protect their citizens. 2. Desire of representatives of the Federal power not to have it tampered with. 3. Yielding to authority on the part of municipal offi- cers but assertion of sovereignty within their own field. Carrying Concealed Weapons Section 1897 of the Penal Code of the State of New York: "A person who attempts to use against another, or who carries or possesses, any instrument or weapon, of the kind commonly known as a black-jack, slungshot, SECURITY IN LIFE AND LIMB 301 billy, sand club, sand bag, metal knuckles, bludgeon, or who, with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stiletto, or any other dangerous or deadly instrument or weapon, is guilty of a misdemeanor, and if he has been previously convicted of any crime, he is guilty of a felony. A person who carries or possesses a bomb or bomb- shell, or, who with the intent to use the same unlaw- fully against property or person of another, carries or possesses any explosive substance, is guilty of a felony. Any person under the age of sixteen years, who shall have, carry, or have in his possession, any of the arti- cles named or described in the last section, which it is forbidden therein to offer, sell, loan, lease or give to him shall be guilty of juvenile delinquency. Any person under the age of sixteen years, who shall have in his possession in any city, village or town of this state, any pistol, revolver or other firearm of a size which may be concealed upon the person without written license therefor, issued to him as hereinafter prescribed, shall be guilty of a misdemeanor, and if he has been previously convicted of any crime he shall be guilty of a felony." New York Evening Post, January 10, (?) 1912 Mrs. Margaret M. had been charged with homicide by wilful neglect, in connection with the death of her daughter, Kathryn, 5 years old, of diphtheria on Thanksgiving Day. 302 THE PUBLIC CONSCIENCE The hearing was before Coroner Shongut and the jury, composed largely of prominent business men, based its action on the view that ignorance of the ac- cused mother did not constitute " wilful neglect." The jury found, nevertheless, that failure to call a regular physician had caused the child's death, and urged the pressing of the pending cases against Christian Science practitioners, and the strengthening of the law in such matters if the laws in force were not adequate. Another daughter had been attacked by the same disease and quarantined. Two Christian Sv^ience prac- titioners attended the child who died. New York Herald, November 12, 1914. Mrs. Flower, wife of Dr. R. C. Flower, an imprisoned swindler, pleaded guilty to having attempted to smuggle morphine to her husband in the Tombs. She was sentenced to sixty days in the workhouse. Captain Thomas McEnery, of Texas, received a sus- pended sentence on the same charge. PRESERVATION OF PROPERTY 303 11. SECURITY IN PRESERVATION OF PROPERTY Attacks upon Credit (a) Forgery REGINA V. GLOSS, 1857 (Reported Dears, and B. C. C, 460. Beale, 837, 3d ed.) The prisoner was tried for the forgery of a copy of a painting, on which he painted the signature " John Linnell." Forgery is defined to be the fraudulent making or alteration of a writing, to the prejudice of another's rights. In the case of a written instrument, the for- gery of the signature is really the forgery of the whole instrument, and is always so laid in the indictment. Unless, therefore, an indictment would lie for the for- gery of a picture, this count cannot be supported. (There were other counts in the indictment, one for obtaining money by false pretences, upon which he was acquitted, another for a cheat at common law. The court held that the prisoner could have been convicted as a cheat if the indictment had been properly framed.) A forgery must be of some document or writing; and this was merely in the nature of a mark put upon the painting with a view to identifying it, and was no more than if the painter put any other arbitrary mark as a recognition of the picture being his. Conviction quashed. 304 THE PUBLIC CONSCIENCE Comment. This case is given as an indication of the tech- nical and meticulous character of the decisions in first cases. It is exceedingly doubtful if any such decision would be made today. Counterfeiting By the ancient common law (11 Cyc. 302) making counterfeit coin of the realm was treason and subse- quently a felony {U. S. v. Coppersmith, 4 Fed. 198); and passing, having in possession with intent to pass as true, and procuring with such intent, having in possession an instrument for counterfeiting current coin and procuring an instrument with intent to use in making foreign coin, were misdemeanors. In the United States the Federal Penal Code (Sees. 147-178) provides that "whoever, with intent to de- fraud, shall falsely make, forge, counterfeit, or alter any obligation or other security of the United States, shall be fined not more than five thousand dollars and imprisoned not more than fifteen years. Smaller penalties, but still severe ones, are provided for similar offenses against banking associations authorized by the state. Knowledge is a necessary element and various acts have been passed making it clear that any attempt, no matter how shrewdly planned, to evade the provisions of the section cited above will be counted to be counterfeiting and duly punished. There are innumerable cases under these statutes but no new principle. PRESERVATION OF PROPERTY 305 REX V. SUTTON, 1736 Hardwicke, 370 The defendant had in his custody certain iron stamps each of which would make or impress the figure of one of the sceptres impressed upon half guineas. He was believed to have intended to stamp these upon six- pences, to color them the color of gold and fraudulently utter them : " against the peace of our Lord the King, his crown and dignity." He further had in his pos- session one such piece. For the defendant it was argued that the common law takes no notice of a bare intention, as a crime, unless coupled with some overt act. Lee, J., — " It is certain that a bare intention is not punishable; and yet when joined with acts whose cir- cumstances may be tried, it is so . . . In this case the indictment is for unlawfully having in his custody stamps capable of making impressions of sceptres, with the intent to make such impression; now the statute of 8 & 9 Will. Ill (c. 26) has considered the having as an act, for, by the statute, it is high treason to have (knowingly) any instrument, etc., in his possession. . . . the only act capable of trial in the offense against the statute is the having in possession. All that is necessary in this case is an act charged, and a criminal intention joined to the act." The court gave judgment that the defendant do stand in the pillory at Charing-Cross; and in con- 306 THE PUBLIC CONSCIENCE sideration of his poverty and long imprisonment hitherto, that he do pay a fine of 6s. 8d. and be im- prisoned for six months. Comment. This is extremely important as showing the border line between an act and an intent, just the place where the unpunishable intent passes over into an act, the act here being created by statute, viz.: the having in possession. The undoubted intent joined to this made an indictable offense. False Entry New York Times, September 26, 1913. President Wilson pardoned today Charles A. Isaacs, sentenced at Fort Dodge, Iowa, June 20 last to five years in the penitentiary for making false entries in the books of the Forest City National Bank, of which he was cashier. Strict compliance with the law by Isaacs, it is asserted, would have wrecked the bank by divulging its condition to the public, whereas the false entries, covering excessive loans to a stockholder of the institution until he could realize on farm land transactions, resulted in no loss. It was represented to the President that Isaacs acted under the domination of a superior officer. Sentence had been suspended, pending the President's action on the recommendation of the trial judge and prosecuting attorney for a pardon. Comment. This is an instance wherein a strict adherence to the letter of the law would have worked substantial PRESERVATION OF PROPERTY 307 injustice. It is rare to find a trial judge, the prosecuting officer and the pardoning power unanimous that it is so. And yet it is unlikely that the law will be changed, for this case was exceptional. Ordinary violations of the law will still be punished. Interference with Mails UNITED STATES v. AGLER 62 Fed. Rep., 824. Circuit Court, D. Indiana, 1894 (Taken from the opinion of District Judge Baker) Prior to the 2nd day of July, 1890 ... the United States, as a municipal corporation, had no power . . . to go into the Courts of Equity of the United States, and invoke the aid of those courts, by their restraining power, to prevent interference with the carriage of the mails or with the carriage of interstate commerce. Prior to that time the sole remedy was on the criminal side of the court. The sole method in which the United States, as a government, could prosecute vio- lators of the law who interfered with the carriage of mails or interfered with the instrumentalities used in the conduct of interstate commerce, was by indictment or information on the criminal side of the court ; but the growth of railways in this country and the combina- tions of laborers employed on those roads for the pur- pose of enforcing, by strikes or otherwise, what they conceived to be their just rights, had led to a condi- 308 THE PUBLIC CONSCIENCE tion of things that, in the judgment of Congress, made it imperative that the courts of the United States — in other words, that the nation itself — for the purpose of protecting the mails of the country, and for the purpose of protecting the passenger and freight traffic on inter- state railroads, should have the right to invoke not only the criminal jurisdiction of the court by fines, or by sending to the penitentiary those who were guilty of violations of those laws, but that the government should also be clothed with the power — or rather that the courts of the United States should be clothed with the power — of laying their strong hands on these men, and not waiting until the crimes had been committed, but restraining, not for the purpose of preventing people from doing what is lawful, or to prevent their getting better wages, but for the purpose of saying to everybody that civil liberty cannot exist where com- binations of men undertake by force and violence to arrest the peaceable and orderly conduct of business among the States." It was the opinion of Judge Baker that the above considerations led to the passage of the law of July 2nd, 1890, which gave to the courts of the United States enjoining power. Comment. Note that we have not here a decided case; but rather the interpretation by a United States Judge of a statute which gives the law plainly, viz. — that there may not be interference with mails in any violent or disorderly fashion. PRESERVATION OF PROPERTY 309 Congress represents the nation itself but through the courts and constitutional restrictions. Many acts of Congress have been declared unconstitutional and other acts, designed to serve the same purpose but more adroitly worded, have been passed in their stead which have been called constitutional. Constitutional machinery moves slowly and is usually far behind pub- lic opinion, but it is the only sure index of a public opinion which is more than ephemeral. Blue Sky Laws New York Times, 1916-17. The so-called " blue-sky " laws, which would provide for the licensing of dealers in stocks, bonds and other securities and make other regulations, have been en- acted in twenty-seven states. The legislation has been consistently opposed by the Investment Bankers' Asso- ciation and many of these laws have been declared unconstitutional. On January 23, 1917, the Supreme Court of the United States upheld the " blue sky " laws of Ohio, Michigan and South Dakota regulating the sale of securities. Justice McKenna handed down the opinion of the Court to which Justice McReynolds alone dis- sented. They admit that such statutes may curb and burden legitimate business, but hold that the interests of legitimate business are not paramount to the police power of states to protect their citizens from fraud. Federal Court injunctions suspending enforcement of the laws are dissolved. 310 THE PUBLIC CONSCIENCE Model Law is Upheld The laws do not attempt to prohibit unwise invest- ments, but give state authorities, through security commissions or banking superintendents, authority to forbid the sale within state borders of securities which officials believe would result in fraud upon investors. The Michigan and South Dakota statutes were pat- terned upon the " model " blue sky bill drafted by the National Association of Attorneys General, which is the model for the laws of several other states. That securities are instrumentalities of commerce and, as such, exempt from state regulation and subject to national supervision, was the principal contention of the bankers, stock salesmen and corporations attacking the laws. States have Protective Rights ** Prevention of deception is within the competency of government," said Justice McKenna. " The intangi- bility of securities, being representatives of property in distant states, and the integrity of them can only be assured by the probity of the dealers in them and the information they are required to give. This assurance the states deemed necessary for their welfare to re- quire, and that requirement is not unreasonable or in- appropriate. " We cannot stay the hands of government upon a consideration of the impolicy of its legislation. Every PRESERVATION OF PROPERTY 311 new regulation of business meets challenge. But the policy of a state and its expression in laws must vary with circumstances. " The statutes burden honest business, it is true, but burden it only that under its forms dishonest busi- ness may not be done. Expense may thereby be caused and inconvenience, but to arrest the power of the state by such considerations would make it impotent to discharge its functions. It costs something to be governed." Miscellaneous — (b) Rebating This is forbidden by Sec. 8564 U. S. Comp. St. 1913 (Act Feb. 4th, 1889) and by Sec. 8597 (Act Feb. 19th, 1903). Common carriers cannot either directly or in- directly " by any special rate, rebate, drawback or other device, charge, demand, collect or receive from any person or persons a greater or less compensation for any service rendered, in the transportation of passengers or property . . . than it charges, demands etc., from any other " for like services. This is dis- crimination and the offender is liable to imprisonment in the penitentiary for a term not exceeding two years and to a fine of not less than one thousand nor more than twenty thousand dollars. 312 THE PUBLIC CONSCIENCE Conspiracy in Business DENVER JOBBERS' ASSOCIATION v. PEOPLE Court of Appeals of Colorado, 1912 (122 Pacific Reporter, 404. 112 Bui. Lab. St., 123.) This was an action against the Denver Jobbers' Asso- ciation, the Denver Retail Grocers' Association, and the Retail Merchants' Association of Colorado to de- stroy a combination tending to monopoly in restraint of trade. These associations were made up of whole- sale and retail dealers in groceries and food products, and by their agreements had so fixed the prices of goods and so controlled the marketing of them that the price of necessities had been increased to all the people of the State of Colorado. Dealers not in good standing were not allowed to secure goods until the differences had been adjusted, and boycotts of recalcitrant dealers were maintained, to the destruction of competition and to the injury of the people. The principles of combination and cooperative action are involved; and the decision was rendered on the basis of the common law. The defense contended that by a section of the Revised Statutes of Colorado, the combination of workmen for lawful purposes estab- lished a principle in favor of combination. Judge Scott said: PRESERVATION OF PROPERTY 313 " But that statute expressly limits such combinations to lawful purposes and particularly mentions some of the unlawful purposes for which such combinations may not be permitted, among which are ' financial in- jury/ 'preventing or intimidating any other person from continuing in such employment as he may see fit/ or ' the boycott/ all of which unlawful acts may well be considered as within the allegations of the com- plaint in the case at bar." He further said that if the statute were construed as the defendants contended, it would be void, as the legislature could not grant the right of combination of the nature charged in the complaint before the court, since the right of freedom of trade belongs to every citizen and must not only be protected by the courts but is beyond the power of the legislature to deny. The discussion of this phase of the question was exhaustive, and at its conclusion Judge Scott said: " From this examination and review of the author- ities cited and from the authorities in such cases cited and relied on, it would seem that the conclusion is clearly and overwhelmingly supported that at (the common law conspiracies and combinations of the char- acter of the case at bar are unlawful, and unlawful in the sense that they may be restrained in a court of equity at the suit of the attorney general on behalf of the people, and that the conspirators are subject to criminal indictment. And this without the aid of a so-called anti-trust statute, for these are but a reitera- tion of the common law upon that subject." 314. THE PUBLIC CONSCIENCE Comment. This is another " restraint of trade " case, based upon the kind of security to be assured to the com- munity and its constituent members, having in mind an individualist social philosophy. Still, Judge Scott recog- nizes by implication that there are combinations which are lawful. The doctrine of natural rights here pro- pounded has a musty odor. It needs ventilating. Strikes and Picketing HARDIE-TYNES MFG. CO. v. CRUSE Supreme Court of Alabama, 1914 (66 Southern Reporter, 657. 189 Bui. Lab. St., 158.) The company named brought a bill to secure an injunction against W. D. Cruse and others. The bill of complaint sought relief against certain of the com- plainant's former employees, members of the Molders' Union, who in cooperation with the union had engaged in a general strike against their employers, including this company. It charged concerted action to coerce the employers to agree to their terms, and to prevent the employers from employing other members of the union in their places. An elaborate system of picket- ing and patrolling, and intimidation, threats, insults, and in some cases violence were charged. Large pecu- niary damages and a probability of the continuance of the acts were alleged, and the bill prayed for an in- junction covering all the practices complained of. The PRESERVATION OF PROPERTY 315 respondents objected to the bill on the ground that it was without equity and was multifarious. In delivering the opinion of the supreme court, which reversed the chancellor's decree in favor of the re- spondent members of the union, and overruled their objections to the bill of complaint, Judge Somerville said in part: " The English and American courts have, we believe, without exception, held that the right to conduct one's business, without the wrongful and injurious interfer- ence of others, is a valuable property right which will be protected, if necessary, by the injunctive processes of equity. " They seem to be unanimous, also, in holding that employees may rightfully organize themselves into associations for mutual protection and betterment; and that, having thus organized, they may by con- federated action withdraw from, or decline to enter, the service of any particular employer. And it may be further said that there is practically no judicial dis- sent from the proposition that in the accomplishment of their purposes of self-protection and self-betterment employees or non-employees have no right to use threats, intimidation, or violence against or upon em- ployers, or upon their employees or strangers, to in- duce them to leave or not to enter the service of the former. " With respect to the ' peaceful persuasion ' of others not to enter an employer's service, it may, perhaps, be said that such a right is generally recognized by the 316 THE PUBLIC CONSCIENCE courts, and injunctive relief against it is denied, though it is to be noted that interference with existing con- tracts of service by inducing those so contracting to violate their agreements is such a wrong as may be enjoined in equity. " Picketing and peaceful persuasion must not inter- fere with a lawful business. Peaceful interference by persuasion or picketing can hardly exist. " It is suggested by counsel for respondents that our construction of section 6395, as being an inhibition of picketing even where threats of violence are not used, renders it unconstitutional. No intimation is offered as to what provision of the constitution is thereby offended and we can think of none. Certain it is that a right to actively and directly interfere with and pre- vent the lawful business of another is not included among the inalienable rights of ' life, liberty and the pursuit of happiness! ' The 'liberty' guaranteed by the Constitution (Art. 1, Sec. 1) is liberty regulated by law and the social compact ; and in order that all men may enjoy liberty it is but the tritest truism to say that every man must renounce unbridled license. So, wherever the natural rights of citizens would, if exer- cised without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulations of municipal law. If one man asserts the constitutional right of prevent- ing another from the pursuit of a lawful business, what is to become of the undoubted constitutional right of that other to pursue his business unmolested? It is PRESERVATION OF PROPERTY 317 clear that this notion of liberty utterly ignores * the other fellow,' and denies to him the very freedom it is claiming for itself." Comment. Judge Somerville's statement, that " a right to actively and directly interfere with and prevent the operation of the lawful business of another is (certainly) not included among the inalienable rights of ' life, liberty and the pursuit of happiness,' " is an indication of the prevailing character of judicial decision until very re- cent days. The general subject is discussed illuminat- ingly in the Harvard Law Review for January, 1917, by Dean Pound. The security sought here by the court on behalf of the manufacturers is in no necessary conflict with the security sought by the strikers. As Dean Pound has said, there need be no accusations of corruption against courts because of such decisions. Members of courts, as well as the greater part of educated men every- where, are still under the dominion of Eighteenth Century individualism and can see no impropriety in such deci- sions, if indeed there be any. This is not a work of special pleading and I simply call attention to the fact that the decision, mistaken or not, was in the interest of property security, from the point of view of the court. That alone is of interest in this connection. Justice White, in the Standard Oil Case, in his somewhat lengthy and involved sentence, has really stated this, in effect. Restraint of competition must not be unreasonable and to be action- able it must be intending wrong to the general public — all of which is fairly obvious. In Distilling, etc. v. People " the contravention of well established principles of public policy " is given as the ground of illegality. This is a mantle as broad as charity but there can be no doubt that the change in public policy is due primarily, not to any philanthropic motive nor to any desire to curb 318 THE PUBLIC CONSCIENCE freedom of action, but solely to the exigencies of the state. It has been found to militate against public se- curity to leave workmen to fight their battles unaided against the negligence or criminality of employers whose employment they must seek or starve. Inventions, Patents, Etc. AMERICAN STAY CO. v. DELANEY Supreme Judicial Court of Massachusetts, 1912 (91 Northeastern Reporter, 911. 112 Bui. Lab. St., 142.) The company named sought to restrain John S. Delaney, a former employee, from using or disclosing certain trade secrets relating to the conduct of its busi- ness. The machinery used by the company was for the most part not patented, having been devised by the president of the company, and was used by it with se- cret processes and formulas in the production of leather welting which had gained a wide reputation. Delaney was a mechanic of unusual ability, and had assisted in perfecting his employer's machinery and had also de- vised machines of his own invention for the manufac- ture of a product similar to that put forth by his em- ployer's establishment. The superior court of Suffolk County refused to restrain Delaney from using the machinery of his own devising, but found that he had employed a portion of the time belonging properly to his employer to further his own interests, and allowed a recovery in this behalf. The company thereupon PRESERVATION OF TROPERTY 319 appealed, seeking to secure the injunction to prevent Delaney from engaging in the business, but in this was not successful, the judgment of the lower court being afl&rmed. Judge Braley, speaking with relation to the use of trade secrets, said: " It is elementary that if the proprietor in connec- tion with his business invents, or discovers, and keeps secret, processes of manufacture, which enable him to produce goods at a less cost, or of more meritorious quality than his competitors, his right to the invention or discovery is not exclusive as against the public, or persons whose knowledge of it has been lawfully ob- tained. It is a monopoly only while he retains control, and can prevent publication {Chadwick v. Covell, 151 Mass. 190, 191, 23 N. E. 1068; Gayler v. Wilder, 10 How. 477, 493, 13 L. 504). But if in violation of his contract of employment, where, although not expressly stipulated, he impliedly agreed not to divulge the plain- tiff's art and unpatented inventions, the defendant either individually, or jointly with others to whom they were improperly disclosed, undertook in the production of welt to use and apply them, a court of equity while enjoining the continuance of such interference, and further disclosure, will give relief by the assessment of damages for any injury already inflicted." (Cases cited.) As to the ownership of inventions perfected by an employee he said: " The defendant being of unusual ability developed 320 THE PUBLIC CONSCIENCE great mechanical skill while in the plaintiff's service, and with the understanding that the plaintiff believing its undisclosed methods to have been very successful desired him not to impart any information of their existence, gave valuable aid to the president in the development of his inventions, which became the property of the company. He was not, however, em- ployed to originate inventions for the plaintiff's benefit, and while he could not appropriate his employer's trade secrets in whatever form they may have consisted, no obligation rested upon him to forego the exercise of his inventive powers, even if they were incited because of knowledge necessarily derived from the performance of his contractual duties. It was legitimate for him under these conditions to invent and perfect im- provements which were embodied in new machines of greater capacity and efficiency." The injunction sought, to restrain Delaney, was dis- solved; but the plaintiff was granted $250.00 with interest as compensation — but he was allowed no costs. Comment. A double form of security is here established. — Right of an inventor to the product of his own skill and right of an employer to the full services of an employee. Personal — (c) Adultery Among the Greeks and in the earlier period of Roman Law, it was not adultery unless a married woman was PRESERVATION OF PROPERTY 321 the offender. The foundation of the later Roman law with regard to adultery was the lex Julia de adulteriis coercendis. In Great Britain it was reckoned a spir- itual offense, that is, cognizable by the spiritual courts only. The common law took no further notice of it than to allow the party aggrieved an action for damages. In England, however, the action for " crimi- nal conversation," as it was called, was nominally abolished by the Matrimonial Causes Act, 1857; but by the 33d section of the same act, the husband may claim damages from one who has committed adultery with his wife in a petition for dissolution of the marriage or for judicial separation. The husband's adultery must be either incestuous or bigamous to be ground for divorce. In some of the United States of America adultery is a criminal offense with imprisonment in the peni- tentiary as punishment. (Encyc. Brit. Art. Adultery.) Divorce — Encyc. Brit. Art. — Divorce. " The ground pleaded for a divorce is seldom an index to the motives which caused the suit to be brought. This is determined by the character of the law rather than by the state of mind of the parties; and so far as the individuals are concerned, the ground alleged is thus a cloak rather than a clue or revelation. Still those causes which have been enacted into law by the various state legislatures do indicate the pleas which have been endorsed by the social judgment of the respective communities." W. W. Willcox. 322 THE PUBLIC CONSCIENCE Seduction HAMILTON V. LOMAX Supreme Court, New York, 1858 (26 Barbour, 615. Ames, 94.) The courts have been careful to keep seduction and breach of promise of marriage separate. In a case for seduction it was held to be erroneous to admit evidence of a promise of marriage, in attempting to prove the seduction. No person seduced can maintain an action for such seduction because the person seduced assents thereto. The only mode in which the action has ever been maintained has been by bringing such action in the name of some person having a right to the services of the person seduced, and allowing damages to be recovered, not only for actual loss of service,, but for a sum sufficient also to punish the seducer; but such action can never be maintained in the name of the party seduced. Comment. This is another case of the persistence of the opinion that individuals in any society occupy the posi- tion toward one another of independent sovereigns whose dealings with one another's wills cannot be interfered with in any way whatsoever. But interference with a man's property right in a woman is another story. The seduction is her own affair; her reduction in value to an " owner " is the state's affair. PRESERVATION OF PROPERTY 323 Reputation — (d) Libel REX V. TIBBITS Court for Crown Cases Reserved, 1901 (Reported, 1902, 1 K. B., 77. Beale, 56, 3d ed.) There were two defendants in this case, Tibbits and Windust. The charges contained in the indictment related to the publication of certain matters in a news- paper called the Weekly Dispatch, particularly in cer- tain issues of it which were named. Prior to the pub- lication of the first article two persons named Allport and Chappell had been charged with cruelty to chil- dren and attempted murder. These were found guilty and sentenced to penal servitude, the first for fifteen years and the second for five years; but during the course of the trial, " the publication went far beyond any fair and bona fide report of the proceedings before the magistrate. They (the articles) contained, couched in a florid and sensational form, a number of state- ments highly detrimental to Allport and Chappell." " It was not attempted to be argued by Mr. Foote, who appeared as counsel for both defendants, that the publication of such articles was lawful, and that the persons publishing such articles could not be punished. On the contrary, he contended that the publication of such articles was a contempt of court, and could only properly be punished as such either by summary pro- 324 THE PUBLIC CONSCIENCE ceedings or indictment for contempt. He further urged that there was no evidence of any intention on the part of either of the defendants to pervert or interfere with the course of justice, and that any inference which might otherwise be drawn from the contents of the articles, that they were calculated to pervert or inter- fere with the course of justice, was negatived by the fact that the defendants Allport and Chappell had been subsequently convicted." Lord Alverston, C. J., held that there was no doubt that the publication of such articles constituted a con- tempt of court and could be punished as such, but he said : " We think that the facts, which bring the in- criminated articles within the category of misdemeanor, abundantly appear . . . and that it is perfectly im- material whether the articles be described and charged as libels or contempts or not. With reference to the argument that there was no evidence of any intention to pervert the course of justice, we are clearly of opin- ion for reason given (Many authorities had been cited. G.c.c), that this is one of the cases in which the intent may properly be inferred from the articles themselves and the circumstances under which they were published. . . . The essence of the offense is con- duct calculated to produce an atmosphere of prejudice in the midst of which the proceedings must go on. Publications of that character have been punished over and over again as contempts of court, where the legal proceedings pending did not involve trial by jury, and where no one would imagine that the mind of the PRESERVATION OF PROPERTY 325 magistrates or judges charged with the case would or could be induced thereby to swerve from the straight course. The offense is much worse where trial by jury is about to take place. . . ." " If the articles are, in the opinion of the jury, calculated to interfere with the course of justice or pervert the minds of the magistrate or of the jurors, the persons publishing are criminally responsible." (Conviction affirmed.) Comment. Intention to damage reputation was proven and there was direct interference with the function of the court, in the opinion of the court. We cannot review the facts and usurp the function of the Chief Justice, but it is to be noted that " the pubHcation of proceedings publicly held in a court of justice, if fair and accurate, has now the protection of law." This case is equally significant for the security of courts. Libel THORLEY V. LORD KERRY In the Exchequer Chamber, May 9, 1812 (Reported in 4 Taunton, 355. Beale, 3d ed., p. 403.) There was an " action for libel contained in a letter addressed to Lord Kerry, and sent open by one of his servants, who became acquainted with its contents. The libel charged his Lordship v/ith being a hypocrite, and using the cloak of religion for unworthy purposes." The defendant was found guilty and the plaintiff was given £20 damages. 326 THE PUBLIC CONSCIENCE By a writ of error the case was brought to the Ex- chequer Chamber and Mansfield, C. J., dehvered the opinion of the court. Referring to the letter, he said, " There is no doubt that this was a libel, for which the plaintiff in error (defendant in the original suit) might have been indicted and punished ; because, although the words impute no punishable crimes, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt and ridicule." Libel — or Near Libel New York Evening Post, January (8?), 1912. A jury in the Supreme Court awarded a verdict of $10,000, the full amount asked, to Mrs. Florence Crews Jones, after trial of her suit against James L. Perkins, a pubhsher. Mrs. Jones, who is a translator, contended that the publisher had used her name, un- authorized by her, in a book of short stories by Guy de Maupassant. Eight improper stories were inserted against her knowledge and consent, she said. Basing her complaint on the "personal privilege law," which was passed to protect an individual against the use of his or her name for profit by another with- out the owner's consent, Mrs. Jones testified that she was " horrified " when she opened one of the books and saw eight grossly improper, poorly translated stories, with which she had had nothing to do, pub- lished under her name as translator. Thereafter she PUBLIC ORDER (DECENCY) 327 was deluged with letters and telephone messages from friends, expressing their surprise that she should translate such stories. She said she demanded of the defendant that he alter the book at once, but he told her that she would, have to wait until the second edition came out. The second edition was identical with the first. III. PUBLIC ORDER (DECENCY) Decency in Respect for Religion TAYLOR'S CASE King's Bench, 1676 (Beale, 51, 3d ed.) The defendant had uttered " divers blasphemous ex- pressions horrible to hear." He had abused the charac- ter of Jesus Christ, had said that religion was a cheat and that he feared neither God, devil nor man. Several witnesses testified to the utterance of these words. Hale said: " That such kind of wicked blas- phemous words were not only an offense to God and religion, but a crime against the laws, state and gov- ernment, and therefore punishable in this court (for to say religion is a cheat, is to dissolve all those obli- gations whereby the civil societies are preferred) ; and that Christianity is parcel of the laws of England, and 328 THE PUBLIC CONSCIENCE therefore to reproach the Christian Religion is to speak in subversion of the law." Judgment was given that he should stand in the pil- lory in three several places, pay one thousand marks fine and find sureties for good behavior during his life- time. (Cf. State v. Williams, 4 Ire. (N. C.) 400.) PEOPLE V. RUGGLES Supreme Court of New York, 1811 (Reported 8 Johns, 290. Beale, 85, 3d ed.) " Indictment for blasphemy.*^ After conviction the record was removed to the Supreme Court. Wendell, for the prisoner, now contended that the offense charged in the indictment was not punishable by the law of this state, though, he admitted, it was punish- able by the common law of England, where Christian- ity makes part of the law of the land on account of its connection with the established church. Kent, C. J.: And why should not the language con- tained in the indictment be still an offense with us? There is nothing in our manners or institutions which has prevented the application or the necessity of this part of the common law. . . . The people of this state, in common with the people of this country, profess the general doctrines of Christianity, as the rule of 1 The facts in this case are not given in the report but they may be inferred from the judgment. Author. PUBLIC ORDER (DECENCY) 329 their faith and practice. . . . Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful. . . . Things which corrupt moral sentiment, as obscene actions, prints and writings and even gross instances of seduction, have, upon the same principle, been held indictable. ... No government of antiquity, and none of the governments of modern Europe (a single and monitory case ex- cepted ^) ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity, and under the sanction of their tribunals, the general religion of the community to be openly insulted and defamed. The very idea of jurisprudence with the ancient law-givers and philosophers embraced the religion of the country. The free, equal, and undisturbed enjoyment of re- ligious opinion, whatever it may be, and free and de- cent discussions on any religious subject, is granted and secured ; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right." Chancellor Kent further shows that there is no such obligation to defend Mahomet or the Grand Lama from similar attacks, since their religion is not that of this country. He somewhat naively assumes them to be superstitious as well ! 1 Query. Did Chancellor Kent perhaps refer to the then re- cent repudiation of religion during the French Revolution? Author. 330 THE PUBLIC CONSCIENCE Comment. The broad ground taken here is that the gen- eral sense of decency of any community may not be out- raged with impunity on the principles of the Common Law. Taylor's Case (1676) is probably one of the authorities upon which Chancellor Kent relied. Justice Hale there had an evident bulwark in the fact that Christianity was " parcel of the laws of England ; " but his other reason, viz.: *' for to say religion is a cheat is to dissolve all those obligations whereby the civil soci- eties are preferred " is less grounded both in law and in philosophy. Laws against blasphemy are on many stat- ute books but their aid is seldom invoked against blas- phemies and still more rarely enforced today. Christian- ity is not a part of the law of the United States; nor is any religion. Doubtless blasphemy would be punished today if committed in certain places — such as assemblies of Christians — but the charge would almost certainly be that of a breach of the peace. The utterance of remarks which would be considered as blasphemous by the greater part of our population, would nevertheless be permitted in many places, even public places. Compare the progress of freedom of speech and of the press. The public order is now little connected with any theological belief what- ever. STATE V. LINKHAW Supreme Court of North Carolina, 1873 (Reported 69 N. C, 214. Beale, 87, 3d cd.) " Settle, J. The defendant is indicted for disturbing a congregation while engaged in divine worship, and the disturbance is alleged to consist in his singing, PUBLIC ORDER (DECENCY) 331 which is described to be so peculiar as to excite mirth in one portion of the congregation and indignation in the other. From the evidence reported by his honor who pre- sided at the trial, it appears that at the end of each verse his voice is heard after all the other singers have ceased, and that the disturbance is decided and serious ; that the church members and authorities expostulated with the defendant about his singing and the disturb- ance growing out of it; to all of which he replied ' that he would worship his God and that as a part of his worship it was his duty to sing.' It was further in evi- dence that the defendant is a strict member of the church, and a man of most exemplary deportment. " ' It was not contended by the state upon the evi- dence that he had any intention or purpose to disturb the congregation, but on the contrary, it was admitted that he was conscientiously taking part in the religious services.' "This admission by the State puts an end to the prosecution. It is true, as said by his honor, that a man is generally presumed to intend consequences of his acts, but here the presumption is rebutted by a fact admitted by the State. " It would seem that the defendant is a proper sub- ject for the discipline of his church, but not for the discipline of the courts." Comment. The defendant was acquitted because, however unseemly his conduct, it was in good faith and without any desire to disturb either public order or private worship. 332 THE PUBLIC CONSCIENCE Decency STATE V. BALDWIN North Carolina, 1835 (Beale, 27, 3d ed.) The defendants had " assembled at a public place and profanely and with a loud voice, cursed, swore and quarreled, in the hearing of divers persons, and it is alleged, that by means thereof a certain singing school then and there kept and held was broken up and dis- turbed." The trial court acquitted the defendants, the state appealed and Gastoii, J., in the Supreme Court refused to disturb the verdict. His grounds for decision were that this was a single act, not habitual, — " it is possible that a frequent and habitual repeti- tion of acts which singly are but private annoyances may constitute a public nuisance "... and that while the persons in the singing school may have been dis- turbed, " the loss of instruction, etc. — does not very gravely influence the good order or enjoyment or con- venience of the citizens in general, so as to call for re- dress on the complaint of the state." PUBLIC ORDER (DECENCY) 333 Inciting to Murder and Rebellion PEOPLE V. JOHN MOST New York 71 App. Div., 160 The defendant had published in New York City, in a paper called The Freiheit, which had a circulation of about 3000 extending into foreign countries, an article first published by another person over fifty years before, which characterized government as " nothing less than murder dominion " and called upon the adherents of anarchy " to execute judgment " by killing " through blood and iron, poison and dynamite " the heads of nations. After characterizing the rulers of countries as despots, it proceeded to characterize them as fol- lows : " They are in human society what the tiger is among animals; to spare them is a crime; as despots permit themselves everything, . . . betrayal, poison, murder, etc., in the same way all this is to be employed against them. Yes, crime directed against them is not only right, but it is the duty of every one who has an opportunity to commit it, and it would be a glory to him if it was successful." McLaughlin, J., in his opinion declared that the promulgation of such unnatural and outrageous doc- trines in this state of civilization " seriously endangers " the pubUc peace. . . . Every civilized nation hereto- fore has existed, and hereafter must exist, if at all, by the enforcement of law. Its recognition and enforce- 334 THE PUBLIC CONSCIENCE ments are the safeguards of the state. . . . Without it, chaos reigns and brute force becomes substituted for right. Whoever openly or secretly advocates the resort to force for the accomplishing of any purpose, or the right- ing of any wrong, either real or imaginary, seriously endangers the public peace, etc. (This opinion is greatly condensed but given in the words of the Jus- tice.) Most was found guilty of a misdemeanor, under section 675 of the Penal Code, of that date, and sen- tenced to be imprisoned in the penitentiary for one year. Comment. The judge's opinion is sufficient comment on this case inasmuch as it states very clearly the grounds upon which anarchists who take any action will be pun- ished. Such action is treason, though not formally de- clared to be such. This case is applicable to the Liberty classification of Free Speech also. Decency REX V, LYNN King's Bench, 1789 (Beale, 88, 3d ed.) This was a case of body snatching. The defendant's counsel contended that the case should be taken to the ecclesiastical courts.' — but the court held that the offense was contrary to good morals and highly in- decent; the circumstance that the body was to be PUBLIC ORDER (DECENCY) 335 used for purposes of dissection does not make it the less an indictable offense. The defendant was fined but five marks, it being thought probable that he had acted in ignorance. COMMONWEALTH v. SHARPLESS Supreme Court of Pennsylvania, 1815 (Reported 2 Sergeant & Rawle, 91. Beale, 90, 3d ed.) This was an indictment against Sharpless and others for exhibiting an indecent picture. It was denied that even a public exhibition of an indecent picture was an indictable offense. The facts were granted and judgment was given against the de- fendants but they made this objection. In the opinion given by Tilghman, C. J., it was said, " In England there are some acts of immorality, such as adultery, of which the ecclesiastical courts have taken cognizance from the very ancient times, and in such cases, al- though they tended to the corruption of public morals, the temporal courts have not assumed jurisdiction. This occasioned some uncertainty in the law; some difficulty in discriminating between the offenses pun- ishable in the temporal and ecclesiastical courts. Al- though there was no ground for this distinction in a country like ours, where there was no ecclesiastical jurisdiction, yet the common law principle was sup- posed to be in force, and to get rid of it punishments 336 THE PUBLIC CONSCIENCE were inflicted by act of assembly. There is no act punishing the offense charged against the defend- ants, and therefore the case must be decided upon the principles of the common law. That actions of public indecency were always indictable, as tending to corrupt the public morals, I can have no doubt ; because, even in the profligate reign of Charles II, Sir Charles Sedley was punished by imprisonment and a heavy fine for standing naked in a balcony in a public part of the City of London. It is true that, besides this shameful exhibition, it is mentioned in some of the reports that he threw down bottles containing offensive liquor among the people; but we have the highest authority for saying that the most criminal part of his conduct, and that which principally drew down upon him the vengeance of the law, was the exposure of his person. Neither is there any doubt that the publication of an indecent book is indictable. . . . What tended to cor- rupt society was held to be a breach of the peace and punishable by indictment. The courts are guardians of the public morals, and therefore have jurisdiction in such cases. Hence it follows that an offense may be punishable if in its nature and by its example it tends to the corruption of morals although it be not com- mitted in public. (Italics mine, g.c.c.) . . . The de- fendants are charged with exhibiting and showing to sundry persons, for money, a lewd, scandalous and ob- scene painting. A picture tends to excite lust just as strongly as a writing; and the showing of a picture is as much a publication as the selling of a book." PUBLIC ORDER (DECENCY) 337 Privacy is no excuse. " The law is not to be evaded by an artifice of that kind. If the privacy of the room was a protection, all the youth of the city might be corrupted by taking them one by one into a chamber, and there inflaming their passions by the exhibition of lascivious pictures. In the eye of the law this would be a publication and a most pernicious one. (Defend- ants condemned.) Comment. Notice the date. There are numerous statutes today which cover all such cases. This, as a case settled upon the basis of the common law, is probably of great significance for the subsequent statutes. It is not necessary to define indecency. There was much dissent from the standards of the late Anthony Comstock even by those whom he would have accounted decent people. Doubtless many things have been ac- counted indecent in the past which now are suffered or applauded. It does not follow that the things counted indecent in the past were so or that the things now applauded are decent; all that we can say is that what offends the general sense of the community will be pun- ished as indecent. Sunday Laws STATE OF NEBRASKA v. TIM O'ROURKE et Al. 35 Neb., 614, 1892 (Milbum's Curious Cases, p. 110.) This case need not be set forth at length. The de- fendants were charged with violating Sec. 241 of the 338 THE PUBLIC CONSCIENCE Criminal Code — in that they played baseball on Sunday. They entered a plea of not guilty and were found not guilty by the county judge without a jury. The judge of the Supreme Court (on appeal by the county attorney) said, " The sole question involved was one of fact as to whether or not they had violated the pro- visions of the statute and upon this finding of fact the decision of the court is final. I am at a loss to deter- mine upon what question of law exception can be taken, the question being solely one of faet." Further he went into a long and amusing diatribe, very learned in character, against the inconsistencies of the various states in their obsolete Sunday laws — but concluded by afiirming the guilt of the defendants on the ground that the facts had not been impugned and the statute stood. It was the business of the court to decide in accordance with the facts and the law. BOSWORTH V. INHABITANTS OF SWANSEY 10 IMetcalf 363, 1845 — Smith 113 The plaintiff sued for damages received by him in traveling over a road which was in bad repair. The damages were unquestionable and the bad condition of the road was acknowledged. The defendants also acknowledged that it was their duty to keep the road in repair. PUBLIC ORDER (DECENCY) 339 Their only defense was that the plaintiff was travel- ing on Sunday, on secular business, not from necessity or charity. Shaw, C. J., held that to maintain this action, it must appear that the accident was occasioned exclu- sively by the defect of the highway; to establish which it must appear that the plauitiff himself is free from all imputation of negligence or fault. Now the stat- ute of that date provided that " no person shall travel on the Lord's Day, except from necessity or charity." The plaintiff cannot prove necessity or charity. Verdict for the defendants. Comynent. Properly speaking this is a case of observance of statute, not a Sunday law case. iManj^ statutes are habitually broken without punishment, simply because no one brings any action which uncovers the statute. Such Sunday laws as the above have, for the most part, been repealed. There are many similar laws unrepealed. They do no harm as a rule; but, now and then, some one zealous for what they once represented, brings an action; and the result is almost always a conviction, though for a nominal fine or penalty. It is the plain duty of every court to convict those offending against any statute, however archaic or ridiculous. The onh' recourse of the court is the imposition of a nominal penalt5^ Citizens disobey any statute, no matter how trivial or ridiculous, at their own peril. 340 THE PUBLIC CONSCIENCE SUTTON V. TOWN OF WAUWATOSA 29 Wis. 21, 1871 In this case cattle were driven on to a bridge which was so rotten that many of them were precipitated into the water, some drowned, etc. Damages were claimed and the trial court refused damages on the ground that the cattle were being driven on a Sunday. Plaintiff appealed and Dixon, C. J., in granting a new trial, made the following points: The plaintiff was undoubtedly doing an unlawful act; but it did not constitute contributory negligence. Cases cited may be summed up as follows: " There are two just and plain principles. First, that one party to the action, when called upon to answer for the consequences of his own wrongful act done to the other, cannot allege or reply the separate or distinct wrongful act of the other, done not to himself or to his injury, and not necessarily con- nected witl , or leading to, or causing or producing the wrongful act complained of; and, secondly, that the fault, want of due care or negligence on the part of the plaintiff, which will preclude a recovery for the injury complained of, as contributing to it, must be some act of the plaintiff having the relation to that injury of a cause to the effect produced by it. ... It is obvious that a violation of the Sunday law is not of itself an act, omission, or fault of this kind, with reference to a defect in the highway or in a bridge PUBLIC ORDER (DECENCY) 341 over which a traveler may be passing, unlawful though it may be." Comment. These are cited merely as examples of cases which may arise under the prohibition of work or amuse- ment on that day. " Works of necessity or mercy " now include a great variety of things certainly not originally contemplated; and about all that is left of the old pro- hibitions consists of the forbidding of anything which dis- turbs public worship or unduly shocks a community. And that, very naturally, varies with the community. In Oregon, Nov. 6, 1915, a Sunday closing law which had been on the statutes many years was declared invalid on the ground that it specified that certain lines of business should not be conducted on the " Lord's Day." The court held this to be religious discrimination. This has its place in a Liberty classification too. COMMONWEALTH v. MARSHALL Supreme Judicial Court of Massachusetts, 1831 (Reported 11 Pick., 350. Beale, 18, 3d ed.) Defendants were indicted for a misdemeanor in dis- interring a dead body. This would have been an of- fense under the common law; but by a statute of 1814 the common law was superseded and, although the statute was subsequently repealed, the act charged upon the defendants as an offense was done after the passing of the statute of 1814 and before that of 1830. The act cannot be punished as an offense at common law; for that was not in force during the existence of 342 THE PUBLIC CONSCIENCE the statute; nor by the statute of 1814, because it has been repealed without any saving clause; nor by the statute of 1830, for the act was done before that stat- ute was passed. No judgment on this indictment. Comment. Here is a clear case of failure of justice. The act done was an offense against decency but it went un- punished because of technicalities. Selling Liquor COMMONWEALTH v. CHURCHILL Massachusetts, 1840 (Beale, 34, 2d ed.) In the Court of Common Pleas the defendant was convicted for selling liquor without a Hcense. He ap- pealed to the Supreme Court on the unconstitutionality of certain statutes upon which the conviction was based and because the statutes themselves had been subsequently repealed. " It is conceded (says Shaw, C.J.,) " to be a maxim of the common law, applicable to the construction of statutes, that the simple repeal of a repealing law, not substituting other provisions in place of those repealed, revives the pre-existing law." It was held that the common law existed in the state of Massachusetts before the Revolution — and its pro- visions relate partly to the rules of construction for the PUBLIC ORDER (DECENCY) 343 expounding of statutes. The statute in question which had indeed been repealed, simply revived a previous statute, under which the defendants were equally guilty. The exceptions taken by the defendants were over- ruled and the conviction stood. Neglect of Education REX V. WILLIAM SMITH 2 Carrington & Payne 449, 1826 George Smith, a man of about forty years of age, was an idiot, in the care of his brothers and a sister. An investigation showed that he was kept in a dark and filthy room without proper care of any sort. He had been left an annuity of £50. The complaint alleged that it was the duty of his brothers and sister to care for him properly. Burrough, J., said, " I am clearly of opinion, that, on the facts proved, there is no assault and no imprison- ment in the eyes of the law. In the case of Squires and his wife for starving the apprentice, the husband was convicted, because it was his duty to maintain the apprentice, and the wife was acquitted, because there was no such obligation on her. I expected to have found in the will of the father, that the defendants were bound, if they took the father's property, to maintain this brother; but under the will they are only bound 344 THE PUBLIC CONSCIENCE. to pay him £50 a year, and not bound to maintain him. William Smith appears to have been the owner of the house, and Thomas and Sarah were mere inmates of it, as their idiot brother might be; and how can I tell the jury that either of the defendants has such care of this unfortunate man as to make them criminally liable for omitting to attend to him. There is strong proof that there was some negligence ; but my point is, that omission without a duty will not create an indict- able offense. (Italics mine, g.c.c.) There is a defi- ciency of proof of the allegation of care, custody and control, which must be taken to be legal care, custody and control. Whether an indictment might be so framed as to suit this case, I do not know; but on this indictment I am clearly of opinion that the defendants must be acquitted. (Verdict — Not guilty.) The indictment had been for assault, imprisonment and neglect. Public Order and Peace PEOPLE V. WALLACE AND LAKE New York 85 App. Div., 70 The defendants, under notice from an organizer of the Socialist Labor Party, held a meeting in Amster- dam, N. Y., on Sept. 21, 1901, requesting the poHce to preserve order at the time. They neither sought for PUBLIC ORDER (DECENCY) 345 nor obtained a permit; and when the Chief of Police found them haranguing a gathering crowd from dry goods boxes placed in the street near the curb, they denied the need of a permit. Lake said, " I told him the Socialist Labor Party was a regular political party which occupied the third column on the official ballot of New York State, and that the Constitution of the United States granted the right of free speech, and the public assemblage of people in any highway of the country and we didn't need a permit from any mayor to exercise that right." The police several times tried to keep a passage way in the streets which had become blocked, though not completely. They told Lake he was obstructing the street and would have to stop speaking. He declined to do so, saying that, if the streets were not clear it was the duty of the police to keep them clear. The officers then attempted to clear the sidewalks and street without interfering with the speaker, and they were unable to do so. The crowd increased in number and the whole police force of the city was summoned but could not keep the crowd in order. The boxes were put on the sidewalk but the defendants took them back to the street. There was much disorder and many threats were heard. One man was struck by a stone. Finally the police arrested the defendants and took them to the police station, after which the crowd was easily dispersed. This account is condensed from the opinion of 346 THE PUBLIC CONSCIENCE Chase, J. In the trial court the defendants were con- victed of a misdemeanor. The punishment given is not stated in the above authority. The Appellate Court confirmed this conviction. Chase, J., saying (opinion condensed but in his words), " The question of the constitutional right of citizens to peaceably assemble and discuss public questions is not before us for discussion, neither is it necessary to de- termine whether such constitutional right authorizes a person to hold a public meeting in a public street with- out the permission of the municipality. Streets and highways are for the use of all the public to pass and repass thereon, and it is the duty of the police author- ities of a city to see that a reasonable passage way is preserved. That the public peace was seriously dis- turbed and endangered at the time of the defendants' arrest cannot be doubted by any one who examines the record herein. Whether such serious disturbance and danger was caused by the defendants was a ques- tion of fact presented to the jury after all the parties had had a full and fair opportunity to present their evidence in relation thereto. ... It is reasonably cer- tain that the persistence of the defendants in dragging their boxes, etc., and in haranguing the crowd . . . were at that particular time the immediate causes of the serious disturbance and danger to the public peace. As said by the Court of Appeals in People v. Most: ' A breach of the peace is an offense well known to the common law. It is a disturbance of public order by an act of violence, or by any act hkely to produce violence, PUBLIC ORDER (DECENCY) 347 or which by causing consternation and alarm disturbs the peace and quiet of the community.' " Comment. There can be no doubt that this is the law. It is to be observed, however, that streets are frequently blocked by crowds which the police make no endeavor to disperse. This is on those occasions when the crowd is gathered for some reason in the manifest interest of the whole people as, e.g., on patriotic occasions like the re- turn of troops from war. There are few gatherings of a riotous character except those incited by the opposition. This is not said in criticism or with any wish to express a partisan attitude but simply to call attention to a fact. There is no need to gather a crowd to support what every one, or the majority, is already supporting. Offense against the Common Weal REGINA V, STEPHENS Queen's Bench, 1866 (Reported L. R. 1 Q. B., 702. Beale, 252, 3d ed.) The defendant was owner of a slate quarry on the river near the castle of Kilgerran, which he had exten- sively worked since 1842, Rubbish from the quarries had been stacked five or six yards from the river and held back by a wall; but in 1847 a flood swept away this wall and rubbish. Quantities of additional rubbish were from time to time deposited on the bank and allowed by workmen to slide down into the river and obstruct navigation. It was offered in evidence that 348 THE PUBLIC CONSCIENCE workmen had been instructed not to deposit rubbish at this place but the judge intimated that this evi- dence was immaterial; and he directed the jury that as the defendant was the proprietor of the quarry, it was his duty to take all proper precautions, etc., and that if a nuisance was caused by his workmen, even without his knowledge and against his orders, it was his act. The jury found a verdict of guilty — obstruct- ing navigation of a public river. On motion for a new trial, Mellor, J., sustained the decision saying, " It is quite true that this in point of form is a proceeding of a criminal nature, but in substance I think it is in the nature of a civil proceed- ing. . . . Here it is perfectly clear that the only rea- son for proceeding criminally is that the nuisance, instead of being merely a nuisance affecting an in- dividual, or one or two individuals, affects the public at large and no private individual, without receiving some special injury, could have maintained an action. ... If the contention of those who say the direction is wrong is to prevail, the public would have great difficulty in getting redress." Blackburn, J., wished to guard himself " against it being supposed that the general rule that a principal is not criminally liable for the act of the agent is in- fringed. All that is necessary to say is this, that where a person maintains works by his capital, and employs servants, and so carries on the work as in fact to cause a nuisance to a private right, for which an action would lie, if the same nuisance inflicts an in- NATURAL LAW FOR SECURITY 349 jury upon a public right, the remedy for which would be by indictment, the evidence which would maintain the action would also support the indictment. That is all that it was necessary to decide and all that is decided." Comment. Qui facit per alium facit per se. A manufac- turer or employer of labor is responsible for the acts of his workmen, and is open to a claim for damages; but further, and importantly, it is decided that the public's rights cannot be set lower than those of any individual. And as an individual can bring action for a nuisance, so can the public. The opinion of Justice Blackburn is very pertinent. Our interest is not in the form of procedure, which he defends, but in the security of the public which the decision defends. THE NATURAL LAW OF OFFENSES AGAINST SECURITY The nature of these ojffenses implies that there have been established certain very definite values — such as life, integrity of the person, property, reputation and the like. The offenses here considered are not direct attacks upon life or upon property but rather upon that secure possession of them which constitutes one of man's most prized privileges. It has its culmination and most concrete expression in the idea of Public Order or Decency. These offenses too are classed, not according to the degree of reprobation manifested toward them by society, but according to their nature, those cases be- 350 THE PUBLIC CONSCIENCE ing grouped together which have some sort of afi&nity. In consequence there is no gradation from that which is most reprobated down (or up) to those either con- doned or positively praised; except that it is obvious that the most serious offense is treason and that any- thing which would betray an open enemy of the group would be considered highly meritorious. Some of the offenses are very complex and it is almost impossible to analyze them. For example, kid- napping, adultery and seduction may also be assaults although they need not be. All the offenses under the caption Reputation are capable of becoming property cases. Inciting to murder is pretty close to plain murder. There is no clear law outstanding from the multi- tudes of cases under " security " except one which I formulated tentatively some years ago.^ The group punishes severely anything which threatens group continuance. Treason is never for- given if known to exist. If the group is to survive, treason in any form, when known, must he visited with death, at least during times of stress. Lack of attention and old custom alone are respon- sible for society's neglect of things more directly sub- versive of its principle than some which are severely reprobated. This seems more like an impressionistic sketch than a law. Let us not think of it as the law but rather ^ Case Method in the Study and Teaching of Ethics op. cit., p. 345. NATURAL LAW FOR SECURITY 351 as prolegomena to a law which should then be formu- lated as follows: Individual action is always subordinated to group stability; and anything which threatens the security of the group in the opinion of the authorities of the group will be treated as a crime. But individualistic action seems to be approved by the group in many ways. The English and American traditions are based upon Magna Charta and various Bills of Rights which speak much of the rights and liberties of individuals. This is indeed the principle upon which our security is based, to give as much scope to the individual as possible; but it is always limited by the group needs. Observe particularly that the principle caveat emp- tor, — let the buyer beware, — is highly individuaUstic — but note also that this principle no longer holds sway except where it has been overlooked. We have Pure Food Laws and the like, standards of weights and measures, Blue Sky Laws, Workmen's Com- pensation Acts and a multitude of other similar things to indicate that the individual is protected in the interest of society against other individuals instead of being left, as on the laissez-faire theory of government, to fight it out with them as best he may. So the Standard Oil Case and all others under the Sherman Law apparently indicate a tenderness for the individual. But this is not really true. Enhanced prices were thought to be due to restriction of compe- 352 THE PUBLIC CONSCIENCE tition, hence competition must be left unrestricted in the interest of the group. Moreover the English deci- sion in the Mogul Steamship Company Case (q.v.) is distinctly restrictive of competition in the interest of the group. It must be noted too that restraint of trade was not an offense at common law ; it was made so by statute and only for the reason given above. Modern opinion that Big Business is not necessarily Bad Business shows the swing of the pendulum and makes plain that the individual per se is not being considered. The law of the past has tended to treat individuals as separate sovereigns with whom one might interfere at his peril. Whatever they did to one another was indifferent to society. The Common Law attitude towards adultery and fornication (except the adultery of the wife, seduction, etc., which offend a property right) is an example of this. Except where, under the influence of the Canon Law (Law of the Church), some religious motive enters in, society is indifferent to what men do to one another so long as it does not influence the group. The adoption of the Canon Law rule con- cerning adultery rather than the Common Law is due partly, at least, — in my opinion at any rate — to a feeling that the public order and decency have been disturbed. Modern liberality in the treatment of blas- phemy cases is an apparent contradiction of this rule since it seems to leave room for individualism, but it is more likely that the public realizes that there is no danger to its peace and safety in such utterances NATURAL LAW FOR SECURITY 353 and so individuals may be left free in things in- different. Various courts have decided, especially in labor cases, that every man has a right to conduct his business to suit himself — yet labor unions have been repeatedly upheld and picketing has been held to be legal. The opinions of Justice Holmes, especially, show the refusal to be bound by an Eighteenth Century conception of society with its extreme individualism. This is inter- esting in itself but important here simply as the coming to consciousness of a permanent and universal charac- teristic of legislation and judicial decision; for, in spite of all appearances to the contrary, it has always been the tendency of social groups. The deliberate and conscious practice of the Federal Government, according to the Constitution, in its deal- ings with the states of the Union will well exemplify the attitude of society towards its constituent members. They may act towards one another as sovereign states except where the interests of the Federal Government are threatened. In that case they will be rigorously suppressed. This will be much more evident in our summing up in cases under the classification Liberty and further consideration of it is postponed. I do not think the formulation of more detailed laws at this point is either profitable or desirable. Indeed this law is purely tentative and meant to serve as a guide only. It may be added that it is probably the instinct for security which demands such strict attention to mak- 354 THE PUBLIC CONSCIENCE ing some one responsible in damages, if not criminally, even though it be a child, an idiot or an insane person — and insists upon the principle of agency, qui facit per alium jacit per se. Even righteousness of inten- tion cannot abolish this responsibility. PART IV PRESERVATION OF LIBERTY X Offens^ /. Interference w\ Bodily Freedi II. Interference w\ Freedom Movement # LIBERTY CASES Offenses against liberly and legal or approved interferences with or restrictions of liberty I Interference with 1 '■^Sal in past times and still in ( .Slavery Bodily Freedom^ = of'crstindoT"" j S„t^ White Slavery ifl) Illegal Kidnapping (Press Gang) False Imprisonment — Habeas Corpus //. Interference with i Immigration Laws Emigration Laws Freedom of Requirement of Passports Movement (b) Legal Restricted districts Jim Crow Cars Ghettoes Restriction of Right of Assembly (a) Ca^ying Weapons ( g] S^Sled (1) Ordinary regulations regarding traffic, building operations, streets, lights, signs, licenses, etc. (2) Police power of state apphed to: Labor Unions (b) Police Regulations Manufacturers' Associations Trust Regulations R. R. rates, etc. Hours of Labor Employers' Liability tit Interference with Workmen's Compensation Freedom of Ac- Strikes and Picketing tion Blacklisting (3) Offenses against security Taxation, including tariffs and licenses Franchises Eminent domain Rights of way ici Freedom in Property Pubhc Hotels, Inns, etc. Rights Common Carriers Contract Rights to means of livelihood (tools of trade, homestead, etc.) Trade Marriage and divorce laws Worship Being put in fear Speech — Hbel — contempt of court Pohtical action IV. Interference with Suffrage — 14th amendment — Grand- Freedom in Legal father clause Personality Association L6se Majesty Injunctions Sumptuary Laws Propaganda cf. Worship and Speech Prohibition Tnour, p. 201 Rex V. Smith, p. 101 Rex V. Sutton, p. 305 Rex V. Tibbits, p. 323 Rex V. William Smith, p. 343 Roberts v. Groyfrai District Council, p. 254 St. Helen's Smelting Co. v. Tip- ping, p. 244 Seward v. Seaboard Air Line Railway, p. 420 Sinn Fein Rebellion, p. 276 Slaughter House Cases, p. 435 INDEX OF CASES 483 Spies V. People, p. 114 State V. Baldwin, p. 332 State V. Endsley, p. 378 State V. Holt, p. 270 State V. J. J. Newman Lumber Co., p. 400 State V. Lay, p. 417 State V. Linkham, p. 330 State V. Mayor and Aldermen of Knoxville, p. 273 State V. William Beck, p. 136 State of Kansas v. George Lewis, p. 271 State of Nebraska v. Tim O'Rourke et al., p. 337 Stockport Water Works Co. v. Potter, p. 251 Stokes V. State, p. 284 Storey v. State, p. 149 Streeter v. Western Wheeled Scraper Co., p. 286 Sturges V. Bridgman, p. 248 Suicide, p. 131 Sutton V. Town of Wauwatosa, p. 340 Taylor's Case, p. 327 Teacher-Mother Cases, p. 462 Terry v. McDaniell, p. 451 Threefall v. Borwick, p. 228 Thorley v. Lord Kerry, p. 325 Treason Treated by Lynch Law, p. 279 Trial by Combat, p. 141 Triangle Waist Co. Case, p. 110 Underwood v. Texas Pacific Rail- way Co., p. 393 United Shoe Machinery Co. v. La Chappelle, p. 446 United States v. Van Schaick, p. 117 United States v. Agler, p. 307 United States v. Holmes, p. 129 United States v. Standard Oil Company of New Jersey, p. 404 Unwritten Law, p. 163 Wager of Battle, p. 138 Warren v. Buck, p. 235 Williams v. Mississippi, p. 455 Willy V. Mulledy, p. 127 Wong Wing v. United States, p. 371 OCT 1 f, ^^:^^5 FormL-9-15m-7,'31 HM Cox - "716 Ihe Public C83p conscience. 3 1158 00294 8338 j/it/ AA 000 972 229 9 n^IVERSITY of CALIFORNIA AT LOS ANGELES LIBRARY