itliffl: lit' I mm m THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES In the Supreme Court of tlie United States OCTOBER TERM, 1016 Mo. 121 JOHN ARMSTRONG CHALONER, Plaintiff-in-Enor, a gainst THOMAS T. SHERMAN, Defendant-in-Error. BRIEF OF PLAlNTrFF-IN-ERROR John Armstrong Chaloner, pro se. PRESS or NATIONAL PUSLISHINO CO. Copyright John Armstrong Chaloner 1916. i ST^r?.TE("T— INDEX ^- ^ fj I'ACK Statement or Introdnetion 1-9 Assi^niiient of p]iTors 10-14 The Nineteen INnnts of Law (Statement of) 14-29 Epitome 2S-81 162 Federal Reporter, 19 ^ .'^,3-40 The Parallels 41-72 I In which the i-nlings of .Indj>e Geor.i>e C. Holt of the United States District Court for the Sonthern District of New York are paral- leled with the riilino's of the United States Oirciiit Oonrt of Appeals.) Unparalleled Assignments 73-79 Opinion of Mayor, J., in appeal of Chaloner aji'ainst Sherman, Analysis of S0-13S! The Nineteen Points of Law (Supported by Aronment and Authority) — Point 1 i:;9 Point 2 140 Point 3 14S! Point 4 149 Point 5 149 Point 6 150 Point 7 l-'O Point 8 150 Point 9 17.'. Point 10 --2 Point 11 .--5 Point 12 - 2"0 Point 13 -"1 Point 14 -^'^ I PAGE Point 15 291 Point 10 345 Point 17 345 Point 18 346 Point 19 346 BRIEF IN REBUTTAL (Replyinii- to the salient points in the brief of eonnsel for defendant-in-error before the Cir- cnit Court of Appeals) 350-372 Reasons for Lenoth of Brief — Unwari-anted statements by counsel for de- fendant-] n-er-ror shown by excerpts from the Record 350-353 The nraent necessity for the reform of the Lunacy Laws 353-356 The corrupt condition of Lunacy practice in New York 356-358 Literary achievements of the plaintiff-in-error during' the past ten years 357-359 The attempts of counsel for defendant-in-error to misconstrue the record 358-360 The entire case against plaintiff-in-error founded upon fraud and perjury 361-372 Discussion of the opening statement of counsel for Defendant-in-Error that this action has no relation to the property now in the hands of the falsely alleged Committee, but relates merely to what was in his hands before 1904_ 372-376 Illegality of the commitment of plaintiff-in- error in tlie Society of the New York Hos- pital in 1S97 (citing Windsor vs. McVeigh, 93 IT. S. ; Simon vs. Craft, 182 U. S. ) ^__ 376-377 II I'ACB llleiiality of the I^rocecdiuiis in 1S9II hcfoi-c a Sliei'iff's Anvy. Tlic ])laiiitilf-in-('i'r()r was jut- veiited from atteiidinii by physical disability and was not represented by counsel .'ITT-.'ISO Fraud and perjnry upon /he part of the leadinj>- petitioner in Lunacy, Winthrop Astor (Mian- ler, proved by excerpts from his deposition de bene esse ^ 381-40*i POINT I — Statement of counsel for defen- the plain- tilf-in-error into a foreitin jurisdiction in ISDT had nothinii,- to do witli the Proceeding; in 1899, adjudii'inji- him incompetent 400-407 Answered by the following opinions handed down in — Carpenter vs. Spooner, Olean St. R. R. Co. vs. Fairmount (\in- struction Co., Wyckoff vs. Packard, Baker vs. Wales, La graves Case, Metcalf vs. Clark 407-408 in PAGE Also, answered by the fact that the 1899 Pi'()('eediii<; jj-rew out of the 1897 Proceed- ini>-, and was dependent upon it 409-414 Statement of counsel for defendant-iu-error that fraudulent luring is permissible in the case of alleged incompetents, and that there is no authority for attacking such decision collat- erally 414-415 AnsAvered bv fact that insanity is the least known branch of law; and the case of Ch alone r af/ainst Sherman is an unprece- dented case 416 Animosity of the ('hauler family tOAvards the plaintitf-in-error shown by their letters to him immediately after his marriage 417-425 Letter from the Proprietor of the Hotel Ken- sington, New York, to the plaintiff-in-error, proving the infrequency of plaintiff-in-error's visits to New York__ 427-429 POINT III — Statement of counsel for defen- dant-in-error that the residence of the plain- tiff-in-error was tinallv determined bv the New York Court 431 Answered by the fact that the NeA\' York court never had jurisdiction over the plaintift'-in-error, because he was lured there in 1897, and had no opportunity to appear and be heard at the 1899 Proceed- ing 431 POINT lY — Statement of counsel for defendant- in-error that though fraud he proved in both IV I'AGE the 1S!)7 and ISDl) Proceedinos, yet that is no ground for collateral attack 431-432 Answered by discussion of the cases of — Tovey vs. Young, and United States vs. Throckmorton 432-439 Statement of counsel for defendant-in-error that even though the plaintiff -in-error was "fraudu- lently lured'' in 1897, he was not deprived thereby of exercising his rights in 1899. (Citing Simon v. Craft) 440 Answered by the fact that the plaintiff-in- error was deprived of his rights in 1899 through i)hysical incapacity to be present and Avas unrepresented — as toas Mrs, Simon — by a gaiardian ad litem 440 Simon vs. Craft, Comparison of the case at bar with 441-443 Also 5GT-584 POINT Y— Statement of counsel for defendant- in-error that the ])laintiff-in-error was not de- prived of his opportunity to be heard at the 1899 Proceeding, either on account of his resi- dence in "Bloomingdale'' or through his physi- cal disability 443-447 The above statement of the counsel for the defendant-in-error utterly refuted by the testimony at the 1899 Proceeding of the Superintendent of "Bloomingdale," who asserted on the stand that the plaintiff-in- error iras physically incapacitated from being present and that he had been in bed for at least three weeks before the date of the 1899 ProeeediAg 352 PAfiE Also, the plaiiitift'-in-error was entirely un- able, at that time, to eoiniiinnicate with any counsel save throui^h the Asylum authorities and their supporters 449-450 This statement of the ])laintiff-in-error proved by th(^ fact that his letter to the Hon. Micajah \Yoods, of July 3rd, 1897, was not received by said Woods for three months after it was written, and its ef- ficacy was then destroyed by the machina- tions of the enemies of the plaintiff-in- error 451 Statement of counsel foi- defendant-in-error that physical disal)ility is by no means suf- ficient to vitiate notice, citinweress Estate, 53 Am. Dec. 554 337 Garvin v. State, 52 Miss. 207 290 Gannt v. State, 50 N. J. L. 491 289 Great West IMininji' Co. vs. Woodmas of Alston Mining- Co., 12 Col. 46 184 Hall V. Warren, 9 Ves. 603 338 Harlan, Mr. -histice, Opinion in the Rnnk Case_ 292 Hathaway v. Clark, 5 Pick. 490 177 Hinchman v. Richie, 1 Bright Rep. 144 156, 240 Holman v. Holman, 80 Me. 139 247 Hutchens v. Johnson, 12 Conn. 376 178,218 Teck, Ri-y Sing v. Anderson, 57 Cal. 251 181 James, re, 30 How Pr. ( N. Y. ) 453 247 Jones V. Jones, 45 Ind. 148 290 X PAGE Kemniler, in re, 186 U. S. 436 192 Lagraves Case, lb. ]). 333 (Sup. (H. 1st Dist.)__ 146 Laml)ert, re W. H. ((Vil.) L. E. A. 55 200 McCiirrj y. Hooper, 12 Ala. 823 185 McGee v. Hayes, 127 Cal. 336 181 McMiu-ray v. Hooper (Ala.) 46 Am. Dee. 280-__ 217 Mandeville v. Reynolds, 68 N. Y 155 Marshall v. Holmes, 141 U. S. 589 171 Matter of Killau, 172 N. Y. 547 155 Matter of Kmiball, 155 N. Y. 62 155 Matter of Law, 56 App. Div. 454 157 Meade v. Dep. Marshal, Va. Dist., 1 Brock. 324, Fed. Cas , 213 Metealf v. Hark, 41 Barb. 45 146 Meiirers Appeal, 119 Pa. St. 115 225 Molton V. Henderson, 62 Ala. 426 180 Moody y. Bibbs, 50 Ala. 245 192 Mnllioan y. Smith, 59 Cal. 206 181 Mnlhado y. Brooklyn City E. E., 30 N. Y. 370— 290 Murray s Lessee v. Hoboken Land Co., 18 How. 272 188 O'Donoghue y. Boies, 157 X. Y. 87 157 Olean St. E. E. Co. y. Fairmount Construction Co., 55 App. Diy. Sup. Ct 141 Overly y. Gordon, 171 U. S. 21 156 Owings, Eebecca, re, 1 Bland Ch. Eep. 489 232 Parsons y. Eussell, 11 Mich. 113 197 People ew rel Gould y. Barker, 150 N. Y. 52 156 People ex rel Elizabeth Ordway y. St. Saviour Asylum, 34 App. Div 240 XI PAGE l»liila(k'lphia v. Miller, 49 Pemi. 440 196 Portland y. Bangor, 65 Me. 120 196 Reynolds y. Etna, 160 N. Y. 635 154 Res Adjndieata and Collateral Attack 154 Scott y. McNeill, 154 U. S. 34 155, 156 Simon y. Craft 99,440 Snellinji y. Watrons, 2 Paige 314 145 Smith y. Reed, 134 N. Y. 568 155 Smith y. l^nrlingame, 6 Martin's Rep. 643 231, 271 Stafford y. Stafford, 6 Martin's Rep. 643 231,271 State y. Billings, Am. St. Rep. 525 241,271 State y. Goodwill, 25 Am. St. Rep. 876 287 State ex rcl Larkin y. Ryan, 70 Wise. 676 193 State y. Baird, 47 Mo. 301 225 Stewart y. Kirkl)ride, 2 Brewst. 419 198, 271 Stewart y. Palmer, 74 N. Y^ 183 194 Titlow y. Titlow, 93 Am. Dec. 691 337 Territory y. Sheriff of Gallatin Co., 6 Mont. 297 225 Tracey, in re, 1, p. 580 247 Underwood y. McVeigh, 23 Graft ( Va.) 409 252 United States y. Throckmorton, 98 U. S. 616 167 Vanauken, in rr, 10 N. J. Eq. 186 247 Van Den sen y. Newcomer, 40 Mich. 90 236 Wait y. Maxwell, 5 Pick. 219 187 Wendel, Matter of Georgiana G. R., 33 Misc. 496 203,207 Whitemack, in re, 3 N. J. 525 247 Windsor y. McVeigh, 93 U. S. 278 248, 251, 267 Wyckoff y. Packard, 20 Abb. ( N. C. ) 420 145 XII In the Supreme Court of tlie United States OCTOBER XERIVI, 1916 IS7o. 121 JOHN ARMSTIIONG CHALONER, Plaintiff-in-EiTor, agahifit THOMAS T. SHERMAN, Defendant-in-Erior. Brief of Plaintiff-in-Ekror. John Armstrong Ch a loner, pro se. INTRODUCTION TO APPEAL BRIEF AND ARGUMENT. Statement. This action was brouLU'lit by the plaintiff against the defendant on the 5th day of April, 1904. The trial was held before Hon. George C. Holt, District Jndge, and a jury in the United States District Court for the Southern District of New York on the 19th, 20th, 21st and 23d days of February, 1912. At the close of the plaintift's case, the Trial Court directed a verdict in favor of the defendant. In rendering a decision in favor of the de- fendant and against the plaintiff, the Court rendered an opinion orall}' wliicli is fully set. forth in the record. Thereafter and on the 6th day of March, 1912, judgment ^\as entered in the said Court in favor of the defendant and against the plaintilf upon the issues in this action. Thereafter, b^^ order of the Siiid District Court, a writ of error was issued and allowed to the plaintiff to have reviewed in the United States Circuit Court of Appeals, for the Second Circuit, the said judgment heretofore en- tered on the Gth day of March, 1912. A writ of error atid citation was thereupon duly issued to the plaintiff- in-error who duly served his assignment of (M-i'ors upon the defendant in this action. The testimony upon the trial of this case is greatly abbreviated because of the limitations placed upon the plaintiff's counsel by the rulings of the learned Court. Before these limitations were defined by the Court, how- ever, certain evidence was intro- ment theretofore entered on the 27th day of June, 1914, which affirmed the final judgment therein entered on the 6th day of March, 1912, and a further order that all further proceedings be superseded and stayed until the final determination of said writ of error by the said Supreme Court of the United States, and until the further order of the United States Circuit Court of Ap- peals for the Second Circuit. A writ of error and citation was thereupon duly issued to the plaintiff-in-error, who duly served same, and his assignment of errors, upon the defendant in this action. Because of the rulings of the United States Circuit Court of Appeals for the Second Circuit set forth and more specifically referred to in the annexed assignment of errors, the plaintiff-in-error begs leave to appeal to this Honorable Court. 10 UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. JOHN ARMSTRONG CHALONER, Plaintiff-in-Error, aga'mst THOMAS T. SHERMAN, Defendant-in-Error. Assignment of Errors. Now comes the plaiiitiff-in-error, John Armstrong Chaloner, herein by AYilliam D. Reed, his attorney, and respectfully submits and presents and files his assign- ment of errors complained of and says: That in the record of the proceedings in the above entitled cause in the United States Circuit Court of Appeals for the Second Circuit, there is manifest error in this, to-wit: First : That the learned United States Circuit Court of Appeals for the Second Circuit erred in affirming the judgment of the United States District Court for the Southern District of New York, dismissing the com- plaint filed by the plaintilT-in-error in said cause. Second: That the learned United States Circuit Court of Appeals for the Second Circuit erred in affirm- ing the decision of the Trial Court in holding that the plaintiff Chaloner's present condition of sanity never became an issue in the case and could never become so unless the court below had been justified in collaterally 11 settini» aside the decretal order or unless the defendant had adduced some evidence of present incompetency as an affirmative defense. Third : That the learned United States (^ircuit Court of Appeals for the Second Circuit erred in affirming the decision of the trial court in excluding testimony to show the mental condition of the plaintiff, Chaloner, in 1899, and in holding that that issue could not be litigated in this action and Avas solely for the New York Courts. Fourth : That the learned United States Circuit Court of Appeals for the Second Circuit erred in hold- ing that whether or not, in 1897, the plaintiff was lured into this State was immaterial. Fifth : That the learned United States Circuit Court of Appeals for the Second Circuit erred in holding that the New York Court had jurisdiction over the plaintiff" in the 1899 proceedings, even assuming that the plaintiff was at all times a resident of Virginia. Sixth : That the learned United States Circuit Court of Appeals for the Second Circuit erred in holding that the question of plaintiff's residence was one of the facts in issue in the 1899 proceedings and having been there adjudicated that it cannot be collaterally attacked. Seventh: That the learned United States Circuit Court of Appeals for the Second Circuit erred in affirm- ing the rulings of the Trial Court in excluding testi- mony offered to show that the testimony in the 1899 proceedings was perjurious. 12 Eighth : That tlie learned United States Circuit Court of Appeals for the Second Circuit erred in holding that the plaintiff, Chaloner, failed to appear in the 1899 proceedings after dnc notice of the order or judgment to appear. Ninth : That the learned United States Circuit Court of Appeals for the Second Circuit erred in holding that cai'e was exercised in serving the various notices of mo- tions and proceedings on the plaint itf, Chaloner. Tenth : That the learned United States Circuit Court of Appeals for the Second Circuit erred in its finding that the plaintitf, Chaloner, deliberately failed to appear in the 1899 proceedings. Eleventh : That the leai'iied United States Circuit Court of Appeals for the Second Circuit erred in finding that full opportunity was afforded to the plaintiff, Chal- oner, to appear in the 1899 proceedings. Twelfth : That the learned ITnited States Circuit Court of Appeals for the Second Circuit erred in hold- ing that the propriety and sufiiciency of the notice to the plaintiff, Chaloner, of the 1899 proceedings are no longer open to (luestion. Thiteenth : That the learned United States Circuit Court of Appeals foi* the Second Circuit erred in hold- ing that in regard to the failure to give the plaintiff, Chaloner, notice of the resignation of the committee, Butler, and the appointment of Sherman, as committee, that there is no statutory requirement of notice in such a proceeding and that notice to the committee of a pro- posed removal is the only notice required. 13 FouRTEKXTH : That the learned United States CMrenit Coni't of Appeals for the Second Circuit erred in holding? tliat if notice were required the failure to i;ive it is an irregularity Avhich must be dealt with by the State Court of original jurisdiction. Fifteenth : That the learned United States Circuit Court of Appeals for tlie Second Circuit erred in holding that the judgment of the New York Court was not a void judgment. Sixteenth: That the learned United States Circuit Court of Appeals for the Second Circuit erred in hold- ing that the judgment of the New York Court must re- main valid until reversed or set aside by the Courts of New York. Seventeenth : Tliat the learned United States Circuit Court of Appeals for the Second Circuit erred in holding that the judgment of the Supreme Court of New York remains today in full force and validity. Eighteenth : That the learned United States Circuit Coul^t of Appeals for the Second Circuit erred in holding that if the petitioner's sanity is established and even if some of the requirements of the statute had been omitted or neglected or insuliftcient evidence of insanity was ad- duced, relief must be obtained in the court which ap- pointed the committee. Nineteenth : That the learned United States Circuit Court of xVppeals for the Second Circuit erred in holding that this Federal Court has not jurisdiction to set aside or annul the judgment of the State Supreme Court. 14 Wherefore the said plaintiff-iu-error prays that the judgment of the Circuit Court of Appeals for the Second Circuit and the judgment of the District Court of the United States for the Southern District of New York be reversed and sucli directions be given that full force and efficacy may enure to said i^laintiff-in-error by rea- son of the allegations set up in the complaint filed in said cause. WILLIAM D. REED, Attorney for plaintiff-in-Error, John Armstrong Chaloner. Office and postoffice address : 45 Cedar Street, Borough of Manhattan, New York City. (From Trial Brief* in iliaJoncr against i^herniaiiy pp. 152-163.) THE NINETEEN POINTS. Points of Law. Point 1. — The commitment proceedings were void for the following reasons, to-wit: There was fraud and trickery in luring the plaintiff, John Armstrong Chal- oner, a citizen of Virginia, into a foreign jurisdiction for the purpose of depriving him of liberty and property on a false charge of insanity. Point 2. — The said proceedings were void for the fol- lowing reason, to-wit : There was fraud and trickery upon the part of the Medical Examiners in Lunacy in the pay of the petitioners, who, in order to keep plaintiff" in ignorance of the acts of the said ])etitioners, and that he should have no knowledge of the impending action. ♦Written by plaintiff-in-error in 1902-1904. Printed and copy- righted, 1905. 15 upou the part of the said petitioners, to deprive him of liberty and property on the said false charge of insanity, pretended to liave an interest in trances-states and r<*- quested plaintiff to enter a trance in order, as they al- leged, that they might for purely scientific reasons, note the action of a trance. Plaintiff, to oblige said Exam- iners in Lunacy, who never announced themselves as such, but kept said fact strictly in the background, and appeared in the guise, one of a surgeon, the other of an oculist — entered said trance. While in said trance, plaintiff nuide some remarks. 8aid remarks form the main charge against the sanity of the plaintiff. Said remarks were made wholly without the slightest ratio- cination or volition upon plaiutift"'s part, except that, to oblige the said surgeon and the said "oculist," he per- mitted himself to enter said trance and while in said trance, for purely scientific reasons, temporarily sur- rendered his reasoning and speaking faculties to the in- fluence of said trance. The said medical men expressed themselves as interested in said trance-phenomena, and thereupon took their departure. They visited plaintiff" on one other occasion when the trance was resumed. There- upon after a discussion of trances in general and plain- tiff's in particular, said parties departed. A short time thereafter the "oculist" appeared and brusquely in- formed plaintiff, who was at his rooms at a hotel in New York City, at which he was temporarily sojourning, and in which rooms the said conversations had taken place, that he was insane and that he must accompany said "oculist," who now, for the first time, disclosed his identity, and said that he was a Medical Examiner in Lunacy, employed by the said petitioners. Plaintiff laughed at the allegations of insanity, and reciuested said examiner in lunacy to state the grounds upon which said allegation was based. Said medical man thereupon said, 16 ''The things you said in tlie trance." Plaintiff laughed at this, whereupon said medical man said : "Don't you believe the things you said in the trance?" Upon which plaintiff replied with an emphatic negative. Plaintitf declined to accompany said medical man, whereupon, some twenty hours later, March 13th, 1897, plaintiff was arrested by two policemen in plain clothes in his said rooms, and taken by them to The Society of the New York Hospital at White Plains, Westchester County, New York, falsely known as "Bloomingdale," and there incarcerated for three years and eight months in a barred cell, on a false charge of lunacy ; until Thanksgiving eve, 1900, when plaintiff escaped and fled to Philadelphia. Plaintiff was, of course, no more legally accountable for what he said in said trance, under the said circumstances, than he would have been legally accountable for remarks made in his sleep. Point 3. — The said proceedings were void for the fol- lowing reason, to-wit: There was fraud npon the Court, as well as upon the party, upon the part of the said Medical Examiners in Lunacy. Said medical men doc- tored plaintiff's trance utterances; that is to say, said medical men divided said trance utterances into two divisions. The first division said medical men took out of the said trance utterances, and placed by themselves. The second division said medical men mixed; leaving part to be guessed at by the Court, and taking the other part out of said trance utterances. The parts in both instances which were taken out of the trance utterances were stated by said medical men as having been said by plain- tiif, leaving it to be inferred that said parts were not parts of said trance utterances but were plaintiff's own views which, upon the evidence, it being admitted by said medical men that plaintiff "frequently went into a 17 traiiee-like state," upon said evidence tliey emphatically were not. Fnrtliennore : Said medical men also swore that plaintiti" was ''violent" and ''dangerous," two al- legations profoundly false, and totally disproved by plaintitf's conduct at the time, and during the three years and eight months he was incarcerated at White Plains. In the proceedings in 1899 not one word was said about plaintiff's being dangerous or harmful to him- self or anybody else, not one word even by the paid wit- nesses of the other side, and plaintiff had then been for over two years under observation. Point 4. — The said proceedings were void for the following reasons, to wit: There was perjury upon the part of the said petitioners \\ho, although at the time the said falsely alleged acts on the part of plaintiff were falsely sworn, of their 0A\n knowledge, l)y said peti- tioners, to have occurred at plaintiff's home in Vir- ginia, said petitioners were widely separated from plain- tife ; one of the said petitioners being in New York, one of the said petitioners beiuii; in New England, and the third of the said petitioners l)eing in England. Point 5. — The said proceedings were void for the fol- lowing reason, to wit : There was fraud upon the ('ourt as well as upon the party, upon the part of the said petitioners. P'or the foundation of the commitment pro- ceedings had in New York (Mty, March 10, 1S97, was the sworn testimony of the said petitioners who — with the exception of the said medical men— were the only witnesses sworn at said proceedings; and the ('ourt re- lied upon the truth of the oaths of said i)etitioners that their said allegations against the plaintiff's sanity were of their oivn knoiclcdge, whereas they were emphatically the reverse. 18 1*0INT (). — The said pvoceediiij's were void in toto, for the reason that owing- to the fact that plaintiff was Ivept away from Conrt by perjnry and tiitkery, as aforesaid, there was no real contest. Point 7. — The said proceedings in 1899 were void in toto, for the reason that owing to the fact that plaintiff, by contrivance, was kept away from Court, there was no real contest. The said contrivance being that instead of setting the hearing in the County Court House of West- chester County, at White Plains, where plaintiff was confined, said hearing was set in Manhattan, over twenty miles away. This was done to keep plaintiff out of Court, for said petitioners were in a i)osition to know of plain- tiff's physical disability, aforesaid, at the time. Where- as had said hearing been set at White Plains Court- less than a mile from plaintiff's cell— plaintiff could have been carried there in a carriage without danger of injury to him; or, if that was not done, committees of the said Commission and jury could, in an hour, have visited him and examined him. Point 8. — The said i)roceediiigs in IS99 were void for the following reasons, to wit : (a) The only evidence of plaintiff's alleged incompe- tency came from the said two medical nu^n in the pay of the other side, and fi'om the said Medical Superin- tendent of The Society of the New York Hospital. Said evidence was on the evidence strictly of two varieties, to wit, frivolous, or ])erjured. The basis of the allega- tions of the two said medical nien against plaintiff's competency and sanity was the aforesaid trance. At the special request of said medical men ))laintiff', for scientific reasons, entered a trance in order that he miiiht hear the comments thereon of two medical men 19 who alleiied that they were interested in trances. The only time that idaintitf entered a trance durini; his stay of three vears and eii>ht months at White Phiins was in the presence of said medical men. IMaintiff di' ])laintif¥ a prisoner on a false charge, and nnder void proceedings. Said medical men to whom plaintiff had spoken as freely npon said topics as in said letter, palpably — as will ap- pear upon reading' said medical men's sworn evidence at the said proceedings in 181)9, and as Avill appear npon reading in connection therewith plaintiff's said attached letter — said medical men palpal)ly and in a most bare- faced and preposterous fashion garbled the substance of said conversation and of said letter. The balance of material allegations are on a par with above for bare- faced perjury. Lastly, said medical men palpably per- jured themselves on the witness stand at said proceed- ings in 1899, by swearing in effect that plaintiff was not only hopelessly insane and incompetent, but that plain- tiff was increasingly so, and that plaintift"'s falsely al- leged insanity and falsely alleged incompetency w'ould increase with the lapse of time; all of which palpably perjurious allegations have been abundantly disproved by plaintiff's acts since said trial, and by plaintiff's trial November G, 1901, in the Countv Court of Albemarle County, Virginia, the same being a court of record, in which county plaintiff's home is ; at which trial plaintiff' was declared both sane and competent; said trial hav- ing been instituted by a neighbor, upon plaintiff's re- appearance at plaintiff's said home after plaintiff's said escape, with a view to ascertaining plaintiff's sanity and competency ; plaintiff' at this time standing under the said void New York proceedings, in the light of an es- caped lunatic, whom it was dangerous to allow at large. Plaintiff has since lived continuously at his said home in Albemarle County, Virginia, undisturbed. And all of which plain tiff-in-error offered to prove on the trial in the lower Court, but was barred from doing 21 so by the erroiiooiis iiiliiij>s of the learned Trial Judge, (pp. ;iO-:«, fols. ry7A)?>; pp. 57-GO, fols. 107-112.) Point 0. — The said proceedini>s were void in toto for they were without due process of law, and, therefore, unconstitutional, for the following reason: There was lack of notice. Point 10. — The said proceedings were void for the fol- lowing- reason, to-wit: They were summary. Lunacy proceedings in New York State are mandatory, in de- rogation of common law rights, and must, therefore, be strictly observed in pursuance of the statute. While said commitment was, in fact, made to the Society of the New York Hospital, it was not so stated; the term Bloomingdale Asylum being used, an. institution un- known to the law. Point U. — The proceedings in New York City in 1899, before a Commission and a Sheriff's jury to de- clare plaintiff an incompetent person in ahsentia, plain- tiff never being before the jury or represented in Court in any way, were void /// toto; for they were without due process of law, and therefore unconstitutional, for the following reasons: (a) There was lack of proper notice, for the plaintiff being at the time in duress of imprisonment, illegally confined under void proceedings, and without access to counsel, the so-called notice was no notice at all. (b) There was lack of opportunity to ap- pear and be heard. For plaintiff, upon the sworn testi- mony of the medical men in the pay of petitioners, was incapacitated from coming into Court, plaintiff being in bed with an affection of the spine at the time of said trial, and having been so for more than three weeks pre- vious thereto. 22 Point 12. — The said proceediiiiis in 181)9 were void for lack of due process of law for the following reasons, to-wit : >SV«V? trial teas had lit ahscntia. The Court failed to direct the appearance, before said Commission and said Sheritl's jury, of plaintiff and the Court also failed to direct that, failing this, said Commission and jurj^ or committees made up therefrom should visit plaintiff in his cell in the Society of the New York Hospital, at White Plains. Point 13. — The said proceedings in 1899 were void for lack of due process of law, for the follo^^'ing reasons, to- wit : (1) Although notice of the said proceedings could have been given days earlier, the order was barely com- plied with in giving the required five days, and the hear- ing placed at the unheard of hour of four o'clock in the afternoon in New York Citv, more than twentv miles away from White Plains, where plaintiff was confine!!. This would naturally hurry the trial. (2) Tlie < from hick of proper evidence. Unless there is clear proof of insanity a judg- ment against the party founded thereon runs foul of the constitutional provision. On tlie maxim that "only the best evidence procurable is admissible" no evidence, short of the alleged lunatic's personal appearance iu Court or before a committee of the jury, can be the best evidence procurable of said alleged lunatic's mental and physical condition. Anything short of said personal appearance is purel}^ e.r parte and therefore void. The sum total of the evidence against plaintiff in the proceedings in 1897 was made up of either purely perjured testimony upon the part of the said petitioners, or purely bought and paid for testimony upon the part of the said medical examiners in lunacy hired by the said petitioners. The sum total of the evidence against plaintiff in the pro- ceedings iu 1899 was made up of the aforesaid evidence^ perjured testimony, upon the part of the said medical examiners in lunacy, who, as in the first instance, were in the pay of the other side. The bulk of the evidence in both said proceedings had to do with the purely friv- olous charge that plaintiff entered upon occasionsil trances, and trance-like states. Not one word was ut- tered at either of the said proceedings against plain- tiff's business capacity, or business judgment, or business foresight, or business prudence. And this fatal omis- sion was in the teeth of the fact that plaintiff was, at the time the said proceedings in 1897 were instituted, ac- tively engaged in large business operations, in which plaintiff had been engaged for four years past, and was holding the position as a member of the Board of Direc- 24 tors in two large corporations at the time of plaintitf's said arrest and imprisonment upon a false charge of lunacy (pp. 36-37, fols. 69-71 ; pp. 46-47, fols. 87-89). Not a single one of plaintiff's associates upon said Boards was called as a witness against plaintiff's sanity. In short the whole evidence in plaintiff's case goes to prove plain- tiff's permanent and unhroken sanity and competency through life. (See Plaintiff's Exhibit 3, and Plaintiff's Exhibit 7 for identification.) Point 15. — Plaintiff's sanity at the time of arrest is proved by plaintiff's letter to Hon. Micajah Woods, dated July 3rd, 1897, upon Mr. Justice Harlan's opinion in the Runk case, which holds that a written instrument by a person accused of insanity may successfully offset prima facie evidence of insanity. ( See Plaintiff's Ex- hibit 6 for identification.) This document, written by the plaintiff in July, 1897, was erroneously excluded by the Trial Court, (pp. 60-61, fols. 113-116.) Point 16. — The said proceedings in 1899 were void for the reason that the only evidence of plaintiff"'s alleged incompetency came from two medical men in the pay of the said petitioners, and from the medical men in charge of the Society of the New York Hospital where plaintiff was confined, and to whose pecuniary interest it was therefore — plaintiff being the highest pay (falsely al- leged) "patient" in said hospital — to keep plaintiff in said hospital as long as he could ; and said paid for, or otherwise pecuniarily interested, evidence, standing un- contradicted — for the reason aforesaid that plaintiff' was by said contrivance aforesaid kept out of Court and therefore was unable to contradict said evidence — said evidence standing uncontradicted was not a valid foun- dation for the judgment which followed. 25 Point 17. — Even if the judginent of the New York State Courts in 1897 and 1899 aforesaid, were not totally null and void for the reasons aforesaid, the said judg- ments are now functus officio for the reason that they have nothing to feed upon, a judgment in insanity self- evidently — since insanity is not always incurable — not being a continuing one, and plaintiff having been found to be both sane and competent, as well as a citizen of Virginia, by the said judgment -rendered November G, 1901, by the said Virginia Court (Plaintiff's Exhibit 7 for identification). Point 18. — Upon the above grounds of fraud, want of jurisdiction, lack of due process of law, unconstitu- tionality, illegality, nullity, and functus officio the said New York proceedings may be attacked collaterally; and T. T. Sherman, the so-called committee of plaintiff's person and estate, who is merely a Trustee ex maleficio may be assailed as a trespasser upon plaintiff's prop- erty. Point 19. — Plaintiff being a citizen of Virginia, and the said alleged committee of plaintiff's person and es- tate being a citizen of New York and doing business in New York City, and the amount in controversy being over three thousand dollars, the Federal Circuit Court for the Southern District of New York has jurisdiction. The foregoing nineteen points of law are discussed in detail and at length hereinafter. 'H WHAT WE SHALL PROVE. Upon the accoinpanying- authorities we shall establish the above points of law. In particular : First. — That Point 9 proves the constitutional right to notice. Second. — That Point 11 proves the constitutional right to opportunity to appear and be heard. Third. — That Point 12 proves that trials in absentia are illegal. Fourth. — That Point 15 proves that an instrument written by a person accused of insanity may success- fully offset said charge. The evidence offered by the plaintiff-in-error on the trial of this case, but excluded by the Court with excep- tion to the plaintiff, would have shown : (1) That plaintiff has always been sane and compe- tent (Transcript of Record, pp. 57-58, fols. 107-113.). (2) That plaintiff was lured into a foreign jurisdic- tion under false pretenses for the purpose of depriving him of liberty and property upon a false charge of in- sanity ( pp. 46-49, fols. 87-92. ) (3) That plaintiff and petitioners had, for a long period, l)een on unfriendly terms; and that interested motives had to do with the said lunacy proceedings being instituted. (4) That facts were purposely withheld from the Court, and proceedings taken, which, if known to the Court, would have prevented the judgment received, (pp. 30-33, fols. 50-63.) (5) False statements upon the part of the petitioners and others in connection M'ith said case (p. 25, fols. 47- 49 ; pp. 26-30, fols. 50-57). (6) Conspiracy in connection Avith said case. (pp. 30-33, fols. 56-63.) 27 (7) And generally, that the Court was scandalously used as a machine for achieving a criminal purpose. Upon the accompanying authorities we shall establish the above points of law.* The documents annexed to plaintiff's affidavit and the documents annexed to this brief will show that we shall i)rove in this case : ( 1 ) "That plaintitf has always been sane and com- petent.'' Said letter of July 3rd, 1897, and said Trial Brief prove said contention: Supported by Mr. Justice Har- lan's said opinion in the Runk case aforesaid, which maintains that a written instrument by an alleged luna- tic can successfully ott'set medical evidence against the writer's sanity. (2) ''That plaintiff was lured into a foreign juris- diction under false pretenses for the purpose of depriv- ing him of liberty and property, upon a false charge of insanity." The said 'statement of facts proves said contention. (3) "That plaintiff and petitioners had, for a long period, been on unfriendly terms; and that interested motives had to do with the said Lunacy Proceedings being instituted." The said letters from plaintiff's family annexed to plaintiff's affidavit aforesaid as well as plaintiff's alle- gations thereanent in said letter of July 3rd, 1897, to Captain Micajah AA^)ods corroborated by said letter of the late Hon. Janu^s Lindsay Gordon, aforesaid, prove said contentions ( ])age 131, Trial Brief on file in Chal- oner against Sherman). (1) ''That facts were purposely withheld from the Court, and i^roceedings taken, which, if known to the Court, would have prevented the judgment received." The said statement of facts proves said contention. *1905 Trial Brief, third line foot page 537. 28 (5) "We shall show false statements upon the part of the petitioners and others in connection with said case." The said commitment papers and plaintiff's examina- tion of the testimony of the proceedings of 1899 prove said contention. (6) "We shall show conspiracy in connection with said case." The said statement of facts proves said contention. (7) "And generally, we shall show that the (^ourt was scandalonslv used as a machine for achieving a criminal purpose." The said statement of facts prov^es the said contention. EPITOME. The plaintiff in said case being a citizen of Virginia, while being interested in a law business in New York City and a manufacturing business in North Carolina, occasionally visited New York. Upon one of said oc- casional trips to New York an altercation of a busi- ness nature arose between plaintiff and a certain party who later assumed the role of one of the three peti- tioners in a proceeding to ha^'e plaintiff" declared and locked up as a lunatic. Shortly after said altercation plaintiff returned to plaintiff's home in Virginia. It might be as well to observe tliat besides the afore- said occupations plaintiff, a blaster of Arts of Columbia University, had more or less kept up an interest in psychology after graduating therefrom, and had for some four years previous to March, 1897 — the time of the bringing of the said proceedings in lunacy — spent much spare time — after business hours — in carrying on inves- tigations in experimental psychology which, strangely enough, resulted in plaintiff's developing mediumistic 29 or psychic powers a few months before March, 1897. It should be borne in mind that phiintitf, thoui^h Iteinj^- a so-called medium, is and always has been strongly anti- spiritualistic in plaintiff's bent, attributiuL!: said niedium- istic phenomena, such as automatic writin.<>;, and trances, and trance-like states, to purely psycholoiiical forces. Said party with whom plaintiff had had said business altercation, hearing of plaintift^s said experiments in ex- perimental psychology, saw an oppoi'tnnity. Said party thereupon sent an emissary, accompanied by a physician, totally unannounced, to plaintiff's home in Virginia in February, 1897, with the purpose thereby of enticing plaintiff to the City of New York, with the purpose of there incarcerating plaintiff" for life upon a trumped-up charge of lunacy based upon plaintiff's utterances while in said trance-like states. Said emissary, being a very old and very intimate friend of plaintiff — albeit said emissary and plaintiff"s relations were at said time a trifle strained from a rather abusive letter said emissary had written plaintiff' recently — plaintiff' yielded to the urgent appeals of said emissary to accompany said emis- sary to New York. Plaintiff was further led to do so as plaintiff had some business in New York at said time which needed looking after. Upon reaching New York City plaintiff was ap- proached by said emissary and said physician with re- gard to favoring said parties with the sight of plaintiff' in a trance. Plaintiff readily complied in the privacy of plaintiff's rooms in the hotel at which plaintiff was stop- ping in New York City. Shortly thereafter said physician brought a perfect stranger into plaintiff's said rooms without announcing said stranger. Plaintiff expostulated Avitli said physi- cian thereupon, but finally to oblige said physician, com- plied with said physician's request and entered a trance- 'SO like state before said stranger. It might be as well to observe that said stranger presented himself under false colors, since said stranger pretended to be an oculist wliile in reality said stranger was a medical examiner in lunacv. Shortly thereafter said stranger reappeared in plain- tiff's rooms after dark, and ordt;^red plaintiff to get up — plaintiff" was in bed at said time — and accompany said stranger to an unnamed destination. Said stranger promptly warned plaintiff* that resistance would l)e use- less since said stranger had another num in the next room and two other men outside the door. Plaintiff' perfectly (juietly and without the slightest show of force, as promptly convinced said stranger that said stranger had failed to bring enough men to carry off plaintiff that night. Next day two police officers in plain clothes presented themselves at plaintiff's said hotel, and plain- tiff, without unnecessary argument, permitted said policemen to escort plaintiff to the Society of the New York Hospital, at White Plains, New York. It turned out tliat said party joining with two other parties liad run plaintiff* into an insane asylum upon a false charge of lunacy, in order to get plaintiff" out of the wav. It miiilit be as well to state that plaintiff was on exceedingly bad terms with said two other parties, who therefore readily joined said party in said conspiracy. After eff'orts, extending over a period of nearly four years, plaintiff' abandoned all hope of ever getting out of said insane asylum alive and thereupon decided to escape therefrom, and did escape therefr<»m, thereupon. After six months' voluntary stay in a ])rivate sani- torium in Philadelphia, whither plaintiff had fled to safety, and to have plaintiff's sanity and competency tested as a set-off' lo the nearly four years aforesaid of false imprisonment upon said trumped-up charge of 31 hiiiacy and iiicoinpeteiicy, plaintiff spent six weeks at another private sanitoriuni in Delaware County, Penn- sylvania, after the snnimer-closini;- of said IMiiladelpliia sanitoriuni; and while plaintiff was \vaitini>- for plain- tiff's Virginia eounsel to get througli said counsel's legal engagements sufficiently to together meet plaintiff in conference in Virginia. Thereupon plaintiff set out for Virginia. Thereupon plaintiff" landed in l^ynchl)urg, Virginia, where plaintiff remained until the twentieth of Septend)er, 1901, when plaintiff, accompanied by plain- tiff's said counsel, put in an appearance at Charlottes- ville, Va., the county town of the county in which plain- tiff"s home is situated. Thereupon plaintiff was tried — Novend)er Gth, 1901 — in the (\)unty Court of said Albe- marle Countv, Virginia, situated at Charlottesville, aforesaid, in a proceedings brought by a neighbor of plaintiff' in said county, in order to ascertain whether or not a Committee for the person and property of plain- tiff should be appointed, since plaintiff' was regarded as a dangerous escaped lunatic upon the strength of plain- tiff's said nearly four years' imprisonment in said insane asylum. Thereupon plaintiff was fully ac(|uitted of said charge of being a lunatic and said Court dismissed said petition for a Committee of plaintiff's person and estate. Thereupon plaintiff" and plaintiff's New York counsel have been at work upon plaintiff's case. Plaintiff" has written this entire brief, since plaintiff, being a psycholo- gist as well as a member of the New York Bar of more than twenty years' standing, was equipped therefor. The delay in getting to (\)urt is amply accounted for in said brief. 32 From APPEAL BKIEF. In Chaloiier ajiainst t^hermaii To The United States Circuit Court of Appeals for the Second Circuit. Your petitioner respectfully suggests that a word of explanation may not be out of place concerning the unusual circumstances of your petitioner's drawing up his own brief on appeal. Briefly the circumstances are these: The entire substance-matter making up said brief on appeal is taken from books or documents already copy- righted or written by your petitioner. For example. The entire list of authorities is drawn from the fifteen hundred page law book, copyrighted by your petitioner in 1905 — after requiring two full years of incessant and arduous toil and research upon your petitioner's part to write— and in the evidence at the trial of this case entitled "*Brief and Appendix in Chal- oner against Slierman,'' containing Brief and Argument- in- Writing. The assignment of errors hereto annexed was c1i-awn by your petitioner. Lastly. Tlie argument in the sliape of parallels — and so designated — in which the rulings of the United States Circuit Court of Appeals for the Second Circuit, in 162 ♦Described hereafter as Trial Brief. 33 Federal Keports, 19, are paralleled by those of the learned Trial Court and where the more than a score of instances in which said learned Trial Court reversed the rulings of the learned Appellate Court, are briefly set forth for the convenience of this learned Court in the form of parallels, to save labor and time in this most voluminous case; said parallels were drawn up by your petitioner. The statement of facts and tli-e law of this case can- not be more comprehensively or succinctly put than by the learned United States Circuit Court of Appeals for the Second Circuit, in its opinion handed down May 11th, 1908, and entitled 162 Federal Reports, 19. Your peti- tioner therefore inserts said 162 Federal Keports, 19, in ecotenso. 162 Federal Reports, 19. Chaiilcr v. ^liermmi. (Circuit Court of Appeals, Second Circuit.) May 11, 1908. No. 201. In error to the Circuit C^ourt of the United States for the Southern District of New York, W. D. Reed, for plaintiff -in-error ; Evarts, Choate and Sherman (J. H. Choate, Jr., and George L. Kobbe, of counsel), for de- fendant-in-error. Before Lacombe, Coxe and Noyes, Circuit Judges. Noyes, Circuit Judge : "This appeal is from the denial of a petition for (3) 34 an auxiliary order in the nature of a writ of protection, in an action at law for conversion. "The situation as disclosed by the record in the action and by the affidavits upon the petition may be thus briefly stated. " ( 1 ) In 1897 the petitioner — being the plaintiff in said action — was adjudged insane by a Justice of the Supreme Court of New York, and ordered committed to 'Bloomingdale' Asylum, an institu- tion for the custody of the insane, to which he was duly taken and from which he escaped in 1900 and went to Virginia. "(2) In 1899 an order was made by the Su- preme Court of New York finding that the peti- tioner was of unsound mind, and appointing a committee of his person and property, which of- fice is now held by the defendant in this action. "(?>) In 1901 upon an application made to the County Court of Albemarle County, Virginia, where the petitioner then resided, alleging that he had previously been adjudged insane in New York and praying for an examination as to his then condition, said Court found that he was sane and capable of managing his affairs. " ( 4 ) In 1904 the petitioner brought this action in the Circuit Court as a citizen of Virginia aver- ring that he was sane, and had so been declared by the Virginia Court, and that said orders of the Supreme Court of New York and of the jus- tice thereof were void for want of jurisdiction, and demanding damages from the defendant u])on the theory that he had converted the property of the petitioner in his hands as committee. "(^) The defendant in his answer, not only re- 35 lied upon said New York orders but went further, and alleged that the plaintiff — the petitioner — was and had been in fact insane, and that the judgment of the Virginia Court was collusive and void. "(6) The time for the trial of said action ap- proaching, the plaintiff tiled the present petition, stating that his presence as a witness at the trial was imperatively required, but that in case he returned to New York he was threatened with re- incarceration in the asylum, notwithstanding the Virginia decree. "He therefore prayed for an order protecting him while coming into the State of New York, attending the trial and returning. "It is apparent from the record that upon the issues as they stand, the attendance of the peti- tioner at the trial is necessarv. His case cannot be presented without him. And it is also most probable that, if the petitioner return to New York without protection he will be apprehended and retaken to the asylum, as an escaped patient. Without relief he is in this predicament. He must abandon his action for the recovery of a quarter of a million dollars in order to retain his freedom, or. must abandon his liberty in order to try his case. The Constitution of the United States vests in its Judicial Department jurisdic- tion over controversies between citizens of differ- ent States. The petitioner as a citizen of the State of Virginia in bringing his said suit in the Circuit Court of the United States, was availing himself of a right founded upon this constitu- ao tioiial provision.* And he came into that Court with a decree of the ( 'ourt of the State of which he was a citizen, declaring his sanity. "We cannot disregard that decree. In consid- ering it we do not ignore the orders of the Courts of New Yorli;. Insanity is not necessarily perma- nent. For the purpose of this petition — laying aside jurisdictional (questions — we may properly consider that the petitioner was insane when so declared in New York, but that he had recovered his sanity when he was declared sane in Virginia. "The question, then, is whether a circuit court of the United States has power to protect a per- son in the situation of the petitioner while at- tending the trial of his cause therein. It is ob- jected at the outset that the Circuit Court has no power to grant a protective order because it would have the effect of restraining proceedings in a State Court. Section 720 of the Revised *Mr. Justice Harlan in Arrov^smith v. Gleason, 129 U. S. and Marshall v. Holmes, 141 U. S. But this Court, observing that the Constitutional right of the citi- zen of one State to sue a citizen of another State in the Courts of the United States, instead of resorting to a State tribunal, would be worth nothing, if the Court in which the suit is instituted could not proceed to judgment and afford a suitable measure of redress, said: "We have repeatedly held that the jurisdiction of the Courts of the United States, over controversies between citizens of differ- ent States, cannot be impaired by the laws of the States which prescribe the modes of redress in their Courts, or which regulate the distribution of their judicial power. Arrowsmith v. Gleason. 129 U. S." Is it true that a Circuit Court of the United States, in the exercise of its equity powers, and cohere diverse citizenship gives jurisdiction over the parties, may not, in any case, deprive a party of the benefit of a judgment fraudulently obtained by him in a State Court, the circumstances being such as would authorize relief by the Federal Court, if the judgment had been rendered by it and not by a State Court? Marshall v. Holmes. 141 U. S. • 37 Statutes prohibits the granting- of writs of in- junction to stay proceedings in any Court of a State, except when authorized in bankruptcy pro- ceedings. But, assuming that the order at pres- ent prayed for would have injunctive effect, our attention has been directed to no proceeding pend- ing in a State Court which it would stay. "It appears that ten years ago a judge of a State Court signed an order coniniitting the peti- tioner to an asylum, and that tlie order was com- plied witli. It does not appear that those pro- ceedings are still pending, or that resort to them would be necessary to recommit the petitioner to the asylum. The Statutes of New York appar- ently provide that patients escaping from insane hospitals may be returned by peace oflflcers and by designated hospital attendants. "No proceedings in Court seem necessary or to be provided for. The only other proceedings in New York — those in which a committee was ap- pointed — if still regarded as pending would not be staved bv a protection order, because it was not the object of those proceedings to commit the petitioner to an asylum. He was already in one when they were instituted. "The next objection is that the petitioner ought to apply to the Courts of the State of New York for the recision of the orders committing him to the asylum and appointing a committee of his person and property. We have not the slightest doubt that full justice would be done the peti- tioner should he submit himself to the jurisdic- tion of the State Courts. "But to assume that he was under any obliga- tion to resort to them is to beg the whole ques- 38 tion at issue. To say that the orders in question were valid and must stand until set aside by the tribunal which granted them, is to assert that the petitioner has no cause of action in the Circuit Court. But he states a cause of action. He as- serts that the orders were wholly void for want of jurisdiction. And if the}' were void, they were of no effect, and the petitioner had a right to assert their invalidity in any Court. ''We now come to the broad question of the power of the Circuit Court to grant a protective writ. "Such writs liave been issued since early times to protect witnesses and parties coming from one State into another to attend a trial, from arrest and detention upon civil process. It is true that if the petitioner Avere retaken as an escaped in- sane patient, it would not be upon civil process. But whatever the form of process — if any at all were necessary — tlie power exercised to retake him would be tliat of the police. \Vith the exercise of the police power of a State a Court of the United States should not lightly interfere. But we have no doubt of its right to interfere wlieu necessarv for the efficient exercise of its own jurisdiction and where the threatened act under the police power must rest for its justification upon the validity of the v(^ry matter whicli the Court is called upon to determine. "The petitioner was given tlie right, under the laws of the I'nited States, to try his case in the Courts of the Ignited States. He is not permit- ted to exercise that full right, and the Court in effect is not permitted to exercise its full jurisdic- tion, if, while attending the trial and perhaps 39 before he can be heard, lie may be seized and taken to an asylum — and so seized for the reason that he had been previously committed under an order which the petitioner in the very case was assert- ing to be wholly void. Under such extraordinary conditions, we think the Circuit (^our^ had the power to grant the protective writ. "Having determined the question of power, we come to the propriety of exercising it. "Notwithstanding the fact that the petitioner is at liberty in other States, it is suggested that it would be unsafe for him to be brought to New York. If any danger were to be apprehended it would furnish a good reason for refusing the writ. There is, however, nothing in the record to indi- cate the probability of any such danger and the petitioner's prayer for relief is based upon the express condition that he remain in the custody of United States Marshals during his entire sojourn in the State. "For these reasons we think a writ of protection should issue if the pleadings in the case remain as they are. The defendant joins issue upon the fact of sanity after the New York orders were made, and also sets up that the Virginia decree was obtained by collusion and is void. \Vith respect to these questions the presence of the peti- tioner upon the trial would be imperatively r(«- quired. If, however, the defendant as a com- mittee appointed by the Supreme Court of New York, stood squarely upon the decree of that Court as justifying his acts and asserted that such decrees while unreversed, constituted a complete defense regardless of the fact Avhether the peti- tioner had since recovered his sanity, the question 40 upon the trial in the Circuit Court would simply relate to the validity of those decrees. "That question would be principally a question of law. Practically the only facts involved would be as to notice given the petitioner — if notice is necessary — and perhaps as to his residence. "With respect to these questions, the proof would necessarily be within narrow limits, and the petitioner's testimony, if required, might be taken by deposition. IT[)on such issues we think the personal presence of the petitioner not so necessary that he should be granted the extraor- dinary relief prayed for here. "The order of the Circuit Court is reversed, with costs to the petitioner, and the matter is remanded to the Court with instructions in case the issues remain as at present, to issue a writ of protection to the petitioner prohibiting any person from apprehending or taking him for the purpose of returning liim or committing him to an insane asylum while attending the trial of this said action, and for such reasonable time be- fore and after the trial as said Court mav deter- « mine is necessary for liim to come into the State and return, provided that he shall submit him- self during such time to tlie custody of one or more United States Marshals, shall obey their directions and shall pay the expenses of their employment. But tliat in case all the issues, ex- cept with respect to the validity and effect of the said orders of the Supreme Court of New York and of the Justice thereof, be eliminated within sixty days, then said writ of protection do not issue.-'* *Said issues remain in statu quo. FitOM APPEAL HUIEF. Ix (Jhaloner ajiuinst Sliciiiian To The United States Ciucuit Coiut of Aiteaf^s lor the Second riucriT. THE PARALLELS In the followiiii> paper your petitioner luus paralleled the rulings of Judge George C. Molt* with the ruling of this Appellate Court, namely; the United States Circuit Court of Appeals for the Second Circuit, handed down May 11th, 1908, entitled Chanlcr against Sltcnnan (Cir- cuit Court of Appeals, Second Circuit), 162 Federal Reports, 19. For the sake of clearness your petitioner describes each pair of parallels thus : First reversal of the Appellate Court by the Court below; second reversal of the Ap- pellate Court by the Court below, etc., etc. First reversal of the Ap- 102 Fed. Rep., 19 (p. 40, pellate Court by the Court .supra) : below: ''But that in case all the "Second assignmentt issues except with respect That the said Court erred to the validity and etfect of in ruling that the matter of the said orders of the Su- the plaintiff's commitment preme Court of New York had nothing to do with the and of the Justice thereof, case, and to which ruling of !k' eliminated within sixty the learned Court, counsel days, then said writ of pro- for the plaintiff-in-error tectiou do not issue."! duly excepted." *0f the United States District Court for the Southern District of New York, handed down, February 23, 1912, in Chaloner against Sherman. fin the Assignment of Errors to the United States Circuit Court of Appeals for the Second Circuit. :j:Said issues remain in statu quo. 42 By '^The said order of the Justice thereof is meant the commitment proceed- ings, in which the order for your petitioner's commit- ment to "Bloomingdale" Insane Asylum was made by Mr. Justice Henry A. Gildersleeve, Justice of the Supreme Court of New York, fully described in 162 Fed. Rep., 19. The follow- ing language is from this United States Circuit Court of Appeals, p. 38, supra, to- wit: "But he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction." 43 Second reversal of the Appellate Court by the Court below: "Fourth assignment : That the said Court erred in sustaining the objection of counsel for the defend- ant-in-error, Thomas T. Sherman, to the admission in evidence on the part of the plaintiff-in-error of a certain certified copy of the 1897 lunacy proceedings to which ruling of the learned Court, counsel for plaintiff- in-error duly excepted." 1G2 Fed. Rep., 10 (p. 40, sitpra) : "But that in case all the issues except with respect to tlie validity and effect of the said orders of the Su- preme Court of New York, and of the justice thereof, be eliminated within sixty d'djH, then said writ of pro- tection do not issue."* By "T/ie said order of the Justice thereof" is meant the 1897 Commitment Pro- ceedings, in which the or- der for your petitioner's commitment to "Bloom- inu'dale" Insane Asvlum was made by Mr. Justice Henry A. Gildersleeve aforesaid, fully described in 1(>2 Fed. Rep., 19, under the caption "(1)" p. 34, supra. Further supported by the following language of the learned United States Cir- cuit Court of Appeals, p. 38, supra, to-wit : "But he states a cause of action. He asserts that the orders were whollv void for want of jurisdiction." It is, of course, elemen- tarij that fraud is jurisdic- tion al. The present Princess Amelie Rives Troubetzkoy ♦Said issues remain in statu quo. 44 is tile former wife of your petitioner, wlio was his wife until September, 1895. Tlie said Commitment Proceedings alleged that the petitioner's falsely al- leged attack of insanity be- gan in November, 1896. B y "t h e certificate," First Q u e s t i o n under "Fifth," p. 45, infra, is meant the Certificate of Lunacy contained in said Commitment Proceedings of 1897. By "in these proceed- ings" Second Question, is meant said Commitment Proceedings of 1897. By "this petition," Third Question under "Fifth," p. 45, infra, is meant the peti- tion for the commitment of your petitioner as an in- sane person contained in said Commitment Proceed- inos of 1897. 45 Third reversal of the Ap- pellate Court by the Court below : "Fifth assi«>mueiit : That the said Court erred in sus- tainiui* the objeotious of couusel for defeudant-iu- error, Thouias T. Sherinan, to the following (|uestions read from the deposition of Anielie Rives Troubetzkoy and put to the said witness by counsel for plaintilf-in- error. " "(^. In the certificate, commencing at line lJ05, it is stated that there was one previous attack, presum- ablv referring to lunacy; do you know anvthiuii about this charge? Q. In these proceedings, under the statement of facts alleged against the plaintiff, were the follow- ing: 1st. That 'Mr. J. A. Chanler has, for several months, while at his iiome in Virginia, been acting in a very erratic manner' — this refers to his conduct presumably for the several months preceding tlie trial in New York 'in 1S97? Please state whether or not vou have any information concerning this allegation? Q. It is then alleged in 162 Fed. Rep., 19 (p. 40, .siiitra) : "But that in case all the issues except with respect to the validity and effect of the said orders of the Su- prcnne Court of New York and of the justice thereof, be eliminated within sixty days then said writ of pro- tection do not issue."* By "The said order of the 'Justice thereof is meant the 1897 Commitment Pro- ceedings in which the or- der for your petitioner's commitment to "Blooming- dale" Insane Asylum was made by Mr. Justice Henry A. (rildersleeve, aforesaid, fully described in 162 Fed. Rep., 19, under the caption " ( 1 ) ," p. 34, supra, further supported by the following language of the learned , United States Circuit Court of Appeals, p. 38, supra, to- wit : "But he states a cause of action. He asserts that the order was wholly void for want of jui-isdiction." // /.s', (if course, eleinen- tari/, til at fraud is jarisdic- tioiiaJ. *Said issues remain in statu quo. 46 this petition in these pro- ceedings that he has limited himself to a peculiar diet — during the period that you knew and were married to him please state what, if anything, was peculiar about his diet? Q. During that period the chief or only peculiar- ity about his diet was the fact that he Avas a vege- tarian ? Q. It is then alleged that 'he gives as a reason for these and other acts that he is inspired by a spirit which directs him.' What do you know of this allegaticm? Q. Have you any reason for saying that you can't think of him as having said that? Q. Did he ever do any- thing to suggest to you that he had delusions? Will you please state what was his general tem- perament — excitable or otherwise? Q. Is he any more excit- able or high strung than the others? Q. Have you ever heard anv rumors that affected his sanity? Q. It is next alleged that he was confined at Neuilly, near Paris, France, some vears ago, for a short time ; 47 please state whether or not this is true? Q.Will you explain what, if anything, could have been a basis for this charge? Q. Then you state that he was only at Neuilly once and that time to see a friend ? Q. Was he, or not, a very energetic man? Q. In this certificate of lunacy they state that he was excited, armed, threat- ens people, is dangerous; during the period that you knew him did he, or not, ever do anvthing to indi- cate that he Avas danger- ous?" To which ruling of the learned Court counsel for plaintiff-in-error duly ex- cepted. 48 Fourth reversal of the Appellate C'oiirt by the Court below : ''Sixth assignment: That the learned Court erred in ruling that it has nothing to do with the case what- ever, 'that she (Anielie Rives Troubetzkoy) was with him at that time ( N e u 11 1 y , near Paris, France, some years ago, for a short time), and knows all the facts and circum- stances and that that is a false statement in the pa- pers that c questions put by conn- sel for the })Iaintiff-in-er- ror, to the witness Pedro N. Piedra."* "Q. Was Mr. dohn Arm- strong- Chaloner at any time ^\iien you were serv- ino in that eapacity with him, an insam^ person? Q. Have you attended uj)- upon other insane men? Q. How many of them? Q. What was his physi- cal condition at that time? Q. Did you have any con- versation with the doctor in charii.e? Q. About the condition of Mr. (Mial(mer? Q. Did you have any con- versation with tlie doctoi- in char<.l(' over there about Mr. (Miah)ner's beinj>- heard or examined anywhere? Q. Did you observe his actions?" To which rulings of the learned Court, counsel for the ])hiiutitf-in-error dnly excepted . *A trained nurse in tlie Asylum in charge of your petitioner, at the time the 1899 proceedings were had against your petitioner's sanity. (Transcript of Record, pp. 30-33. fols. 57-61.) (4) 50 t^ixth reversal of the Ap- 162 Fed. Rep., 11) (p. 39, pel late Court by the Court supra) below : "Eighth assigniuent: That the said Court erred in sustaining- the objection of counsel for the defend- ant-in-error, Thomas T. Sherman, to the admission of any evidence by the wit- ness, Pedro N. Piedra, con- cerning any physical or mental condition of Mr. John Armstrong Chaloner at or about the time of his confinement at 'Blooming- dale' Asvlum, in May, 1899." To which rulings of the learned Court, counsel for the plaintiff-in-error duly excepted. "The defendant joins is- sue upon the fact of sanity after the New York orders were made." 51 Seventh reversal of the Appellate Court by the Court below : "Ninth assignment : That the said Court erred in rul- ino- that the sanitv of the plaintiff-in-error after the New York orders were made, was not in issue." To which ruling' of the learned Court counsel for plaintiff-in-error duly ex- cepted. 1G2 Fed. Rep., 19 (p. 39, supra) : "The defendant joins is- sue upon the fact of sanity after the New York orders were made." Furthermore ( p. 30, su- pra) : "And he came into that Court with a decree of the Court of the State of which he was a citizen declaring his sanity. We cannot dis- regard that decree." ^( Marked Plaintiff's "Ex- hibit 7" for identification by the Court below; an ex- emplified copy of the 1901 Proceedings in the County ('ourt of Albemarle Coun- ty, Virginia.) 52 hjUjhth reversal of the Appellate Conrt by the ( 'oiirt below : "Tenth assliiiuiient : That the said Couit eii-ed in sns- taininii the objection of eounsel for (U'fendant-in- error, Thomas T. Sherman, to the admission in evi- dence on the ]>art of ]dain- tiff-in-ei-ror, of a certain ex- emplified copy of the rec- ord of procee«linjLis in the State of Viroinia, entitled 'In the matter of John Armstrong Chaider' and re- ferred to in the evidence as 'The Virj»inia Decree of Sanity.' " To which rnlini* of the learned Conrt connsel for plaintiff-in-error duly ex- cepted. 102 Fed. Rep., 19 (p. 39, sujira } : "The defendant joins is- sne ni)on the fact of sanity after the New York orders were made.'' Furthermore {ct seq., su- l>ra ) : "And also sets np that the ^^iriiinia decree Avas ob- tained bv collusion and is void.'' Furthermore ( p. 36, su- pra) : "And he came into that ( 'ourt \\ ith a decree of the ( Nnu-t of the State of which he was a citizen, declaring his sanity. We cannot dis- reiiard that decree." 53 Xitifli reversal of the A])- l(i2 Fed. Kep., 11) (p. :U», pel lute Court by the Court .sii/tni ) : below : "The (lefeiulant joins is- "Eleveiith assi,i»iiiiieiit : sue upon the fact of sanity The learned Court erred iu altei- the New York orders sustainin«»- the objection of were made." counsel for the defenloyed by the late Stan- ford White, at the instiga- tion of,- and in collusion with the entire Chanler family, male and fenmle, in luring your petitioner from his then home in Vii'ginia, into the foreign — and, as «*vents proved, hostile — jur- isdiction of the State of New York, as offset to said palpable fraud, your peti- tioner res])ectfully submits the following language of the learned United States Circuit Cour-t of Appeals, page 38, supnt, to wit : "F)Ut he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction." // is, of course, elemen- turij, that fraud is jurisdic- tional. 57 Thirteenth reversal of the Appellate Cour.t by the Court below : "Twenty-second assign- ment : The learned Court erred in excluding the offer of counsel for the plaintiff- in-error to show that the whole proceeding which embodies both records, the 1899 proceeding is void on its face, 'for twentv-odd other reasons which in- volve due process of law.' " To which ruling of the learned Court counsel for plaintiff-in-error duly ex- cepted. 1(52 Fed. Rep., 19 (p. :j8, supra) : "But he states a cause of action, lie asserts that the orders were wholly void for want of jurisdiction. And if they were void they were of no effect, and the peti- tioner had a right to assert their invaliditv in anv Court." This Brief contains nineteen points of law, the four following of which are basic, to wit : 9, 11, 12, 17, and will be found under caption, "The Nineteen Points of Law" : infra, en- titled, respectively : No- tice; Constitutional Neces- sity for Opportunity to Appear and be Heard ; Il- legality of Trials in ab- sentia; and Insanity Judg- ment not a continuing one. 58 Fourteenth reversal of the Appellate Court by the Court below : "Twenty-third assign- ment: The learned Court erred in excluding all the evidence to show that all the proceedings against the plaintiff-in-error were by virtue of fraud and con- spiracy." To which ruling of the learned Court counsel for plaintiff-in-error duly ex- cepted. 162 Fed. Rep., 19 (p. 38, supra) : "But he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction. And if they were void, they were of no effect, and the petitioner had a right to assert their invalidity in any Court." 7^ is, of course, elemen- tary, that fraud is jurisdic- tional. 59 Fifteenth reversal of the 162 Fed. Rep., 19 (p. 38, Appellate Court by the supra) : Court below : "But he states a cause of "Twenty-fourth assii>n- action. He asserts that the ment : The learned Court orders were wholly void for erred in sustaining the ob- want of jurisdiction." jection of counsel for the // is, of course, elemen- defendant-in-error to the tarn that fraud is jurlsdic- following question read tioiial. from the deposition of John B. Dickinson, M. D., and put to the witness by counsel for the plaintitf-in- error : "Q. Please state what is the present color of the plaintiff's eyes?" To which ruling of the learned Court counsel for plaintiff-in-error duly ex- cepted." 60 Sixteenth reversal of the Appellate Court by the Court below : "Twentv-iifth a s s i o' n- uient : The learned Court erred in excluding- evidence to show that the evidence of the alienists upon which the plaintitf-in-error was committed, was false aiid perjurious and fraudulent bearing upon the bona fides and that it deceived and misled the Court and in rul- ing that said evidence should have been given on the trial of the case ( mean- ing on the trial of the New York State proceedings)." To which ruling of the learned Court counsel for plaintiff-in-error duly ex- cepted. 162 Fed. Rep., 19 (p. 38, supra) : "But he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction. And if they were void they were of no effect, and the peti- tioner had a right to assert their invalidity in any Court." It is, of course, elemen- tarij, that fraud is jurisdic- tional. 61 Seventeenth reversal of the Appellate Court by the Court below : "Twenty-sixth assign- ment : The learned Court erred in rulino- that the Court could not try over there, the question which was tried before the Sheriffs Jury.* To which ruling of the learned Court counsel for plaintiff -in-error duly ex- cepted." 1()2 Fed. Kep., 19 ( p. IM, supra ) : ''The next objection is that the petitioner ought to apply to the Courts of tlie State of New York for the recision of the orders com- mitting him to the asylum and appointing a commit- tee of his person and prop- erty. We have not the slightest doubt that full justice would be done the petitioner should he submit himself to the jurisdiction of the State Courts. But to assume that he was un- der any obligation to resort to them is to beg the whole (luestion at issue."" Furthermore ( p. 35, su- pra) : "The Constitution of the United States vests in its judicial department juris- diction over controversies between citizens of differ- ent States. The petitioner as a citizen of the State of Virginia in bringing his said suit in the Circuit Court of the Ignited States was availing himself of a right founded upon this constitutional i)rovision." Furthermore (p. 38, su- pra) : "The petitioner was given *The 1899 Proceedings (Transcript of Record, pp. 66-146, fols. 126-279). 62 the right under the laws of the United States, to trv his case in the Courts of the United States. He is not permitted to exercise that full right, and the Court, in effect, is not per- mitted to exercise its full jurisdiction." 63 Eighteenth revernal of the Appellate Court by the Court below : ''Tweuty-seventh assign- ment : The learned Court erred in excluding the testi- mony of Winthrop Astor Chanler, taken bv the de- fense in this case, tending to show fraud in the com- mitment of the plaintiff-in- error, and tending to show that the plaintiff-in-error was lured into the jurisdic- tion of the State of New York. To which ruling of the learned Court counsel for plaintiff-in-error duly ex- cepted."" 162 Fed. Rep., 19 (p. 38, supra) : "But he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction." It is, of course, elemen- tary, that fraud is jurisdic- tional. 64 Niiietceiitli reversal of the Appellate ^'ourt by the ( 'ourt below : "Twenty-eighth assign- iiieut : The learned Court erred in sustaining- the ob- jection of counsel for de- fendant-] n-erroi' to the fol- lowing question read from the deposition of Winthrop Astor ('hauler, and put to said witness bv counsel for the plaintitf-in-error. 'Q. How long is it that you liave been estranged?' To which ruling of the learned Court counsel for plaintitf-in-error duly ex- cepted." 162 Fed. Rep., 19 (p. 38, supra) : "But he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction." It is, of course, elemen- tary, that fra/ud is jurisdic- tional. 65 Twentieth reversal of the Appellate Court by the Court below: "Twenty-ninth , assign- ment : The learned Court erred in sustaininji the ob- jection of the counsel for the defendant-in-error to the following question read from the deposition of Win- throp Astor Chanler, and put to said witness by the counsel for the plaintiff-in- error. 'Q. You have had quar- rels with your brother, haven't you?' " To which ruling of the learned Court counsel for plaintitf-in-error duly ex- cepted. l()2Fed. Rep., n (p. 38, siiijra) : '" ' ■ ' ■ : ' ■"' ' ''But he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction." It is, of course, elemen- tory, that fraud is jurisdic- tional. {'» 66 ru7cnty-first reversal of the Appellate Court by the Court below : "Thirtieth assignment : The learned Court erred in sustaining- the objections of counsel for the defendant- in-error to the following questions read from the deposition of Winthrop As- tor Chanler, and put to said witness by counsel for the plaintiff-in-error. 'Q. Was there an alterca- tion between you at that meeting at which he kicked you out, as you say?' Q. Well, wasn't there some quarrel between you with reference to a sugges- tion that plaintiff made about an examination of the books of your father's estate? Q. And this was about the time of this meeting? Q. Well, now, will you tell us what you remember of that? Q. Lewis is the other pe- titioner (L. S. Chanler)? Q. Wasn't there really a good deal of ill feeling be- tween all the members of your family on the one hand, and John Armstrong Chanler on the other hand, ever since his marriage? Q. Wasn't there consid- erable complaint among your brothers and sisters that they were not invited to his wedding? 162 Fed. Rep., 19 (p. 38, supra) : "But he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction." It is, of course^ elemen- tary, that fraud is jurisdic- tional. The fraud in the above is further heightened and ac- centuated by the fact that Winthrop Astor Chanler, and the two other peti- tioners, namely, Lewis Stuyvesant Chanler and Arthur Astor Carey, had never set foot in your peti- tioner's then home, "The Merry Mills," Cobham, Va., where said falsely alleged actions by your petitioner were sworn to have oc- curred. N. B. As of their oirfi knoniledfje, that the said three petitioners icit- ncssed the said falsely al- leged actions, and heard, the said falsely alleged say- ings, falsely alleged to have l»een done and said by your petitioner. Said Winthrop Astor Chanler swore upon cross-examination that he had never visited a certain place wherein they had pre- viously sworn that they had seen and heard certain things. 67 Q. Well, how iiuiiiy of you felt that way? Q. Then von owe your presidency to the votes <>iven by Mr. Sherman as committee? Q. Did he tell you what he raised this money for? Q. Well, did you criticise his raising money to buy out your brother Robert? Q. Under those circum- stances why didn't you send Lewis Chanler down there to investigate vour brother's condition o f health, instead of going' there yourself — wasn't Lewis more friendly to him than you? Q. So that Mr. Carey had not seen your brother for at least two years prior to the time of the commit- ment? Q. Now, why I ask you that is, because you prob- ably remend)er that in your application for your l)rother's commitment, you and Mr. Lewis Chanler and Mr. Carey signed a petition in which you state that 'Mr. John A. Chanler has, for several months, while at his home in Virginia, been acting in a very er- ratic manner. He has lim- ited himself to a peculiar diet; has burned his hands by carrying hot coals in them ; he has devised many peculiar schemes such as a roulette scheme to beat 68 Monte Carlo, and he has given as a reason for these and other acts that he is in- spired by a spirit which di- rects him ; for the past three weeks entirely he has constantly talked of these delusions, has neglected his health, has injured his per- son and has been at times Avildly excited.' And then all three of you sign an affi- davit stating that you knew the contents of the foregoing petition, and that The same was true of your own knoAvledge, except as to matters therein stated to be alleged on information and l>elief, and there are no matters in the petition which are stated on infor- mation and belief; now, how did you come to make that affidavit that you knew these facts of your own knoAvledge? Q. And that the state- ments contained in this pe- tition were very solemn statements? Q. And that you consid- ered very carefully this statement, didn't you, 'Mr. J, A. Chanler has, for sev- eral months, while at his home in Virginia, been act- ing in a very erratic man- ner ?' Q. And you know wliat liomc means?"' To which ruling of the U-arned Court counsel for l)]aintift-in-error duly ex- cc])ted. 69 Twenty -second reversal 162 Fed. Rep., 19 (p. 38, of the Appellate Court by supra) : the Court below : ''But he states a cause of "Thirty-tirst assignment : action. Lie asserts that the The learned Court erred in orders were wholly void for excluding the offer of coun- want of jurisdiction." sel for the plaintiff -in-error to put the whole deposition It is, of course, elemeii- of Winthrop Astor Chanler tary, that fraud is pirisdic- in evidence. tional To which ruling of the learned Court counsel for plaintiff-in-error duly ex- cepted." 70 Twenty-third reversal of the Appellate Court by the Court below : *' Thirty-second assign- ment: The learned Court erred in excluding evidence to prove lack of jurisdic- tion, couspirac}'^, fraud, want of due process of law." "and to prove the sanity and competency of the plain tiff -in-error" "and to prove that he was lured into the State of New York ;" "and to prove that the plaintiff-in-error was un- able through physical dis- ability to attend the 1899 proceedings; that said pro- ceedings were had Ui ahsen- tia, that there was no real contest, and that there was fraud." To which ruling of the learned Court counsel for plaintiff-in-error duly ex- cepted. 162 Fed. Rep., 19 (p. 38, supra) : "But he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction. And if they were void, they were of no effect, and the peti- tioner had a right to assert their invalidity in any Court." Supported by the fact that conspiracy and fraud arc jurisdictional. (p. 39, su2)ra) : "The defendant joins is- sue upon the fiict of sanity after the New York orders were made." (p. 38, supra) : "But he states a cause of action. He asserts that the orders were wliolly void for want of jurisdiction." It is, of course, clenien- tary, that fraud is jurisdic- tional. 71 Twenty-fonrtli reversal of the Appellate Court by the Court below : "Thirty-third a s s i <»• n- ment : The leai'iied Court erred in sustaining the ob- jection of counsel for the defendant-iu-error to the offer made by counsel for plaintiff-in-error of the let- ter* from John Armstrong Chaloner to Hon. Micajah Woods, dated July 3, 1897." To which ruling- of the learned Court counsel for plaintiff-in-error duly ex- cepted. 102 Fed. Rep., 19 (p. 39, supra) : ''Tlie defendant joins is- sue upon the fact of sanity after the New York orders were made." Furthermore (p. 38, su- pra ) : "But he states a cause of action. He asserts that the orders were wholly void for want of jurisdiction." If is, of course, el e men- far ij, fhaf fraud is jurisdic- fioiiaJ. ^Written by your petitioner while in captivity, of 5,000 words or more, now on file in said Judge George C. Holt's Court, in New York, proving the plot — since fully established on the said evidence of the said three petitioners, Messrs. Winthrop Astor Chanler, Arthur Astor Carey and ex-Lieutenant-Governor Lewis Stuyvesant Chanler — against your petitioner's liberty as well as his sanity, which letter was written within four months of the very inception of your petitioner's captivity, which lasted nearly four years there- after, and which was intended by petitioner's family to last for life. But your petitioner escaped at the end of said four years, and thus frustrated the plot of his loving brothers and sisters to seize your petitioner's property of a million and a half or more, which letter fully establishes the plaintiff-in-error's sanity at the time of his incarceration; on the strength of Mr. Justice Harlan's opinion in the Runk case, infra. 72 assign- "The defendant joins is- sue upon tlie fact of sanity after the New York orders were made." , Tioeut [/-fifth reversal of 162 Fed Rep., 19 (p. 39, tiie Appellate Court by the suprci ) : Court below : "Thirty-fourth ment : Thpt the said Court erred in sustaining the ob- jeetion of counsel, for the defendant-in-error to the following- question read from the deposition of John Armstrong Clialoner, and put to said witness by coun- sel for plaintiff -in-error. 'Q. Was the work of building up the Town of Roanoke Rapids completed under your supervision in 189<)?'* To which ruling of the learned Court counsel for plaintiff-in-error duly ex- cepted." ♦The allegation in the Commitment Papers being that your peti- tioner's falsely-alleged attack of insanity began in November, 1896. During which time your petitioner was the "Resident Director," of the Board of Directors, of the Corporation building said manufac- turing town — as the Court records prove (Transcript of Record, pp. 36-37, 51-52, fols. 69, 97-98). 73 UNPARALLELED ASSIGNMENTS Your petitioner respectfully submits that as no exact parallels existed between the rulings of the Honorable Judge George C. Holt in the Court below, and the deci- sion of the Appellate Court, to wit, this Honorable Court, as to assignments of error, numbers 1, 3, 14, 15, 16, 17, 18, 20, 21, 35, 3G, 37 and 38, your petitioner re- spectfully makes the following comments on said assign- ments of error, to wit: ''First. — That the learned United States District Court for the Southern District of New York erred in sustaining the objection of counsel for defendant-in- error, Thomas T. Sherman, to the following question read from the deposition of Amelie Rives Troubetzkoy and put to the said witness by counsel for plaintiff-in- error : "Q. What was the condition of the plaintiff's health during his marriage to you? "To which ruling of the learned Court counsel for the plaintiff-in-error duly excepted." The condition of plaintiff's health while married to his former wife had an important bearing on plaintiff's sanity, and this Honorable Court declared, in 162 Fed. Eep., 19: "The defendant joins issue upon the fact of sanity after the New York orders were made." ''Third. — That the said Court erred in sustaining the objections of counsel for defendant-in-error, Thomas T. Sherman, to the following questions read from the depo- sition of Amelie Rives Troiibetzboy and put to said wit- ness by counsel for plaintitf-in-error. "Q. Please state what, if any, sickness he had during that period? "Q. What was the condition of his health gen- erally (Transcript of Record, p. 26, fol. 49)? "To which rulings of the learned Coiirt counsel for plaintiff-in-error duly excepted." The condition of plaintiff's health while married to his former wife had an important bearing on plaintiff's sanity, and this Honorable Court declared, in 162 Fed. Rep., 19 : "The defendant joins issue upon the fact of sanity after the New York orders were made." '^Fourteenth. — The said Court erred in holding that as a matter of law, that if the plaintiff, John Armstrong Chaloner, was in fact in the city of New York when the proceeding for the appointment of a committee was be- gun, the Supreme Court had jurisdiction whether he re- sided there or did not reside there. "To which ruling of the learned Court counsel for the plaintiff-in-error duly excepted." Thaw case in New Hampshire.* Fraud, trickery and *Thaw Case. A parallel case is found in New York against H. K. Thaw, in New Hampshire. Thaw escaped from Matteawan into New Hamp- shire and was there arrested and held by the State authorities, and the Governor of New Hampshire was about to turn him over to the New York authorities on extradition, when said Thaw's lawyers stepped in, procured an injunction from the Federal District Court and prohibited the Governor of New Hampshire from turning him over to the New York authorities. The Federal Court then took said Thaw into its custody and appointed a Commission in Lunacy to determine his sanity and whether or not it would be dangerous to grant him bail. The said Commission found said Thaw sane and safe to receive bail. ,75 luring cases. Federal authorities as well, in Trial Brief. ^^Fifteenth. — The said Court erred in holding- as a mat- ter of law that *It is not necessary to discuss it (that he was lured into the State for the purpose of being thrown into "Blooniingdale" ) , Mr. Sherman is not re- sponsible for the acts of those who put him in "Bloom- ingdale." ' "To which ruling of the learned Court counsel for the plaintiif-in-error duly excepted." Said Sherman holds through their acts — it was through their acts alone that the Supreme Court of New York gained custody over him; and said Sherman is the appointee of the Supreme Court of New York. ''Sixteenth.— That the said Court erred in holding as a matter of law that it is immaterial whether or not the plaintiff was lured into the jurisdiction of the State of New York for the purpose of taking commitment pro- ceedings against him, and in holding that thereupon a proper proceeding was begun in the Supreme Court which resulted in a judgment that the plaintifP is insane, and in holding that that judgment is perfectly valid, no matter how the plaintiff, John Armstrong Chaloner, was brought into the jurisdiction of the Court. "To which ruling of the learned Court counsel for the plaintiff-in-error duly excepted." The learned Court did not differentiate between an alleged and adjudicated lunatic. With an adjudicated lunatic, trickery, fraud, and luring are permissible, but not so wdth an alleged lunatic who, ipso facto, has all the rights thrown around any other non-criminal citizen (U. S. V. Throckmorton, infra). 76 "Fraud vitiates everything, and a judgment equally with a contract, that is, a judgment obtained directly by fraud/' ^'Seventeenth. — The learned Court erred in holding as a matter of law that the judgment rendered in the 1899 proceedings determined the status of the plaintiff, John Armstrong Chaloner, and determined the condition of the plaintiff's sanity or insanity, and that such deter- mination is a fact which does not depend on how the plaintiff was brought within the reach of the Court, as determining the question of sanity or insanity. "To which ruling of the learned Court counsel for the plaintiff-in-error duly excepted." Only if properly brought before the Court, which was not the case. Fraud and trickery and luring cases. "Insanity judgment not necessarily permanent" (162 Fed. Rep., 19). ^'Eighteenth. — That the learned Court erred in hold- ing as a matter of law that no matter how John Arm- strong Chaloner, the plaintiff, came to any particular place, or how he was brought or by what fraudulent means he was brought there, if it was claimed that he was insane or had lost his reason, that the Court had jurisdiction over his person and property. "To which ruling of the learned Court counsel for the plaintiff-in-error duly excepted." See Thaw Case in New Hampshire, footnote, p. 74, supra. The learned Court did not differentiate between an al- leged and adjudicated lunatic. With an adjudicated 77 lunatic trickery, fraud aud luring are permissible, but not so with an alleged lunatic who, ipso facto, has all the rights thrown around any other non-:criininal citi- zen, U. S. V. ThrockmojL'ton, infra, ^'Twentieth. — The learned Court erred in ruling as a matter of law that 'the question that he was a resident of another State, so far as the validity of the proceedings to have him adjudicated a lunatic is- concerned, is in my opinion entirely immaterial.' "To which ruling of the learned Court counsel for the plaintiff-iu-error duly excepted." The plaintiff's constitutional right to go into a Fed- eral Court was denied him by keeping him away from counsel, as shown by the letter to Captain Micajah Woods written by plaintiff' within four months of his in- carceration, July 3rd, 1897. 162 Fed. Rep., 19. "Twenty-first. — The learned Court erred in excluding all the evidence offered to show that John Armstrong. Chaloner was not at the time of his commitment to 'Bloomingdale,' a resident of New York State. "To which ruling of the learned Court counsel for the plaintiff-in-error duly excepted." Fraud, trickery and luring. Thaw New Hampshire Case. (See footnote, p. 74, supra.) "Thirty-fifth. — That the said Court erred in sustain- ing the objection of counsel for the defendant-in-error, and in striking out the answer thereto, read from the deposition of John xVrmstrong Chaloner, and put to said witness by counsel for plaintiff-in-error. 78 "Q. What was the amount of your investment? "A. The amount was actually in cash .$13,000.00, the balance which was on interest was |12,000.00, the interest being |720.00 a year. "To which ruling of the learned Court counsel for the plaintiff-in-error duly excepted." The question and the answer thereto were offered to prove the sanity of the plaintiff through his good busi- ness judgment in a large real estate investment, de- scribed on pages 38-39 of the Transcript of Record be- ginning at folio 71, line 5, etc. ''The defendant joins issue upon the fact of sanity after the New York orders were made." 1G2 Fed. Rep., 19. ''Thirty -sixth. — That the said Court erred in holding as a matter of law that the defendant, Thomas T. Sher- man, is not responsible for the acts of those who put the plaintiff, John Armstrong Chaloner, in the 'Blooming- dale' Asylum nor in any way accountable therefor. "To which ruling of the learned Court counsel for the plaintiff-in-error duly excepted." Said Sherman holds through their acts — it was through their acts alone that the Supreme Court of New York gained custody over him, and said Sherman is the appointee of the Supreme Court of New York. ''Thirty-seventh. — That the learned Court erred in holding as a matter of law that testimony going to prove that John Armstrong Chaloner was not at the time of his commitment to 'Bloom ingdale' Asylum a resident of the State of New York, so far as the validity of pro- 79 ceedings to adjudicate him a lunatic was concerned is immaterial, and that the Court erred in sustaining the objections of counsel for the defendant-in-error to the admission in evidence on the part of the plaintilT-in- error of all testimony as to the residence of the plaintiff- in-error in another State at the time of his commitment to 'Bloomingdale' Asylum. *'To which ruling of the learned Court counsel for plaintiff-in-error duly excepted." The plaintiff's constitutional right to go into a Fed- erar Court was denied him by keeping him away from counsel, as shown by the letter to Captain Micajah Woods, written by plaintiff within four months of his iiicarceration, July 3rd, 1897. 162 Fed. Rep., 19. "TJiirty-eightli. — That the learned Court erred in di- recting a verdict for the defendant-in-error upon the trial herein, and to which ruling the plaintiff -in-error ex- cepted. "If the learned Trial Court erred in the foregoing 37 points, it follows that it erred in Point 38." so ANALYSIS OF MAYER, J^S., OPINION IN AP- PEAL OF CHALONER against SHERMAN (A) Mayer, J., «ays : ''Known as Bloomim>(lale In- sane Asylum'' — Transcript of Kecord, p. 185, fol. 363. This is inexact. Its legal name is : ''The Society of the New York Hospital." This irregularity is gone into in Transcript of Record, p. 172, fols. 337-338. It also forms Point 10 of the Nineteen Points in the Trial Brief — the original printed Brief and Appendix, written by plaintitt-in-error in 1902-1904, and published by plain- titf-in-error in 1905.* (B) Mayer, J., says: "This order was in accord- ance with the Insanity Law of New York (Laws of 1896, chapter 545), which permits a commitment without no- tice, and that statute has been held to l)e constitutional," p. 185, fol. 363. Lack of notice is specifically declared" unconstitutional in Wiiid.s-or v. McVeigh, 93 U. S., supported by Simon v. Craft, 182 U. S., in which Chief Justice AVIiite says: '*77ic essential elements of due process of laic are notice and opportunity to defend.'' Supported by the follow- ing cases, infra. Matter of Georgiana O. R. Wendel — King's Special Term, 1900. jMarean, J., said : "She had no notice of the application, either personal or by sub- stituted service — and tliere was no hearing at which she was either present or represented hy any otliei' per- *In evidence. See Stipulation as to Exhibits. Transcript of Record, p. 154, fol. 301. "It is hereby stipulated and agreed that said Depositions, plaintiff's Brief and Appendix and all Exhibits marked for identification * * * may be and hereby are treated upon the appeal herein as model exhibits." Said Brief will in future be described herein as plaintiff-in-error's Trial Brief. 81 son. Slie had been finally adjudged insane, and com- mitted to perpetual restraint, without notice or hear- ing. She is deprived of her liberty, therefore, without due process of law. The Insanity Law, so far as it per- mits this, is in violation of the Constitution. Peopleexrcl. Elizahcth Ordway v. ^t. Saviour's Asylum, 34 Ap. Div. The Court said : '^No matter what may be the ostensible or real purpose in restraining a person of his liberty, whether it is to punish — or to protect the person — such restraint cannot be made permanent or of long continu- ance (plaiutiff-in-error's restraint was from 1897 — March 13th — to May 1st, 1899 — without notice — and from then till his escape Thanksgiving Eve, 1900, WITH- OUT OPPORTUNITY TO DEFEND) unless by due process of law. A hearing or an opportunity to be heard is absolutely essential. We cannot conceive of due pro- cess of law without this, ^yh(lt reason emsts why a per- son alleged to he iiicompeteiit or dangerous should not hare an opportniiil if * * * to contest I he charge as much as a person accused of er'uue'^ The rif/hts of one are as sacred and inviolable as the other. Shall e.r parte proof that would only avail to hold an alleged eriminal for trial be regarded as conclusive proof against a sup- posed unfortunate? Acts of the Legislature which go beyond the allowance of temporary confinement and re- straint until trial or hearing may be had, and the ac- cused person have this day in court in some way cus- tomary or adequate to enable him to present his case, are invalid exercises of legislative powers. It surely cannot be said that the procedure authorized by the act under which this relator was committed and ^hich created the wrong is due process of law simply because the Legislature chose to authorize that procedure." (C) Mayer, J., continues: "It was further ordered that the commission be executed in the County of New York," p. 185, fol. 364. (6) 82 .Chaloner being in Westchester County, 20 miles away, and on the oath of Dr. Samuel B. Lyon, Medical superintendent of "Bloomingdale" in bed at the time and for three weeks previous thereto, complaining of trouble with his spine and knee. Dr. Lyon on the stand in the 1899 Proceedings: p. 114, fol. 225, ibid. "Q. When did you last see John Armstrong (Jhaloner? A. Last Wed- nesday or Thursday, about three days ago. * * * I asked him if he wanted to be present here ; he said he was physically unable to be present on account of pain in his v^pjiie — and he also said his knee was affected in the same wav, and he would be unable to come." p. 115, fols. 225- 226. ''Q. Did that infirmity really exist or was it a delu- sion? A. I think he has pain in his spine, — he did not feel as if he could stand up, he has kept his bed for over three weeks, at least." p. 118, fol. 231. "I gave him the parole of our grounds on his honour — he is a very honourable man ; he went out by himself an hour or so — and then he ceased to go out because he was physically unable." The only inference from the above Proceeding — the serving of the summons at such a time and at such a place — is that Chaloner's family — who were kept in- formed by Dr. Lyon of his condition from day to day — chose such a time and such a place — 20 miles away from where he lay bed-ridden and had been U)r three weeks prior to the receipt of the summons. Dr. Lyon on the stand, p. 115, fol. 226 : "A. He has kept his bed for over three weeks at least." And Chaloner, therefore, could not have taken to his bed as a malingerer, to sham sickness to avoid being present, since there was no jws- sihle icai/ of his knowing of the plans of his enemies before-hand, he not being a prophet — Chaloner's family chose this time when they l-nciv he was incapacitated from leaving his cell and had been for some three weeks, in order to set Proceedings 20 miles off. Otherwise, if 83 they had meant fairly by him, they would have set the trial in the Court House of Westchester County within a short mile of his cell, at White Plains. They wanting to at least attempt to cure the gross illegality of incar- ceration for two years without notice — attempt to, at least — by a hogus Proceedings in which notice would be served on him, STKIPT, HOWEVER, OF ALL OP- PORTUNITY TO BE HEARD— which the United States Supreme Court in Windsor v. McVeigh, 93 U. S., denounces as a sham and deception, and adds that if notice is not to be followed by opportunity to appear and be heard, the notice had better he omitted altogether. For these bogus Proceedings would enable a Judge — like the learned Julius M. Mayer — to say in liis opinion, aforesaid, p. 188, fol. 367: -'The record shows that scrupulous care was exercised in serving the various no- tices of motions and proceedings on Chaloner." "Scru- pulous care was exercised in serving the various notices" on Chaloner because scrupulous care had been exercised by the Chanler conspirators and their allied doctors and lawyers to ascertain that Chaloner was physically in- capacitated from availing himself of the notice. It tvas like breaking a man's leg and then serving notice ow him that he must come to court for redress ivhile suffer- ing toith a broken leg and unable to walk; that other- wise he would lose his day in court. No such "scrupul- ous care" was exercised in the Commitment Proceedings, March, 1897, tvhen Chaloner teas well, and able to avail himself of same. The Chanler family well knew that Chaloner was of athletic build and given to much exer- cise. They knew that this was the first illness he had had in all the two years he had been confined in "Bloom- ingdale," and that it behooved them therefore — if they intended to attempt to cure the 1897 Proceedings by a bogus apparent fair trial — to be sharp about it ; as Chal- 84 oner might recover and then would be surely on hand at any cost to put out his side of the case. (D) Mayer, J., continues: "It was further ordered that the Commissioners might, in their discretion, dis- pense ioith (lialoiirr's attendance/' p. 185, fol. 364. Higlihj suspicious proviso, considerinf/ the foul play shrouding these entire Chanler proceedings, we respect- fully suhniit. (E) Mayer, J., continues: "The Medical Superin- tendent testified that Chaloner said he was physically unable to be present. But the jury stated that they did not desire his production — thereafter the Medical Super- intendent was again called and stated that to produce Chaloner would temporarily do him harm mentally and that Chaloner 'said he did not want to come down.' Dr. Carlos F. Macdonald then testified that to call Chaloner would 'tend to aggravate his mental condition." p. 186, fol. 364. It was only upon being recalled that Dr. Samuel B. Lyon vouchsafed the remark that Chaloner '^said he did not want to come down." M'hen he first took the stand. Dr. Lyon said Chaloner merely stated the bare physical reason which prevented his being present (supra). "The Medical Superintendent testified that Chaloner said he was physically unable to be present." Also vide (C), supra. In this particular, Chaloner's examination of the fluctuation of the testimony of Drs. Lyon (Appen- dix, pp. 717-721), Flint and Macdonald {ihid., pp. 728-769) re his ability to be present, makes interesting reading rather, we respectfully submit. (F) Mayer, J., continues: "Chaloner claims that * * * he was lured into the State of New York in 1897 and was committed improperly without notice," p. 186, fol. 365. The learned Judge then proceeds to tabulate all dial- 85 oner's claims re the invalidity of the 1897 Proceedings hat the learned Judge sinks the most important claim re the res gestae which was that the entire testimony re Chaloner's alleged insanity was by interested parties, and perjured on the evidence and admitted imder cross- examination at that, pp. 53-54, fols. 101-102, Furthermore. (F) "That re the inquiry de lunalico in 1899 — all the Proceedings were void, among other rea- sons because he was not present before the Commission- ers and the Sheriff's Jury ; that he always was and now is sane and was so declared in 1901 by a Court of com- petent jurisdiction in Virginia and that, therefore, the appointment of Sherman was void." Once more the learned Judge while appearing to sum up the allegations of Chaloner against the validity of the 1899 Proceedings sinhs the most important allega- tion of all, namely, because his constitutional right to an opportunity to be heard in his own defense was denied him, from the fact of his trouble with his spine and knee. Windsor v. McVeigh, 93 U. S., and Himon v. Craft, 182 U. S. (G) Mayer, J., continues: "Insanity is, of course, not necessarily a continuing condition, but the trial court was right in holding that Chaloner's present con- dition never became an issue in the case," p. 186, fol. 365. This reverses this Court by its own members — Chanler against Sherman, 162 Fed. Rep., held the precise con- trary. See '^Seventh reversal of the Appellate Court by the Court below," The Parallels, supra. First reversal of the United States Circuit Court of Appeals by itself. (H) Mayer, J., continues: "The trial court was like- wise right in excluding testimony to show the mental condition of Chaloner in 1899 for that issue could not 86 be litigated in this action and was solely for the New York Courts/' p. 187, fol. 365. This reverses this Court by its own members a sec- ond time. Chanler against Sherman, 162 Fed. Rep., held the precise contrary. See ''Sixth reversal of the Appellate Court by the Court below." The Parallels, supra. Second reversal of the United States Circuit Court of Appeals by itself. (I) Mayer, J., continues: "Whether or not in 1897 plaintiff was lured into this State was immaterial, be- cause defendant was appointed not by virtue of the 1897 Proceedings, but as successor to the Committee ap- pointed in the 1899 Proceedings,'^ p. 187, fol. 365. But the fraud and irregularity of the 1897 Proceedings tainted those of 1899. In fact— and of record— they were part and parcel of the same identical Proceedings, as a glance at the Transcript of Record will show. The 1897 Proceedings were specifically joined to and made art and part of the 1899 Proceedings. AS MUCH AS A FOUNDATION FORMS PART OF AN EDIFICE SO MUCH DO THE 1897 PROCEEDINGS FORM PART OF THOSE OF 1899. The 1899 Proceedings DEPEND UPON AND CARRY ON those of 1897. Lastly had it not been for the 1897 Proceedings there could have been no Proceedings in 1899 — it was the 1897 Proceedings that made those of 1899 possible — that lured the plaintiff into the State of New York. The 1897 Proceedings also were the cause of the illness which prevented his presence at those of 1899 — the nerv- ous shock induced by tivo years illegal confinement in a Madhouse. (J) Mayer, J., continues: "Even assuming that plaintiff was at all times a resident of Virginia, the question of his residence was one of the facts in issue in the 1899 Proceedings and having been there adjudi- 87 cated cannot be collaterally attacked/' p. 187, fols. 365, 366. Except for fraud. It was So conclusively proved that Chaloner was a resident of Virginia that in: the record of the trial before the learned Judge Holt in February, 1912, THE COURT FROM THE BENCH OBkSERVEI) THAT IT WAS CONCLUDED THAT CHALONER'S RESIDENCE ALWAYS HAD BEEN IN VIRGINIA. (Transcript of Record, pp. 3842, fols. 73-81.) In short the evidetice at said trialwas overwhelming thereanent. And yet it teas sworn in f//R 1899 Proceed- ings that Chalofiet's residendCWas 'in NeW York, as it was likewise so sworn in the 1897 Proceedings. Hear Mr. Justice Miller of the United States Supreme Court in United States v. Throbkhiortoyi, 61 U. S., on the sub- ject of collateral attack through the avenue of fraud : "There is no question of the general doctrine that fraud vitiates the most Solemn contracts, documents and even judgments. In cases where, by reason of something- done by the successful party to a suit, there was, in fact, no adversarv trial or decision of the issue in the case — these and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit mav be sustained to set aside anerjured without trying over again the very same issue which the New York Court decided when it made the decretal order complained of. It is well settled that the fact that a judgment is procured by false testiuiony does not open it to collateral attack," ]). 187, fol. 'MM\. T]w learned Judge Mayer evidently (liy not being vcmclisafed notice of same, and in 1899 by being kept away from same by his family having craftily set same when plaintiff" was — and had been for some three weeks previous thereto — bed-ridden; and also because plaintiff' was not rei)resented at eithei- of said Proceed- ings by ('(mnsel, or — as in Simon v. Craft, supra, by a guardian ad litem — for the said sundry and various rea- sons, plaiittiff' iras titterUj estopped and ahsolntehf de- harred from f/etiin;/ Iiis allegations eoneerniiiff the said ''the alleged perjurious testimoni/" before iJie Court, either at the 1897 Proceedings, or those of 1899. Never havinji- been brousht before tlte Coui-t, they never u-ere 92 before the Court; never having BEEN BEFORE THE COURT THEY COULD NOT HAVE BEEN "NECES- SARILY ADJUDGED BY THE NEW YORK COURT IN FINDING THE PLAINTIFF INCOMPETENT." A further proof of the foreiioiuii' is that the proof that the testimony of the oiih/ lay witnesses a«;ainst plain- tiff's sanity, namel}^, that of the tliree Petitionei's in the 1897 Proceedings, the two first of whom also joined in bringing the 1899 Proceedings to-wit, said Wintlirop Astor Chanler, Lewis Stuyvesant Chanler, and a cousin, namely, Arthur Astor Carey — the proof that the testi- mony of the oulij lay witnesses against plaintiff's sanity in either Proceedings — all the other witnesses being hired alienists, paid out of plaintiff's own pocket — by Court order — to find plaintiff' insane (see affidavit of E, L. Winthrop, Jr., pp. 140-142, fols. 273-277— the proof that the testimony of these, aforesaid three gentlemen was profoundly tainted witli perjury is furnished, hy one of their own number. Said PROOF OF PERJURY COMING OUT OF THE VERY MOUTH, OUT OF THE VERY LrPS OF THE CHIEF FETFTIONER, ^AID WINTHROP AHTOR CHANLER, in these very Proceedings of 1899 brought by liimself, to-wit: p. 132, fol. 255. Winthrop xVstor Chanler on the stand being examined by his own counsel, Flamen B. Candler, as to value and extent of plaintiff''s property. Mr. Candler: "WHAT NEXT? DO YOU KNOW ANYTHING OF HIS OTHER PROPERTY, ABOUT THE VIRGINIA PROPERTY?" Answer: "I KNOW VERY LITTLE ABOUT THAT. I KNOW THAT HE HAD IT, BUT I HAVE NEVER SEEN IT." Whereas said three gentlemen all and severally solemnly swear of their own knowledge as to certain falsely alleged acts and falsely alleged utterances, irra- tional in nature upon the part of plaintiff as having occurred and been uttered in their presence at "Tlie 93 Merry Mills," Cobliam, Albemarle County, Viroinla, the home of said John Armstrong Chalouer. Said gentle- men swear in said Petition that tlie plaintilT "'has for several months, while at his home in Virginia, been acting in a very erratic manner," p. 109, fol. 213. As a glance at the said Petition collectively sworn to by said three gentlemen (pp. 108-110, fols. 212-215, inclusive) proves; said entire aflfidavit is made as "true to the knowledge of deponents." And yet said three gentle- men do not hesitate to swear concerning alleged, acts and utterances having occurred "to the knowledge of deponents" in a place concerning wliich the chief Peti- tioner swears "I HAVE NEVEK SEEN IT." As will be shown later, said Winthrop Astor Chanler fully cor- roborates his aforesaid damaging admission in the 1899 Proceedings, by admitting under cross-examination in the Deposition gestion in the case at Bar that the pUiintiff even suggested a wish to be present or to have the trial at a later day. On the contrary, it appears from the testi- mony in the 1899 Record that he deliberately and of his own preference, refused to attend (fols. 674, 695)." Turning now to said Choate's supports for the altove statement (fol. 674) (p. 114, fol. 225) Dr. Lyon on the stand: "7 asked him if he wanted to he present here; he said he was physicallij iinahle to he present on ac- count of pain in his spine — and he also said his inter was affected in the same wag, and he wonld he iiitahlr to come.'" Said Choate stops short in his citation, for in the very next sentence Chaloner gives a respectful i)i- struction to Dr. Lyon to carri; a specific message from him to tlic Commission and Jnrg, e.rplainiiig Jiis physical condition precisely, and leaving it to them as honourable and liumane men to do their legal and official duty, namely, postpone the hearing until his indisposition should pass, or send a Committee appointed by them to visit him and pass on his case. Tt was not. for liim, a prisoner, to instruct the Court — the Commission and Sheriff's Jury— he simply and respectfully stated the truth, and left it to their sense of honor and pi'(>i'riety and judicial sense of duty to take the only steps possilde to cure the evil of the situation. To-wit : either postpone the Proceedings to a later day — the Kecord shows Chal- oner walking about once more and fully ahle to aticnd Court inside of ninety days from said time — or appoint a Committee from the members of the Commission and Jurv to visit Chaloner and view him face to face. If 115 the distance was not too great for Clialoner to go to the Commission and Jury, we respectfully submit it was not too great for the said Committee to visit Clialoner, since he — a prisoner without counsel — was not in a posi- tion to do anything else. Chaloner Went so far as to send for Dr. Lvon a little later, and remforcc the statement that "he was physi- cally unable to be present on account of pain in his spine" — which in itself carried cr respectful suggestion to a Commission and Jury alive to their duty to post- pone the case^-not satisfied with this implied request, Chaloner sent for Dr. Lyon. Said Dr. Lyon says supra (p. 115, fols. 225 and 675) : "A little subsequently to that I received a request from him to come over again." Q. "In what place?" A. "To his room. He did not wish me to represent him, but I should come in his place or say that he could not come on account of his infirm- ity." Said Choate further cites above, folio 695 (p. 118, fol. 232) : Said Dr. Lyon on the stand. Q. "The only reason for not producing him is his own wish? A. That was his decided wish." Naturally, a man with an afflicted spine and knee, which had, and still did, pin him to his bed for three weeks, and still would for some three months more, does not wish to undertake a 20- mile railway journey. But, we respectfully submit, there is much more in this apparently artless question upon the part of the artful Candler — of Jay and Candler —who, with said Egerton L. Winthrop, Jr., of the same firm, were the lawyers employed by the Chanler family to bring said 1899 Proceedings. Said Candler evidently desires to instill into the minds of the Jury that nothing hut willfulness prevented Chalonefs presence before the Commission and Jury. Note the craft in said Candler's question aforesaid, to wit: "The only reason for not producing him is his own wish?" The ''only reason." 116 Dr. Lyon iunocently falls into the trap thus set by the crafty Candler and at once and honestly replies : "That was his decided wish." There is no hint here upon said Candler's part of an ill man, suffering with spinal trouble and an ailment in the knee. Which two ailments were the reason for Chaloner's absence from said Proceedings and NOT the WISH, not to be tortured unnecessarily by being forced to journey 40 miles — 20 miles each way — to Court on Manhattan Island — in his present bedridden condition. The ailments aforesaid are the cause of Chaloner's non- appearance— not the ew post facto "WISH" aforesaid arising directly from and out of said ailments. Bearing the above in mind, how far indeed from the facts appears the following statement of said Choate, page 14, ibid.: "The utmost extent to Avhich the offer of proof went was to proffer evidence to show that the conditions imposed upon the plaintiff-in-error by his confinement and illness mav have made the conduct of his defence inconvenient." "Impossible" is the only word a careful man would dream of employing in the premises — "inconvenient" in the premises is an absurd- ity. In conclusion, touching this particular, Mr. Choate's erroneous statements are cumulative. The following is the climax for which there is actually no justification. He says, page 15 of his said brief : "From the plaintiff- in-error's own testimony, in his colossal Deposition, it abundantly appears that he absented himself from the 1899 Hearing by his own choice, being free to attend and to consult counsel. (Plaintiff's deposition. Vol. V, pp. 122-142).'" "The passages referred to seem to us to demonstrate the fact so completely that no amount of evidence to the contrary could convince the Court that the plaintiff -in-error's failure to appear at the 1899 Hear- 117 ing was because opportunity to be heard was denied him. It is to be remembered that the plaintiff is himself a lawyer, to whom, if sane, the importance of the 1899 Proceedings was doubtless evident." We now insert said passage upon which said Choate bases the above statement. DEPOSITION, VOL. V, pp. 121-142. Q. You think the disease will terminate soon in death? A. No, sir ; there is no likelihood of that. By a Juror : Has he ever made any attempt to escape? A. No. He has no desire to escape — he has made no attempt to escape. I granted him the privilege of all the grounds — I gave him the parole of our grounds on his honor — he is a very honorable man ; he went out by himself an hour or so — then he ceased to go out because he was physically unable to on account of his unlikeli- hood. Q. "What have you to say to this?" A. I reply to that, in the first place, this showed my healthy condition. Dr. Lyon says without equivocation or hesitation, when asked if I am likely to die soon : ''No, sir ; there is no likelihood of that." That was after I had been two years in "Blooming-dale" under the most frightful con- ditions as above described, and during that time I had never touched any medicine of any sort, kind or description ; as I may have stated, I never took anything but quinine from time to time to keep off malaria, with the exception of Stearns Wine of Cod Liver Oil, which I took for the first few weeks of my incarceration as a tonic, largely 118 to help me stand the extra terrible strain of my hideous surroundings, dropped it after, a few weeks and never recurred to it,, because I was perfectly healthy, with the exception of quinine, which is a tonic and not a medicine, and porous plasters for my spine, which again are not medi- cine, but plasters — I never bought five cents worth of medicine of any description. Now, one of the first things in lunacv is the effect on the liver. Bona fide lunatics' livers are sluggish and I would see trays going up with medicine, with cathartics, for my various lunatic colleagues. That is something I never took when in "Bloom- ingdale" ; I never took a pill, and I never took any salts or anything of the sort ; my liver was in perfect condition, and that is one of the proofs that I was absolutely sane. The liver being one of the first things to be attacked in case of bona fide lunatics; second, a sleeping draught. On these trays containing medicines which went by my door to other cells there would be sleeping- draughts, sometimes a regular thing; it is well knoAvn that lunatics frequently do not sleep well, and they have to have sedatives to induce sleep ; I never had anything whatever to make me sleep ; I slept like a log for nine to ten hours a night after I conquered my environment, dominated my environment in the fear, the dread, the horror of assassination bv lunatics bv strangulation; after I dominated that I slept like a top ; it took me about a vear because the cause of the danger was there for a year, before the newspapers I took had accumulated in sufticient numbers to make col- umns high enough to act as a barrier to the open- ing of my hall door of my cell, aforesaid; (the cell doors were alwavs unlocked). 119 My bills, paid while in "Bl.ooi}iijii>dale," will show — iiiy accounts^^Uiat . il .never, boujiht any- thing. Of course, it is possible they ; have* faked up accounts now and have accounts, to put be- fore a jury that I bought this or that; the jury can draw their inferences; ^/(e/y mn't, draw ac- comits of course. Now, as regards my not want- ing to escape: Dr., Lyon says in answer to the question : -"Has he ever made any attempt to es- cape? A. No, he has no desire to escape — he has made no attempt to escape," Now^ that, is a fact. I had no desire to escape. Escape was repugnant to me. I wanted to get out by legal means ; I want- ed to get out through the means of lawyers bring- ing /«»&e,a;s Gor^M/s proceedings to get me out, as my letter tO: Micajah AiVoods of July 3rd, 1897, shows. I wanted him and the late United States Senator John W. Daniel, of Virginia, to go to New York and get out a habeas corp^(.s writ and -get me out, sue out a habeas corpus writ to get me out. The letters that I have put in exhibition here, put in evidence, prove beyond cavil that I had no intention whatever; that Dr. Lyon is per- fectly frank when he says, "He had no desire to escape." - . I only escaped when the ill-advised acquaintance of mine, Mr. H. H. Frost, Jr., a lawyer of New York City, took the responsibility of taking the game in his own hands without consultation with me and saying that he would not visit me with- out the knowledge of the authorities at "Bloom- ingdale"; that meant the death and destruction of my ho])es and eventual death to me — I would certainly have died suffering a physical decline- not a mental decline— if I had continued in 120 "Bloom ingdale" for a number of years. I es- caped on a night's notice on reading this calami- tous letter. I don't blame Mr. Frost; I simply don't agree with his judgment; that is all in this particular. He meant well. I was forced to escape. Had I not it required no talk to show that Mr. Frost would have gone on, had he been as good as his word, which I have no doubt he would have been, communicated with the authorities and they would thereby have known that I was communi- cating with the outer world and stopped my privileges of walking without a keeper ; they would knoAV that I was communicating with the outer world, because it would be the part of common sense to say, "Why did Mr. Frost wait for two years before communicating with the authorities and desiring to see Mr. Chaloner?" The next natural line of reasoning would be that : ^'Mr. Chaloner must be communicatinf/ by letter with the outside world. This is against the rule, and his privilege of ivalking must be icithdraivn/' Then I would truly have been in a desperate sit- uation. My record in "Bloomingdale" and after writing this book — law books, etc. — history, "Four Years Behind The Bars," shows that I am as interested, to put it mildly, in reforming Lunacy Laws as I am in the repossession of my own prop- erty ; that I am willing to sacrifice vears of mv life, be in poverty — I was in poverty after the first years of this escape from "Bloomingdale" — accept poverty, suffer poverty — and nol)ody knows what povertv is until thev have suffered it — suffer poverty in preference to obtaining riches by practically the stroke of a pen, by simply 121 haviug my case briefed on enough law to get my property. I would not do that, however. The record shows that; the record shows that I de- clined to accede to Senator John W. Daniel's stand; that he would brief one or two points of lack of notice and lack of opportunity to appear and be heard, in my case, but not go any further on the trial by jury-rights of alleged lunatics be- fore indetiuite incarceratioil sets in — and the il- legality of the trials had in absentia. I have been fully sustained, as these law reviews show, that have criticized the "Lunacy Law of the World," and it is unnecessary, of course, to touch on them here. I w^as absolutely determined to live up to my Hannibal oath aforesaid in '^Bloom- ingdale," registered on the margin of a page of Stormonth's Unabridged English Dictionary; that I would sacrifice every year of my life, and every dollar of my property that was necessary to cleanse the Augean stable of lunacy legisla- tion throughout, as it turned out, about fifty per cent of the States of this great Union; as I had that duty which chance had thrust in my grasp decidedly against my will — I had been lugged to "Bloomingdale" and chucked behind the bars; I had not gone there willingly on the record — this duty which had come to me by pure chance, which, if I were to be true to my oath as a member of the Bar of New York State — not of the City of New York or the Count v of New York — I was admitted in Poughkeepsie as a member of the State Bar, quite a different proposition from the bar of the Citv of New York, and the Bar Asso- ciation of the City of New York — which oath says, in effect, that I will protect the Constitution 122 of the United States and of the State of New York, and I know that both Constitutions are being ruptured, and are beiiig oiltraged and raped by these villainous lunacy laws of 1896, passed by the Republican Legislature which feat in 1896 — if I were to be trtie to the said oath and also to my duty as an officer of the Court, because lawyers are officers of the court, and if I were to live up to the legal niaxiiii "It is a fraud to con- ceal a fraud," if I were to follow the road which was pointed out to me so clearly by this oath, by my being an officer of the coiirt, and by the said legal maxim, f was bound to stick at nothing wJiich could prevent the airing of this hideous crime against the Constitution of the United States and the State of 'Netv York and the Decla- ration of Independence, and the absolute rights of the individual as laid down bv Sir William Blackstone in his Commentari(^s— I must stick at nothing which raised itself as a barrier be- tween me and my day in Court— I must stick at overcoming nothing which raised itself as a bar- rier between me and my "day in court"; I was willing, and the record shows that I was willing, to risk my life to that end;'! Avill show that further on another occasion, another day, I will show that I was offered my release from "Bloom- ingdale," but with a string to it, with a string of "hush up," with a string of "Don't say a word," with a string of "Nothing doing against 'Bloom- ingdale'." I politely^ . Mr. Duke: Mr. Chaloner, I beg your pardon. Are vou reading from a book? The Witness: No, sir; I am not. Mr. Duke: You know that would not be proper. 123 The Witness : Oh, no; not at all. It is nothing but the record in the proceeding-, not a word else. Mr. Duke: Oh, well, go ahead; that is all right. The Witness : ( (Jontinning) : I politely declined this offer, by which I mean that I did not decline it, but said nothing when it was ottered to nie and simply kept silent without allowing any ex- pression to enter my countenance, whereui)on the proposer of this proposition asked me again what I thought of the proposition, and I then said, "This is the first time it has been presented to me." I then paused. The Ambassador of the other side who made this offer ( I flag the Docs ) * when 1 say the Ambassador,.! don't mean that he was Minister rienipotentiary of the United States — the Ambassador of the other side then said, in effect: "Will you let me know — you will consider it?" I then said nothing. He then said, "Will you let me know irhcti you have con- sidered itr I said, "Yes." My "politic" denial of it — denial of his request, or rather my refusal of his request, was contained in the fact that I never notilied him, l)ecause I never "considered it"; I never notified the Ambassador, because I never considered it in the shape of weighing the proposition with a view to whether I ought to take it or not. That will be referred to at another time, but in the interim, I trust, when I say that I was offered an opportunity to escape — not es- -cape, but leave ( "Bloomingdale" ) quietly, l)nt with the knowledge of the authorities on condi- tion that 1 hush the whole matter up and brought no charge against anvbodv and made no com- *This phrase is elucidated, Appendix, pp. 377-378. 124 plaints of any nature whatever. The experience I had in "Bloomin<»(lale"— the visit from this gi- gantic maniac I had at night — prowling in my cell — and the murderous attack on me by this strapping six-foot Irish keeper — suggests the fact that "Bloomingdale" is not a healthy residence for a person whose death w^ould benefit certain other people who are his "heirs at law, next of kin, and inheritors of his entire estate" ; and I took this risk of daily fighting for my life, nightly fighting for my life, with either maniac or keeper for years, in order that I might get out of "Bloom- ingdale" according to law, and get out of it with the slate cleared of my charges against illegal lun- acy laws of New York and the rest of the States of the Union which have illegal lunacy laws. Having made this voluminous explanation, the jury can understand that I did not escape until I was forced to escape by the unfortunate decision of Mr. H. H. Frost, in my regard aforesaid. I was willing to suffer anything short of death ; I was willing to suffer the risk of death, the daily risk of it and nightly risk of it, of the torment of "Bloomingdale" of the pain in my spine brought on and continued by my presence in "Blooming- dale," the deprivation of everything that makes life worth living, my living in a hell on earth, cut off from my property, from my budding affairs which held out another fortune to me beside my own. As has been shown on the record, by the letters of Albert Legg, I received an offer — as one of his letters shows — a bona fide offer of — in round numbers — five hundred thousand pounds — 12,500,000 — for my self-threading sewing ma- chine attachment, patented, known as the Self- 125 Threading iSewing AJachine Company, which took a prize — or the highest award — at the World's Fair at Chicago, and for which forty thou- sand dollars worth of orders Avere booked dur- ing that Fair's duration ; besides my patent pave- ment which I patented myself, which also received the highest award at the said Fair, and for which I received an offer from the Mayor and Syndic of Marseilles, France, for the paving, ultimate pav- ing, of the City of Marseilles, if my paving proved durable; a fact which had already been proved by its having been laid down in England for years in a private place where the public would not know it, or see it, but where it had steam rollers and heavy steam English machinery, farm ma- chinery, pass over it daily. The business men of the jury will readily recognize the parental in- terest and care that I would naturally feel in a patent of which I was the controlling stockholder, a one hundred thousand dollar patent, paid up; and another patent in which I had put thousands of dollars for patent rights — all in a lapse of years, certainly |25,000 for the patent rights — without which patent rights I would never have received the Marseilles order, which I did, so that the jury will see that 1 showed business acumen, judgment and foresight in investing my money in patent rights, because I would have gotten a return from them had I been able to close the Marseilles deal. The jury will readily recognize the parental care I had for my two said business infants, one the offspring of my business judgment — the sew- ing machine attachment — and the other the off- spring of my very brain, a patent which I had 126 myself invented; the jury will readily recognize the parental agony (I flag the Docs) from a busi- ness point of view I suffered, and from being separated from these children of mine, (I flag the Docs), these business products of my brain and business judgment, whom I knew, whom I daily knew when I was in "Bloomingdale," were being starved to death, were dying, because, like real people, live children, they only had a limited number of years to live, seventeen years being the life of a patent; I need not expatiate to the jury what I went through as a business nmn, and as an inventor, ar/onics, and that is not too strong a word, I assure the jury, under oath, for what I suffered from this business agony, this business tragedy— it is nothing else. I have refrained from touching on this before in this long depo- sition — I did not want to appear to work on the sentiments or emotions of the jury, and I do not want to now, but it is absolutely necessary for me to show that I only escaped from "Blooming- dale" because I had to; it is necessary for me to show that, unless I am willing to allow my repu- tation as a man of honor to be smirched, and I say, and my record stands for it, that honor is more with me than money or success or anything else, and I would rather have poverty and an hon- orable name than riches and rascality. My vari- ous acts and utterances on paper in every publi- cation prove that to any honest and intelligent mind ; and it is a very dear and precious thing to me as a man of honor, it is the dearest thing to me on God's earth. It is dearer to me than the fact that I am an American citizen ; it is the dearest possession that I have got that I have an 127 imsmirched honor, imsiiiii-clicd by the record, un- sniirched on the record, proved to be unsiiiirched on the record of the fifty years coniino- the 10th of October, 1912; for that reason I want -the jury thoroughly to understand the temptation I was under to compromise it' the dollar cut any actual ice in my scheme of existence when ()i)posed to what I thoui^ht was right; the jury will remember that my patents were dying daily when I was thrown into ''Bloomingdale," the jury will re- member that I was offered this Marseilles paving, the paving of a certain portion of the streets of Marseilles, before I was hurled into "Bloominc:- dale," and within a year after my being lodged in that den of vice and iniquity — its jiroprietors are vicious ; I do not mean that vice takes place in "Bloomingdale" — its proprietors — the said ''Forty Thieves of Bloomingdale" — are vicious, and what they own is vicious thereby ; they are proprietors of a den of iniquity because thri/ are iniquitous themselves on . the record in turning me into a galley slave, and in robbing me of thou- sands of dollars a year as aforesaid — within a year after my waking up and finding myself in a madhouse for life on a perjured charge of lun- acy, the sewing nuichine attachment, that sewing- machine adjustment owned by the said Self- Threading Sewing Machine Company reached fruition, and was adjusted to the Singer Machine, as aforesaid, which fulfilled the conditions offered me, laid down to me by the London capitalists, that they would give me one hundred and fifty thousand dollars for the rights of the British Isles, possibly the British Colonies also thrown in ; the jury will see the terrible temptation 1 was under 128 from the very day I got into "Bloomingdale" to get out in any way I could, even at the price of "hush up" aforesaid, offered to nie by the Ambas- sador of the other side ; nothing but a sense of duty — iron-bound and rock-ribbed — held me in that cell when the offer was made to me that I could get out of it : the doors would swing open, swing open with the knowledge of Dr. Lyon, but quietly ; not to the knowledge of the press, not to the knowledge of the Medical Profession, there was a seal to be placed on my lips forever — hide- ous as that proposition was, it was made to me, and nothing, I respectfully submit to this Court and Jury, but a certainly working sense of duty, a mobilized sense of dutv, enabled me to resist that offer; that offer was made years before my escape; even after I was given the privilege of walking about, I did not escape until eighteen cal- endar months, there or thereabouts, to be absolute- ly exact, seventeen months; I was given permis- sion to walk about alone in June, there or there- abouts, 1899, and I escaped Thanksgiving Eve, 1900, seventeen months later. The jury can well imagine that when I was walking the by-ways and hedges of Westchester County, when I was climb- ing the mountains, or rather the certainly high hills of that section of Westchester, the tempta- tion to keep on climbing presented itself more than once, climbing towards the South, climbing for liberty and home. '^Home, Sweet Home," so to speak, hummed itself in my ears in the breezes, in the summer's zephyrs and wintry blasts; it rode Avintry blasts and whispered to me ( I am telling the truth ) , "You are a damn fool to stay here" ; that was the way the temptation came to 129 me — "You are a damn fool to stay here; walk away ; you have got the strength to do it ; keep on moving" ; and I never in my life had a severer temptation, I am frank to say, than to resist the whispers and yells of the said temptation. And yet I did it, on the record. I did not go until JNIr. Frost made his little "break," until Mr. Frost was as good as his name, and threw a frost into my affairs, threw a very bad, hard, black frost in my affairs, with the best intentions in the worhl. Frost is an old college classmate of mine, and I have nothing but the kindest recollections of our acquaintanceship. He used to tutor me ; he taught me law and coached me when I Avas "cramming" for examinations, and we never had so much as a hard word betw^een us. Frost and I, so I ab- solve him from an innocent "break" in this record. Furthermore, this [jarole that Dr. Lyon gave me was a parole with a string to it. It was just exact- ly like a cheque which ;• highway robber forces a citizen to draw for him at the point of a pistol, and then says, "I rely on your honor not to stop the payment of this cheque between now and noon tomorroAv, when I let you go." The ethics in both situations were identical. T had been kidnapped by Stanford White, perjured into "Blooming- dale." I was up against a very tough proposition. I was in very nmlodorous company through no fault of mine. Thev were holding me contrarv to law just as much so as though they were ac- tually brigands, professional brigands, Jwnest brigands, frankly admitting they were brigands, instead of the double-faced brigands that they are, pretending that they are pillars of the Church and State and Finance. I was absolutelv with« (9) 130 out any standing in law ; I liad been deprived of my rights and rendered a dead man, rendered civiliter mortims — civilly dead. An incompetent person or lunatic is civilly dead. He has no rights; he cannot transfer property, and he can- not vote and cannot have his liberty, as in my case. He must be locked up and robbed daily for life. I knew that state of affairs and I had tol- erated it for nearly four years — three years, eight months and some days — and at the risk of my life, and at the possible permanent injury of my health, for I still have an affected spine, as the record shows. This was no more a parole in the honest sense of the word, in the real sense of the word, than a cheque which is given at the point of a pistol is a cheque in the honest sense of the word ; it is not the intentional passing of money from one party to another. The law recognizes that any- thing which is given "under duress'' is illegal and has no binding force whatever. A cheque given under duress, under the pistol point, is illegal. A man can stop it. That is what I mean by il- legal. It is an illegal way of getting a cheque. A parole f/iren under duress is illegal. It is an illegal loay to get a parole, to put a man in such a hole that he will give a parole, to get a little fresh air without a keeper's shadoui in front of him every step he takes. I, as a lawyer, knew that this parole that I gave was absolutely worth- less; it had no binding effect; that the law did not expect me to keep it ; that the Law said more ; the Law said : "You are committing a fraud if you keep this parole one day longer than you are sure that you are able to get out of 'Blooming- dale' and show uj) this iniquity, or at least one 131 day longer tlum yon begin to fear that von will jeopardize this aforesaid snreness of getting out, and turning on the lights, and showing the in- iquity that has taken place in your ease, and will take place unless checked by you — on the evi- dence, because nobody in New York has ever brought an action against 'Bloomingdale' for damages tliat has ever been in it.'' As far as I know, nobody ever has made a move. Although I knew that this parole was worthless, yet T was held by that parole for seventeen months on the record in spite of the whispers of freedom and home and happiness and the Sunny South. That shoivs ivhether I did lohat I could to oblige Dr. Lyon, and not disappoint him. But there was something more important to me than even my own honor. There is one thing and that is that injustice shall not rule: and if it were necessary for me — I frankly say — to lose my reputation, to be bracketed w^ith anv of the biggest criminals that ever lived — if it were necessary for me to pay that price — tvithout committing the crime be it well understood — but if T were to be maligned and misunderstood and written about in history as one of the biggest criminals, I would be will- ing to pay that price /'/ that loere the only price which could put injustice in law out of business, I would be willing to sacrifice my reputation, which is the dearest thing to me, really dearer than anything, dearer than life, but one thing, and that one thing is Ideality — is the greatest good for the greatest numher, is the absolute an- tagonism and death in the last ditch opposed to wrong-doing and injustice — and for that I will sacrifice everything, even my reputation, if it is 132 necessary. I won't sacritice that like a fool, but I would sacrifice it if I could get a sure return in the wiping out of those Lunacy Laws, // being understood all the time that I do not have to com- mit any crime — I am simply accused, of being a criminal. I have to say that, because otherwise I would be accused of ''having broken my parole/' I would just as soon be accused of having stolen a man's watch, or pocketbook, as being accused rightfully and honestly of breaking a bona fide military parole. Amongst soldiers a parole is given by one honorable foe to another, but that is among honorable foes, not among honorable men opposed by footpads, brigands and thieves, as I have been by the ''Forty Thieves of Blooming- dale,"* aforesaid, and robbed of ttventy thousand dollars by that gilded and well-groomed gang of prominent New Yorkers and pillars of the Epis- copal and Roman Catholic Church ; Cornelius N. Bliss was the most prominent Roman ('atholic and devout son of the Church ; Elbridge T. Gerry, as I remember, is an inveterate plate-passer, and Joseph H. Choate is an Episcopalian of (juite Bishop-like proportions and rotundity. I do not wish to be understood as meaning any disrespect to Bishops when I say this. In a word, this parole was a farce. I got it out of Dr. Lyon on a bluff, so to speak, I bluffed him. I knew from the das- tardlv wav Ex-Senator David B. Hill had left me to rot in "Bloomingdale," that I could not get a New York lawyer to touch my case unless I got *Plaintiff-in-error's ironical phrase for the Board of Governors of "Bloom ingdale," in his satirical history of New York, entitled "Four Years Behind the Bars of 'Bloomingdale,' Or, The Bank- ruptcy of Law in New York," published in 1906. 133 his ear outside the walls of my cell. A hint is as good as a kick to uie. Turned down once is turned down forever, as far as I am concerned on an}^ good i)r()position. So T gave up all idea of having anything to do with lawyers by letter or third parties until I got outside of my cell and could talk to them at Valhallaj as I did later. But I made a bluff to Dr. Lyon, and when he asked me, as he did just before the 1899 pro- ceedings, asked me if I would go down to see the jury in New York City, and I told him I was physically incapacitated from doing it — physi- cally — / knew that my presence before that jury ivould 'ndoir the f/aff/' irould give away the game, and I could walk out of the court a free man. They, the Chanler family, knew that as well as I did. That is why they set the proceedings twen- ty miles away. I "hanked'^ on this fear of Dr. Lyon's, and others, that I would by hook or crook get before that jury. So that, although I told him I was 'not able to get there, yet I kneio that fear was so chill and deadly that it might carry a bluff,* and I was going to risk it. So I said, in effect, "Dr. Lyon, I am heartily sick of seeing the shadow of my keeper blotting the earth's surface in front of me when I parade these grounds, and I do not propose to have any more of it, and if tThree miles from White Plains — where "Bloomingdale" is situated. *The fear that I was — after all — able to get there — the bluf' consisting in assuming tliat plaintiff-in-error could get to court, and not that he could not. That he could — by hook or crook — get a lawyer who would bring habeas corpus proceedings — not that he was marooned and utterly cut off from all communication with the outer world. It was no bluff that plaintiff-in-error was confined to his bed, unable to walk and had been for three weeks, since Dr. Lyon so stated, supra, p. 105 of this Brief. 134 you don't give me perniission to walk without a keeper, I will bring habeas corpus proceedings." / knetv thundering ivell I could not do any such thing; it ivas a bluff of the rmikest kind, a regular poker bluff, a four-pusii. I had no way of bringing habeas corpus proceedings, but I knew they were afraid I might do it by some hook or crook. Thereupon Dr. Lyon pondered for some seconds and said, "Ver^- well, you may if you promise to come back." I promptly said, "I will," and I mean now to "come back'' and look over "Bloom- ingdale" so soon as they cleanse the filthy Lunacy page of the Statutes, of the Statute Books of the Empire State, and it is safe for a white man and honest citizen of North Carolina to present him- self in New York Avithout danger of being ar- rested for life and robbed to the tune of twenty thousand dollars a year,t and then I will "come back." I hope I have said enough to show that I was willing to risk my life, to practically sacrifice my patents — my property in the Self-Threading Sew- ing Machine and Patent Paving which I invented — and to be daily bled to the tune of one hundred dollars a week, to suffer all that for the sake of honor, and for the sake of the people, for the sake of being able to save laymen and laywomen being hurled into "Bloomingdale" on these bogus Lun- acy Laws. That is why I broke my "parole" falsely so-called, for 1 never gave a parole in the true sense of that word, and this is all borne out tSYNDOCHDOCHE. For five thousand dollars a year for four years; as appears from the remark in the next paragraph — "Daily bled to the tune of one hundred dollars a week" — for four years would equal twenty thousand dollars. fStenographer's error for "Synecdoche." 135 by Dr. Lyon's words : "He is a very honorable man" ; and that was said after two years knowl- edge of nie in "Bloomingdale" ; he had not met me that afternoon for the first time. Mr. Duke : So much of the foregoing answer as is argumentative is excepted to as illegal, and all of the answer which is practically a repetition of what has been heretofore stated in the deposition is excepted to as uselessly encumbering the record and consumption of valuable time. Mr. Chaloner: My only excuse is that my client's interest is in jeopardy here unless thor- oughlv safeguarded. This is the first time that the question of parole has ever come up. I am not criticizing the remarks of the learned counsel of the other side ; I am simply defending my client in this respect and without any wish to encumber the record. Adjourned to Thursday, December 28th, 1911, at 3 :00 o'clock P. M. Chaloner says above: He gave up all idea of having anvthing to do with lawvers bv letter or third parties "until I got outside of my cell and could talk to them at Valhalla, as I did later." How much later? SOME EIGHT OE NINE MONTHS LATER. He did not re- cover sufficient strength to walk the eight miles from White Plains to Valhalla and back — four miles there and four miles back — until after January first, 1900, as a glance at the excluded Deposition will prove. Chal- oner then goes on to show how he managed to get this very rare privilege of "parole" out of Dr. Lyon. He, 136 in fact, says he "bluffed" it out of Dr. Lyon, relying on the dread that Dr. Lyon felt lest he, Chaloner, should get before a jury in New York, and thereby "walk out of court a free man." He says he "knew that fear was so chill and deadly that it might carry a bluff and I was going to risk it." So he said to Dr. Lyon that if he did not give him parole he "would bring habeas corpus Proceedings," though he knew there was no possibility of his doing so. He had already replied to Dr. Lyon's question as to his going to the 1 899 Proceedings "twenty miles away" in New York City that he "was physically incapacitated from doing it." Therefore, it was a "bluff" to threaten to bring habeas corpus Proceedings under any conceivable conditions seeing that he could neither walk nor comniunicate freely tvith counsel. How could said Choate truthfully make said state- ment that from the above passage "it abundantly ap- pears that he absented himself from the 1899 Hearing by his own choice, being free to attend and to consult counsel?" But it throws, we respectfully submit, light upon how the learned Judge Mayer came to say: "And it further appears from Chaloner's deposition — that he absented himself from the 1899 Proceedings by his own choice." The learned Judge not having time to read some twenty pages from said excluded Deposition, very naturally believed what said Choate had printed about it in his brief. (R) Mayer, J., continues: "But the propriety and sufficiency of the notice as matter of law are no longer open to question," p. 188, fol. 368. Fraud opens everything for revision. As has been shown, Chaloner has not yet had his day in court. There- fore the question of fraud has never yet been passed upon. U. H. V. Throckmorton, supra. Also Chanler v. Sherman, 162 Fed. Rep. The -Parallels, supra. 137 First reversal of the United States Uireuit Coiirt of Appeals by the United States District Court. Third rerersdJ of this United litotes Cirriiit Court of Appeals hy itself. (S) Mayer, J., continuinji : "Finally in repird to the failure to giye ( 'lialoner notice of the resij'nation of Butler and the appointment of Sherman as Committee, it appears that there is no Statutory requirement of notice in such a proceeding and it would seem that notice to the Committee of a proposed removal is the only notice required," p. 188, fol. 368. A similar case concerning notice of the appointment of a Committee is found in the leading Insanity case of Evans, Committee, v. Johnson, 23 L. R. A., 737; West Virginia Supreme Court of Appeals, 1894 (Indexed in The Nineteen Points of Law, infra ) . Brannan, P., said : "There is abundant authority for this position. Even thouf/h the statute he silent as to notiee, yet the com- mon law steps in and requires it" (citing numerous leading cases). (T) Mayer, J., continues: "But, if notice were re- quired, the failure to give it is an irregularity which must be dealt with by the State Court of original juris- diction," p. 188, fol. 368. From not giving Chaloner notice in the 1897 Proceed- ings and not giving him opportunity to appear and be heard in the 1899 Proceedings the State Court of "original jurisdiction" never acquired jnrisdiction over Chaloner. Windsor v. McVeic/h, 93 U. S. ; Simon v. Craft, 182 U. S. ; U. S. v. Throckmorton, 98 U. S., supra; and Chanler v. Sherman, 162 Fed. Rep. The Parallels, supra. Thirteenth reversal of the United States Circuit Court of Appeals by the United States District Court. Fourth reversal of this United States Circuit Court of Appeals by itself. 138 (U) Mayer, J., continues: "Our conclusion is that the judgment of the New York Court was not a void judgment and it must remain valid until reversed or set aside by the Courts of New York," p. 189, fol. 368. Chanler v. Sherman, 162 Fed. Kep. The Parallels, supra. Thirteenth reversal of the United States Circuit Court of Appeals by the United States District Court. Fifth reversal of this United States Circuit Court of Appeals by itself. (V) Mayer, J., continues: "So, too, even if some of the requirements of the statutes had been omitted or neglected, or insuftlcient evidence of insanity was ad- duced, relief must be obtained in the Court which ap- pointed the Committee," p. 189, fol. 368. Windsor v. McVeigh, Simon v. Craft, U. S. v. Throckmorton, Chan- ler v. Sherman, supra. The Parallels, supra. Thirteenth reversal of the United States Circuit C^ourt of Appeals by the United States District Court. Sixth reversal of this United States Circuit Court of Appeals by itself. (W) Mayer, J., continues: "But, however this may be, we think that this Court has not jurisdiction to set aside or annul the judgment of the State Supreme Court rendered in a Proceeding in which it obviously has jur- isdiction," p. 189, fol. 369. Windsor v. McVeigh, supra; U. S. V. Throckmorton, supra; Simon v. Craft, supra; Chanler v. Sherman, supra. The Parallels, supra. Thirteenth reversal of the United States Circuit Court of Appeals V)y the United States District Court. Sev- enth reversal of this United States Circuit Court of Appeals by itself. THE NINETEEN POINTS OF LAW Supported by Argfument and Authority.* THE LAW IN THE CASE. The law in the case eoveiiiiii the aforesaid nineteen points ( |)]). 14-25) is as follows, to wit : Point 1. — The ooniniitment proceedings were void for the following reasons, to wit: There was fraud and trickery in hiring the plaintiff, John Armstrong Chaloner, a citizen of Virginia, into a foreign jurisdic- tion for the purpose of depriving him of lil)erty and property on a false charge of insanity. It will be remembered that plaintiff' Avas lured by Mr. Stanford White and a physician, who visited plain- tiff in plaintiff's home in Virginia in February, 1897, was lured by Mr. Stanford White into the State of New York on the plea of taking "a plunge in the Metropoli- tan whirl" on the ground tha^: plaintiff* needed a change. That so soon as plaintiff reached New York City steps were taken clandestinely and under false pretenses by plaintiff's said brothers, Messrs. Winthrop Astor Chan- ler and Lewis Stuyvesant Chanler, two of the said peti- tioners, that steps were taken clandestinely by said parties working through the said physician who accom- panied Mr. Stanford White, aforesaid, to the plaintiff's said home in Virginia; and also working through Dr. Moses Allen Starr, aforesaid; and finally also working *From the Trial Brief Chaloner against Sherman. Printed and copyrighted 1905. 140 through said Mr. Stanford Whit(» himself, who proposed, through a third party, that plaintiff should appoint said Mr. White plaintiff's power of attorney; that steps as aforesaid were taken by plaintiff''s said brothers, Messrs. Winthrop Astor Chanier and Lewis Stuyvesant Chanler, to have plaintiff declared, and locked up as, a lunatic. The following two cases given in ewtenso along with the following five cases abstracted substantially sustain our said contention. Carprnter v. Hpooner, 2 Sandf. (N. Y. Supr. Ct. Kep.),717. This Court will not sanction any attempt, by fraud or misrepresentation, to bring a party within its jurisdic- tion. Where a party having been induced by a false statement to come within the jurisdiction of the Court for the purpose of effecting service upon him, was then served with a summons and complaint in an action in this Court, the service was, on motion, set aside. May 25th, 1850. Appeal from an order made at chambers, setting aside the service of a summons, with costs. The facts appear in the decision. A. Crist, for the plaintiff*. Spooner^ for the defendant. "The Court. — This was an action for libel. Both parties reside in Brooklyn, and out of the jurisdiction of this Court. The plaintiff, however, was desirous of having the case tried in this Court. In order to bring the cause within its jurisdiction, it was necessary that the summons should be served within this City. A clerk of the plaintiff's attorney, therefore, procured a person to write to the defendant, requesting him to call on the ]41 writer next day, iii this City. The defendant came, in order to comply with the request in the letter, and when he was leaving; the ferry boat was met by the person who had written the letter, and was served with the sum- mons in this action. The whole proceedin<>- was a trick, for the purpose of i^ivinji this Court jurisdiction. "The excuse alleged by the plaintiff is, that he had been so libeled by the defendant and others in Brook- lyn as to raise the public feeling there against him, and he could not hope for a fair trial in the County of Kings. If so, there is a sufficient remedy bv moving the Supreme Court ; and we have no doubt, it will, on application, be properly applied. An application was made to set aside the service of this summons, and we think it was well founded. This Court will not sanc- tion any attempt to bring a party Avithin its jurisdic- tion by fraud and misrepresentation. And where by false statement or fraudulent pretense, a party is brought within the jurisdiction, and there served with process, the service will be set aside. We recollect a case where a party was entrapped into this State out of another State, and then served with process, and there the service was set aside. "If a party who is not within the jurisdiction volun- tarily come within it, he thereby becomes amenable to the process of the Court, but not unless he comes volun- tarily. This Court will not countenance any proceed- ing of the nature adopted in this case. "Appeal dismissed with costs." The Olran Street Railway Company, Respondent, v. The Fair mount Construction Company, Appellant, 55 App. Div., Supreme Court, 4th Department, 1900, p. 292. 142 Adams^ p. J. : Opinion in full : "The defendant, Tlie Fairniount Construction Com- pany, is a foreign corporation organized and existing under tlie laws of the State of New Jersey. "At the times hereinafter mentioned Clarence P. King- was the defendant's Presideni and resided in the City of Philadelphia. "The plaintiff is a domestic corporation with its place of business in the City of Glean, Cattaraugua County, where its President, Wilson R. Page, resides. "The summons herein was issued and the complaint verified by Page on the 25th day of May, 1900, and on the twenty-ninth day of June, following, they were per- sonally served within the State upon John Forbes, the appellant's co-defendant. "At this time Clarence P. King was claiming that the plaintiff herein was indebted to him in the sum of 1671.44 for money loaned to the plaintiff on the 2ud day of December, 1897, and was corresponding with Page, as President of the plaintiff, with a view to having his claim adjusted and paid. "In answer to a letter demanding payment. Page wrote King that if he would meet him in New York, the latter part of the week of July 15th, 1900, he thought they could 'come to some conclusion.' To this request King assented, and suggested the seventeenth day of July as the day for the meeting, whereupon Page again wrote King that he would meet him at the Astor House at twelve o'clock, noon, on Saturday, July twenty-first. "The parties met at the time and place last mentioned and King presented his claim, which Page said he could not settle until he had seen a former Treasurer of the plaintiff, and while conversing in regard to the matter a process server walked in and served the summons and Ull complaint in this action upon King, and thereupon the intervicAV between the parties terminated. "A motion was thereafter made to vacate such service upon the ground that King was induced by some scheme or device to come within the jurisdiction of the Courts of this State in order that service of process might be obtained upon him ; and it must, of course, be conceded that if the truth of the appelUmfs contention were clearly established, service secured ^by such means should not be permitted to stand. For the Court will not sanc- tion any attempt by fraud or misrepresentation to bring a party within its jurisdiction {knelling v. Watrous, 2 Paige, 314; Carpenter v. ^yooner, 2 Sandf., 717; Met- calf v. Clark, 11 Barb., 45; Beacom v. Rogers, 79 Hun., 220). "The plaintiff's President, however, denies that he invited Mr. King to come to the City of New^ York for the purpose of obtaining service upon him. On the contrary, he declares, that when he wrote King, sug- gesting that city as the place of meeting, he did not even know that he was the defendant's President, and there are some circumstances in the case which, to some extent, give color to the statement; but, upon the other hand, it is a somewhat remarkable coincidence that the process server should have appeared upon the scene just as the two Presidents had opened negotiations for a settlement of the demand which King was endeavoring to have adjusted, and that as soon as the process was about to be served Page announced that he could do nothing in the direction of settlement until he had seen a former Treasurer of the plaintiff. "Assuming, however, that the coincidence to which we have referred was purely accidental and not the result of any trick or device, as perhaps we ought, in view of the decision of the Special Term, the fact remains that the 144 defendant's President was induced to come Avithin the jurisdiction of the Conrt at the suggestion of the plain- titf's President, and for the express purpose of adjust- ing a claim against the jdaijitiff which he had been as- sured by I*age would probably then be adjusted. In these circumstances we think that good faith and a due regard for the proprieties of the case required of the plaintiff that when the negotiations for a settlement of the matter which broughi the parties together, ter- minated., a reasonable opporriinity should have been af- forded the defendant's President to leave the city and state before any attempt was made to serve a summons upon him ; and inasmuch as this Avas not done, the plaintiff ought not to be permitted to take advantage of a course of conduct which, if not amounting to actual fraud and deceit, was certainly equivalent thereto and would involve a breach of the confidence which King had reposed in the bona fides of the invitation of the plain- tiff's President to place himself within the jurisdiction of the Court i Allen v. Wharton, 13 N. Y. Supp., 38; Hif/f/ins V. Dewey, 34 N. Y. St. Rep., 692). ''The order appealed from should, therefore, be re- versed, and the motion to vacate the service of the sum- mons and complaint granted." All concurred, Williams and Laughlin, JJ., in result only. A clerk in the office of plaintiff's attorney, after many fruitless efforts to serve the defendant, who resided in I the State, but without the jurisdiction of the Court, wrote him, as though desiring a business interview at a place within the jurisdiction. Defendant attended and was served with a summons, which he moved to set aside. Held, per Ehrlich, J., the clerk was guilty of 145 trickery, from which his principal, though ii;noraiit, can- not be allowed to gain any benefit. "The decisions are uniform that such deceit vitiates the service of legal process, but if there were no prece- dent exactly in point the Court would not hesitate to make one of the case at bar." Wyckoff V. Packard, 20 Abb. N. C, 420 (N. Y. City Court Special Term, 1887). SnelUng v. Watrous, 2 Paige (Ch.), 314 (1830). A person, against whom an attachment had issued for his contempt in not answering in an equity suit, applied for discharge from his debts under the Insolvent Act. Plaintiff in the civil suit opposed the discharge, pro- cured an order for his examination, and, on the close of it, served him with the attachment papers, which it had previously been impossible to serve. Hch], defendant's application to be discharged from arrest should be granted : "Where a party has not in fact !)eeu guilty of any crime this Court will not permit the complainant to resort to any unfair and inequitable method to enforce the process of attachment. It is very evident that the proceeding before the recorder to pro(!ure the personal attendance of the insolvent was a mere device to enable the complainant to arrest him on this attachment. I cannot allow a party thus to abuse the process or the remedial ])<)wer of any Court." Pei- Wolworth, Ch. N. Y. Super. (M. 1837 Gen'l Term. J3alrr v. ]Va1r<^, 14 Abb. Pr.. Rep. (N. S.) 331. On appeal from order vacating arul setting aside ser- (10) 140 vice of suiiiiiions based on evidence that the defendant was induced to come within the State to settle the claim, that after an nnsnccessfiil negotiation he was served at the attorney's office with a summons previously prepared and then and there filled out, and that plaintiff's attor- ney kept summonses in his office for that purpose, held^ per Freedman, J., the evidence sustained the finding "that deceit had been used for the purpose of bringing defendant within the jurisdiction of this court — the service of the summons was tlierefore properly vacated and set aside (Carpenter v. Hpooner, 2 Sandf. 716)." Order affirmed. All concur. Lagraves Case, Ih. p. 333, note (Supreme Ct. 1st Dis- trict, Spec. Term 1873) held, "a party brought within the jurisdiction by requisition on a criminal charge, made with design to get him here so as to hold him to bail in a civil action, is not liable to arrest in a civil puit brought bt/ those at irhose iiisitaiirc the criminal l>i-(>c<'C(Jiiif/ was .'Started.'' MetraJf v. (larl-, 41 I'.arl). 45 (1864.) Where it appears that the defendant "was, through the instrumentality of ])laintiff or of those acting in his behalf, inveigled into this State for the purpose of effecting service upon liim of the summons in this ac- tion," held, proper to vacate service of the summons and all subsequent i)roceedings based thereon. P(n' Bockes, J.: "Pie was enticed within the jurisdiction of the court for a purpose to which the court will not give its sanction — The proceeding was a trick." Point 2. — The said proceedings were void for the following reason, to-wit: There was fraud and trickerv upon the part of the Medical Examiners in Lunacy in 147 the pay of the petitioners, who, in order to keep pUiintiff in ignorance of the acts of the said petitioners, and that he shonUl have no knowledge of the impending action, npon the part of tlie said petitioners, to deprive him of liberty and property on the said false charge of in- sanity, pretended to have an interest in trance-states and requested plaintiff to enter a trance in order, as they alleged, that they might for purely scientific reasons, note the action of a trance. Plaintiff, to oblige said Examin- eiis in Lunacy, who never announced themselves as such, but kept said fact strictly in the background, and ap- peared in the guise, one of a surgeon, the other of an oculist — entered said trance. While in said trance, plaintiff made some remarks. Said remarks form the main charge against the sanity of the plaintiff. Said remarks were made wholly without the slightest ratioci- nation or volition upon plaintiff's part, except that, to oblige the said surgeon and the said "oculist," he per- mitted himself to enter said trance and while in said trance, for purely- scientific reasons, temporarily sur- rendered his reasoning and speaking faculties to the in- fluence of said trance. The said medical men expressed tJiemselves as interested in said trance-phenomena, and thereupon took their departure. They visited plaintiff on one otlier occasion when the trance was resumed. Thereupon after a discussion of trances in general and plaintiff's in particular, said parties departed. A short time tliereafter the. "oculist" appeared and brusquely in- formed plaintiff, who was at his rooms at a hotel in New York City, at which he was temporarily sojourning, and in which rooms the said conversations had taken place, that he was insane and that he must accompany said "oculist," who now, for the first time, disclosed his iden- tity, and said that he was a Medical Examiner in lunacy employed by the said petitioners. Plaintiff laughed at 148 the allegations of iiisanit}', and requested said examiner in hina( y to state the gronnds upon which said allega- tion was based. Said medical man tliereupoji said, "The things you said in the trance." Plain tilf laughed at this, whereupon said medical man said: "Don't you believe the things you said in the trance?'' Upon which plaintiff replied with an emphatic negative. Plaintiff declined to accompany said medical man, wiiereupon, some twenty liours later, March 13th, 1897, plaintiff' was arrested by two policemen in plain clothes in his said roonis, and taken by them to the Society of the New York Hos- pital at White Plains, Westchester County, New York, falsely known as "Bloomingdale," and there incarcerated for three years and eight months in a barred cell, on a false charge of lunacy; until Thanksgiving eve, 1900, when plaintiff escaped and lied to Philadelphia. Plain- tiff" was, of course, no more legally accountable for what he said in said trance, uiider the said circumstances, than he would have been legallv accountable for remarks made in his sleep. Point 3. — The said proceedings were void for the following reason, to-wit : There was fraud upon the Court, as well as upon the party, upon the part of the said Medical Examiners in Lunacy. Said medical men doctored plaintiff's trance utterances; that is to say, said medical men divided said trance utterances into two divisions. The iirst division said medical men took out of the said trance utterances, and placed by them- selves. The second division said medical men mixed; leaving part to be guessed at by the Court, and taking The other part out of said trance utterances. The parts in l)oth instances which were taken out of the trance utterances were stated by said medical men as hav- ing been said by plaintiff', leaving it to be inferred that 149 said parts were not parts of said trance utterances, but were plaintiff's own views whicli, upon the evidence, it being admitted by said medical men tliat plaintiff "fre- quently went into a trance-like state," upon said evidence tbey empliatically were not. Furthermore: Said medi- cal men also swore that plaintiff' was 'Siolent" and "dan- gerous," two allegations profoundly false, and totally . — Tlie said proceedings were void hi toto, for ihe reason that owing to the fact that plaintiff was kept away from Court by perjury and trickery, as afore- Ksaid, there was no real contest. Point 7. — The said x^i'ofeedings in 1899 were void in toto, for the reason that owing to the fact that plaintiff', by contrivance, was kept away from Court, there ^^'as no real contest. The said contrivance being that in- stead of setting the hearing in the County Court House of Westchester County, at White Plains, where plain- tiff was confined, said hearing was set in Manhattan, over twenty miles away. This was done to keep plaintiff out of Court, for said petitioners were in a position to know of plaintiff's physical disability, aforesaid, at the time. Whereas had said hearing been set at White Plains Court — less than a mile from plaintiff's cell — plaintiff could have been carried there in a carriage without danger of injury to him; or, if that was not flone, committees of the said Commission and jury could, in an hour, have visited him and examined him. Point 8. — The said proceedings in 1899 were void for tlie following reasons, to-wit : (a) Tlie only evidence of plaintiff"s alleged incom- ))etency came from the said two medical men in the ]>ay of the other side, and from the said Medical Super- intendent of the Society of the New York Hospital. Said evidence was, on the evidence strictly of two varie- ties, to-wit, frivolous, or perjured. The basis of the allegations of the two said medical men against plain- 151 tiff's competency and sanitj^ was the aforesaid trance. At the special request of said medical men plaintiff, for scientific reasons, entered a trance in order that he jiiight liear the comments thereon of two medical men who alleged that they were interested in trances. The only time that plaintiff entered a trance during his stay of three years and eight months at White Plains was in the presence of said medical men. Plaintiff did not hesitate to do this, althougli the doing of it had already got him in trouble, for the reason that plaintiff being a lawyer knew his rights, and knew that he had a legal right to enter a trance. Said medical men had deliber- ately lied to plaintiff. Said medical men had deliber- ately deceived plaintiff. Plainliff upon the appear- ance of said medical men, had at once asked them "Do •you represent anybody?" To which they both promptly replied tliat they represented no one. That the reason for their visit was that a friend of plaintiff's, whom they voluntarily and without questioning upon plaintiff's part, named, had requested them .to call and see plain- tiff' as said friend was anxious that plaintiff should get out of "Blooming-dale." Plaintiff' later communicated with said friend and found that there was not a word of truth in said medical men's assertion toucliing said friend's share in said medical men's visit. It developed later that said medical men were sent by the other side to obtain testimony for the other side at said pro- ceedings in 1899. The portion of said medical men's said testimonv concerning plaintiff's said trance is, of course, frivolous, from a legal standpoint ; a party hav- ing — under the said circumstances — a legal right to enter a trance. (b) A specimen of said medical men's evidence had to do witli matter touched on in a letter attached to plain- tiff"'s pi-esent affidavit, wliicli letter plaintiff had written 152 to a leoal friend on March 2«, 1900, requestiuo him to procure counsel for [)laintilf in order to institute haheas corjiHS proceedings to procure plaintiff's release. Plain- tiff in said conversation with said medical men, touched on in said letter, stroiijilv censured the parties directly or indirectly interested in holding plaintiff a prisoner on a false charge, and under void proceedings. Said medical men to wliom plaintiff had spoken as freely upon said topics as in said letter, palpahly— as will appear upon reading said ULedical men's sworn evidence at the said proceedings in 1899, and as will appear upcm read- ing in connection therewith plaintilf' s said attached let- ter — said medical men palpably and in a most bare- faced and preposterous fashion garbled the substance of said conversation and of said letter. The balance of material allegations jue on a par with above for bare- faced perjury. Lastly, said medical men palpably per- jured themselves on the witness stand at said proceed- ings in 1899, by swearing in effect that plaintiff was not only hopelessly insane and incompetent, but that plain- tiff was increasingly so, and that plaintiff's falsely al- leged insanitv and falselv alleged incompetency would in- crease with the lapse of time; all of which palpably per- jurious allegations have been almndantly disproved by plaintiff's acts since said trial, and by plaintiff's trial November G, 1901, in the County Court of Albemarle County, Virginia, the same being a court of record, in which county plaintiff's home is; at which trial plaintiff was declared both sane and competent ; said trial having been instituted by a neighbor, upon plaintiff's reappear- ance at plaintiff's said home after plaintiff's said escape, with a view to ascertaining plaintiff's sanity and com- petency; plaintiff at this time standing under the said void New York proceedings, in the light of an escaped lunatic, whom it was dangerous to allow at large. Plain- 153 tiff has since lived continuously at his said home in Albe- marle County, Virginia, undisturbed. And all of which plaintiff-in-error offered to prove on the trial in the lower Court, but was barred from doing so by the erroneous rulings of the learned Trial Judge (Folios 57-108-110, 111-112.) 154 RES ADJUDICATA AND COLLATERAL ATTACK, Right to Attack Judgment Collaterally. In cqiiiiij, a judgment iiiay be attached and impeached, hi/ /jrocecdings to prevent enforcement, upon the ground lliat it is clearhj "■against conscience.^' (pp. 194-198, Trial Brief.) Marshall v. Hohnrs, 141 U. S., 5S9, 596. Opinion by tlie learned Mr. Justice Harlan. ArrotDsmith \. Gleason, 129 U. S., 86, 89. Opinion by Mr. Justice Harlan. Proof that the )>artg nominaUg hound hi) the judg- ment was, in fact, kept "awag froin Court" hg tricJcerg or fraud, will suffice as a ground for injuuctire relief; proof of such a fact shous that the coutrorcrsg ivaii not suhstantial. U. S. V. Throckmorton, 98 U. S., 616. Regnolds v. Etna, 160 N. Y., 635, ()52, 653. The former adjudication and the litigation leading up to it "must he such not utcrcli/ in name, hut in fact and suJ}stance."' ilh. citing 87 N. Y., 303; 137 N. Y., 259.) II. In Courts of hur wJicre equitg juxrers arc disclaimed the general rule is that « judgment niag he impeached onlg hg direct attack (Drake \. N. Y. I^uh. Co.. 36 App. 155 Div., 275, 279; rheui.r Mills v. Miller, 34 !St. Kep., 9i)l) I ; BUT this rule is subject to the following crccptiona: (1) ^y(tnt of jurisdiction in fact may always he shoivn. Scott V. MacyeiU, 154 V. S., 34. Smith V. Reed, 134 N. Y., 5(>8. Matter of Killan, 172 N. Y., 547. (2) Fraudulent or collusive disregard of the rights of the party nominally hound hy the judgment may he shoum; the theory evidently being that his apparent as- sent or acquiescence was not a real and free act on his part. .]faiid( rillc V. Reiniolds. (;s N. Y. (3) When the judgment attacked collaterally is not the judgment of the forum in which it is attacked, even the former Utigation of jurisdictional issues is not neces- sarily conclusive, as it would he if such issues of fact were actually litigated and determined as a basis of a judgment in the same forum. Matter of Kimball, 155 N. Y., 62, 68. But even in cases where Courts of general jurisdic- tion are vested with powers of confiscation or with power to adjudicate in rem, and the hnv provides that such jur- isdiction be exercised only in cases where the person whose property is affected is civilly dead or politically outlawed, or legally non-resident, the judgment in rem is not conclusive as a determination of the jurisdictional facts unless the person affected has, hy due process of law, been su)nmoned to appear and had a fair oppor- tunity to he heard as to his status. 156 Chapman v. Phenix N. Bank, 85 N. Y., 437. H^cott V. MacNeill, 154 U. S., 34. At one time it was supposed to be the law that the Surrogate might practically confiscate a man's prop- erty, by adjudicating him to b<' dead and issuing letters of administration upon his estate (Roderu/as v. East River tSavings Institution), 'hut this doctrine has been practically abandoned (172 N. Y., 557) ; since the U. S. Supreme Court held that it tended to deprive persons of property without due process of law. Scott V. MacNeill, 154 U. S., 34. It is the fact, not the adjudication thereof, which vests jurisdiction. People ex rel. Gould v. Barker, 150 N. Y., 52, 57. Overly v. Gordon, 171 U. S., 21, 22. And the party to be concluded by a determination of facts jurisdictional, must appear to have had a substan- tial, and not merely a nominal opportunity to be heard ; the issue must have been both "litigated and decided" in the former action (160 N. Y., 653). ( This closes the aforesaid excerpt from APPEAL BRIEF in Chaloner against Sherman to the United States Circuit Court of Appeals for the Second Circuit. ) We append hereto pertinent extracts from recent de- cisions, bearing upon the general propositions above outlined. 157 Matter of Law, 50 App. l)iv. 454, 457. As the decree is limited in its biiidiii*;- effect to the thing' which it operates upon, it remains o])en to be controverted as to all the grounds and incidental facts upon which it professes to be founded. {Durant V. Ahendroih, 97 N. Y., 132.) The want of jurisdiction, either of subject-matter or person, renders the judgment a nullity, and it may be attackein this observation as to the effect of the authorities, an examination of tlieni s1ioa\s that our courts did in fact proceed upon a ground common to botli classes of iucliinients. The reasons are fiiUv stated in the case of Starhuck v. Murray (5 Wend. 148). In that case, which was an action upon a Massachusetts judgment, the defendant pleaded that no process was served on him in the suit in which the judgment sued on was rendered, and that he never appeared therein in person or by attorney, and this plea was held good, not- withstanding that the record of the judgment stated that the defendant appeared to the suit. ^Marcy, J., in deliver- ing the opinion of the court, and referring to the argu- ment that the defendant was estopped from asserting any- thing against the allegation of his appearance contained in the record, says: "It appears to me that this proposi- tion assumes the yery fact to be established, which is the only question in issue. For what i)urpose does the de- fendant question the jurisdiction of the court? Solely to show that its proceedings and judgments are void, and therefore the supposed record is not in truth a record. If the defendant had not proper notice of, and (lid not appear to, the original action, all the State ( 'ourts, with one exception, agree in opinion that the paper introduced, as to him is no record. But if he can- not show even against the pretended record that fact, on the alleged ground of the uncontrollable verity of the record, he is deprived of his defense by a process of rea- soning that is to my inind little less than sophistry. The plaintitf in effect declares to the defendant — the paper declared on, is a record, because it says you appeared; and you aj^peared, ])ecause the paper is a record. This reasoning is in a circle. The appearance makes the record uncontrollable verit^^, and the record makes the appearance an unimpeachable fact." And again at p. (11) 162 I GO lie savs: ''To sav Hiat tlie defendant may show the siil)j)Osed record to be a nullity, by showing a want of jurisdiction in the court which made it, and at the same tiiiit.' to estop him from doing so because the court has inserted in the record an allegation which he offers to prove untrue, does not seem to me to be very consistent." This is but an amplitication of what is sometimes more biiefly expressed in the books, that where the defense goes to defeat tbe record, there is no estoppel. That the reasoning of ^Marcy, J., is api^licable to domestic judg- ments, is also the oininion of the learned annotators to Phillip's Evidence. (Cowen and Hill's notes 1st Ed., p. 801 J note 551.) Referring to the o})inion of Marcy, J., be- foi-e cited, they say: ''The same may be said respecting any judgment, sentence or decree. A want of jurisdiction ill the court pronouncing it may always be set up when it is sought to 1)0 enforced, or Avhen any benefit is claimed under it; and the [)rinciple which ordinarily forbids the impeachment or contradiction of a record has no sort of application to the case.'' The (JicUi of our judges are all to the same effect altliough the precise case does Hoi seem to have arisen. In IHf/cJoir v. ^^tcaiiis (19 Johns., 11) Spencer Ch. J., laid down the broad rule til at if a court, whether of limited jurisdiction or not, undertakes to hold cognizance of a cause without hav- ing gained jurisdiction of the person by having them before them in the manner required by law, the pro- ceedings are void. In Latham v. Edgertoii (9 Cow., 227), Sutherland, J., in regard to a judgment of a court of common pleas, says: "The principle that a record caiinot be impeached by pleading, is not applicable to a case like this. The want of jurisdiction is a matter that may alwa.ys be set up against a judgment when sought to be enforced or where any benefit is claimed under it." Citing MifJs^ v. Martin. (19 Johns., 33.) He 163 also sav8 (pai^e 229) : "The plaintiff below iiijoht have api)lied to the court to set aside their proceedings, but he was not bound to do so. He had a i-ij^ht lo lie by uutil the judnnient was set up against him, and then to show that the proceedings were void for want of jurisdiction. In Bar is v. Packard (fi Wend. 327, 332), in the Court of Errors, the CMiancellor, speaking of domestic judgments, says: ''If the jurisdiction of the Court is general or unlimited both as to parties and subject-matter, it will be presumed to have had jurisdiction of the cause unless it appears affirmatively from the record, or J)y shoiving of the party denying the jurisdiction of the court, that some special circumstances existed to oust the court of its jurisdiction in that particular case." In Bloom v. Burdick (1 Hill, 130), Bronson, J., says: ''The dis- tinction between superior and inferior courts is not of much importance in this particular case, for' whenever it appears that there was a want of jurisdiction, the judgment will be void in whatever court it was rendered," and in People v. Cassels (5 Hill 164, 168), the same learned judge makes the remark, that no court or officer can acquire jurisdiction by the mere assertion of it. or by falsely alleging the existence of facts upon which jurisdiction depends. In Harrington v. The People (6 Barb., 607, (JIO), Paige, J., expresses the opinion that the jurisdiction of a court, whether of general or limited jurisdiction, may be inquired into, although the record of the judgment states facts giving its jurisdiction. He repeats the same view in Noyes v. Butler (6 Barb., 613, 617), and in Hurd v. i^hipnuui (6 Barb., 621, 623, 62-^), where he says of superior as well as inferior courts, that the record is never conclusive as to the recital of a jurisdictional fact, and the defendant is always at liberty to show a want of jurisdiction, although the record avers the contrary. If the court had no jurisdiction, it 164 had no power to make a record, and the snpposed record is not in truth a record. (Citing i^tarhnck v. Minray, 5 Wend., 158. ) The language of Gridley, J., in Wright V. Douglass (10 Barh., 97, 111), is still more in point. He observes : "It is denied by counsel for the plaintiff, that want of jurisdiction can be shown collaterally to defeat a judgment of a court of general jurisdiction. The true rule, however, is that laid down in the opinion just cited (op. of Bronson, J., in Bloom v. Biirdick, 1 Hill, 138 to 143), that in a court of general jurisdic- tion it is to be presumed that the couil has jurisdiction till the contrary appears, but the want of jurisdiction may always be shown hg evidence, except in one soli- tary case, vi/ : ''When jurisdiction depends on a fact that is litigated in a suit, and is adjudged in favor of the party who avers jurisdiction, then the (piestioa of jurisdiction is judicially decided, and the judgment record is conclusive evidence of jurisdiction until set aside or reversed by a direct proceeding." * * * In the Chenung Canal Bank v. Jadson (8 N. Y., 254), the general principle is recognized, that the jurisdiction (►f any court exercising authority ovei- a subject may be inquired into, and in Adams v. The Saratoga and Wash- ington R. R. Co. (10 N. Y., 328, 333), Gridley, J., main- tains as to the judgments of all courts, that jurisdiction may be inquired into, and disproved by evidence, not- withstanding recitals in the record and says that such is the doctrine of the courts of this State, although it may be different in some of the other States, and per- haps also in England, and he says "the idea is not to be tolerated that, the attorney could make up a record or decree, reciting that due notice was given to the defendant of a proceeding, when he never heard of it, { Rob. 108), Joiios, J., says that it is now conceded, at least iu this State, that want of jni'isdiction will render void the judi'inent of any conrt, wliether it he of snperioi' or inferior, of j^eneral, limited or local jurisdiction, or of record or not, and the bare recital of jurisdictional facts in the record of a judgment of any court, whether superior or in- ferior, of general or limited jurisdiction, is not con- clusive, but only pvima facie evidehce of the truth of the fact recited, and a party against Avhom a judg- ment is offered, is not by the bare fact of such recitals estopped from showing, by affirmative proof, that they were untrue and thus rendering the judgment void for want of jurisdiction. He cites in support of this opinion, several of the cases whicli I have referred to and Dohson V. Pearce (12 N. Y., 107 j, and Hatcher v. Rochcleau (18 N. Y., 92). It thus appears that the current of judicial opinion in this State is verv strong and uniform in favor of the proposition stated by Jones, J., in G liob. 198, and if adopted here, is decisive of the present case. It has not as yet, however, been directly adjudicated, and if sus- tained, it must rest upon the local law of this State, as it finds no support in adjudications elsewhere. There are reasons, however, founded upon our system of prac- tice, which would warrant us in so holding. The powers (>f a court of equity being vested in our courts of law, and equital)le defenses being allowable, there is no reason why, to an action upon a judgment, the defendant should not be permitted to set up, by way of defense, any mat- tei- which would be ground of relief in eciuity against the judgment; and it is conceded in tliose States where the record is held conclusive, that when the judgment has been obtained by fraud, or without bi'inging tlie de- fendant into court, and the want of jurisdiction does 166 not appear upon the face of the record, relief may be obtained in equity. Hinchman v. Richie (1849) '-The tindino- of an in- quisition of lunacy may be impeached on the ground of fraud, annient of the court : The letter of guardianship and the bond for the faithful performance of the trust, ap- proved by the judge of probate, were undoubtedly prima facie evidence of the appointment of the guardian. But they v^^ere not conclusive. The defendant might show, that though in form they were correct, yet in substance they were defective and void. * * * It further appears, that no notice was given to the plaiutitf, of the inquisition of the selectmen or of the proceedings before the judge oT prol)ate, and that there was no adjudication that she was ;/o// compos mev.iiy or that a guardian be appointed. She was thus deprived of the management of her property, and, to some extent, of her liberty, without an opportunity to object or be heard, and without any formal judgment. Those are un- doubtedly fatal defects, and render the whole proceeding unauthorized and void. It was so adjudged in Chase v. Hatha wai/ ef ah, 14 Mass. K. 222; Wa'ii v. Ma-iivell, 5 Pick. 217; and Hatha way v. Clarl-, in id. 490. And in the last case, it was holden, that the healing influence of time, after a lapse of thirty years, could not cure the infirmity. The appointment of the guardian being a nullity, it cannot authorize him to do any act which would bind his ward. Even an executive officer, to whom the guar- 167 dian was likeued in the argnnient, cannot justify un(lhts arisinj>- under judicial proceed- inS'(/rc//i E. Marshall, Pljf. in Err. v. He^irij B. Holmes, Sheriff, et al, 141 U. S. 589 (See S. C. Reporter's ed. 589-601.) Mr. Justice Harlan said : ''While, as a general rule, a defense can not be set up in equity which has been fully and fairly tried at law, and although in view of the large powers now exercised by courts of law over their judgments, a court of the United States, sitting in equity, will not assume to control such judgments for the purpose simply of giving a new trial, it is the settled doctrine that 'any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed him- 172 self at law, but was prevented by fraud or accident, un- mixed with any fault or negligence in himself or his agents, will justify an application to a court of chan- cery.' Marine Ins. Co. of Alexandria v. Hodgson^ 11 U. S. 7 Cranch, 332, 336 (3: 362, 363) ; Hendrickson v. Hinckley, 58 U. S. 17 How. 443, 445 (15: 123, 124); Crim V. Uandley, 94 U. kS. 652, 653 (24: 216) ; Metcalf V. WlUldin^. 104 Y. S. 93, 9r, (26:665, 666); Emhrey V. Palmer, 107 U. S. 3, 11 (27: 346, 349) ; Knox County V. Harshman, 133 U. S. 152, 154 (33 : 586, 587) ; 2 Story, Eq. Jur. § § 887, 1574 ; Floyd v. Jayne, 6 Johns Ch. 479, 482, 2 L. ed. 190, 192. See also United States v. Throck- morton, 98 U. S. 61, 65 (25: 93, 95.)" * * * Is it true that a circuit court of the United States, in the exercise of its equity powers, and Avhere diverse citizenship gives jurisdiction over the parties, may not, in any case, deprive a party of the benefit of a judgment fraudulently obtained l)y him in a State court, the circumstances being such as would authorize relief by the federal court, if the judgment had been rendered by it and not by a State court? A leading case upon this subject is Barroiv v. Hunton, 99 U. S. 80, 82 (25: 407, 408). That was a suit in one of the courts of Louisiana to annul a judgment ren- dered in a court of that State upon the ground that it was founded upon a default taken, without lawful serv- ice of the petition and a citation, and because, prior to the judgment, the party seeking to have it set aside had been adjudged a bankrupt. The case was removed to the Circuit Court of the United States, and was subse- quently remanded to the State court. The court held that the jurisdiction of the circuit court depended upon the question whether the action to annul the judgment was or was not in its nature a separate suit, or only a supplementary proceeding so connected with the origi- 17;) nal suit as to form an incident to it, and to be sul)stan- tially a continuation of it. It said : ''If the proceeding- is merely tantamount to the common law practice of moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review or an appeal, it would belong to the latter category, and the United States Courts could not properly entertain jurisdiction of the case. Otherwise, the circuit courts of the United States would become invested with power to control the proceedings in the State courts, or would have appellate jurisdiction over them in all cases where the parties are citizens of different States. Such a result would be totally inadmissible. On the other hand, if the proceed- ings are tantamount to a bill in equity to set aside a decree for fraud in the obtaining thereof, then they constitute an original and independent proceeding, and according to the doctrine laid down in Gaines \. Fuentes, 92 V. S. 10 (23 : 524 ), the case might be within the cog- nizance of the federal courts. The distinction between the two classes of cases may be somewhat nice, but it mav be affirmed to exist. In the one class, there would be a mere revision of errors and irregularities, or of the leiialitv and correctness of the judgments and decrees of the State courts ; and in the other class, the investi- gation of a new case, arising upon new facts, although having relation to the validity of an actual judgment or decree, or of the party's right to claim any benefit by reason thereof." Referring to the provisions of the Louisiana Code of Practice authorizing an action to annul a judgment obtained through fraud, bribery, forgery of documents, etc., the court said that it was disposed to allow the fact that, by the local law, an action of nullity could only be brought in the court rendering the judgment, or in the court to which the judgment was taken by appeal. 174 to operate so far as to make it an invariable criterion of the want of jurisdiction in tlie courts of the United States. '^^If,'' the court said, "the legislatures could, by in- vesting certain courts with exclusive jurisdiction over certain subjects, deprive the federal courts of all jurisdic- tion, they might seriously interfere with the right of the citizen to resort to those courts. The character of the cases themselves is always open to examination for the purpose of determining whether, ratione materiae^ the courts of the United States are competent to take juris- diction thereof. State rules on the subject can not de- prive them of it." As that proceeding was equivalent in common law practice to a motion to set aside the judgment for irregularity, or to a writ of error coram vohis, and as the cause of nullity related to form only, the case was held not to be cognizable in the courts of the United States. The rules laid down in Barrow V. Huntoyi were ap- plied in Johnson v. Waters, 111 U. S. 640, 667 (28: 547, 556) ; and Arrotvsmith v. Gleason, 129 U. S. 86, 101 (32: 630, 635). In Johnson v. Waters, this court upheld the jurisdiction of the Circuit Court of the United States, by a decree in an original suit, to deprive parties of the benefit of certain fraudulent sales made under the orders of a probate court of Louisiana, which court, by the law of that State, had exclusive jurisdiction of the subject- matter of the proceedings out of which the sales arose. After observing that the court of chancery is always open to hear complaints against fraud, whether commit- ted in pais or in or by means of judicial proceedings, the court said: "In such cases, the court does not act as a court of review, nor does it inquire into any irregulari- ties or errors of proceeding in another court ; but it will scrutinize the conduct of the parties, and, if it finds they have been guilty of fraud, in obtaining a judgment 175 or decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it." In Arroiosmith V. (ilea son the grounds of the jurisdiction of the Circuit Court of the United States to entertain an original suit — the parties being- citizens of different States — to set aside a sale of lands fraudulently made by the guardian of an infant, under authority derived from a probate court, are thus stated :, ''These principles control the present case, which, al- though involving rights arising under judicial proceed- ings in another jurisdiction, is an original, independent suit for equitable relief between the parties; such re- lief being grounded upon a new state of facts, disclos- ing not only imposition upon a court of justice in pro- curing from it authority to sell an infant's lands when there was no necessity therefor, but actual fraud in the exercise, from time to time, of the authority so obtained. As the case is within the equity jurisdiction of the cir- cuit court, as defined by the Constitution and laws of the United States, that court may, by its decree, lay hold of the parties and compel them to do what, accord- ing to the principles of equity, they ought to do, thereby securing and establishing the rights of which the plain- tiff is alleged to have been deprived by fraud and collu- sion." Point 9. The said Commitment Proceedings were void in toto for they were without due process of law and therefore unconstitutional for the following reason. There was lack of notice. The said ( N)mmitment Papers ( Transcript of Record, p. 113, Fols. 222-223) show that plaintiff, John Armstrong Chaloner, a citizen of Virginia, was committed to Bloomingdale Insane Asylum at White Plains, New York, by an order entered March 10th, 176 1897, by Judge H. A. Gildersleeve of the Supreme Court of that State, upon the petition of Winthrop A. Chanler, and Lewis S. Chanler, brothers of plaintiff, and Arthur A. Carey, a cousin of plaintiff, and upon the certificate of M. Allen Starr and another, Statutory Medical-Exam- iners-in-Lunacy ; and that personal service of process upon plaintiff was dispensed with by said Judge on the alleged ground that plaintiff was dangerous. The said proceedings under which plaintiff was so committed were had without any notice to plaintiff whatsover, such notice having been specifically dispensed with by order of said Judge. ( See Transcript of Record, p. 113, said Commitment Papers, lines 185-192. ) Said Commitment was not temporary, but indeterminate and permanent as to time and was stated to be after "a hearing duly had." (See p. 113, said Commitment Papers, line 345.) Said order was that plaintiff be "adjudged insane and that he be committed to 'Bloomingdale' Insane Asylum at White Plains, New York, an institution for the cus- tody and treatment of the insane." (See Transcript of Record, p. 113, Commitment Papers, lines 349-351.) Plaintiff had no notice of said application either per- sonal, or by substituted service on some person in plain- tiff's behalf; and there was no hearing at which plain- tiff Avas either present, could be present, or was repre- sented by any other person. Plaintiff Avas finally ad- judged insane and committed to perpetual imprison- ment, without notice or hearing, and therefore without due process of law. Said Commitment Being, on Its Face, a Permanent Order and Without Notice, Is, for Want of Due Process of Law, Void. It is a true principle of law^ and justice that a per- 177 son cau not be deprived of his liberty, or his property, without notice to him and opportunity to be heard in his own behalf. This proposition has been repeatedly expressed in the highest courts in many of the States. In many of them it has been specifically applied to cases of insanity upon de lunatico inquirendo proceed- ings. The above proposition is sustained by the follow- ing excerpts from cases ranging from 1817 to 1902, in date, fifteen of which from their- being leading cases, are given in ecotenso. In Hatha icaij v. Clark, 5 Pick. (Mass.), 190 (decided in 1827 ) , the question of the necessity of notice arose in- directly, but was directly decided. A writ of error was brought to reverse a judgment, on the ground that the original defendant, at the time of the service of the writ upon him and of rendition of the judgment, was under guardianship as a person 7}on compos mentis, and that no notice of the suit was ever given the guar- dian (corresponding to the Committee, in New York State). Issue Avas raised as to the existence of the guardianship; and to prove it, the records of the Pro- bate Courts were produced, showing the appointment of a guardian, but containing no adjudication that de- fendant was nou compos and no affirmative evidence that he ever had notice of the inquisition, or of the proceedings upon the return. Held, per Morton, J., the party alleging the existence of the guardianship had failed to prove it, because: (1) By statute, notice to the person to be affected by the inquisition, and of the adjudication, is essential to the validity of the proceed- ings in the Probate Courts. (2) In the absence of such notice, the decree is ab- solutely void (citing Chase v. Hathairaij, 14 Mass. 222). (3) Notice was not shown by the record, and would not be presumed. (12) 178 Buicliins v. Johnson, 12 Conn. 376 (1837) was an action brought by the conservator (the term then used to designate the coniniittee) of a lunatic. One of the facts to be proved by plaintiff was his appointment as conservator. On appeal from a judgment in his favor, it was held (per Williams, Ch. J.), that because the record of his appointment failed to show that notice of the application was ever given to the alleged lunatic, the judgment should be reversed, notice being essential to the validity of so important a proceeding both by "the fundamental principles of justice" (citing Chase v. Hathaway, 14 Mass. 224) and by the statute of Con- necticut. "A requirement so salutary should be en- forced; and, until such notice is given, the court has no more right to make the appointment, no more juris- diction in the case, than any other tribunal. * * * "The case presented to us is that of a court, to whom an authority is delegated upon certain terms and condi- tions, having proceeded to act under that authority w^ithout having seen that those prerequisite conditions were complied with : in which cases we have held such proceeding void." (Action was in simple Assumpsit.) In Bonn] of Supcrrisors v. Budlonf/, 51 Barb. 493 (1808) defendant was sued for the expense of main- taining his wife at the county insane asylum. The ques- tion was presented (both by objection and exception to the introduction in evidence of a certificate of the County Judge, and by offer to prove and exception to the exclusion of evidence, that the facts stated in said certificate as to the insanity of the wife were untrue), whether the defendant, who was not a party to the pro- ceeding to adjudge his wife a lunatic, was concluded therel)v and bv the ccn'tificate of the result thereof. 179 Held, per E. D. Smith, J., the husband was not so bound ; and the admission in evidence of the certificate, and the exclusion of evidence of the sanity of the wife, were error, requiring reversal. "The Statute, which author- ized the certificate, does not declare what shall be the force or effect of such certificate as evidence, or whom it shall bind; and it must, therefore, stand upon the same basis with all other judgments or adjudications. It must bind those who were parties and privies to the proceeding, and had an opportunity to litigate the questions involved in such investigation and adjudica- tion. No one else can be bound by this certificate. It is a fundamental rule of law and of common justice that no one shall be concluded by a legal judgment, de- cision or adjudication had or made in any suit or pro- ceeding to or in which he was not a party or privy, and of which he had no notice, or in respect to which he had no opportunity to defend himself, or to litigate the question involved, or upon which his liability de- pended. The jurisdiction of all courts and officers exer- cising judicial functions is open to investigation, ques- tion and inquiry, whenever their proceedings are set up or sought to be enforced; and when there is no jurisdiction, such proceedings are absolutely void. If this certificate, then, was prima facie evidence of the facts it recites and afftrms, or finds, it could not be con- clusive on the defendant and he was clearly entitled to disprove the facts alleged or stated therein, upon which the jurisdiction of the judge depended." Eslara v. Lepetre, 21 Ala. 504 (1852) was a suit to foreclose mortgages, one of which was executed by the mortgagor and his wife's guardian in lunacy. She was not made a party, though her guardians were. It appeared that they liad been appointed on i^etition of 180 the husband, allegiiif^ his wife's insanity, etc., but there was no issuance of a writ de lunatico inquirendo and no finding of a jury therein. Held, per Ligon, J., ap- pointment void, and objection that wife was not a party to the foreclosure suit well taken. "Without the is- suance of this writ, and the finding of a jury, the County Court Judge had no power to declare her a lunatic or to appoint a guardian for her. These proceedings are indispensable to give the County Court jurisdiction to make the appointment; and as they were not had and as thfit Court is one of limited jurisdiction, the pro- ceedings upon the appointment of guardians are coram non judice and void. Such being the case they may be impeached in any Court in a collateral proceeding in which a party seeks a benefit under them. * * * Neither does the record show that she had any notice whatever of the proceedings. They were ew parte, and are consequently null and void." Molton V. Henderson, 02 Ala. 426 (1878) was an action brought bv the gTiardian of a lunatic, the son of one Thos. Molton, to declare lands in defendant's possession subject to the trusts created by the will of the lunatic's father. The guardian had been appointed without notice to the lunatic and had brought pro- ceedings to have the land in question sold, as beneficial to the lunatic. The sale took place, and defendant later purchased from grantees of the purchaser. Plaintiff now claims the sale to be void, alleging the jurisdictional defect in the appointment of the guardian, invalidat- ing the proceedings for the sale. Held, the want of notice rendered the inquisition of lunacy void. But the defendant having had posses- sion adverselv for the statutorv time, held, entitled to retain it. 181 Mulligan v. Smith, 59 Cal. 200. Holds in reference to notice in str-eet opening proceedings. In absence of notice, not precluded from attaching sufftciency of petition. Hcij Sinf/ leck v. Anderson, 57 Cal. 251. Held, in re seizure of fishing nets : Confiscations without a judicial hearing and judgment, after due notice, are void, as not due process of law. McGee v. Hai/es, 127 Cal. 336. I under Code Civ. Proc, 1763, providing that, on the filing of a petition for the appointment of a guardian for an incompetent person, notice must be given to such person of time and place of hearing of at least 5 days and "such person if able to attend must be produced," the personal appear- ance of such person on the hearing and his request that the petition be granted, do not cure fatal defects in the notice of the hearing served on him. Board of Education v. Bakerwell, 122 111., 348, Re taking of ])roperty for normal school. "As said in Westervelt v. Gregg, 2 Kern 209 : 'Due process of law undoubtedly means in the due course of legal pro- ceedings according to those rules and forms which have been established for the protection of private rights. Such an act as the legislature may, in an uncontrolled exercise of its power, think fit to pass is in no sense the process of law designated by the Constitution. } ?j Susan Conhey, hy Whipple Cook, her Guardian VERSUS Henry Kingman, 24 Pick. 115. Assumpsit on a promissory note as follows: "Pelham, October 27th, 1827. For value received 182 of Whipple Cook, guardian of Susan Conkey, a dis- tracted person, of Pelham, I promise to pay him the sum of |7.67 annually, that is to say, at the expiration of each year from the above date, for and during the natural life of said Susan Conkey. Witness my hand. Henry Kingman." The plaintiff sued l>y Cook as liei- guardian, and the defendant pleaded in abatement, that at the time of suing out the writ the plaintiff was not under the guar- dianship of Cook; and issue was joined upon this plea. At the trial in the Comuion Ple^is, before Williams, J., the plaintiff produced the following evidence (to the competene\ of all of which the defendant olijected ) viz: a letter of guardianship, dated Septend)er 4th, 1827, from the judge of probate, appointing Cook the guar- dian of the plaintiff as a person non compos mentis, and a bond (h\\j executed and approved for the faith- ful perforuumce by Cook of his duties as guardian. The plaintiff' further proved, that afterwards Cook, claiming a right to act in behalf of the plaintiff by virtue of the letter of guardiauship, demanded of one Fitts, in behalf of the plaintiff, that he should set off her dower in a parcel of land of which she was dowable, and which her husband had conveyed to the defendant, and the de- fendant had conveyed with warranty to Fitts; that upon this a negotiation was had, which i-esulted in an agree- ment by the defendant to i»ay Cook st) mucli money an- nually as was e(|uivalent to the value of the dower, to be determined by arbitrators; and that in consideration thereof Cook agreed not to procure the dower to be set oft', that arbitrators, mutually chosen, then awarded that the defendant should pay the sum of $7.67 annually ; that (\)ok, as guardian, executed a writing purporting to be a lease of the doAver during the life of the plaintiff, and the defendant thereupon gave the note above recited* 183 and that ou the third of Noveiiibei*, 1828, the defeiidaut paid oue instalment of the note. To meet this evidence, the defemhmt i>roved (the plain- tiff objecting to the introduction of the evidence), that the application hj tlie selectmen of Pelham for a com- mission contained the name of Sarah Conkey, and not Susan Conkey; that the ordei- of in«iuisiti(m contained the same name; and that the name of Susan Conkey first oc- curs in tlie return of the commission. Tlie defendant also proved that previous to the appointment of Cook as guardian no notice was issuet according to the law of the land. * * * Jndiriai 'Sale. * * * Ixdlcf trill ])<■ (j rait ted front a sale Ixtscd n/xtu a jtidtjiiieitt entered witJiout service of process upon or appearance on behalf of the defendant, without imiuiring as to the merits of the original claim. Although a just cause of action exists against the de- fendant, he must be allowed an opportunity to pay the debt, or redeem the property from sale, before his title ther(^to can be divested by judicial proceedings. McCiiffif v. Hooper, 12 Alabama, 823, January Term, 1848/ This was an action of detinue, brought by the plain- tiff, to recover of defendant, certain slaves. On the trial, the plaintiff read in evidence a bill of sale, executed to him for the slaves, by George L. Patrick, bearing the date of January, 1845. At the date of the instrument, the slaves were in possession of Patrick, and belongersons; and that he was tioii coiitpos iiicnfis. This verdict was returned with the writ, and thereupon, a guardian was appointed, the defendant in error, to take charge of his property and i)erson. It does not appear that George L. Patrick had any notice whatever of the time, and place, of nuikiug this in(]uisition; or that the jury saw him, or nuide any ap]^lication, or effort to see him. It does not appear that he had any notice of the application to the court for the writ, or that he had any notice of the action of the court, on the return 187 of the writ; but the proceediuiis wei-e r./ jHirlr iuei-<'ly; and h\ tlie judgment of the oi-plians' couit, the defendujit in error is invested with tlie eontrol of the property and person of Patrick. I think it is a fundamental principk? of justice, es- sential to tlie rights of every man, that he shall have notice of any judicial proceedings that is about to be had for the ])uri)ose of divesting him of his jn-operty, or the control of it, that he may ai)])ear and sliow to them, who sit in judgment on liis rights, that he has not lost them by tlie commission of a crime; nor should those rights be taken from him hj reason of any misfortune. That he lias the right to appear before the jury, and the court, and to shoAX' that he is not insane, that he and his prop- erty should not be put in charge of another is a self- evident truth, and is denied by no legal authority. (See 12 Yes. 444; E.r parte Cranmer, Stock on Lunacy, 100.) This being his right, to appear, and defend himself, the (|uestion is, Avliat etfect is the law to give to a proceed- ing that had denied this right? In the case of ^yalt v. Ma.rioell, 5 Pickering, 219, this precise (piestion came up, and the court held, that the proceeding of the court of pi-obate, and the grant of letters of guardianship were null and void, because the uou compos had no notice of them. And in 14 :Mass. R. 222, it was determined, that it was the right of an ir.- dividual against whom proceedings in the court of pro- bate were taken to appear and controvert the fact of in- sanity, and that an imiuisition taken without notice was void. These authorities seem to be in unison with the first principles of justice, and are not opposed by any authori- ties that have fallen under our observation. We there- fore come to the conclusion that the proceedings of the county court, in the nature of an inquisition, and deter- 188 mining" said Patrick to be iioii couipos mentis, are void; that they are not evidence for any purpose in the trial of the issues in (lie case, and sliould have been re- jected, and not allowed to go to the jury. * * * Let the judgment be reversed and the cause remanded. DUE PKOCESS OF LAW. Georf/e BiinJirl- v. TJic People of the State of JlUnois, 149 111. fiOO. (Filed at :\It. Yernon April 2, 1804.) Magruder, J., said : * * * The phrase "due process of law" is the equivalent of the words "laAV of the land" as used in Magna Charta, and means "in the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights." {Board of Education v. Bakewell, 122 111. 339; Rliinehart v. Schut/ler, 2 Gilm. 473; Davidson v. Kiew Orleans, 96 U. S., 97; Cooley on Cons. Lim. 5 ed. marg. page 356, top page 435.) An act of the legislature is not necessarily the "law of the land." A State cannot make anything "due process of laAV," which by its own legislation, it declares to be such. Miuiajfs Jjcssec v. Hohohcn Land and I niprovement Co., 18 How. (IT. S., 1855) 272. The Court, per Curtis, J., "The article (in United States Constitution re "due process of law") is a re- straint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any pro- cess "due process of law," by its mere will. Bardivell v. Collins, 20 Am. St. Kep. 554, Minn. (July, 1890). 189 Mr. Justice Field, in deliveriiiti- tlie ()])iiii()ii of the court in the recent case of Dent v. West Vitation of the Code of Alabama. The pro- ceeding was, therefore, under the law as existed before the Code was proclaimed. A like case to this came un- der the judicial notice of this court in 1852, at the June term of that year. This was the case of Eslava v. Lc- petrc, 21 Ala., 505. In this latter case, the report shows that a guardian had been appointed for Mrs. P]slava as a person of unsound mind, on tlie petition of her husband, by the Orphans' Court of Moldle County, without pro- ceedings to have her declared a lunatic. The appoint- ment of the guardian was made before the 7th dav of January, 1849, as on that day her guardian was served with subpoena to bring her into court. 21 Ala., 511. In her case, the court said : 'This appointment was made upon no other assurance of the fact of Mrs. Eslava's lunacy than a petition of her husband without notice to her, and without the issue of a writ de lunatico in- quirendo, and the verdict of a jury thereon. Without the issue of this writ, and the linding of the jury, the county court judge had no power to declare her a luna- tic, or to appoint a guardian for her.' * * * "But the right to life, liberty, and property is sacred, and it cannot be invaded by the legislative power. Decl. of Independence; Cooley's Const. Limit, p. 351 et seq.; Sedgwick on Stat. & Const. Law, p. 177 et seq. >} The State ex rel. Larkin v. Ryan, Court Commis- sioner, 70 Wise, 676. January 17— February 28, 1888. Cassoday, J., said : ''So sacred are certain rights of the citizen that they are especially guarded by our na- tional constitution ; which, among other things, declared that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the (13) 194 United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor den}' to any person Avithin its jurisdiction the equal protection of the laws.' Sec. 1, Art. XIV., Amend. Const. U. S. In Muglcr v. Kansas, 123 U. S., (563, it it is said by the court : 'Undoubtedly the State when pro- viding by legislation for the protection of the public health, the public morals, or the public safety, is sub- ject to the paramount authority of the Constitution of the United States, and may not violate rights secured or guaranteed bv that instrument or interfere with the execution of the powers confided to the general govern- ment.' " Joseph Chauvin, Respondent , v. Henry G. Valiton, Appellant y Constitutional Law, 5th Division, Revised Statutes, The Court held: Nothing can be the law of the land in the sense of the Constitution, however general it may be, and however it may aftect the rights of all persons alike, which deprives the citizen of his life, his liberty, or his property, without due process of law ; and that, as we have already seen, conlemplates that a hearing must be allowed to him at some stage of the proceed- ings against him, and a hearing would be but a hollow mockery if he could not be allowed to defend and be protected in his rights by the judgment of the court, or the administrative or executive officer with whom he has to do. Sidney H. Stewart^ Jr., AppeUant, v. George W. Palmer, as Collector, etc., et al.. Respondents, 74 New York. 183 (May, 1878). Earl, J., held: 195 "I am of the opinion tliat the Constitution sanctions no hiw imposing- such an assessment, Avithout a notice to and a hearing or an opi)or- tunity of a hearing by the owners of the prop- erty to be assessed. It is not enough that the owners may by chance have notice or that thev may, as a matter of fayor, have a hearing. The law must require notice to them, and give them the right to a hearing and a^ opportunity to be heard. * * * "^The constitutional validity of late is to he tested, not by what has been done under it, but by what may, by its authority, be done. The Legislature may prescribe the kind of notice and the mode in which it shall be given, but it can- not dispense with all notice. * * * "■The Legislature can no more arbitraT-ily ini- pose an assessment for whicli property may be taken and sokl, than it can render a judgment against a pcTson without a liearing. ft is a rule founded on tJic first priitciples of natural justice older than written constitutions, that a citizen shall not be deprived of his life, liberty or property without an opporfii niti/ to he heard in the de- fense of his rights, and the constitutional provision that no person sliall be dejirived of th<^se 'with- out due pr()C(^ss of hiw' has its ftmndation in this rule. This prorision is the most important guar- anty of personal rights to be found i)i Ihe Federal or !>itate Constitution. It is a limitation upon arbitrary poiver, and is a guaranty against arbi- tra)-y legislation. No citizen shall arbitrarily be deprived of his life, liberty or property. This the Legislature cannot do nor authorize to be done. 'Due process of law' is not confined to judicial 196 proceedings, Imt extends to every case which niaj' deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative or executive (Weinier v. Brueinbury, 30 Mich., 201). "This great guaranty is always and everywhere present to protect the citizen against arl)itrary interference A\'ith these sacred rights. * * * it may, however, be argued generally that due pro- cess of law required an orderly proceeding adapt- ed to the nature of the case in which the citizen has an opportunity to be heard, and to defend, enforce and protect his rights. A hearing or an opportunity to be heard is absolutely essential. We cannot conceive of due process of law without this." In PJukKlclphia v. Miller (49 Penn. 110) Agner, J., speaking of taxation, says: ''Notice or at least the means of knowledge is an essential element of every just proceeding which affects the rights of persons or prop- er t v." * * * It is a plain princiijle of justice applicable to all judicial proceedings, that no person should be con- demned, or shall suffer judgment against him without an opportunity to be heard; and he says that an act "assessing persons without notice transcends the power of the Legislature, and is itself void." Portland v. Bcnif/or (65 Me. 120). Walton, J., said : "If Avhite men and women may be thus summai'ily disposed of at the North, of course, black ones may be disposed of in the sanu^ way at the South; and thus the xevx evil which it was particularly the ob- 197 ject of tlic Fourteen Hi Aineiidinent to eradicate will .still exist. The ol)jeetioii to such a proceediiiii does not lie in the fact that the persons named may be restrained of their liberty, bnt in allowino- it to be done withont first having a judicial investigation to ascertain whether the charges made against them are true. Not in committing them to the workhouse, but in doing it without first giving them an opportunity to be heard. * * * Fliilo Parsons and (mother v. George B. Russell and another, 11 Michigan, 113. It was said: ''Story defines 'due process,* etc., as 'being brought in to answer/ etc. This also means much the same as 'agreeable to the principles and usages of law' found in many statutes, c. g. U. S. Jnd. Act § 14; and these principles and usages form the substratum of all State and Federal laws; Marshall Ch., J., Burr's Trial. * * * ^Martin, Chief Justice, said: Whatever may be the difficulty of defining this phrase of the ronstitution when sought to be applied to other proceedings, when used in relation to those of a judicial character, it is evidently, and has been so universally held, intended to secure to the citizen the right to a trial according to the forms of law of the (piestions of his liability and responsibility, before his person or his property shall l)e condemned. Judicial action is in such case imperatively required, and "implies and includes actor, reus, janieat under general laws. * * * In the Common Pleas of Philadelphia. Commonwealth ex relatione Isaac Edimindson Stew- art V. Thoiitas *S^ KirkhrUJe, M. D. 2 Brewster, 419. Brewster, J., said : I hold to the doctrine that no man can be deprived of his liberty without the judgment of his peers ; and that it matters not to the law whether the alleged cause of detention is insanity or crime. * * * The record shows no order made by the court for serv- ice of a notice of the proceedings, either upon the alleged lunatic or any other person ; nor does it show that notice of any kind was given to any person. Lord Chancellor Erskine {ex parte Cranmer, 12 Ves. Jr., 455), said: ''The party must certainly be present at the execution of the commission; it is his privilege.'* The same rule has been adopted in the ITnited States. ( See Russell's Case, 1 Barb. Ch. Rep., 38; and Hinchman's Case, Brightly \s Rep., 181. ) * * * It is abhorrent alike to our sense of justice and to all judicial precedent that his character, liberty, and estate should be swept away from him without a hearing or opportunity of defense. To hold otherwise would be contrary to every principle of reason and justice. They call for notice, and tested by their requirement this decree crumbles to ashes. In Dowell against Jacks, 53 North Carolina Reports, page 387, the following is the rerhatim finding of the court : Manly, Judge: We regard as of no importance, con- nected with the merits of the petitioner's case, that at- torneys were employed by a friend to attend, in her be- 199 half, to the inqnisition of lunacy at July Term, 1859. She had no notice — was not legally represented, and what is of still greater- importance, was not present, to be seen and examined by the jury. Benjaiiiin Chase, Appellant, ttc, VEUsrs Bnizillai Hathaway, 14 Mass., 221 (1817), .July Term. Parker, J., said : ''But we are of opinion that, notwith- standing the silence of the statute, no decree of the Probate Court so materially affecting the rights of prop- erty and the person, can be valid unless the party to be affected has had an opportunity to be heard in defense of his rights. It is a fundamental principle of justice, essential to every free government, that every citizen shall be main- tained in the enjoyment of his liberty and property, un- less he has forfeited them by the standing laws of the community, and has had opportunity to answer such charges as, according to those laws, will justify a for- feiture or suspension of them. And whenever a Legis- lature has provided that, on account of crime or mis- fortune, the public safety or convenience demands a sus- pension of these essential rights of the individual, and has provided a judicial process by which the fact shall be ascertained, it is to be understood as required that the tribunal, to which is committed the duty of inquiring and determining, shall give opportunity to the subject to be heard in support of his innocence or his capacity. It has been intimated that notice to an insane person would be of no avail, because he would be incapable of deriving advantage from it. But the question ui)on which the whole process turns is, whether he is insane ; for the presumption of law is that every uum is of sound mind until the contrary is proved ; and it being possible that interested relatives might falsely suggest insanity 200 with a view to deprive tlie party of the power of dis- posing^ of his estate, it is essential that every possibility should be guarded against by personal notice to him when practicable, that he may expose himself to the view of the judge and prove, by his own conduct and actions, the falsity of the charge. * * * Indeed, it would seem strange that the whole estate of a citizen might be taken froui him and committed to others, and his personal liberty be restrained, upon an ex parte proceeding, without any notice of the pend- ency of a complaint, upon a suggestion of lunacy or other defect of understanding; while the depriving of the minutest portion of that property or the slightest de- tention of his person would be illegal upon a charge of crime, or a breach of a civil contract, unless all the for- malities of a trial were secured to him by the forms of process, and the regular execution of it." Re W. H. Lambert (Cal.), L. R. A., 55 (1902), p. 856. Harrison, J., said : "An examinati(»n of tlie foregoing provisions of the statute shows that tliere is no provision for giv- ing to the alleged insane person any notice of the proceedings against liim, and that under its pro- visions the first intimation tliat he may have thereof may be when tlie SherifC takes him into liis custody under the order of commitment. The person making the application for the commit- ment is not required to give him any notice there- of, nor is there any requirement that he shall be informed of the object for which the physicians are examinino- him." * * * 201 "This ceitirtciite iiiiiy he iiukIc b.v any two physicians who liavc ivccivcd and filed the eertiticate of a sn])ei-ior jndiie showinii that they possess the recpiisile <|ualiiica- tiou. There is no limit to the nnndKM- of physicians who may heconie such medical examiners, noi' does the act authorize a superior judjie to refuse his (•<-rtiti! ate to any physician who nmy show himself (Uialilied tiierefor. No certificate is to be made unless two examiners shall find the person to be insane, but the ])ersou seekinj^,- the order of commitment is not concluded by the determination of the first examiners to whom he nuiy apply, but is at liberty to continue his application for a certificate until he shall find two examiners who will certify to the insani- ty of the person. The examination is not made by them under any direction of the Judiie, nor do they receiye any letter of authority or power to compel testimony. The statute does not re(]uire tliat their certificate shall be ijiven under oath, nor does it re(|uire that the witnesses before the examiners shall «iye their testimony under oath, or proyide for any oath to be administered to such witiu'sses. They are only re(|uired to make "such exami- nation" of the person as will enable them to form an opinion "as to his sanity or insanity," and their exami- naticm may in fad be so conducted that he will haye no knowled<>e that they are examining him for that purpose, or eyen makinii; any examination of him. * * * The statute does not reipiire the Jud^e, when he passes upon their sufficiency, to i»iye any notice thereof to the alleged insane person, or eyen to require him to be brou«iht into his presence. * * * "The proyision in section 4 for a trial upon the ques- tion of his insanity is effectiye only after the order of commitment has been made, under which the person may haye been immediately placed in the hospital, and cannot be made a substitute for his rif»ht to have an oppor- 202 tunity to be heard, and to defend liimself against the charge before being deprived of his liberty. For the pur- pose of shoAving the inefficiency of this provision in pro- tecting a person against an invasion of his constitutional riglit to a notice and a hearing before he can be deprived of his liberty, it is only necessar^^ to read, in connection therewith, the provision that, before sucli trial can be had, he must provide for the paynsent of the costs there- of, and also the provision of section 8 in article I, of the act, that, after he has been committed to the hospital, he may be restrained of all correspondence with the outer world, except with the superioi* judge and the district attornev of the county from which he was committed. The statute thus clearly provides that the proceedings before the judge in a case like the present may be en- tirely cjc parte, and that he may be satistied that the al- leged insane person is insane by merely examining the certificate and petition. He may issue the order of commitment upon the <)i)inion of the two examiners, with- out any examination by himself of the person sought to be committed, or of the examiners who have made the certificate, and without knowledge of tlie facts or testi- mony upon which they have made their certificates. In thus acting upon these documents, he takes as tlie sole l)asis of his action the opinion of the examiners, ascer- tained as before shown, that the individual is Insane. The opinion of practitioners of medicine, however, upon the (juestion of insanity, are not always uniform or in- fallible, especially if sucli opinion forinf^d e.f parte, or without an opportunity for a full investigation of the charge. The mere certificate of an opinion thus obtained ought not to be a sufficient warrant for an order for the confinement of a person in an insane asylum. There should at least be the semblance of a judicial iuA'estiga- 2oa tion, of wlik'h a public record can be preserved, before a person can be deprived of bis liberty. * * * It does not appear, eitber from tlie order of commit- ment or by tlie accompanying documents, tbat any notice was given to tbe petitioner of an intention to make an application for tbe order, or tbat be was ever notified or bad any knowledge tbat tbe medical examiners would make any examination or investigation in reference to bis sanity, or tbat tbe judge of tbe superior court ever directed any notice to be given bim of tbe application, or of an intention to determine tbe (Question of bis sanity ; nor does it appear tbat be Avas present at tbe time tbe matter was under consideration by tbe judge, or was at any time seen or examined by tbe judge. Tbe act in (question was evidently suggested by tbe insanity law of NeAV York passed in 189G (1 N. Y. Laws 1896, cbap. 545), and tbe provisions of tbat act bave been closely copied. * * * In People, e.r rel. ^^itllirait \. Wendell, 33 Misc. 496, 68 N. Y. Supp. 948, tbe relator bad been committed to an insane asylum under tbe pi'ovisions of tbis section, but bad bad no notice of tbe application, eitber person- ally or by substituted service on any one in ber bebalf, and there Avas no bearing at Avhicb sbe was eitber person- ally present or represented by any person. Tbe court beld tbat to tbe extent tbat tbe insanity law autborized sucb proceeding, it was in violation of tbe Constitution, in tbat it deprived ber of ber liberty witbout due pro- cess of law, and (►rdered ber release. An order for the commitment of a person to an insane hospital is essen- tially a judgment by which he is depriAT^d of bis liberty, and it is a cardinal principle in English jurisprudence that, before any judgment can be pronounced against a person, there must hnxe been a trial of the issue upon which the judgment is given. Under the laAvs of this State 204 a guardian of the person or tlie estate of an insane per- son cannot be appointed without giving liim notice of the application therefor (Code Civ. Proc. § 1763) ; nor can a judgment for so small a sum as $5 be rendered against him unless he has been served with a summons in the action. (Code Civ. Proc. § 411.) Much more is there reason foi' giving him notice of an apjjiication to de- prive him of his personal liberty. The provision in the statute for a notice to a relative or friend of the allegeht of the State to provide for the summary arrest of a person against whom a charge of insanity is made, and his tem- porary detention until the truth of the charge can be investigated. Such arrest would itself be a notice to him of the charge, under which he would be afforded an opportunity for a hearing thereon. Nor is there in- volved the right of the State to permanently restrain an insane person of his liberty, whether such person be harmless or dangerous, but the question is whether he is entitled to a judicial investigation of the charge that he is insane, and the right to be heard thereon before its determination. The question to be determined is not whether the action of the judge in investigating the in- sanity of the petitioner w^as conducted under the forms of law, and with proper regard for his rights, but whether the Judge had the right to enter upon the in- vestigation, or take any action whatever in reference to his sanity. * * * "It is not enough that (he) * * * may by chance, have notice, or that he may, as a matter of favor, have a hearing. The law must require notice to him * * * and give (him) * * * the right to a hearing, and an opportunity to be heard. * * * The constitu- tional validity of law is to be tested not by what has been done under it, but bv what mav bv its authoritv be done." .^tnart v. Palmer, 74 N. Y., 188, 30 Am. Kep., 291. "It is not what has been done, or ordinarily would be done under a statute, but what might be done under it, that determines whether it infringes upon the con- stitutional right of the citizen. The Constitution guards against the chances of infringement." Bennett v. Davis, 20G 90 Me., 105 ; 37 Atl., 865. The followino- authorities may be referred to in support of the foregoing views : Under- wood V. People, 32 Mich., 1; 20 Am. Rep., 633. Re Doyle, 16 R. I., 537; 5 L. R. A., 359, 18 Atl., 159. State V. Billings, 55 Minn., 467; 57 N. W., 206, 794. Portland v. Banf/or, 65 Me., 120; 20 Am. Rep., 681. Bennett v. Davis, 90 Me., 102 ; 37 Atl., 864. People ex rel. Ordway v. St. Xavier's Sanitarium , 34 App. Div., 363; 56 N. Y. Supp., 431. In the case last cited the question was quite fully considered by the General Term of the Supreme Court of New York. The relator had been committed to an asylum for inebriates for a term of one year under provision of a statute of that State authorizing such commitment to be made by any judge of a court of record upon a certificate in writing, signed by two physicians, containing statements bringing the person within the description mentioned in the statute. It was held that as the order had been made without any notice to the relator, and without her presence, she was depi'ived of her liberty without due process of law, and that the commitment was void; the Court very tersely and aptly phrasing the principle underlying its decision as follows: "No matter what may be the ostensible or real purpose in restraining a person of his liberty, — whether it is to punish for an offense against the law or to protect the person from himself, or the community from apprehended acts, — such restraint cannot be made permanent or of long continuance unless by due process of law." Under the foregoing considerations, it must be held that the insanity law of 1897 to the extent that it au- thorizes the confinement of a person in an insane asylum without giving him notice and an opf>ortunity to be heard upon the charge against him, is unconstitutional. 207 and that tlie proceedings by virtue of wliicli the peti- tioner is held by the respondent are invalid. It is ordered that the petitioner be released from the asvliim. We concur: Beatty, (Mi. .1., Temple, J., Henshaw, J., Garoutte, J., dissenting. Matter of Georgiana G. K. Wendel. The People ex reJ. Maurice J. l^ullivan. Relator^ v. John G. Wendel and Mary E. A. Wendel, Respondents, 33 Misc., -190) (Supreme Court, Kings, Special Term, De- cember, 1900). Marean, J., said : "She had no notice of the application, either personal or by substituted service on some per- son in her behalf, and there was no hearing at which she was either present or represented by any other person. She had been finally adjudged insane and committed to perpetual restraint, without notice or hearing. She is deprived of her liberty, therefore, without due process of law {People ex rel. Ordwai/ v. St. Saviour's Sanita- rium, 34 App. Div., 363). The Insanity Law, so far as it permits this, is in violation of the Con- stitution." "When one has been duly adjudged insane, when his status as an insane person has been duly established, personal notice, or notice of proceedings affecting his interest, may be dispensed with, if it appears that such service would be prejudicial to his mental condition. But, for the protection of those who are sane, it ought 208 not to be tolerated that any person should be adjudged insane, and finally eoniniitted, without either notice or actual hearing. "It is doubtful, also, if the connnitnient of the alleged incompetent to the custody of her sister, even if it were valid, warranted her transfer to the hospital by the com- mission. The statute only permits transfers from one hospital to another. ''She is discharged.'" WEST VIRGINIA SIU^REME COURT OF APPEALS. Heil J. Evans, Committee of Evan Morgan v. Omer B. Johnson ef al.; Thornton Pickenpaugh, Impleaded, etc., Appt. (W. Va.), April, 1894; 23 L. R. A., 737. Brannou, P., said : "The brief of appellant's counsel, in its open- ing, presents what in its nature is the first ques- tion for us to decide, by insisting that the plaintiff has no right to recover in this suit or any suit. The first reason given by counsel for this con- tention is that the appointment of Heil J. Evans to be committee of Evan Morgan as an insane person is void for want of notice to said Evan Morgan. In Lance r. McCoy, 34 W. Va., 416, the opinion is expressed that such an appoint- ment bv a Countv Court without notice, as re- quired by Code, Chap. 58, No. 34, is void. A re- examination of this question in this case has con- firmed me in the view then expressed. The ques- tion is of importance, both because of its frequent occurrence and of its effect upon })ersons alleged 209 to be iiisaiii'. So far as iiiv observation lias ji;one, the practice has been in Clerk's Offices of the County Courts and in County Courts, to make such appointments without such notice. It lies at the foundation of justice in all lei»al proceed- ings, that the person to be affected have notice of such proceedings. As such an appointment takes from the person the possession and control of his property and even his freedom of person, and commits his property, his person, his liberty, to another, stamps him with the stigma of insan- ity and degrades him in public estimation no more important order touching a man can be made short of conviction of infamous crime. Will it be said in ansirer to that that he is insane and that notice to an insane man will do him no good? The response is that his insanity is the very ques- tion to be tried, and he the only party interested, in the issue. Often, if given notice, he will be prompt to attend and in his person be the unan- stverable witness of his sanity: often, if not given notice, those interested in using or robbing him of his property will effectuate a corrupt plan. Almost as well might we convict a man of crime without notice. There is abundant authority for this position. Even though the statute be silent as to notice, as onrs to appointment of committees by County Courts is, though that as to Circuit Court appointments requires notice, yet the common law steps in and requires it.'" See Chase r. Hathaway, U Mass., 222, 224; Hathaway v. Clark, 5 Tick., 490; Hutchins v. Johnson, 12 Conn., 3Tfi, 30 Am. Dec, 022 ; Mc- Curry v. Hooper, 12 Ala., 823, 46 Am. Dec, 280; Monroe County Suprs. c. Budlong, 51 (14) 210 Rarl)., 493; Eslava v. Lrpetre, 21 Ala., 501, 56 Am. Dec, 20(1; Duteher r. Hill, 29 Mo;, 271, 77 Am. Dec, 572 ; Buswell, Insanity, No. 55; Stafford v. Stafford, I Mart. (N. S.), 551. In Molton r. Henderson, 62 Ala., 426, held that "in- quisition of hinaey Avithout personal notice to the al- leged non compos is void, so is the appointment by the probate court of a guardian for said lunatic, and the proceedings by such guardian for a sale of lands be- longing to said lunatic" A statute authorizing an inebriate to be committed to a hospital on ex parte pro- ceeding was held void by the New York Supreme ('ourt. Re Janes, 30 How. Pr., 446. In Georgia the statute required notice to three relatives of the person before appointment of a guardian over him as an insane per- son. Judge Bleckley, delivering the opinion, thought there ought also to be notice to the person. He said : "It is, to say the least, doubtful whether the property of an adult citizen can be taken out of his custody and committed to guardianship Avithout previous Avarning served either upon him, or some person duly constituted by law or some legal tribunal to be notified in his stead. If it was unreasonable in the opinion of a Roman Gov- ernor,* to send a ])risoner and not signify withal the *ACTS, CHAPTER XXV. "(13) And after certain days King Agrippa and Bernice came unto Caesarea to salute Festus. (14) And when they had been there many days, Festus declared Paul's cause unto the king, saying. There is a certain man left in bonds by Felix: (15) About whom, when I was at Jerusalem, the chief priests and the elders of the Jews informed me, desiring to have judgment against him. (16) To whom I answered, It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have license to answer for himself 211 crime allej^ed apiinst him, the law judges it to be equally so to pass upon the dearest civil riivinji him notice of his adversary's com- plaint. The truth is that at the door of every temple of the laws in this broad land stands justice, with her preliminary requirement upon all administrations: — You shall condemn no man unheard. The requirrment is as old, at least, as Magna Cha/rta. It is the most precious of all gifts of freedom, thrtt no man be disseised of his property or deprived of his liberty, or in any way injured, nisi per legale judicum parium suorum, rel per concerning the crime laid against him. ******* (25) But when I found that he had committed nothing worthy of death, and that he himself hath appealed to Augustus, I have determined to send him. (26) Of whom I have no certain thing to write unto my lord. Wherefore I have brought him forth before you, and specially be- fore thee, O king Agrippa, that after examination had, I might have somewhat to write. (27) For it seemeth to me unreasonable to send a prisoner, and not withal to signify the crimes laid against him." ST. JOHN, CHAPTER VII. "(49) But this people who knoweth not the law are cursed. (50) Nicodemus saith unto them, (he that came to Jesus by night, being one of them,) (51) Doth our law judge any man, before it hear him, and know what he doeth." Judge Bleckley might further have said in his aforesaid censure of the present lunacy laws of the aforesaid "black belt of lunacy," that both the ancient Roman law and the ancient Jewish law per- mitted those two veritable pillars of Hercules of the absolute rights of individuals — namely the right of notice and opportunity to appear and be heard: vide said Acts, Chapter XXV (16) "he which is ac- cused have the accusers face to face, and have license to answer for himself;" and again, said St. John, Chapter VII (51) "Doth our law judge any man, before it hear him, and know what he doeth." Thus the Jews and pagan Romans set a shining example of law, justice, and equity to the foul falsely alleged laws anent lunacy pro- cedure in said "black belt of lunacy" in which black belt the State of New York and the State of Pennsylvania take the lead for infamy. Thus the Jews and pagan Romans set a shining example of law, justice and equity to the alleged Christian communities represented by the States making up said "black belt of lunacy" — albeit Chris- tianity at present rather under a cloud. We advisedly say "albeit Christianity at present rather under a 212 legem terrae. It is a principle of natural justice which courts are never at liberty to dispense with, unless un- der the mandate of positive law, that no person shall be condemned unheard." He said that in that case there was ^'action, trial and judgment in tAvo days, and no previous notice." hi our practice it often occurs in ten minutes. This practice I say, as was said hy the Loui- siana Court in Stafford, v. Stafford, supra, might put "^the loisest man in the community under the control of a curator, and hold him up to the loorld as an adjudged insane." Both constitution and statute confer this power on the county courts as a jurisdiction. Before appointing- the cloud" since Caiaphas the High Priest, with the whole packed and hostile Jewish Sanhedrim at his back, gave Jesus Christ a squarer deal than does the Supreme Court of New York in the case of a person accused of lunacy. Jesus Christ — according to the record was the recipient of notice — summary notice by arrest, it is true, but notice nevertheless, since said arrest was merely tem- porary and definite in duration, to wit, until the Court presided over by Pontius Pilate could assemble. Whereas plaintiff's sum- mary arrest in March, 1897, was neither temporary nor definite, but led to incarceration — immediate incarceration — without further intervention of a court or opportunity to appear and be heard — immediate incarceration in a cell, which was only allegedly — but really illegally — inquired into at the hands of the law — as practiced at this day and generation in the State of New York — at the arbitrary caprice of the aforesaid conspirators — the other side — over Uvo years later, and only then, on the evidence, because said conspira- tors knew, through said conspirators' agent said Medical Superin- tendent of The Society of the New York Hospital said Dr. Sagauel B. Lyon — that plaintiff was physically incapacitated — by spinal trouble brought on by the atrocity of having been illegally confined without trial on a false charge for over two years in a madhouse cell — was thus physically incapacitated from being present at said proceedings before said Sheriff's Jury in June, 1899, since same were held over twenty miles away from White Plains where plaintiff was — on the record-evidence — confined to bed and had been thus con- fined for more than three weeks at said time. Jesus Christ was also — according to the record — the recipient of opportunity to appear and be heard, since Jesus Christ was brought into Court. Therefore the Supreme Court of New York afforded plaintiff — both in said proceedings in March, 1897, and in June, 1899 — less opportunity to appear and be heard than did the Jews and pagan Romans afford Jesus Christ. And the trial of Jesus Christ is con- sidered, at least by Christians, as the vilest instance of judicial tyranny of record in the annals of Christianity or Paganism. 213 Court must determine whether or not the fact which alone gives it power to act, exists ; that is whether the party is in any of the phases or conditions of mind to be considered insane under the statute. It must in- quire into the fact, and in deciding exercise judgment, and of this legal investigation, all important to him, he ought to have notice. He wants to deny the very basis of the proposed order — his insanity. It is an im- portant transaction to him. Shall he have no notice of it? Am I told that the statute does not in terms re- quire notice? I answer as shown in Lance v. McCoy, 34 W. Va., 416, as a Circuit Court cannot appoint ^\dth- out, so by proper construction of the Code, neither can a County Court. I answer further, that a statute will not be construed to authorize proceedings affecting a man's person or property without notice. It does not dispense with notice. Bishop, Written Law, Nos. 25, 141. Chase r. Hathaway, 14 Mass., 222, 224. Artluir r. State,. 22 Ala., 61. Endlich, Interpretation of Statutes, No. 262. Booneville v. Omrod, 26 Mo., 193. Wickham v. Page, 49 Mo., 526. Chief Justice Marshall held void a judgment of even a court martial imposinii fines on militia men because without notice. Meade r. Deputy Marshal of Virginia Dist., 1 Brock, 324 Fed. Cas., No. 9, 372. This statute is one of summary proceeding. If the case were one of mere error or irregularitv, it 214 might be said that the order was good against collateral attack, aud iiiiist be reversed by a direct proceeding; but the question is one of jurisdiction — a want of au- thority to make the order for want of jurisdiction over the person to be affected. How can his property be af- fected or title given the committee to enable him to sue for it, if the order is void as to the person? If he is not affected by it how is his property? If the committee would restrain the person of the no7i compos^, could he not release himself bv treating the order as void? I cannot see how the order of a clerk fixing the personal status of a person, without notice, can rob him of his property and vest title in another person. A tribunal may have jurisdiction of cases cjusdem generis with the nmtter involved in a proceeding before it, and it may have jurisdiction of the particular matter involved in that particular case; but if it have no jurisdiction of the person, by service of process or appearance, if the proceeding is not in rem it cannot go on. Though the Taylor County Court has jurisdiction to api)oint com- mittees for insane persons, and though it has lawful jurisdiction to act on the matter of the appointment of a committee in the particular instance of Evan Mor- gan yet it could not act without notice to him, unless Ave say notice was not required by law, which I have above sought to show is not the case. A sentence of the Court without hearing the party, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to any respect in any other tribunal. Jurisdiction is indispensable to the validity of all judicial proceedings. Jurisdiction of the person as well as the subject-matter are prerequisites and must exist before a court can render a valid judg- ment or decree, and, if either of these is wanting all the proceedings are void. So the Court said literally in 215 Haymond v. (^imdeii, 22 W. Va., 180, syl. Nos. d, 9. So it has often held, as shown by .ludge Green in the opin- ion McCoy V. Mc(Joy, 29 AV. Va., 807. No Court has more steadily held the rule of necessity of process or ap- pearance than this Court, Avhether as to proceedings of superior or inferior Courts. Must there be a process before a superior Court can render merely money judg- ment, and yet no notice before a Clerk can stamp a man with insanity, and take from him his property and free- dom of person? * * * When we say there must be jurisdiction, we mean both that the matter must be within the jurisdiction of the Court and the person to be aifected, by service of notice upon him, Cooley, Const. Lim., 403. I maintain that such action as the appointment of a committee for one as insane without notice, being so grave in its effect upon his personal status, his right to vote, liberty and prop- erty, is not due process of law. It violates the defining by Mr. Webster in the Dartmouth College case, generally received as a proper one of due process of law, that 'it hears before it condemns.' The decree is reversed and the bill is dismissed, with- out prejudice to any other suit by Evan Morgan or any lawful committee. No prejudice against the collection of the debts shall result from this decision." HiiicJuiiaji V. Nirhie. (April 9, 1849.) 1 Brightly's Reports, 144. Note, p. 180. No one, however, has a right to confine an insane per- son for an indefinite period, until he shall be restored to reason, but upon compliance with the formalities of the law. Colhjjx. Jackson, 12 N. H. 526. * * ^ Krause, President, said : "The 6th section requires 216 the court to direct notice, either to the party to whom the commission shall issue or to some near relations or friends, who are not concerned in the application, and the object beinn to procure a defense Aviien that may reasonably l)e made, it is obvious that such as counsel a findini* against tlie defendant, or desire it, are excluded from that list of persons, as ineligible to stand in his stead. For some purpose or other this direction was not asked of the court; and notice was not given bv the com- missioner. * * * Nor was he himself summoned beforehand or brought in at the time to be present at the examination of the witnesses, on whose testimony he was pronounced in- capable of exercising the rights and duties of husband, father and citizen. He A\'as in fact not present for any purpose of defense, but for exhibition merely — a con- clusion that is forced on the mind by the whole course of conduct ; for the witnesses had been heard when he was called into the room; his desire to ha\e friends and counsel to aid him was disregarded, and the business affecting all his high interests was concluded after he had been removed. In cr parte Cranmer, 12 Yes. Jr. 455, Chancellor Erskine says : "the party must cer- tainly be present at the execution of tlie commission ; it is his privilege;" and such must be the ccmsti'uction of our statute, except where, from the necessity of the case, it is impracticable to give literal force and opera- tion to the principal, as in the state of facts instanced in the third division of the second section, bv which a commission mav be executed against an inhabitant of the State, who is absent from it, in the county containing his real estate. But that is justified upon the ground of its being a purely beneficial measure, to save the jiroperty from impending mischief; and to prevent oppression, the court exacts ample proof that such is the object, and 217 directs extraordiiiarv efforts to be made, by publication or otlier\vis(s to i-eacli the jjarty with notice. .\hirij SiHiih V. Stcplicn liiniiiH/diitr, 4 Mason ( li. 1.) llM, NovendH^r Term, 1825. Story, J., said : "'^ly opinion is that the objection is fatal. The Courts of Probate have no right to put a per- son under i;uardianship, as unfit to manage her affairs, without notice to the party, and (m adjudication on the facts; and until such adjudication, no letters of guar- 0 of Chapter 545 of the laws of ISIK) was committed in said proceedings, to wit. The cover of said (\)mmitnient Papers (Transcript of Kecord, \k 104) contains tlie following, to-wit: "State of New York — State Commission In Lunacy Petition, Certificate of Lunacy and orders. This blank, consist- ing of five parts, is furnished by the State Commission in Lunacy, pursuant to Section 00 of Chapter 545 of the laws of 1890, which, among other things, provides as follows: ''The Conuiiission shall prescrihr and furnish blanks for siicJi certificates and petitions irhich shall be made only upon such blanksr * * * ''The blanks should be carefully read and properly filled out to in- sure the commitment of a patient." After such a man- datory and particularized and italicized warning re- garding a regular and legal form of procedure in filling out said blanks, it is reasonable to assume that said blanks would in each and every case be so filled out. But in i)laintife's case a gross irregularity occurs three times. Once upon the back of the cover of said Com- mitment Papers (p. 114). Once upon line 155 therein. 223 and once Uiiuin ii})()n line .'»r)0 therein. Moreover the two hitter <;toss sjiid irrejiuhirities are made in defiance of italicized niaiKhites. In said first of said two instances — said italicized mandate line 150 is as follows, to wit: {If is essenfidl tlidf the official title of the institution shoiihl he corrccifif ///srr/cr/ ) ," p. !()!>. In accordance with said manoiii Bloomingdale Asylum.*' Again "the said John Armstrong Chanler had been committed to the Bloomingdale Asylum for the insane." Lastly "Dr. Samuel B. Lyon, the Superintendent of the Bloom- ingdale Asvlum for the insane." The same irregularity occurs twice in the said decretal order of said Judge Henry A. Gildersleeve (p. 136), filed and recorded June 23rd, 1899, a certified copy of which we exhibit to wit : "Dr. Samuel B. Lyon, the person in charge of Bloomingdale Asylum." Lastly, "He (said John Armstrong Chanler) was committed to the Bloom- ingdale Asylum, White Plains." "It has been held that Statutes providing for the ex- amination, commitment, and custody of insane persons are mandatory, and must be strictly pursued : Meurer's Appeal, 119 Pa. St., 115; State v. Baird, 4.7 Mo., 301; Territory v. Sheriff of Gallatin County, 6 Mont., 297,, iYoite 43 Am. St. Rep., 531. Point 11. The Proceedings in New York City, in 1899, before a Commission and a Sheriff's Jury to de- clare plaintiff an incompetent person in absentia, plain- tiff never being before the jury or represented in Court in any way, were void in toto, for they were without due process of law and therefore unconstitutional for the folloAving I'easons. ( a) There was lack of proper notice, for plaintiff l)eing at the time in duress of imprisonment, illegally confined under a void proceedings, and A\dth- out access to counsel, the so-called notice was no notice (15) l'lm; at all.* The Supreme Court of New York had in effect civillv uiurdered ('hauler. It had iu effect illeoally rendered hiui civillj dead — an insane person is clviliiei- ntortuiis — it had. so to si)eak, placed him in his coffin, and in the act of nailinj^ down the lid and consijining him to the tomb — the proceedings to appoint a commit- tee of his person and estate — served notice on his corpse to be present at the said ceremony. He having been rendered physically incapable of observing said sum- mons by the said illegal act of said Supreme Court which said act had, by confining him for two years in a mad- house cell, rendered him foi- the time bed-ridden, as the experts in the pay of the other side virtually admit. Said proceedings in 181)9 being in point of fact conducted in plaintiff's absence througli plaintiff's said enforced physical inability to be present thereat were therefore also, in like manner, as said proceedings in 1897 — truly and typically e.n parte and therefore utterly void. (6) There ^vas laek of opportuniti/ to appear and he heard. For plaintiff', upon the sworn testimony of the medical men in the pay of the Petitioners, was incapacitated from coming to Court, plaintiff' l)eing in bed Avith an affection of the spine at the time of said trial, and hav- ing been so for more than three weeks previous thereto. Said Subsec^ubnt Proceedin(48 to Api-oint a Committee. Plaintiff was confined in the Asvlum of "The Societv of the New York Hospital" at White Plains, New York, from March 13th, 1897, until May, 1899, before any *A sinister point in this case, and one whose influence saturates the entire proceedings with a taint of wrong intolerable to law, is the fundamental fact that a citizen of a foreign State was lured into the State of New York, with a view to subjecting said citizen to the jurisdiction of the New York courts. 227 steps were taken to have plaintiff declared incompetent and to have a coniiiiittee of plaintiff's person and estate appointed. And it must be noted that this detention was an illegal one, absolutely void, that plaintiff was under DURESS OF IMPRISONIMENT. In May, 189!) ( Transcript of Record, p. 78), a petition was filed by two of plaintitt"s brothers, Messrs. Winthrop Astor (Mianler and Lewis Stuyvesant Chanler, afore- said, to have plaintiff declared an insane and incompe- tent person by a Sheriff's jury, and a committee ap- pointed for plaintiff's person and estate. It appears by the record of said subsequent proceed- ings that an order was entered on the 9th day of May, 1899, requiring: "Notice of the application prayed for in said petition be given in the following manner, a copy of this order and of the said petition, aifidavits and notice of motion shall be served upon the said John Armstrong Chanler, the alleged incompetent person, personally * * * by delivering the same to him in person." It was also provided that other members of his family, not petitioners, should be served with like notice. Under this order the following notice was issued to plaintiff ( p. 79 ) : "Please take notice that upon the annexed petition and annexed affidavits, a motion will be made at a Spe- cial Term, Part 1, of the Supreme Court, State of New York, held at the Countv Court House in the Borough of Manhattan, in the City and County of New York, on the 19th day of May, 1899, at ten and a half o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard for an order that the prayer of the said petition be granted, and for such further and other order as shall be proper in the premises." This notice was served by William AVhite Whittaker, 228 a clerk in the office of Messrs. Jay and Candler, as ap- pears from his affidavit, in said certified copy of pro- ceedings 1899, by delivering to plaintiff a copy thereof, at said "Society of the New York Hospital," White Plains. On the 19th day of May, 1899, the Court entered an order for the appointment of a commission de lanatico inquirendo ( Transcript of Record, p. 92 ) . On the 23rd of May, 1899, the appointment of the three Commissioners was issued, and they were in- structed ''to make inquisition into the facts hereinbefore recited." The Commissioners were also directed to ( pp. 92-93) "cause previous notice of the time and place of execution of this notice to be given to the said -John Armstrong Chanler and to Doctor Samuel B. Lyon, the person having charge and care of him * * * and that whenever vou shall so demand, the said Doctor Samuel li. Lyon shall produce before you and a jury the said John Armstrong Chanler to be inspected and examined by you and the said jury, but that in your discretion you may dispense with the attendance of the said John Armstrong Chanler before you and the jury unless the jurors some or one of them shall require the attendance of the said John xlrmstrong Chanler before the jury." In the pursuance of this order the three commission- ers (|ua]ified and issued the following notice (p. 100) : "Please take notice that a commission heretofore is- sued out of under and by order of the Supreme Court dated the 23rd day of ^lay, 1899, to inquire whether John Armstrong Chanler is an incompetent person and by reason of which infirmity he is incapable of manag- ing his person and property and to us directed as com- 229 missionors, will be executed at the County Court lEouse in the Borough of Manhattan and City of New York on the 12th day of June, 1(S09, at four o'clock in the after- noon of that dav.*" By the attidavit of William White Whittaker it will ap- pear that this notice was likewise served on plaintiff at said "Society of the New York Hospital," White Plains, and upon said Dr. Lyon at the same place, (p. 100.) The commissioners then proceeded on the 12th daA^ of June, 1899, to inquire into plaintiff's mental condition. Plaintiff' was not present at the proceedings and the at- torneys for the petitioners stated that they would not produce him unless ordered so to do by the commis- sioners, (pp. 101-102.) The commissiontn-s did not at auv staire of the in- vestigation order plaintiff to be produced, nor was there any person present in plaintiff's behalf authorized in any way to represent plaintiff. Doctor Lyon, who testified, stated distinctly that plaintiff did not wish him (Lyon) to represent him in the proceedings (p. 115). He stated that said plaintiff' was physically incapacitated from be- ing present before the jury. And upon further examina- tion said Dr. Lyon stated that plaintiff would be tem- porarily injured mentally and physically by his produc- tion before the iurv. Up(m this statement and similar statements by the other physicians who testified the jury brought in its verdict that John Armstrong Chanler A^as incompetent to manage his person or his affairs (p. 13G). Plaintiff was never before the commissioners or the jury. This is the statenuMit of the facts of the second proceedings and the question arises as to the legal effect of the same. We have seen in our examination of the first proceed- ings that notice to the alleged insane person of any pro^ ceedings permanently affecting his liberty or property. 230 an opportunity to he heard in defense of his rights, are essential features of that due process of law that is re- (juired by the Constitution of tlie United States. Undoubtedly said second proceeding's did effect, and permanentlij, the liberty and property of plaintiff. It was a final proceeding. Undoubtedly the notice that was served upon plain- tiff advised plaintiff" of said second proceedings. It now remains to examine the (piestion, NA'hat is the effect of such notice when given to a person under duress and who is not actually produced at the hearing? OrrORTUNlTY TO BE HEARD. The wliole purpose of notice, as reciuired by the statutes, and by tlie decisions under the due i)rocess clause of the Constitution, is to give opportunity to the defendant or respondent to appear and defend his rights. The plain language of the text-writers and decisions of courts is that the defendant in any proceeding is entitled to NOTICE AND AN OPPORTUNITY TO BE HEARD. The above proposition is sustained by the following excerpts from five leading cases, as well as by the follow- ing excerpt from a full note on ''Due Process of Law as applied to Insane persons."' 43 American State Reports, 531. Followed by numerous other excerpts from leading cases. In Brown v. Board of Leree Comniissioners, 50 Miss. 468, Simrall, J., said : "The term under consideration (due process of law) refers to certain fundamental rights whicli that system of jurisprudence of which ours is a derivative has always recogui^jed. If aiti/ of these are dis- regarded in the proceedings by which a person is con- demned to the loss of life, liberty or property, then the 231 deprivation lias uot been by 'due process of law'." Am. and En<>. Eiu-y. of Law, j). 2\){\, u. 2. u* * •::• ^i^g most satisfaetor}^ definition (due pro- cess of law) is tliat it secures to every one the right to have notice of any proceeding by which his rights of life, liberty or property may be affected, and to be af- forded an opportunity to defend protect and enforce such rights in an orderly proce(Kling adapted to tlie nature of the case." Am. and Eng. Ency. of Law, p. 296, and ca. ci. Joliii I J. lirtJiva, Adiii'r. of Husaiuiah liohiiisou, dec'd, against Alexander AIcLennoii. 23 North Carolina Re- ports 1840, page 523, 526-7. (Iredells Law Vol. 1.) ( supra ) . The Court held : "It is true, that the lunatic is entitled to be present before the jui-y; and if they deny his right, such denial would be suffi<'ient cause for setting aside the inquisition. J? Staford v. Stafford, 6 Martin's Hep. 643. (supra.) Porter, J., said : ''But if, on the contrary, the petition of interdiction is solicited, from malice, or through error, against one of sound mind, it is not perceived by us why the proceedings should be carried on, without his knowledge. So far from it, that we think it indis- pensable he should ha^^e the opportunity afforded him to hear and confront those, who by their evidence are about to deprive him of all control over his actions, and take from him the enjoyment of his property. The defendant had a right to demand in the appellate ccmrt, legal proof of her insanity, and that legal proof was not furnished by testimony taken out of her ]iresence. The principles 232 on wliicli this case lias been supported might phice the wisest man in the community under the control of ;i curator, and hold liim up to the world as an adjudged insane." /// Re William M. Bryant, 3 Mackey, 4S9. {supra.) Counsel said : "Due process of law, as defined by the courts and by the law-writers, does not mean, the certi- ficate of two physicians and the recjuest of a sister. It means laws which hear before they condemn, and render judgment only after trial. It cannot be a police regula- tion, independent of the judiciary and entirely under the control of the Legislature. This would enable the Legis- lature to deprive the citizen of his liberty, without the intervention of the judiciary or any other department of the government." 4 AVlieat, 519. * * * the (\mrt of Maryland ((liancellor Bhuidi said: ^'Generally and techiiicall3^ speaking, those only are con- sidered lunatics who have been so found and returned 5 without an inquest and return thereon, no one can be judicially treated as a lunatic and be debarred of his liberty, or have the management of his projierty taken from him. The power to divest a citizen of his per- sonal freedom and of his jn-operty, is one of the most extraordinary and delicate nature ; and should, therefore, never be exercised without observing every precaution re(juired by tlie law." Rebecca Owings"' C'ase, 1 Bland V\\. Rep. 'I'M). ^ ^ ^ Mr. Justice James said : ''* * * One of the terms for admission is that two phvsicians shall certifv to the insanity of the party. But that does not do away with the necessity of a proper judicial ascertainment of the fact of insanity. The provision for the physician's cer- titicate only conteniphites the fact that a person may have been found insiiue by a jury on in(|uiry, and yet may liave become sane again, and, therefore, the certi- ficate is to show that the insanity has not ceased. As a matter of interpretation, tlie statute is merely permis- sive. It gave no power to seclude a person in inrita who has not been judicially found to l)e insane. * * * "There must be a regular ndjudication of the question by due i)rocess of laAV, without which even the Chancellor cannot act ; and due process of law in establishing the in- sanity of a person has long been declared to be by in- ([uiry through a jury. * * * "The deprivation of the liberty of a citizen upon the ground of lunacy is a matter of ymy grave importance, because it may easily happen that for fraudulent pur- poses, perhaps with a view to deprive a person owning property of his control over it, a perfectly sane num might be sent to an asylum by his relatives, upon a cer- tificate of two physicians, and be illegally confined there for years." Due Piocess of Law as Applied to Insane Persons, 48 American State lieports. 531. (Note.) It is a fundamental principle of both State and Na- tional Constitutional Law and that no man shnll be de- prived of "life, lil)erty or property" witliont "due pro- ( ess of law," and under the express provision of the Four- teenth AnuMidment to the Constitution of the United States, no State shall deny "to any person within its jurisdiction the ecpial protection of laws." Tlie right of personal liberty is thus jealously guarded by consti- tutional law, aiuJ ire arc nnairarr of (iiit/ dislinction hctirccti the ciril rljihis of a .sane person, and thof^e of an 234 iiisaiK' siiJtjccf of tJie gorrriuneiil. Nor sluiil there be. an}^ Person)^, fJioiKjli insane, are still huitian beings, and laws n^hich provide [or their commitment to hospitals for proper care and treatment, mark, it is said, the vast difference between civilized free people and a savage nation. Such laws are coiiiinou, but it must be observed in couDectioii with theui, that all power ovei' the per- son is liable to abuse. The deprivation of the liberty of a citizen upon the charge of insanity, is a matter of very grave importance, because it man easilg happen that for fraudulent purposes, perhaps with a view to de- prive a person owning pro pert g of his control over it a perfecthj sane man mag be sent to an asglum bg his re- latives, upon cevtificatcs of phgsicians merelg, and be il- legallg confined there for gears. The civil rights of in- sane persons do not seem to have been often adjudicated bv the Courts, and a close search for authorities reveals the facts that, since the ratification of the Fourteenth Amendment, in July, 1S68, its doctrines as applied to vsuch persons have seldom been defined. Enoii(/h is glean- ed from the authorities, however, to show tliat insane persons It are rights that the mere e.mstence of the fact of insanitg does not take awag or abridge the rights of a citizen, and tliat a person charged with insanitii can- not be deprived of Jiis civil lights without the foimali- ties prescribed, bg hiw. * * * Commonwealth v. Kirkhride, 2 Brewst. 400, 419 ; and it has been held that statutes providing for the exami- nation, commitment and custody of insane persons are mandatory and must be strictly pursued ; Meurers Ap- peal, 119 Pa. St. 115: »S7ff/r v. Baird, 47 :*Io. 301; Terri- torg V. Sheriff of (lallatin Count g, 6 Mont. 297. If "due process of law'' means the regular and orderly course of judicial proceedings in the administration of justice it would also seem clear that a determination of 235 insanity is not coiu-lnsivc, witliout the person cliari^od with being insane has had notice and opportunity to be lieard either in person or by counsel, an opportunity to produce witnesses, and to confront those seekinj^ his retirement to an asylum or hospital, and in general to make whatever defense may be justitied by the circum- stances of the case. * * * In the class of cases under consideration "due pro- cess of law" undoubtedly means, '-'in the due course of legal proceedings, nccoidiug to those rules and forms which have been established and for tlie protection and private rights"; Biinlick v. People, 149 111. (300; 41 Am. St. Rep. 329. It means, at least some legal procedure, in which the person proceeded against, if he is to be con- cluded thei'eby, shall have an opportunity to defend him- self: Doyle Petitioner, 16 E. T. 537; 27 Am. St. Rep. 759. For example, a state statute which authorizes the placing of insane persons in certain hospitals or asylums within the State by their parents, guardians, relatives or friends, or if paupers, by the overseers of the poor, upon certificates of their insanity, made by two prac- ticing physicians of good standing, and which provides that when placed in hospitals or asylums they may be law^fully received and detained therein, until discharged in one of the modes provided in the statute, where such statute does not provide a procedure by Avhich the person confined can, as of right, defend himself, is void, being in conflict with the due process clause of the naticmal con- stitution : Doyle, Petitioner, 16 R. I. 537 ; 27 Am. St. Rep. 759. The arrest of a person upon the chari/e of insanity for the purpose of confimng or committing him in an insane asylum is, strictly speaking^ not an arrest in either a criminal or civil proceeding, hut is one siui generis, and ought not, in this day of regard for personal liberty, 23G to he (tUoircd otJicnrisc flnni upon information on oathy and (III order made directiny the aJlef/ed lunatic to he brou(/ht Jx'fore the Court for examination. * * * All reason in favor of confinement without legal in- vestigation assumes the person to be insane. The ques- tion of insaniti/ is the rery one to he adjudicated. The question as to whether, in doubtful eases, an inquisition to determine the insanity of a person is a prerequisite to his confinement in an asylum came up in the case of Van Deusen r. Newcomer, 40 Mich., 90. The (V)urt was equally divided, two of the Justices holding that it was necessary, and two of them that it was not. In this case, Mrs. Newcomer, the defendant- in-error, being at the i)assenger house of the Michigan Central Railroad at Albion, was, on October 1st, 1894, forcibly taken and put aboard the cars of that railroad and removed to the Michigan Asylum for the Insane at Kalamazoo, where she was restrained of her liberty until August 4th following. The persons chiefly in- strumental in procuring this confinement were her son- in-law and his mother, with whom she had difficulty, but her daughter gave consent. A person having no more legal authority than that which might be claimed for any citizen accom])anied her on the cars and to the asylum. The reason assigned for removing Mrs. New- comer to the asylum was her insanity. There had been no judicial finding of the fact, and it was not made to appear that there were any such manifestations of mental delusions as indicated danger to others. The plaintiff -in-error was, at that time, in charge of the asylum, and he received and detained Mrs. Newcomer in the full belief that she was insane. It was not shown that the medical and other assistants in the asylum believed her to 4)e insane while she remained there. On being discharged from the asylum Mrs. Newcomer 237 bi-ouiilit suit for false iuipi-isoiiiiieiit, aud recovered six thousaud dollars daniaoes. Mrs. Newcomer claimed never to have been insane at all, and the contest in the Court below was mainly over the question of fact. The defendant's theory was that the restraint of insane per- sons in asylums is lawful, and being' lawful, the placing of them, whether for their own benefit or for the pro- tection of others, is in itself ''due process of law," even in the absence of any judicial investigation into the question of sanity. While this theory urns approved by tiro of the Justices, it was disapproved by Justices Cooley and Campbell. The former, in his opinion, pointed out difficulties iii proceedinfi ivithout judicial inquiry, showiny thut the law should not tolerate the forcible takiny and detention of one in an insane asylum upon the mere assertion that he is mentally unsound ; that secret inrestif/ations into cases of this character should be frowned do urn, that safety lies in the pub- licity of the proceedings; and that while it is no doubt true, a public trial of the fact of insanity would be more or less excitiny and disturbiny to a miiid already in a diseased or abnormal condition, it is by no means cer- tain that the consequences would be more serious than those likeljf to follow from the sudden arrest or the removal for confinement in the asylum of a person who believes himself to be perfectly sane. ^'An insane per- son," said the astute Justice, ''■does not necessarily lose his sense of justice or his right to the protection of the law: and when he is seized without warning and ivith- out the hearing of those whom he might believe would testify i)i Jiis behalf. • "No person can lawfully be declaretl insane and his personal liberty permanently restricted with- out formal proceedings, and an opportunity af- forded him to appear personally. * * *" And again, from Buswell on Insanity, Section 55 : "The party alleged to be insane has the right to have notice and to be present at the proceedings for determining the issue of sanity. * * *" So in Hinchman v. Ritchie, Brightley ( Pa. ) , 182, the Court said : "In all other cases * * * he is followed and the commission executed where he is found, that this privilege of being present may be se- cured to him, and secured not merely for exhibi- tion of him to the commissiop and inquest * * * but also to give him full opportunity of defeat- 247 ing proceedings improper, for want of foundation or legal conduct, in any of its stages." And in the case of James, 30 How. Pr. (N. Y.), 453, it was said : ''I think no person should be adjudged to be insane or be confined as a lunatic, except per- haps temporarily, without an opportunity of being heard on the question of his alleged insanity be- fore a tribunal competent to decide it." And in another New York case, In re Tracey, 1, page 580, it was said : "It is the privilege of a party against whom a commission of lunacy is issued to have notice and to he present at its execution." Approved in In re Whitemack, 3 N. J. Eq., 252. In Holman v. Holman, 80 Me., 139, the Court used this language : "It is a well-settled rule of the Common Law that Avhen an adjudication is to be made which will seriously affect the right of a person, he should be notified and have opportunity to he heard." In the case of Vanauken, 10 N. J. Eq., 186, the follow- ing occurs : "The alleged lunatic has a right to he present at the execution of the comitiission, to make his 24S defense by liiinself or counsel and to examine wit- nesses." And in the very early case of Ex parte Cranmer, 12 Ves. Jr., at page 455, the Chancellor said: ''The party certainly must he present at the execution of the commission. It is his privilege. y} And in the Supreme ('ourt of the United States the same question has been discussed and passed upon. In Windsor <-. McVeigh, 93 U. S., 278, the Court said : ''The la\y is and always has been that whereyer notice or citation is required the party cited has the right to appear and he heard. ?y But it is useless to multiply authorities. The propo- sition is well settled that a party against whom any charge or claim is made, likely to affect his liberty or his property, must haye an opportunity to be heard in his own behalf. USUALLY BY NOTICE. Usually this opportunity to be present and to be heard is giyen by notice of the nature of the proceedings and the time and place of the hearing. It would be hard to conceive a better method of giving opportunity under ordinary conditions. Ordinary conditions imply a de- fendant who is free to control his person and under no restraint. Ordinary conditions im])ly a defendant or respondent who is untrammelled and who is permitted to follow the inclination and determinations of his own mind. But, after all, the notice is only the machinery used to afford opportunity. It is not the opportunity 240 itself; and opportunity to he Jicard is the «iist and sub- stance of the constitutional requirement. As was said in Windsor v. McVeigh, 93 U. S., 277-8 : **But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made ; it is a summons to him to appear and speak, if he has anything to say, why the judgment sought should not be rendered." The question of immediate moiiient therefore in the case under consideration is, was an opportunity to ap- pear and defend ])laintiffs rights afforded to plaintiff; that is, was such opj^ortunity afforded as is contem- plated by due process of law? PLAINTIFF WAS UNDER DURESS OF IMPRIS- ONMENT. It must not be forgotten that plaintiff was under duress of imprisonment. Plaintiff had been committed to said Society of the New York Hospital as insane, was imprisoned in said asylum and had been for two years. Plaintiff was held there against plaintiff's will and over plaintiff's protest at the time of said proceed- ings. And the fact that plaintiff was so imprisoned and so under duress was knoum to the Court: the record itself shows this (Transcript of Record, pp. 100-103). First. — The notice of motion was directed to "John Armstrong Chanter, Bloomingdale Insane Asylum, White Plains, Westchester County, New York." Second. — The affidavit of service of the notice of mo- tion upon plaintiff discloses the fact that he was in "Bloomingdale Asvlum, at White Plains." 250 Third. — The affidavit of said Dr. Lyon to said petition of plaintiff's said brothers shows that plaintiff was a ^'patient" in the Asylum aforesaid. Fourth. — The appointment of the Commissioner di- rects tliem to inquire whether plaintiff "now in Bloom- ingdale Asylum in the State of New York, is an in- competent person." Fifth. — The appointment also directs notice to be liiven to Dr. Lyon, ''tlie ]ierson having the charge and care of him." Sixth.— The affidavit of William White Whitaker that he served the notice of hearing shows that it was served on plaintiff "at Bloomingdale Asylum" and on said Dr. Lyon "in whose charge the said John Arm- strong Chanler, an alleged incompetent person, is." SERVICE ON A PERSON UNDER DURESS. What effect, therefore, can any process have upon plaintiff under said circumstances — plaintiff' being held in durance — to prevent plaintiff's following plaintiff's own inclinations and to restrain plaintiff from going where plaintiff' miglit wisli? The ])o\ver of the State of New York had seized plaintiff and in effect had said to plaintiff: , "You shall not leave this place of imprison- ment to Avhich I have confined you until the of- ficials in charge of it and of you give you per- mission to do so." What opportunity did plaintiff have to appear in 251 person aud defend his liberty, and his entire estate? This being- so, and it being- true that plaintiff, through physical inability as aforesaid, had no opportunity to appear and defend plaintiff's rights, what effect can be given to the notice that was served upon plaintiff"? We find tliat a case somewhat similar to it has been passed upon by no less authority than the Supreme Court of the United States. In Windsor v. McVeigh, 93 U. S., the facts were these: ^ McVeigh was a Virginian and owned property in Alexandria County, in that State. During the Civil War he was a suppoi'ter of the Confederate Govern- ment and a soldier in its army. An act of Congress was passed providing for the confiscation of the property of such persons, and under that act proceedings were instituted in Alexandria County to enforce the con- fiscation of McVeigh's property. Notice of the proceedings were given by publication, as was required by the statute, and in response to that notice McVeigh appeared by attorney and filed his an- swer in the suit. The United States attorney moved the Court to dis- miss the answer because McVeigh was a rebel. The Court did dismiss the answer and denied McVeigh the opportunity to defend his property rights and entered an ordei' confiscating his property. The cause was taken to the Supreme Court of the United States and the pro- ceedings were held void. The Court said, pages 277-8: "Until notice is given, the Court has no juris- diction in any case to proceed to judgment, what- ever its authority may be, by the law of its organ- ization, over the subject-matter. But notice is only for the purpose of affording the party an op- portunity of being heard upon the claim or the charges made. It is a summons to him to appear and to speak, if he has anything to say, why judgment sought should not be rendered. A denial to the party of the benefit of a notice would he in effect to deny that he is entitled to notice at all, and the sham and deceptive proceedings had better be omitted altogether." 'i^^ And again, at page 278: "The law is and always has been that when- ever notice or citation is required, the party cited has the right to appear and be heard; and when the latter is denied {note the distinctiofi be- tween notice and opportunity), the former is in- effectual for any purpose. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to himJ' The case of McVeigh r. United States, 11 Quail, 259, and the case of Underwood v. McVeigh, 23 Graft. (Va.), 409, are to the same effect, and grew out of the same general state of facts. In Underwood r. McVeigh, at page 418, the Court said : "No sentence of any Court is entitled to the least respect in any other Court or elsewhere, when it has been pronounced ex parte arid toithout opportunity of defense. * * * A tribunal which decides without hearing the defendant or giving him an opportunity to be heard can not claim for its decrees the weight of judicial sentences.'' Notice the similarity of the two cases in general characteristics. In both cases notice was given to the 25;i defendant; in one by actual service in person, and in the other by publication. In both cases, the party was prevented from appearing by order of the Court. In the ■McVeigh case the order was entered after he at- tempted to appear. In the Chaloner case the order was entered before notice to Chaloner. In both cases it was the order of the Court which nullified the notice that was given. McVeigh could not appear because the Court would not let him. Chaloner could not ap- pear because the Court did not let him. Chaloner could not appear because the Court had placed him in such a position — said physical disability brought on by the continement ordered by Judge Gildersleeve, in said Judge's said order of March 10th, 1897 — that it was impossible for Chaloner to appear except by order of a competent tribunal directing said commission and said jury —or a committee made up of members of said commission as well as of said jury — to visit Chaloner in his cell — in the event of Chaloner being physically incapacitate/reviously sworn, is recalled by Doctor Fitch. By Mr. Candler: Q. 'Will you be kind enougli, Doctor, to state your views in regard to the effect u])on Mr. John Armstrong Cban- ler to bring him down here in view of the statement which he made to Doctor Lyon in reference to his i)reference not to come?- A. 'I think it would excite bim very much; in that way it would tend to aggravate liis mental condi- tion, lie is physically al)le to come down here, l)ut it would unduly excite him: it would undoubtedly excite bim verv much and exhaust bim." Doctor Austin Flint, Senior's, opinion aff'ords very 26 1 small hold for dissection. Said opinion is, in effect, merely an affirmation of the said opinion of said Doctor Macdonald. (])p. 125-12(), fols. 244-240, ihid.) "Doctor Austin Flint, beini^ called as a witness for the Petition- ers, was (Inly sworn, and testitied as follows: By Mr. Candler * * * A. 'I examined Mr. Chanler March l(>th, with Doctor Macdonald, and I haye listened carefully to his testi- mony and that is the testimony that I should iiiye if I were to detail to the jury the examination we made and the result arrived at — perhaps adding my recollection to his." * * * (P. 135, fol. 2(n, ibid.) ''Doctor Austin Flint, havini>' been i)reviously sworn, is recalled. By Mr. ('andler: Q. 'Doctor Flint, what have you to say on this subject, in regard to brin<>ing- ^Ir. Chanler here under the cii'cum>4tances mentioned?' A. 'From my examination of Mr. Chanler, althoujih I (piite agree with Dr. Fitch, with the general principle that the al- leged lunatic should always be produced if physically able to come, it seems to me that this case is so plain and distinct that it is practically unnecessary; and if it should be necessary to use force to lu'ing him down here against his will I think it would l)e detrimental to him. Those are my views, although 1 e 278, supra: "The law is and always has been that whenever notice or citation is re(iuired, the party cited has the r'ajhi to ujtjx'dr (lud he h( ard : and when the latter is denied [iioic ihc (VisfinctUm hcfirecii iKrticc (inh to appear and be heard." .Vnd in Windsor v. Mc\ r//te Cranmer (1806) (supra). Lord Chancellor Erskine said : "The party certainly must be present at the execution of the commission {de lunatico inqnir- eudo). It is his privilege." Bethea against ^IcLennon, North Carolina Eeports (1840) (supra). The court said: "It is true that the lunatic is entitled to be present before the jury; and if they deny him this right, such denial would be sufficient cause for setting aside the inquisition." 271 Hta/I'onl \. Sta/fonl {.supra). The (\>urt said : "We think it iii(lis]H'iisahl(' he (the allei^ed lunatic) should liave the opportunity afforded him to hear and confront those wlio, by tlieir evidence, are about to deprive him of all control over his actions and take from him the en- joyment of his property. The defendant had a I'ight to demand in the Appellate Court, le.iial proof of her in- sanity, and that legal proof was not furnished by testi- mony taken out of her presence." Dowell against Jacls, North Carolina Reports (1859) ( supra ) . The Court said : ""She had no notice — was not legally represented, and what is of still greater import- ance, was not present, to be seen and examineheritT's jury stated to the said Commission : "It will be very hard to bring this jury here again and it is not their desire to have an adjournment of this inijuest. Thej^ think the case can be submitted upon the testimony which has been given. They do not wish to have the respondent placed upon the stand." And this from the foreman of a Sheriff's jury where the liberty an)i tltc stand'.'' Altlumgh said notice of said Proceedings could have been given days earlier the said order was barely i'omi)lied with in giv- ing the required five days. A moment's thought will arouse the suspicion that said undue haste was the result of some, at present, hidden motive. A moment's further thought will confirm said suspicion particularly when one connects said suspicion with said e.xtra(mlin- ary hour for beginning a judicial proceedings of the weight and importance of said hearing upon w hich de- pended not only the entire control of plaintiff"'s large estate, luit also ])laintiff"s liberty, i^aid suspicions will be still further confirmed by connecting therewith the monstrous remark of said foreman, to-wit, ''They (the said sheritt"s jury) do not Avish to have tlie respondent placed upcm the stand." ".i i-cfiisaJ to adjourn an in- quisition for a reasonaJ)lc time to cnahlc ttic partij charged to niahe necessarij preparation for {rial, irhen he has heen prerented from niaJ:inical science, since all other facts of Psycholojiy sustain a necessary relationship to it; and many of them are inexplicable in the absence of a knowledge of the fundamental fact or principle, that Mr. Chanler discovered. It is that man is endowed with a mental faculty — or a congeries of mental faculties and powers — that lie below the threshold of normal con- sciousness. I do not say that Mr. Chanler was the first discoverer of this fact ; for I do not know the date of his discovery. But I have everv reason to believe that he was an original and independent discoverer. It is true that many eminent scientists have, within the last decade, arrived at the same conclusion, each by his own methods of investigation and experimentation. Most of them have made their experiments on others ; but one of the remarkable features of Mr. Chanler's methods of research is that his conclusions were based wholly upon experiments made upon himself, together with an in- telligent observation of the workings of his own inner consciousness. The advantages of that method are ob- vious to any Psychologist.'' In said opinion of Dr. John Madison Taylor, the folloAving occurs, to wit : ''At all times Mr. John Armstrong Chanler consistently holds to the view that this cerebration is the product of clear ratiocination, based upon well-authenticated and ac- cepted facts. Physiologic, Psychologic, and Metaphysic. That the attitude of the mind, which he names the un- known or X-Faculty, is the product of mental evolution, and in varying degrees, is common to all sentient human beings, and in no manner or degree the product or re- flection of any cause or influence outside the human organism. His chief contention as to having made a dis- covery is that he makes practical use of this function of the suhconsciousness, and throngh Graphic Automatism causes it to perform literary work. * * * He sees 277 no reason why others should not develop the same fac- ulty." An examination of the statements and remarks, in said proceedini>s, ui)()n the ])art of said Doctors Mac- donald and Flint reinforce the truth of said Professor James's said remark, "Althoujih the medical profession is beginnini>' to acquaint itself with these phenomena, it is still lamentably ignorant. Specialists in insanity in particular are ignorant." Said Doctor Flint says in said Doctor's statement (p. 86, fol.lGG) : "He (plaintiff) went into a trance at the request of Doctor Macdonald and gave the most vivid illustrations of the death of Napoleon. He had told deponent and the said Mac- donald that he was Napoleon only when in a trance." Said Doctor Macdonald says in said Doctor's statement "He (plaintiff) went into a trance at the request of deponent and gave the most vivid illustration of the death of Napoleon. He had told deponent that he was Napoleon only when in a trance." Granting said state- ments touching, "He had told deponent and the said Mac- donald that he was Napoleon only when in a trance" (p. 86, fol. 166) and "He had told deponent that he was Napoleon only when in a trance," granting said state- ments to be true — which, as has been said aforesaid said statements are not — for in plaintiff's said affidavit plaintiff swears: "I wished to have a little fun with Mr. Macdonald and Mr. Flint, so I set a little trap for them, into which both fell head first. It was as follows. I said : 'I boldly say that I am the reincarna- tion of Napoleon Bonaparte.' It was as good as a play to one interested in watching the facial play of human emotions, it was as good as a play to watch the Doctors. Mr. Macdonald's feline features and cold blue eye lit up with expectant triumph. In Mr. Austin Flint, Senior, expectancy of triumph took on a heavier, but no less 278 pronounced, form. Mr. Flint's heavy features took on an unwonted animation and his somnolent eye lit up with the flame of anticipation. So soon as I had checked off the above facial expressions carefully, so as to be able to describe them truthfully in my brief, Avhen occa- sion served, I instantly threw their hopes to the ground : I instantly added to my above remark, 'But I only say 80 irJiol ill (I trance/ The effect was instantaeous. Mr. Macdonald collapsed, and fairly wriggled with chagrin, as he blurted out the damaging 'You can't catch him.' The effect on Mr. Flint was shown by his sagging back into his seat with a grunt of disgust. They evidently, from their disappointment, showed that they fully real- ized the innocuousness of my apparently bold declara- tion qualified. They evidently knew that no man is mentally, morally, or legally responsible for what he says in his sleep. Therefore, they deliberately, craftily, transpose the position of the qualifying word 'only' and instead of putting it where it belonged in my sentence, move it to a point where it takes on an entirely differ- ent meaning"^ — granting said statements touching ''He had told deponent and the said Macdonald that he was Napoleon only w^hen in a trance" and "He had told de- ponent that he was Napoleon only when in a trance. Granting said statements to be true which, as indicated above said statements are not, — plaintiff never saying that plaintiff was Napoleon Bonaparte except when plaintiff entered a trance, whereupon not plaintiff but plaintiff's said "X" consciousness, operating plaintiff's vocal organs, pretended to be Napoleon Bonaparte, a preposterous proposition stoutly denied by plaintiff upon issuing from said trance — said statements fit exactly the case mentioned aforesaid by said Professor touching the alternation of consciousness. "For 'Paranoia' " to be diagnosed there must be no distinct alternation be- 279 tween the primary and the "X" coiisciousiiess." * * * *'Iii Mr. Chaider's case there a])i)ears to have been com- pk^te alternation." IJj "priniai-y conscionsness" Pro- fessor .lames means our ordinary \vakin«; eonseiousness. By '^X'' conscionsness Professor James means the con- sciousness in operation dnrin<'' trance states and trance- like states. Even said Doctors Macdonald and Flint ad- mit that plaintitf claimed a comi)lete alternation "alter- nation of conscionsness" by assertini>- that i)laintiff had said that plaintiff "was Na])oleon only when in a trance:" that is to say that jdaintiff's trance-conscions- ness — ]daintift"s "X" conscionsness — as Professor James terms it — completely alternated or completely changed from plaintiff's "primary conscionsness," when plaintiff entered said trance. That is to say. That plaintiff's "primary consciousness" was in control of plaintift"s actions and utterances when not in a trance, and that when plaintiff' entered a trance plaintiff's primary, or ordinary waking-, consciousness gave place to — alter- nated with — plaintiff's "X" consciousness, which oper- ated said trance, and as "X" consciousness invariably pretend to represent some person, other than the person represented by said primary consciousness plaintiff's said "X" consciousness followed said invariable Psycho- logical rule, and pretended to represent some person other than plaintiff — arbitrarily choosing to claim to represent Napoleon P»onaparte. X^ow regarding the ig- norance of the medical profession concerning trances and trance-like states mentioned aforesaid by said Pro- fessor James. Said Professor says: "Although the medi- cal profession is beginning to acquaint itself with these phenomena it is still lamentably ignorant. Specialists in insanity, in particular, are ignorant." Said special- ists in Insanity, Doctors Macdonald and Flint proved themselves no whit less ignorant than the general run 280 of specialists in Insanity in said rei>ard for instance. Said Doctor Flint says as thongh he were prononncinj^ a final and incontrovertible doom {ibid., p. 12G, fol. 245), "And he (plaintiff) had the delusion of the change of personality which is observed in many cases of 'para- noia.' "' Likewise said Doctoi- Macdonald (ibid., p. 123, fol. 240) : ''The form of his (i^laintiff s) insanity, from which he is suffering, is 'paranoia' or chronic delnsional insanity, the English term of it. It is an incurable form of mental disease * « * it jg j^jgo characterized in the mania known in the later stage by the change in the personality of the individual. * * * i should say that Mr. Chanler is the most typical classical case of 'paranoia' I have ever seen. I have seen thousands of them. It presents all the essential and diagnostic signs of that disease * * * and change of personality." And ( ibid., p. 124, fol. 242 ) : Q. "In your opinion. Doc- tor, is he now of unsound ndnd?" A. "Yes, sir." Q. "Is he capable of attending to his person or estate — his affairs?" A. "Absolutely not." By Commissioner Og- den (ibid., fol. 243) : Q. "This opinion is formed on your observation?" A. "Ves, sir." Q. "And is it inde])end- ent of what was told you?" A. "Yes, sir. It is con- firmed, of course, there is no shadow of doubt in my mind, and I think in the experience — any experienced exanniier in lunacy would reach that conclusion ^^dthout any history of the case whatever. * * * It presents all the ear-marks of typical paranoia. In the physical and mental condition there is no symptom lacking to make it a perfectly typical case of paranoia. If one wanted a case for teaching or describing a case in a text- book you could not describe it more graphically than simply taking his case as it presents itself. It is the most striking case of paranoia that I ever have seen in my life.'' From the above there was evidently little 281 doubt ill said Doctor Carlos F, Macdoiiald's mind but that plaintiff was afflicted with a case of "paranoia." Now let lis hear what said Doctor Austin Flint, Senior, has to say npou said interesting topic of ''paranoia" (ibid., fol. 245) : Q. "And from what form of insanity is he now suffering? A. "lie has a typical case of what is known as paranoia or chronic delusional insanity." Q. "In your opinion. Doctor, is that progressive and in- curable?" A. "It is incurable and progressive and will finallv terminate in dementia. If I may be allowed to say those cases frequently live for a very much longer time, quite different from paresis." Q. "In your judg- ment, is Mr. Chanler now capable of taking care of his estate and person? A. "No, sir, he is not." l>y Com- missioner Ogden {ihid., fol. 245) : "That is the usual thing. Doctor, that a i)atient suffering fi-om paranoia — it is tirst by degrees gets a slight form and then a mature delusion?" A. "That is the usual thing. * * * He has some fixed delusion like this delusion that he is Napoleon Bonaparte." Q. "Is his physical condi- tion all outlined with that form?" A. "Nothing could be more typical of that form of disease; it is an abso- lutely typical case from every point of view." From the above there was evidently little doubt in said Doc- tor Austin Flint, Senior's, mind but that plaintiff was afflicted with a case of paranoia notwithstanding said Professor James's remarks aforesaid. "But for 'Para- noia' to be diagnosed there must be no distinct alter- nation between the primary and 'X' consciousness;" and notwithstanding, as has been shown above even said Doctors Macdonald and Flint admit said "alternation between the primary and 'X' consciousness" by assert- ing that plaintiff had said that plaintiff "was Na- poleon only when in a trance." So much for the pro- fessional ignorance displayed by said Doctors Carlos 282 F. Macdonald and Austin Flint, Senior. But said ad- niission bv said Doctors tliat plaintitf liad said that plaintiff "was Napoleon only when in a trance" does more than advertise said professional ignorance of said Doctors. Said admission places said Doctors in a rather unpleasant position as regards perjury. For said Doctors both (h'tine paranoia as "chronic delu- sional insanity." Said Doctor Macdonald {ihid., fol. 240) "paranoia or chronic delusional insanity;" said Doctor Flint (ibid., fol. 245) "paranoia or chronic de- lusional insanity." How could plaintiff's falsely, gro- tesquely, iynorantly, alleged ''delusion'' regarding Na- poleon Bonaparte be said to be 'Uhronic," which means all the time, when said Doctors Macdonald and Flint both admit that plaintijf said that plaintiff ''was Na- poleon only U'hen i)i a trance," and therefore not out of a trance; and, as plaintijf on the evidence, only entered a trance once during his whole imprisonment, once during three years and eight months, therefore not all the time and therefore not chronic. While the truth as shown above is that plaintiff stoutly denied that plaintiff was Napoleon Bonaparte either in or out of a trance. In this connection it is apt)()site to draw attention to two points in connection with said trances and trance- like states in which plaintiff from time to time entered purely for scientific research. As has been shown by said statement of said Doctor Horatio Curtis Wood (supra) and by the said opinion of said Professor James plain- tiff' is far from being a believer in spiritualism. As has been shown by plaintiff's said letter to said NN'oods^ under date July 3rd, 1897, plaintiff is far from being either a Buddhist or a Hindu. Said documents prove plaintiff to be a scientific student who places what spirit- ualists claim to be the work of spirits, while the medium 283 is eutnuHod, to the account of whut plaintiff terms ''The X-Facnlty" as aforesaid. Phiintitt' althon;L;;h a niediuni — upon no less an anthority than said l*rofessor James — is a believer in spiritualism. Plaintiff, while consid- ering' spiritualism a crude, ignorant and benighted form of belief even when spiritualism is regarded by its fol- lowers as a religiood business instincts and sound judi>inent" to cite once more the lani2;uage of Mr. Justice ln,i>rahani. As was said above the said proceed- ings in 1897 and the said proceedings in 1899 were void in toto from lack of proper evidence. Unless there is clear proof of insanity a judgment against the party founded thereon runs foul of the constitutional provi- sion. On the maxim that "Only the best evidence pro- curable is admissible," no evidence short of the alleged lunatic's or incompetent's personal appearance in Court, or before a Committee of the Commission as well as of the jury can be the he> a prac- tice hij no means iineonnnon in cases of hinaci/ * ^ * that irhen the Innatie cannot he rentored to the jury and it is inco)iveni( ni for the jnrjj io (jo to the hinatic, one or two of the jnri/ examine the lunatic and report their ohser rations to the rest/' In Lord Ely's case (supra) "try by a jury and personal examination." The reasons adducible to support said salutary practice of allowing a citizen to lay eyes upon the jury who is about to deprive said citizen of both liberty and property are too obvious to require pointing out. But in said connec- tion a point comes which is not so obvious — to-w4t: Under ordinary circumstances an affidavit of service of notice is the best proof as to service of said notice. But wdien said party to be served with notice is in duress of imprisonment and therefore is illegally confined against said party's will said affidavit of service loses said affl- 280 davit's force for the followiiiij; reason, to-wit. Where a parti/ to he -vo served is at lihcrty the temptation to< perjiirji upon the part of the process-server is rendered Dec/ligiblc. Not so, however, when said party is in duress of imprisonment surrounded by persons — said party's physicians and keepers— whose business interests are in- volved in retaining said party as a prisoner and "pay patient." In said instance the door of temptation to fraud and perjury upon said part of said process-server at tlie paid instigation of said physicians and keepers, whose business interests are as aforesaid, involved as well as whose personal interests are endangered, that is to say said physicians reputations would be endangered should said party be fortunate enough some day to secure said party's day in court. In said instance the real evi- dence and therefore the best eridence as to whether said service of notice took place or whether, instead of tak- ing place said service of notice was fraudulently sworn to as having taken place, in said instance the best evidence aforesaid is the appearance of said party to be served — said defendant — in court, or if this is not possible Siiid defendant's word of mouth on said subject before said Commission and said jury, or before said Committee — made up from said Commission and said jury — upon visiting defendant at said defendant's place of imprison- ment. T^nless said Court orders said defendant's produc- tion in court or failing that, that said Committee — made up from said Commission and said jury — visit said defendant as aforesaid — unless said action upon said Court's part takes place said Court itself, as shown above, opens wide the door to perjury. As we said above on the maxim that "only the best evidence procurable is admissible" no evidence short of the alleged lunatic's or alleged incompetent's personal appearance in Court or before a Committee of the Commission as well as of the 287 jury can be the best evidence jtroeiirahle of said allei^ed lunatic's, or said allej^ed incompetent's mental and phy- sical condition. It seems palpable euouiih that the best evidence^ as to said alleuppose the (juestion were in a suit concerning danuiges recoverable through carelessness proved by the breaking, on a train in transit, of a bolt. Undoubtedlv the production in court of said bolt through whose al- leged fracture said accident is alleged to have occurred is the only real evidence and therefore the best evidence as to said alleged fracture. In the same way said "best evidence'' rule is in operation where a written instru- ment is at issue. In said case said instrument itself is better evidence of the contents of said instrument than statements concerning said contents made by persons under oath, and the latter would be inadmissible until either said instrument is produced or said instrument's absence accounted for. To conclude said point we ap- pend the following: State V. (SoodiriU, 25 Am. St. Rep. 870 (W. Virginia, Nov., 1889). The liberty of each person and his right to acquire AND RETAIN PROPERTY must always be considered in con- nection with the rights, liberties and welfare of others, and each person must submit to such reasonable restric- tions as must necessarily be imposed for the better pro- tection of the whole community, and even for the protec- 288 tioii of ji particular class, and it will hence always be difficult, if not impossible, to deline or prescribe any precise test from which to determine with unvarying certainty' what restrictions upon the liberty of indivi- duals, or of classes of individuals, are sustainable and what are not. While the courts proi^erl}^ hestitate to formulate definitions of liberty and of due process of law, or to oive enumerations of all that mav be conceded to one person or denied to another without denying to "any person the equal protection of the laws," yet they have, in some instances, given general descriptions or definitions which, while not intended to be applicable under all circumstances, are usually applicable, and therefore worthy of restatement here. Thus it was said in People v. Oinsoii, 109 N. Y. 389, 4 Am. St. Rep. 465: "The following propositions are firmly established and recognized : A person living under our Constitution has the right to adopt and follow such lawful industrial pur- suit, not injurious to tlie community, as he may see fit. The term 'liberty,' as used in the Constitution, is not dwarfed into mere freedom from physical restraint of the person of the citizen, as by incarceration, but is deemed to embrace the right of man to be free in the eniovi\ient of the faculties with which he has been endowed by his Creator, subject oulv to such restraints as are necessary for the common welfare. Libei'ty, in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." "The common business and callings of life, the ordinary trades and pursuits, a\ hich are innocuous in themselves, and have been followed in all countries from time immemorial, must therefore be free in this 289 country, to all alike, upon the same conditions. The right to pui-siie them A\ithout let (»r hiiidiance, except that which is im])lie(l to all persons of the same sex, ai>e, and condition, is a distiniiuishing privilege of the citizens of the United States, and an essential element of that freedom which they claim as their birthright. * * * Civil liberty exists only where every individual has the power to pursue his own happiness according to his own views, unrestrained, except by ecpml, just and impartial laws." Hiitcliers' VMioii Co. v. Crescent City Co., Ill U. S. 757. IJeal Evidexcl^. Real eridencc is such evidence of the th'uig or object as is aihlrcs.^ed directlij to the senses of the court or jury iritJiout the intervention of the testimony of witnesses, as irhere rariou.s thinys are c.rhihiied in open court. When, for instance, the condition or appearance of any thing or object is material to the issue, and the thing or object itself is produced in court for the inspection of the tribunal, with the proper testimony as lo its iden- tity, and if necessary to shoAv that it has existed in this State since the time at which the issue in question arose, this object or thing becomes itself "real evidence" of its condition or appearance at the time in question. Gaunt v. ^tate, 50 N. J. L. 49 J , where resemblance of a child to alleged father was material to the issue, and the child was in court, Held, not error for the court to refuse to charge the jury that they must not consider the question of resend)lance at all, and that if they did consider it, it must be from verbal testimony, not from view. As a class, resemblances are admitted wherever rele- (19) 290 vant. Ill cases involviiig luiiidwritiiig a comparisou of hands is pertinent. In sales of samples, in patent cases, in trade-mark and infringement suits reseml>lance is of the essence of the proof. In New Yorlv State operas have been performed in court, comic songs sung, and plagiaries of papers read. In Pennsylvania a contrivance called the Keeley Motor was exhibited with a ^'ie^^• to the deter- mination of the resemblance to a model described in plaintiff'^. IpII. In Garvin v. State, 52 Miss. 207, indictment rested on the ground that defendant was a colored man. Of this there was no proof, but as the defendant had been before the jury the court held that their inspection did away with the necessity of proof. Jones V. 'I ones, 45 Md., 148, the Court permitted the jury to judge as to personal resemblances. Mulhado v. Brookli/n City R. R., 30 N. Y. ( (^ourt of Appeals), 370, held in action to recover damages for personal injuries that there could be no valid objec- tion to exhibition of injured limb before the jury. Other instances of real evidence, exhibitions of weap- i3iis, or missiles, marks of identity, race, color, age, sex, models, diagram, maps, photographs, situs of ac- tion, &c. As has been said above : "Real evidence is such evi- dence of the thing or object as is addressed directly to the senses of the court or jury without the interven- tion of the testimony of witnesses." * * * '^^Wlieyi, for instaywe, the eondition or appearance of any iJiing or object is material to the issue, and the thiny or object itself is p^'odiiced in court for the in- 291 spection of the tribunal, with the proper testimony as to its identity, and if necessary to shoio that it has ex- isted in this State since the time at which the issue in question arose, this object or thine/ becomes itself 'real evidence' of its condition or appearance at the time in question." It seems equally patent that when an alleged lunatic or an alleged incompetent asserts that said alleged lunatic or said alleged incompetent is physically in- capacitated from coming to Court and presenting him- self before said Commission and said jury it seems equally patent that in said case the only real evidence and ergo the best evidence concerning said alleged physi- cal disability would be an examination upon the part of said Commission and said jury or a Committee made up of their respective members of said alleged lunatic or said alleged incompetent in said alleged lunatic's or said alleged incompetent's i)lace of confinement. Sup- pose an expert in lunacy or two experts in lunacy, hired by the other side, swear that said defendant says said defendant is unable to attend court owing to a broken leg but^said experts — swear said broken leg is a ''de- lusion'' and does not exist in fact. Would it be heard that such said oaths could outweigh the weight of visible proof concerning said fracture of said limb? Point 15. Plaintiff's sanity at the time of arrest is pro^d by ])laintiff's letter to Hon. Micajah Woods, dated July 3rd, 1897 : upon Mr. Justice Harlan's opin- ion in the Runk case which holds that a written instru- ment by a person accused of insanity may successfully offset prima facie evidence of insanity. 292 (From Trial Brief of Chaloner against Shermayi, pp. 482-495.) TWO EXCERPTS FROM THE TEXT OF MR. JUS- TICE HARLAN'S OPINION IN THE RUNK CASE. SUPREME (;OURT OF THE UNITED STATES. No. 142 — October Term^ 1897. A. Howard Ritter, Executor of \ On a Writ of Cer- Williani M. Riink, deceased, I tiorari to the Plaintiff-in-error, I United States V. ( Circuit Court of The Mutual Life Insurance \ Appeals for the Company of New York. / Third Circuit. (January 17, 1898.) Mr. Justice Harlan delivered the opinion of the Court : * * * ''Besides these facts, it appeared that on the day before his death he avowed that his debts must be paid, and that they could only be paid with his life. That avowal was in a letter writ- ten to his partner, in which he said that he had deceived the latter, and could only pay his debts with his life. That letter concluded : " 'This is a sad ending of a promising life, but I deserve all the punishment I may get, only I feel my debts must be paid. This sacrifice will do it, and only this. I was faithful until two years ago. Forgive me. Don't publish this.' On. 293 the same day he wrote to his aunt, to whom he was indebted in a large sum, saying, among other things : 'Forgive me for the disgrace 1 bring up- on you, but it is the only way I can pay my in- debtedness to vou/ In addition he left for the iiuidance of his Executor a memorandum of his business affairs prepared just before his death, and which tended to show that he was at that time entirely himself. "In view of these and other facts established by the evidence, the Court did not err in dis- afftrming the first and second of plaintitt''s points. We may add to that, under the charge to the jury, it became unnecessary for them to inquire whether the policies were taken out with the in- tention of defrauding the insurance company or of committing suicide. The Court said to the jury: " 'What constitutes insanity, in the sense in which we are using the term, has been described to you, and need not he repeated. If this man understood the consequences and effects of what he was doing or contemplating, to himself and to others, if he understood the wrongfulness of it, as a sane man would, then he was sane, so far as we have occasion to consider the subject; other- wise he was not. Here the insured committed suicide, and, as the evidence shows, did it for the purpose as expressed in his communication to the Executive of his will, as well as in letters writ- ten to his aunt and his partner, of enabling the Executor to recover on the policies and use the money to pay his o])ligations. I therefore charge you that if he was in a sane condition of mind at the time, as I have described, able to under- stand the moral character and consequences of 294 bis act, his suicide is a defense to this suit. The only question, therefore, for consideration is the question of sanity. There is nothing else in the case. That he committed suicide and committed it with a view to the collection of this money from the insurance companies and having it applied to the payment of his obligations, is not contro- verted, and not controvertible. It is shown by his own declaration, possibly not verbal, but writ- ten. The only question, therefore, is whether or not he was in a sane condition of mind, or whether his mind was so impaired that he could not, as I have described, properly comprehend and un- derstand the character and consequences of the act he was about to commit. In the absence of evidence on the subject he must be presumed to have been sane. The presumption of sanity is not overthrown by the act of committing suicide.' " The said Runk had been guilty of what any expert in insanity would denominate the act of a madman, under the plea that suicide is the act of a man suffer- ing from "suicidal mania." The Court below agreed in said presumptive evidence of insanity, which is fur- nished bv the act of suicide. Said Court said, to wit : "Suicide may be used as evidence of insanity." Mr. Justice Harlan affirmed said dictum of said lower Court by saying, to wit : "Nothing said by the Court upon the question of insanity was erroneous in law." Ergo, Mr. Justice Harlan held 'that the act of suicide is prima facie evidence of insanity. But Mr. Justice Harlan also agreed with said lower Court in holding that said prima facie evidence of insanity might be offset. Mr. Justice Harlan agreed with said lower Court that said prima facie evidence of insanity might he of set hy ivhatf By 295 expert testiinony to the contrnrt/? By sworn allega- tions by eye ivitnesses to the contrary f No. By a far simpler, by a far surer means, to irit: By the acts of said alleged insane person's mind, as shown by a written instrument upon the part of said alleged insane person: By a letter in short. Said Kinik had written a letter to said Kimk's busi- ness partner and to said Rnnk's aunt toucliini- npon the motive of said snicide, as well as a business memorandum to said partner. As nothini> to the contrary is alleged it may be presumed that said letters and said memo- randum were rather brief, or at least nothing compara- ble for length with said letter written l)y plaintiff to said Hon. Micajah Woods, July 3rd, 1897, within less than four months from the time of plaintiff's arrest and im- prisonment as a lunatic in said Society of the New York Hospital at White Plains, and almost four years before plaintiff was able to escape from said false imprison- ment. (Transcript of Record, folios 306-339.) Furthermore. It may be presumed that said two let- ters and memorandum upon the part of said Runk were necessarily — from their said rather brief nature — far less sustained specimens of argument and memory than said letter of plaintiff" presented. Said letter of plaintiff was over thirty pages of type- writing in length. Said letter of plaintiff contained an exhaustive examination of the causes which led up to plaintiff's arrest and incarceration upon a false and perjured charge of lunacy, besides an exhaustive ac- count of plaintiff's business affairs directly connected therewith, besides a legal discussion of plaintiff's status and plans for legal redress, which said plans were car- ried out, almost to the letter, by plaintiff years later, upon plaintiff's escape. Furthermore, said letter, which was written by plaintiff by hand in ink, is presumptive 290 proof, of the strongest, of plaintiff's entire sanity and self-control at the time of the writing thereof. Hand- writing is a prolific proof of unsoundness of mind. The "paretic tremor" is a technical phrase employed by alienists to describe the shakiness of handwriting upon the part of a certain class of lunatics. Moreover, luna- tics show their lack of balance in their chirography, by the untidiness thereof, tlie meaningless flourishes there- in, the slovenliness of the formation of the characters, and the general wild look of the written page. Nothing of the sort is discoverable in plaintiff's said letter of July 3rd, 1.S97. There is no sign of tremor. There is no sign of slovenliness. There is not a single blot, not a single erasure, nor a single word crossed out. Consider- ing the circumstances under which said unusually lengthy letter was written, namely, secretly, at night, wiWi a ke(^per in the next cell, and another on watch - — or supposed to be — outside said cell's door, consider- ing said circumstances plaintiff maintains that such a performance in penmanship was a feat any man not a teacher of handwriting might feel proud of. Further- more. Said letter furnishes proof in al)un^^o error of law having been committed in respect of the issue as to the insanity of the assured, it is to be taken as the result of the verdict that he was of sound mind when he took his life." We now insert what said Court said constituted sanity as opposed to insanity : "What constitutes insanitv in the sense in which we are nsina: the term, has been described to you, and need not be re- peated. If this man understood the consequences and effects of Avhat he was doing or contemplating, to him- self and to others, if he understood the wrongfulness of it, as a sane man would, then he was sane, so far as we have occasion to consider the subject. * * * j therefore charge you that if he was in a sane condition of mind at the time, as I have described, able to under- stand the moral character and consequences of his act, his suicide is a defense to this suit. The only question, therefore, for consideration is this question of sanity. There is nothing else in the case." A perusal (»f the above will prove that the Supreme Court of the United States supports plaintiff's afore- said contention in this point. Plaintiff maintains that sanity is shown by the action of a party's mind, not by the action of a party's muscles. Plaintiff' maintains that sanity is shown by a party's words and acts, rather than by the "reflexes" of a party's knee-joints. Plaintiff maintains that sanity is shown by a party's ideas rather than by involuntary action of a party's eyelids. Plaintiff maintains that sanity is shown by the words issuing from a party's lips rather than by the mechanical action of the party's labial 304 muscles. Plaintiff maintains that sanity is shown by the Avoids uttered by a party's toniiue rather than by the (juestion as to whether the party's tongue was ''coated" or not ''coated." Plaintiff maintains that sanity is shown by the action of the party's hands as to what the part}' can do with said party's hands, or write with said party's hands rather than as to whether said party's hands were warm or cold. Plaintiff main- tains that sanity is shoAvn by the question as to whether or not said party's ideas are normal rather than by the question as to whether or not said party's pupils are normal. Plaintiff maintains that sanitv is shoAvn by the quickness of said party's mind rather than by the quick- ness of said party's pulse. Plaintiff maintains that sanity is shown by whether or not said party's logical and reasoning powers are tirm or tremulous, rather than as to whether or not said party's hands are firm or tremulous. Plaintiff maintains that sanity is shown rather by the question as to whether or not Plaintiff's mind reacts to ratiocination and questions put to Plain- tiff rather than by the question as to whether or not said party's pupils re-act to light. Plaintiff maintains that sanity is shown rather by the fact as to whether or not a party thinks Avell, than b}' the fact as to whether or not a party sleeps well. Lastly, plaintiff maintains that sanity is shown rather by the question as to whether or not a party's reasoning is regular, than by the ques- tion as to whether or not said party's bowels are regular. What is insanity? Suppose a law should be enacted to the effect that certain acts or thoughts would be suf- ficient proof of mental derangement, and that, upon a trial, the facts appearing, the Court should direct a ver- dict accordingly, and property or freedom should thus be wrested from the defendant. Would such a proceed- ing constitute due process of law? And yet such a pre- 305 posterons, siic-li a niechanical, and such a cliaiiatanisli test of saiiity is today set by so-called experts in in- sanity, who glean certain physical, mechanical, muscu- lar actions, which sometimes follow insanity, but in the vast majoi-ity of cases exist as mere physical idio- syncrasies, totally free from the slightest taint thereof, and — to use a technical phrase — are auxiliary, but not positive. The result of said quackery is that the pub- lic is being gulled into believing that insanity is hidden in a grand arcanum of mystery, to which said grand arcanum only alleged experts in insanity hold the key, which said alleged experts will not turn without the payment of a fat fee. The result of said (piackery is that people lose sight of the fact that, as has been said by the Court { supra), the citizen is the sovereign, by which we mean that the citizen is the final judge of things medical as well as things practical ; of things scientific as well as of things simple; of things literary as well as of things non-literary; of things musical as well as of things non-musical ; of things finally, religious, and things non-religious ; by which we mean that when any of said above domains of human thought enter a law court, it is the sovereign, it is the plain citizen, it is the juryman and not the Judge, and not the counsel, and not the experts, ho iia pd<\ or allegeaiiist onraolves if showing- up said crime from all the points, from all the view-points, from all the angles said crime admits could do so. 3. Thirdly, because unless the public mind is awakened to the danger which threatens every member of the public without regard to age or sex or wealth or poverty, said band of experts in insanity will go on fattening- like vampires upon the heart's blood of inno- cent sane men and women. In bidding farewell to said topic it might not be amiss to draw public attention to the role played therein by the cream of said Four Hundred, so called. For ex- ample. As we said under Point 11 : "Lunacy proceed- ings in New York State are mandatory, in derogation of the common law rights, and must therefore be strictly observed in pursuance of the statute. While said com- mi nent was in fact made to The Society of the New York Hospital, it was not so stated ; the term Blooming- dale Asylum being used, an institution unknown to the law. As we showed further said infraction of the man- dates of the New York Legislature (by virtue of its agent, the said State Commission in Lunacy, as we have shown, supra), said mandates, to wit: line 156 of said commitment papers : "It is essential that the official title of the institution should be correctly inserted" (Tran- script of Record, p. 113, fol. 223), and again line 349: "Insert, correctly, official title of institution," and lastly lines 11 and 12, "The blanks should be carefully read and properly filled out to insure the commitment of a patient" ( fol. 201 ) . As we have shown further said iv fraction of the mandates of the said legislature — as aforesaid — was not once, not twice, but thrice repeated and startling as it sounds, each time in a different man- ner. The said role of said cream of said Four Hundred so called so begins, to wit. Through said cream of said 308 Four Hiindred's agent, said Medical Superintendent of said Society of The New York Hospital, said cream of said Four Hundred became particeps criminis in said infraction of said mandates of the said legislature — as aforesaid — as follows : citing now from Section 62 of the Insanity Law of the State of New York, Chapter 545, of the laws of 1896 : "The superintendent or person in charge of any institution for the care and treatment of the insane may refuse to receive any person upon any such order, if the papers required to be presented shall not comply with the provisions of this section," Said cream of said Four Hundred's said agent, said Medical Superintendent of said Society of The New York Hos- pital should, in compliance with said mandate contained in said Section 62, have refused to receive plaintiff, see- ing that the three gross infractions of said mandates contained in line 156 and 349 to say nothing of lines 11 and 12 stared said cream of said Four Hundred's said agent, said Medical Superintendent of said Society of The New York Hospital full in the face from said Com- mitment Papers. The question at once presents itself to the mind of an observer as to whv said infractions said gross infractions of said mandates were committed. The answer is simple. In order to avoid damage suits from the army of falsely alleged lunatics who have in the 135 years during which said Society of The New York Hospital has plied said Society's nefarious trade, in order to avoid suits for damages for false imprison- ment at the outraged hands of said army of falsely al- leged lunatics who have, in the past 135 years, fought said army's way to liberty by the use of habeas corpus, in order to avoid said damage suits said cream of said Four Hundred, through said cream of said Four Hun- dred's said agent, deliberately threw dust in the pub- lic eye by allowing the false impression to gain ground, until now said false impression is a deeply rooted con- 309 viction in the public mind that said Society of The New York Hospital's falsely alleged ''Bloomingdale" has no connection whatever with said Society or with any other Society, but is a piiblic institution, such as Belle- vue Hospital, and that Bellevue Hospital is used to re- ceive poor lunatics, whereas said falsely alleged "Bloom- ingdale" is used to receive rich ones. It is easy to see that provided said false impression gets a foothold in the public mind there is small chance of damage suits at the hands of said army of falsely alleged lunatics which has successfully emerged therefrom, public opin- ion naturally presuming that a public institution would have no pecuniary motive in holding sane persons upon a false charge of insanity. Said cream of said Four Hundred have followed in the footsteps of said cream of said Four Hundred's predecessors. Said predeces- sors would be pleased could said predecessors see with what success said predecessors' scheme to hoodwink and bamboozle the public has worked. It is an amaz- ing spectacle at this day of advanced civilization to be able to catch such men as make up said Board of Gov- ernors of The Society of the New York Hospital, to catch such men as Sheppard Gandy^ President; Theo- DORus B. WooLSEY, Vice-President ; J. Edward Sim- mons^ Treasurer ; Joseph H. Choate, William Warner HoppiN, Elbridge T. Gerry, Philip Schuyler, James O. Sheldon, Hermann H. Cammann, James William Beekman, Cornelius N. Bliss, George S. Bowdoin, Waldron Post Brown, Edward King, William Alex- ander DuER, Henry W. de Forest, P^dmund D. Ran- dolph, Fordham Morris, George G. Haven, Frederick D. Tappen, George G. DeWitt, Augustus D. Juilliard, Francis Lynde Stetson, Thomas H. Barber, Richard Trimble, and David H. King attempting to fool the public and in order to fool the public having — for the 310 nonce — to assume the role of quasi-h\w breakers. It is an aniazin<>- spectacle, a spectacle replete wdth the ludi- crous to catch such lawyers as Joseph H. Choate, Henry W. de Forest, George G. DeWitt, and Francis Lynde Stetson; and such lights of finance as J. Edward Sim- mons, Hermann H. Cammann, Cornelius N. Bliss, George S. Bowdoin, Waldron Post Brown, George G. Haven, and Augustus D. Juilliard; and such repre- sentatives of all that is blue-blooded and fashionable as William Warner Hoppin, Philip Schuyler. James O. Sheldon, James William Beekman, Edward King, William Alexander Duer, and Thomas H. Barber; and last but verv far from least the name of that formid- able philanthropist and director of youth, Elbridge T. Gerry himself; it is surely a laughable matter to catch archons of civilization tripping. But amusing as said spectacle is said spectacle has a somewhat serious side. Said spectacle has a decidedly serious side, to wit. The astounding revelations of the Ship-Building-Trust's wreckage — and the still more astounding revelation as to what pillars of finance were wet by the spray thereof — has })repared the pul)lic mind for the re- ception — touching lights of Wall Street — that all is not gold that glitters. But said Ship-Building-Trust's said wreckage was a mere matter — large as said matter ^^'as — w;is 'i mere matter of dollars and cents, whereas said tripping upon said part of said Governors of said Society of the New York Hospital is much more than a mere matter of dollars and cents, although plaintiff was practically robbed by said Society of the New York Hospital of, in round numbers, twenty thousand dollars. Said tripping means little short of this, to-wit That at this day of advanced civilization and order, and all that, there exists in the Metropolis of the United States, in the centre of wealth, and alleged culture and alleged 311 kii()wle(li»e, there exists in New York Oity today an oi-i;aiiiz(Ml band of, we shall not say robbers, bnt we shall say robber barons, who like their prototypes of the Rhine, have a stroni>hold near tlie bank of the Jlhine of America — the Hudson. Who, also like their prototype of the .Mid- distance of said band of or- "oculist," who intended to dra«> plaintiff out of bed, a cold winter's night and there- upon drag plaintiff to a mad-house cell. As was said plaintiff' declined to be dragged, but said declination was no part of the proposed performance of said party of said rol)l)er barons' retainers under the head-ship of said Moses A. Starr. ()n,e 7, ibid.) "that he recited to deponent and the said Doctor Austin Flint, seven or eight sonnets of his own composi- tion (p. 124, fth, 1898, in company with Doctor Austin Flint, of this city. We went np there to the institution and jointly made a personal examination of Mr. John Arnistroni»- ('hauler. * * * We informed ]Mr. Chanler who we were and the purpose of our visit; that we were there to examine him as to his mental condition. He received us cor- dially and immediateh^ began, as he said, to explain his case. He said he was a victim of a gioantic conspiracy on the part of his relatives — the other conspirators be- ing Joseph H. Choate, Elbridge T. Gerry, Cornelius N. Bliss, Judge Beekman and several others whom he named, that tliev had subsidized the State and National Government which were arraved against him: that his case was thoroughly prepared." Q. "He named Mr. Choate and Mr. Gerry and others?" A; "He named, I think, the most of them were members of the Board of Governors of the New York City Hospital, as that is a branch — of which Bloomingdale is a braucli.'" Q. "That is the reason they were selected?" A. "Yes, sir. That they had subsidized the State and National Government which were arrayed against him ; that his case was thoroughly prepared and Avould be taken up by the court." Dr. Samuel B. Lyon, Superintendent of the So- ciety of the New Y^ork Hospital, on the stand (Tran- script of Record, pp. 117-118). (Page 14 Proceedings, 1899) By Commissioner Fitch. (]. "I notice in the cer- tificate that he (plaintiff) only took certain articles of food about two years ago restricting himself to diet; does he still do that?" A. "He still continues vegetable diet. I am not aware that he has eaten any meat since he was with us." * * * (Page 118, //W?)- A. "I do not know whether I mentioned it, but he thinks there is a conspiracy of the Wall Street clique. He mentioned 31G Clioate * * * he thinks we arc understrappers, and he is very amiable now." (Mtini>' finally from the deposi- tion of said Dr. Lyon on Pas.'e 82, fol. 158. "That he (said Dr. Lyon ) l)elieves the said John Armstrong Ghan- ler to be insane and unable to manage himself or his affairs, and that the grounds of his belief are as follows: That since the patient's admission to Bloomingdale, he has had delusions that conspiracies existed against his life and hapjuness; he has passed his nights in watch- ing, has often declared his belief in his own prominent talents as a lawyer, pugilist, poet, etc., that while really a very bright man naturally, he has now the delusion that his mentarpowers are almost supernatural, an,()es on : "He said he was a victim of a gigantic conspiracy on the part of his relatives * * * the other conspirators being Joseph H. Choate, Elbridge T. Geri-y, ( 'ornelius N. Bliss."" The-said Governors of the said Society of the New York Hospital were in fact conspirators as aforesaid. Said Macdonald goes on: "Judge Beekman and several others whom he named; that they had subsidized the State and National Gov- ernnu^nt which were arrayed against him; and his case was thoroughly prepared." Plaintiff did not mention Judge Beekman. Neither did plaintiff nmke the absurd statement attributed to plaintiff concerning the State and National Government. What plaintiff did say was that apparently the proprietors of Private Madhouses in New York State had apparently pretty effectually subsidized the New York State legislature of 1896; for how otherwise could the passage of so iniquitous a lot of laws and so wholly illegal a lot of laws as some of the Lunacy Laws of said legislature, passed in 1896, be accounted for? Q. "He named Mr. Choate and Mr. Gerry and others?" A. "He nanu^d, I think the most of them were members of the Board of Governors of the New York City Hospital, as that is a branch — of which Bloomingdale is a branch." Q. "That is the reason they Avere selected?" A. "Yes, sir. That they had subsi- dized the State and National Government which were arrayed against him ; that his case was thoroughly prepared and would be taken up by the court." vSaid :Macdonald again displavs said :Macdonald's mendacious venom here. For fear that a true 320 iiiipressiou ^^•<)^ld be created by allowing tbe fact that tlie men plaintiff criticized were criticized becanse said men were (xovernors of said Society of said New York Hospital so soon as said fact was re- luctantly drawn out of said Macdonald, said Macdon- ald hastens to wipe out the i>ood effect of said fact by reiterating said absurd falsehood in re the array of the State and National Governments. Taking, fourth and last, said excerpt (p. 117, fols. 230-231) (page 14, Proceedings 1899) (Dr. Samuel B. Lyon on the stand). (By Commissioner Fitch) : Q. ''I notice in the certifi- cate that he (plaintiff) only took certain articles of food aboiit two years ago, restricting himself to diet ; does he still do that?" A. "He still continues vegetable diet. I am not aware that he has eaten any meat since he was with us." Is it not a laughable thing that the charge of insanity in this day of advanced civilization can be preferred against a party because he happens to be a vegetarian, for the practical reason that said party finds — as all doctors who have studied the sub- ject have found^that all meat red and white is more or less gout-producing and rheumatism producing, es- pecially in a party who happens to have an inherited tendency to gout ; which said tendency shows itself if said party indulges in wine, beer and spirits, and eats meat with or without wine, beer or spirits, but not other- wise? (Page 118, fol. 231, ibid.) A. ''I do not know Avhether I mentioned it, but he thinks there is a con- spiracy of the Wall Street Clique. He mentioned Choate * * * he thinks we are understrappers, and he is very amiable now." The above being interpreted means. AVhen ])laintiff was first incarcerated in The Society of The New York Hospital plaintiff, having a fairly good idea of human nature, and plaintiff's fellow man, was, however foolish enough and fresh enough to 321 think thai no iiieii iwe wholly had ; that no men can play the role of incarnate fiends; stran<>,ers to trnth, stranuers to honesty, stranj^ers to hnman syni])athy, and stranj;ers, finally, to the veriest shred or fragment of anythinj^ most remotely resemblin"' coninum liumanitv. Plain- titf did not know the (xovernors of The Society of the New York Hospital and their allied doctors and lawyers. Plaintiff foolishly and freshly snrniised that once the Medical Staff of The Society of the New York Hos- pital had had a couple of weeks to observe plaintiff, and to learn upon (}nestionini> ])laintiff, that plaintiff's views anent spirits and spiritualism and all and any alleged supernatural agency at work in this practical work-a-day world were precisely what said views were shown to be in plaintiff's said examination at the hands of Professor Horatio Curtis Wood, M. I)., aforesaid, supra; plaintiff foolishly and freshly surmised that once said Medical Staff' had two weeks to examine plaintiff' in that then said Medical Staff' not l)eing incarnate fiends, not being men who for ])ay would consign a nmn to a living tomb, to a fate, in the eyes of any man of intelligence and activity, to a fate worse than death, to a madhouse cell foi- life; plaintiff" foolishly and freshly surmised that in Siiid event said Medical Staff, not being fiends would promptly report to said Dr. Lyon, the Medical Superintendent of The Society of the New York Hos- pital that plaintiff' was sane and therefore, of course, must l>e released. The said two weeks rolled slowly by. During said two weeks plaintiff was as polite and obliging to said .Medical Staff' as was possible to be. Plaintiff aided said Medical Staff"s eff'orts at examin- ing plaintiff' in every way in plaintiff's power. Plaintiff allo\v(Ml said Medical Staff' to obtrude itself upon plain- tiff' at all hours of the dav or night. Plaintiff always received said ^Medical Staff' upon such occasions cor- (21) clially. Plaiiititt' freely discussed all and any of the l)liases of plaintiff's ease that said Medical Staff desired to heal- discussed. In short plaintiff was complaisance itself. At the end of said tAvo weeks', however, plaintiff saw tliat plaintiff had overestimated said Medical Staff, that said Medical Staff" were in fact no better than so nuuiy incarnate fiends — as incarnate fiends have been above outlined to be. Thereupon plaintilf's attitude to- ward said Medical Staff instantly chanoed and plain- tiff' accused said Medical Staff' to said Medical Staff's face of bein<»- quacks of the most degenerate and aban- doned type. This sort of thing kept up for months, Plaintiff' frankly laughing at the open and above-board rascality of said Medical Staff in said Medical Staff's face. Said laugh of plaintiff's did not strike a sympa- thetic chord in said Medical Staff', but said Medical Staff had to stand said laugh whenever said Medical Staff ob- truded itself upon plaintiff'. AVith the lapse of years plaintitt"s i-ighteous indignation, not only as a man, but as an officer of the Court, at such criminal doings with- in the center of the Metro])olis of th(- United States, plaintiff's said ijulignation not cooled but centered against the leading criminals in said criminal doings, to wit, the said Governors of tlie Society of the New York Hospital. Tlaintiff' at cmce changed plaintiff"s tone toward said ^Medical Staff'; Plaintiff sent for said Medical Staff and said in effect: "I have experienced a change (tf heai't--but not of head. I have concluded to practice* pretty high Christianity and forgive you, gen- tlemen, for ycmr share in this game of rascality and not pursue you, gentlemen, in the Courts for false im- prisonment, as I had decided. I have determined to let you gentlemen alone and look to The Society of the New York Hospital alone. ^ly reason for so doing is, you are mere understrappers in this affair. You are 323 hired by the Governors of the Society of the New York Hospital to hold all men and all women run in here un- der the present illei^al laws on Lunacy of the State of New York, to hold all men and all women run in here, whether insane or sane, for so long as the parties who ran said men and women in here put up a suf- ficiently fat fee for holding sane men and sane women illegal prisoners. This institution is not/ as is popularly supposed, a public institution nor is this institution an eleemosvnarv institution. This institution is a purely money-making concern, travelling under a false name, contrary to law and doing a nefarious trade in men and women. If you did not do the said bidding of the said Board of Governors of The Society of the New York Hospital, you would lose your job. The proof of the pudding is in the eating thereof. If what I allege against the Board of Governors aforesaid, were not strictly unexaggerated, were not strictly true, why is it that there is no case on record of a party committed here against said party's will, ever being set free until said party had called in the strong arm of the law and worked a habeas corpus on you? There is hardly a year goes by that one nmn or woman — sane man or woman, and sometimes more than one in a given year — there is hardly a year by that one man or one woman, per- fectly sane, does not tight his or her way out of 'Blomingdale,' falsely so-called. Having come to the aforesaid conclusion, I am prepared to make allowance for human nature and to admit that, from a business point of view, but only from said point of view, you are right to hold your jobs." From that day plaintiff was as said Dr. Lyon says, supra, "I do not know wheth- er I mentioned it, but he thinks there is a conspiracy of the Wall Street Cli(iue (p. 118, fol. 231) . He mentioned Choate * * * he thinks we are understrappers and 324 he is a \eiy aiiiiahle now." The foremost round for said Dr. Lvon's belief that phiintilf was "insane and unable to manage himself or his aft'airs" was "That since the patient's admission to Bloomiugdale he has had delu- sions that conspiracies existed against his life and hap- piness." Said Dr. Lyon's second ground for said Doc- tor's belief that plaintiff was "insane," etc., was "He has passed his night in watching.'' Dr. Lyon aforesaid here becomes classical in said Doctor's diction, and em- ploys an old English use of the word "sit" or "sit up" at night for "watch." Plaintiff" was in the haltit of sitting up very late writing or reading at night, for the reason that at that time the lunatics are usually asleep, and therefore less prone to yelling than when said luna- tics are awake in the day time. Said Dr. Lyon's third ground for said Doctor's belief that plaintiff' was "in- sane," etc., was that while said Medical Staff were con- tinually calling plaintiff' to plaintiff"s face — an incompe- tent ])erson — before plaintiff experienced said change of heart and forgave said Medical Staff, that while said Medical Staff were continually depreciating plaintiff's personal stock — so to speak — plaintiff having no one to say so much as a good word for plaintiff, plaintiff mach* bold to put in as a plea in rebuttal of the aforesaid charges of insanity and folly the claim to being an all-round man, that is to say a rounded nmn, one developed physically, in- tellectually, and artistically, and plaintiff brought forward as proof of said contentions the fact of record, that plaintiff could spar, that plaintiff was a lawyer, and that plaintiff could write sonnets which the wit- nesses of the other side admitted were "certainly of a most extraordinary nature and very brilliant in a way." To put it mildly, said Dr. Lyon is in error when said Doctor avers "he has now the delusion that his mental 325 poAvers are almost supernal ural." Said Dr. Lyon is good enough to gild the above monstrous pill with the remai'k that plaintitf is "really a very bright man nat- urally." Said Dr. Lyon's fourth ground for said Doc- tor's belief that })laintiff was "insane," ete. was "and that his personality has undergone a change and that he now has a verv high mission to fulfill toward the world." Plaintiff's personality had undergone a two-fold change during plaintiff's long incarceration at White Plains. Said change was partly physical and partly mental. Said physical change was that plaintiff, from being a g*m.S'/-vegetarian, when plaintiff" entered The Society of the New York Hospital, ended by becoming, before the nearly four years of imprisonment were terminated, by escape, ended by becoming a strict vegetarian. Said mental change, to wit. While not caring to undergo the charge of cynicism, plaintiff, to be honest, must admit that plaintiff's experiences with plaintiff's fellow man at The Society of the Ncav York Hospital — and all that that phrase entails— that plaintiff is certainly not open to the charge of being — so far as human nature is concerned, and the depths of murderous rascality to which, upon temptation, human nature readily sinks — plaintiff' t(uiching hunmn nature is certainly not open to the charge of optimism. Plaintiff as a lawyer and mindful of plaintiff's oath does not hestitate to assert that plaintiff would be recreant to plaintiff's profes- sion as well as to plaintiff's said oath did plaintiff, as an officer of the Court, allow such a crime and such a criminal combination as is represented by the past action of the other side and all that that entails, to go unde- nounced. Said Dr. Lyon's peroration — so to speak — is a pretty example indeed of the cry of wolf. Said Dr. Lyon says, "His disease appears to pursue the typical course of what is known as systematized delusional in- 326 sanity, beginning with suspicions of persecutions by enemies for a purpose and later developing expansive ideas of his own personality." Plaintiff's "disease" was one which attacks all lawyers worthy of the profession, when said lawver's rights are menaced. Plaintiff's "dis- ease" was one which attacks all honest men, whether lawyers or laymen, who find themselves in a den of thieves. Plaintiff's "disease" in short knew but one cure and said cure was a speedy entry into Court. The cry of "wolf" is shown from the fact that everybody, every sane body that is, Avho finds himself or herself in the clutches of The Society of the New York Hospital desires redress. Upon fighting their way out by habeas corpus proceedings said parties let the matter rest there. Plain- tiff fails to find how plaintiff has "developed expansive ideas of his own personality." A close inspection of said proceedings in 1897, as well as of said proceedings in 1899, as well as of said proceedings in 1901, will develop the fact that plaintiff far from "developing expansive ideas of his own personality" has spent time and money in undeveloping the bogus personality ^whicli the ex- pansive mendacity of the doctors in the pay of the other side has foisted upon the said record, so-called, of 1897, and the said record, so called, of 1899, where said bogus personality lias been allowed to masquerade — OAving to the fact that plaintiff has not yet been able to have plain- tiff's day in Court — where said bogus personality has mas(]ueraded in veritable harlequin colours in lieu of the quiet law-abiding, studious colours which distinguish l)laintiff's true personality on the evidence furnished by the record of said proceedings in 1901. In closing said branch of this (question a query obtrudes itself. Said query to wit : Why should Dr. Carlos F. Macdonald and Dr. Austin Flint, Senior, aforesaid display so much thinly veiled venom towards plaintiff? Plaintiff had '\'>7 never by dwd or word injured citlier of said Medical men. The answer to said (luerv is not hard to find. The answei- to said (juery is as follows. As a])])ears from the said ]>rolitest family friction — such an exposure would lead the people of the i^tate of New York to repeal the said illegal lunacy laws now doing duty in the Em- pire State as the Land)ert case (siiirra) — parallel in many particulars with plaintiff's ease — had leni- ficant — said price paid said Macdonald by said Director is sufficient to raise the doubt as to whether said fabu- lous sum is not more in the nature of a ransom than a payment for value received. Said Standard Oil Director next hies him South to a State wheres money is not plenty. Said Standard Oil Director next sets to work to control the legislature of said Southern State with the sole view of passing- through said Legislature a bill Maling insanity a (/round for divorce. The conserva- tive ideas on divorce in the South are well known. The South boasts the only State in the Union which is more orthodox, more (Christian, so to speak, than the Founder of Christianity Himself, Who did admit one ground for divorce, said unique Southern State — South Carolina to wit — admitting none. The indignation aroused in the public mind by such a high handed proceeding — and upon the part of a carpet-bagger at that — was out- spoken. However, as is often the case, dollars won the day. Whereupon said Standard Oil Director promptly took unto himself a younger nmte. One would think that said Standard Oil Director had sufficientlA' whetted said Carlos V. ."\Iac(h)nahrs interest in having as an inmate of said Macdonald's said snug little retreat at Pleasantville for as ind(^fiiiite a period as possible a "patient" who represented such a si)lendid in- come as did ex-wife of said Standard Oil ^Magnate. But said Standard Oil ^lagnate did not stop here — the methods of said Standard Oil ^Magnate are thorough and far reaching. Said Standard Oil Magnate next and fin- ally, according to the public prints of the day, had pro- ceedings set on foot for a most remarkable piece of work, to-wit. Said Standai'd Oil Magnate had, according to 331 said pul»li<- prints, proceed iiiiis set on foot to have said Carlos V. Maedoiiald appointed the C(mimittee of the person and estate — which was a lari!,e one — of said ex- wife. What became of the matter phiintiff knows not, since said matter was swiftly hushed up thereafter and — so far as plaintiff saw — never again appeared in print. 8aid extraordinary performance, the putting of a party's jailor into the confidential and equitable relation of Com- mittee of said party's person and estate is so gross an in- fraction of even common prudence as to need no com- ment. Let us hear what so fair-minded and learned an authority as Blackstone has to say upon practically the same topic to-wit: ''Guardian and AVard.'- But with Guardian and Ward this differences arises. That al- though a ward is of tender years, yet a ward has a mind, yet a ward has intelligence, yet a ward has common sense, which can be called upon by said ward to pro- tect said ward from said guardian, should said guardian fail in said guardian's duty toward said ward. Not so, however, in the case of an insane person. Here the said insane person is utterly helpless, utterly incapable of looking out in the remotest degree for said insane person's rights of person and property. And should the Committee of the person and estate of said insane per- son be tempted to continue to confine said insane per- son, after said insane person should have become cured what an entrenched position would said committee oc- cupy for throwing obstacles in the way of said now -sane person's communicating with the outer w^orld and procur- ing liberty through Jiahcas corpus proceeding. Let us hear what Blackstone has to say upon the subject of putting a ward, /. c. a lunatic into the hands of a Guar- dian, /. e., a Committee of the person and estate. 332 "Op Guardian and AVard." "1. The ility become heir to him; that there may l)e no temptation, nor even suspicion of tempta- tion, for him to abuse his trust. The Roman laws pro- ceed on a (]uite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate, to wdiicli he has a prospect of succeeding; and this they boast to be •^suinma providen- tia." But in the meantime they seem to have forgotten how much it is the guardian's interest to remove the incumbrance of his pupiFs life from that estate for which he is supposed to have so great a regard. And this affords Fortes(iue and Sir Edward Coke an ample opportunity for triumph ; they affirming that to com- 333 mit the custody of an infant to liin) that is next in snc- eession is "(fiidsi afpuun comiiiitterc lupo, ad devorati- (^ Lawrence said in matter of O'Con- nell, 5 Law Bull. GO (1883). Motion to appoint a Committee of a lunatic without givinii' security. Held, doubtful whether Court has power. "/ shall not appoint the l-ceper of the As}/lu)ii as Coiiuniftce." While in Eng- land the keeper of an Asylum is so s(iuinted at by the law that said keeper is regarded with disfavor even when attempting to ply the trade of a Medical-Examiner-in- Luuacy, as said Carlos Macdonald so plies said trade, to-wit, mounting the stand and passing judgment upon a person's sanity. "The petition (in lunacy) should be supported by affidavits by medical men — preferahhj un- connected with lunatic asylums. (Note 2) Re Anon. 1844, Drur. 286. Here Sugden L. C. refused to receive, in support of an application for an inquisition, a cer- tificate hp the keeper of a pricatc lunatic asi/lunt." Benton, p. 259. What A>-ou]d Blackstone have to say about ''turnin;/ orer the lanih for the irolf to devour/' could Blackstone visit once more the scene of his former activities, in the case of * * * into the hands of said Carlos F. ;Macdonald, keeper of the Private Mad- House at Pleasantville? The motive, therefore, for said Carlos F. Macdonald's said thinly veiled venom against plaintifif in said Proceedings in 1899 is not far to seek. Neither is that of said Macdonald's side-partner, so to speak, in the crime said Macdonald and said Flint per- petrated against plaintiff in — upon the evidence — swear- 334 iuo that plaiutitf was hopelessly and increasingly hope- lessly insane and incompetent, whereas, on the evidence, said gentlemen were forced to observe that plaintiff was merely a student in Experimental Psychology, who could pretty much at will enter a trance. Said :\[acdonald and said Flint were well aware of plaiutitiV attitude towards Medical-Examiners-in-Lunacy. Plaintiff had said to said gentlemen what plaintiff later wrote under date :\[arch 26, 1900, to said first New York lawyer, to- wit, ''It is a duel to the death between me and the So- ciety of the New York Hospital and its allied private insane asylums — with which this State is honeycombed — and their allied Medical-Examiners-in-Lunacy, whom I'd prove on the evidence to be a gang of professional per- jurers, a gang of "cappers," and "barkers,'' and "pullers- in" for the private insane asylums with which the Em- pire State is mined." Said gentlemen very well knew that if plaintiff ever emerged alive from the confines of the Society of the New York Hospital aforesaid that said gentlemen's professional emoluments would — to put it mildly — be largely curtailed. Provided the American people ever wake up to the peril and scandal lurking in their lunacy laws, as the Englisli people did upon the appearance of Charles Reade's epochal and revolutioniz- ing book on lunacy practices, entitled "Very Hard Cash." It was therefore to the pecuniary and professional in- terest of said Macdonald and Flint to so tie up plaintiff in the fetters of insanity and incompetency by said gen- tlemen's, on the evidence, false swearing that plaintiff* could never get out and sliow said gentlemen up. With plaintiff' at large and in a State wliere plaintiff' could speak freely and M-rite freely without danger of life- imprisonment upon a false charge of insanity Othello's occupation would be gone, for said Medical-Examiners- in-Luuacy; by which we mean that the public would. 335 oiu-e the public j;raspe(l the real sit nation, set metes ami bounds to the now tyrannical satrap-like power of life- imprisonment exercised in their <-alling by New York ^ledical-T^xaminers-in- Lunacy. What would Blackstone, I'^trtescpie and Sir lOdward Coke have said to naniin<> as Committee of an alleged lunatic, and his large fortune, the law-partner of (me of the projjrietors of the mad-house to wliich said alleged lunatic A\as consigned for life, on perjured charges, without either notice of the proceedings had against him, or opportunity to appear and be heard in defense of his goods and himself? Here Sugden, L. C, refused to receive in support of an application for an incpiisition a certificate by the keeper of a private lunatic asylum." Kenton, p. 259. What would Sir A\'m. Blackstone, Fortesque and Sir EdwarN<)uld these ju'ofoundly learned jurists and great men, have to say about (if/innii coni- iiiittci-c liijXK (1(1 devoraiidnmf ^Ve shall now conclude the discussion of the question as to what c(mstitutes sanity as distinguished fnmi in- sanity. 1. The dot nments annexed to plaintilfV affidavit and the documents annexed to this brief will show that wc shall prove in this case that plaintiff has always been sane and competent. In note in 43 Am. St. Bep. 531, it was said : In a lunacy proceeding the unsoundness of the mind is the essential thing, and must be clearly es- tablished as an independent proposition : /// yr l>(]iaiiL 40 How. Pr., 204; An inciuisition dc hniafico iiKfiiirciido simply makes a prima facie case. "We here insert excerpts from HiilrJiinson V. Saiidf, 26 American Decisions, i)age 127 (4 Rawle, 234). ''An inquisition finding that a person is and for five years has been of unsound mind, and incapable of manag- 336 ing his estate, is admissible in evidence as against the grantees of the alleged lunatic, for the purpose of avoid- ing his deed to them, "Such in(|uisiti- Deiii. of Alxr v. (larl\ IS American Decisions, page 417 (5 Ilalstead, 217). Ewing, O. J., said: (22) 338 "111 S('i-(/cs<)ii V. ienerallv portravs much more truthfullv what a witness understood, thought, or believed, at the moment than words subsequently spoken, even when they are ut- tered under the sanction of an oath." * * * Citing again said note in 43 Am. St. Rep. 531, "Tf the party charged testifies, his conduct is to be con- sidered by the jury as the conduct of any other wit- ness is considered : Fiscus v. Turner, 125 Ind. 46. And he has the right to appear and testify before the jury : 7 Abb. N. C. 417." In Comriionii'cultli v. Haskell, 2 Brewst., 491, we find the following proposition, viz. : "That insanity is a men- tal disease, and must indicate a change in the normal condition; tJiat a chaiif/e is not, of course, conclusive evi- dence of insaiiiiij, for it niajj he unattended hy any sijinjttoius of disturl}ance, aud niai) he marked hy pro- prietji and nioder<(tion ; that mere eccentricity or pecu- liarity is not evidence of insanity where it is shoion to he the normal characteristic of the defendant ; that mere weakness of intellect is not of itself sufficient to estab- lish insanity, for it may co-exist with some degree of 341 power; that one tvho alleges the insanity of himself or of another must prove it; that the presence of insanity is to be detected by comparino- the symptoms of the de- fendant with the standard of health, taking into con- sideration the habits and peculiarities of the defendant when sane, and h)oking to the causes producing the change; * * * iJiai the test in eases of insanity lies in the word ''potoer' — has the defendant in a crim- inal case the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong? — in other cases, has the defendant, in addition to the capacities mentioned, the power to govern his mind, his body and his estate? tliat the issue in a proceeding of lunacv is, whether the defendant has been so far de- prived of his reason and understanding as to be unable to govern himself or to manage his affairs; * * * that the finding of the original jury upon the petition is not rridenee before the jury who try the traverse; that the commonwealth having first shown that the defendant in a lunacy proceeding was insane before the filing of the petition, may prove his mental condition up to the time of the trial; that it having shown vio- lence of the defendant toward his wife, may ask the witness "What Avas the conduct of the wife?" and that it hariiig read in evidence as proof of delusion a letter from the defendant charging others ivith serious crime, it is competent for the defendant to prove that one of the charges iras not a delusion, hut a fact. * * * Statutes requiring a party charged with insanity to be produced in open court, when possible, are designed to prevent fraud in the procuring of verdicts of insanity without affording the defendant an opportunity of be- ing heard: Fiscus v. Turner, 125 Ind. 46." Mr. Justice Harlan (in the Runk case, supra) thus 342 delined what oonstituted sanity as opposed to insanity: "What constitntes insanity, in the sense in which we are using' the term, has been described to you, and need not be repeated. If this man understood the conse- quences and effects of ivhat he was doing or contem- plating, to himself and to others, if he understood the wrongfulness of it, as a sane man would, then he was SANE, so far as we have occasion to consider the sub- ject. * * * I therefore charge you that if he was in a sane condition of mind at the time, as I have de- scribed, able to understand the moral character and consequences of his act, his suicide is a defense to this suit. The only question, therefore, for consideration is this question of sanity. There is nothing else in the case." A perusal of the above will prove that the Su- preme Court of the United States supports plaintiff's aforesaid contention touching sanity and also touch- ing the test as to whether a party is sane or insane. As said above, Plaintiff maintains that sanity is shown by the action of a party's mind not by the action of a party's muscles. Plaintiff maintains that sanity is shown by the words uttered by a party's tongue rather than by the question as to whether the party's tongue Avas "coated" or not "coated." Plaintiff maintains that sanity is shown by the question as to whether or not said party's ideas are normal rather than by the ques- tion as to whether or not said party's pupils are normal. AVhat is insanity? Suppose a law should be enacted to the effect that certain acts or thoughts would be suffi- cient proof of mental derangement, and that upon a trial, the facts appearing, the Court should direcf a verdict accordingly, and property or freedom should thus be wrested from the defendant. Would such a proceeding constitute due process of law? And yet 34a siieli a ]>rep()stei'()iis, such a inoclianical, siicli a charla- taiiisli test of insanity is today set b^^ so-called exports ill insanity, who ulcaii certain physical, mechanical, nmscular actions which sometimes follow insanity and — to use a technical phrase — mistaking' aii.i'iliarij for positive — impudently place the cart before the horse. Lastly, as Kenton says in "The Law of and Practice in Lunacy," Loudon, 180(5, the old way of proving sanity was finding out whether a man could count, could tell who his parents were and knew his own name, etc. AVith the increase of the complexity of life this simx^le test falls behind the times nowadays, but its principle still holds true, namely that the test of sanity is a mental test Avholly within the i)ower of the accused to accomplish and without any witnesses professional or lay to back him up. Suppose two paid experts in in- sanity, ill the pay of the other side swear that the de- fendant can not tell what his past history has been, that said defendant's mind is a total blank upon that subject. Would that professional and ]iai(l and interested oath stand against the defendant's refutation thereof by tak- ing the stand and promptly and lucidly giving his past history, provided he were afforded his legal privilege of taking the stand in place of being kept away from Court and having to allow his liberty and property to be perjured a^^ay from him in his enforced absence? The said decision in the said Runk case proves con- clusively that a written instrument — written by the party committing suicide prior but close to said time of said suicide — proves conclusively that said written instrument does successfully offset the prima facie pre- sumption of, and prima, facie evidence of, insanity which said act of suicide entails — suicide being in itself pre- sumptive proof of insanity, its name being suicidal 344 mania — in the eatelaintiff's said letter written within four months of the date of plaintiff's said arrest and incarceration in The Society of the New York Hospital at White Plains, we contidentlv rest thereon together with this brief, written by plaintiff, to prove that not only was plaintiff, in the words of the learned ^Ir. Justice Har- lan, "entirely at himself," at the time of said writing and since, but also, on the evidence contained in said letter, corrol)orated as aforesaid by third parties — that plaintiff was at himself during the period precedent to ])laintiff"s said arrest, in which said period the said other side falsely, upon said evidence, allege plaintiff to have been of unsound mind; that Mr. Jnstice Harlan /lesciihcs a sane man (supra) as one ndio ''nnderstooa the eon^eifnenees and effects of n'hat he icas doing;" said hitcf of plaintiff nnder date of July 3d, 1897, snrely prorcd that plain! iff "understood the eonsequences and 345 effects of wliat lie was doing" tvheii plaintiff icrote said lettcf: xdid jdaintiff, when plaintiff wrote said letter, accordiiifj to U r. Justice Harlan, at all events, was sane; and the same rrasoninfj holds f/ood toiicJiing said brief V PoixT 10. The said proceed iiigs iu 1899 were void for the reason that the only evidence of plaintiff's alleged incompetency came from two medical men in the pay of the said petitioners, and froni the medical man in charge of the Society of the New York Hosi>ital where plaintiff' was confined, and to whose pecuniary interest it was therefore — plaintiff' being the highest pa3^ (falsely alleged) ''patient" in said hospital — to keep plaintiff' in said hospital as long as he could; and said paid for or otherwise pecuniary interested, evidence, standing un- contradicted — for the reason aforesaid that plaintiff" was by said contrivance aforesaid kept out of Court and therefore was unable to contradict said evidence — said evidence standing uncontradicted was not a valid foun- dation for the judgment which folloA\'ed. ^aid evidence being, upon the evidence, under said circiiin.stances ex parte icas therefore of no arail. Point 17. Even if the judgment of the New York State Courts in 1897 and 1899 aforesaid, wer(^ not totally null and void for the reasons aforesaid, the said judg- ments are now functus officio for the reason that they have nothing to feed upon, a judgment in insanity self- evidently — since insanity is not always incurable — not being a continuing one, and plaintiff having been found to be both sane and competent, as well as a citizen of Vir- ginia, by the said judgment rendered Novembei' (i, 1901, by the said Virginia Court (Plaintiff's Exhil)it 7 for identification ) . 346 Point 18. Upon the above ality, nullity and fiinctiis officio the said New York proceedings may be attacked collaterally; and T. T. Sliernian, the so-callc^l committee of plaintilf s person and estate, wlio is merely a Trustee cr maleficio may be assailed as a trespasser upon plaintiff's property. Point U). Plaintiff being a citizen of Virginia, and the said alleged committee of plaintiff's person and es- tate being a citizen of New York and doing business in New York (Jity, and the amount in controversy being over three thousand dollars, the Federal Circuit Court for the Southern District of New York has jurisdiction. (In conclusion, if the Court please, let us now hear Blackstoue thunder from the C'ommou law — that un- surpassed body of law, which is the law of the United States save Louisiana, under the Code Napoleon.) THE ABSOLUTE RIGHTS OF THE INDIVIDUAL. ( From Brief in (lidloncr ued for life by the Supreme Court of New York — that of be- ing a vegetarian. A juror : ''Q. I notice in the certi- ficate (of lunacy in the proceedings of 1897), that he only took certain articles of food about two years ago, restricting himself to diet: does he still do that? A. (Bv Dr. S. B. Ltou) : He still continues vegetable diet, I am not aware that he has eaten any meat since he was with us" (p. 14, Proceedings, 1899) (Transcript of Record, pp. 230-231). 350 BRIEF-IN-REBUTTAL As we will not have an ()|)poi'tmiity to peruse the brief to be tiled by counsel for the defendant-in-error in the Supreme Court, before this brief is printed, and as we assume that the contents of the brief of said coun- sel will be much the same as the contents of his brief be- fore the Circuit Court of Appeals, we will now take up the salient points of his brief before the latter court and reply to the same : We respectfully submit to this learned Court that the length of this brief is caused by the act of the counsel for the defendant-in-error. By act we intend to imply mental — not physical — act. The learned counsel for the defen physically incapaci- tated from walkiuii' at all — to say nothing of walking twelve miles in three hours — which the deposition proves he did in — and steadily — after January, 1900, up to the time of his escape in November, 1900 — and thereby but- tress and bolster up the counsel for the defendant-in- error's utterly unwarranted hypothesis that the plain- tiff-in-error was, at the time of the 1899 Proceedings — before a Commission-In-Lunacv and a Sheriff's Jury held in New York City — in vigorous physical health, walking all over the countrv and meeting and consult- ing with counsel to his heart's content. The following excerpt from said 1899 Proceedings, being the testimony on the stand of the other side's own witness, namely, Dr. Samuel B. Lyon, Medical Superintendent of "Bloom- ingdale," utterly disproves the aforesaid allegation by said learned counsel for defendant-in-error, for same shows plaintiff-in-error confined to his bed at the time of said 1899 Proceedings and for some three weeks prior thereto. The statement of said learned coun- sel for defendant-in-error — to wit — "at the time in question he was on parole and at liberty to go where he pleased within large limits," dwindles down to the pitiful fact that ])laintiff-in-error — although at liberty on 352 parole, to iio where he pleased within large limits, was physicdlUi mcap- is a list of the aforesaid Law Reviews with a few lines (23) 354 of criticisiii from ejich — tlic maiu bulk beiiiu' found in- dexed later on in this volume of the Brief: The Noi-thrcLstcni Rcitoiici-, The Ohio Laic Bullefln, The OldahoiiKi Lair '/aiinial. The Lancaster Lair lie- view, Law Notes. The NortJicdstcni Ixciioricr says: "St. Paul, Minn., July, 1907. It is an examination of the laws of each of the States and Territories, and of the Six Great Powers of Europe, on the subject, and is in terms a very severe arraii»nment of most of them. It iroaJd (t])pear that the hi 1(1 nitons xi/stcni af/ainst whicli (liarles Readc iraf/ed irar lias hi/ no means disappeared. People may still be incarcerated in Insane Aslyums without notice, and with- ont an opportnniti/ to he heard, either in person or b\ attorney * * * ]Mr. Chaloner holds a brief for the ac- cused, and puts his case rcrp sfroiif/li/, J)iil. in rivir of the cases lie cites, it would he irn possihie to state the matter too strontjlji * * * The book should awaken pnhlic in- terest in an important matter." TJie Ohio Lair HnUciin says: "Norwalk, Oliio, July 29, 1907. Chaloner, Lunacy Law of the World. A criti- cism of the practice of adjudjiiuii' persons incmipetent and de])rivinn- them of their liberties iritJiont due process of law, fortified hi/ decisions of the courts, is the tlieme upon Avhich the author has dev^eloped tliis interestimj and instruct ire irorJ: * * * The author makes it r'o;K7/^s•//■^/// appear that there is needed revision of these laws." TJie Ol-lahoma Lair Journal says: "(hithrie, Okla- homa, September, 1907. When the contents are care- fully read and reflected upon, it is found one of the he.st and most needed hooks that Jias appeared for man// //ears. The subject of Lunacy Law in spite of all the leuislation we have had in other departments, lias receired little at- 355 tentiou. In fact, it is little better tlian when (Miarles Reade wrote his book entitled 'Hard Cash,' * * * There i.s unicli in M i\ CIkiIohci^'s hoo],- I hat iihoiild he trelV studied hi/ cnrji laivi/cr and, legislator as to what should he done to secare the constitutional rif/hts of erert/ one alleged to he of unsound mind. The book earefullv goes over the Law of Lunacy in the forty-five States and Ter- ritories as well as that of the leadini;- Nations of I'^nrope." 71)e Lancaster Law Review says: "Lancaster, Pa., Sep- tember 30, 1907. To those of us who have been accus- tomed to look with complacency on our I^unacy Laws, reniemberin<>' how lunatics were thrown inro dungeons and chained and tortured but a short time ago, this hook hriiigs hotne some startling truths. It shows clearly the dangers of that class of legislation in force in Eng- land and manj^ of our States (as our own Act of April 20, 1869, P. L., 78), which permits an alleged lunatic to be incarcerated upon the certificate of 'two or more rep- utahle physicians.' The author contends that in Lunacy Proceedings, notice to the alleged lunatic ought to he ahsolutehj es- sential and that the trial should be by jury in the pres- ence of the alleged lunatic ; that any other practice is a violation of his constitutional rights and dangerous, in that it might be used by designing relatives for fraudu- lent purposes. The importance of a jury trial in such cases has been recognized by Judge Brewster in Com. ex rel V. Kirlxhride, 2 Brewster, 402. The writ of habeas corpus is not a sufficient safeguard. The suhject is an important and interesting one, and the hook shows ej-- tensive and careful research. It is forcefulli/ loritten and carries conviction.''' Law Notes says: "Northport, New York, September, 1007. The e.rhaustiveness of his research into the r/ucs- 356 tioii coin pels adniiratio}!, an author who cau work through the Lunacy Law from the time of the Emperor Conrad down to the present.'' \ye respectfully submit that with such a serried array of powerful approval of our view-point, regardini; the crying need for a reform of the shameful, the scandal- ous — the fiendish abuses perpetrated under the name of Lunacy Law — it behooved us to search the tortuous depths of the other side — regarding garbling onr inten- tions, aims and utterances — so profoundly, so thorouglily and so tiiiiiutelij. that not so much as one stone in their felonious edifice should be left upon another. Another reason for the lensith of this Brief is that the case of Chaloiier against Sherman is the only case on record, we respectfully sul)mit, in our experience in Lunacy Law, which covers all and sundry the vicious spots, the crooked, crafty and criminal crannies, studi- ously exploited by lawyers who are known in profes- sional circles in New York as "Lunacy Lawyers." By which is meant law^'ers in general practice in the metro- polis, but who are personalh^ or through a partner or partners in their firms, financially and professionally in- terested in legislation at Albany — in ^'steering''' legisla- tion at Albany so that the Lunacy Laws shall be as outwardly humane, just and constitutional as — at a cur- sory glance — but cursory glance onJi/ — appear to be the Lunacy Laws of the State of New York of 1896 — while in reality same are the height — or rather the depth — of infanri/ — the cloaca maa-inia — the public sewer of in- justice, wrong, felonious craft and unconstituiionality. The firm of Evarts, Choate and Sheruian's most illus- trious member, whose name appears to this day as coun- sel on the firm letter paper of said firm, was at the time of plaintiff-in-error's illegal incarceration in "Bloom- 357 iiiiidak'"" a iiieinber of the lioanl of (Jovcrnors of that Iiistitiitiou. Therefore plaiutiff-iii-error was opposed by interests froju within and interests from withonl in the infamy which was practiced ai»ainst his liberty and con- stitutional rii»hts. The ayaricious interests of the Chanler family hist- inii' after his gold jmf plaintitt"-in-error in "Blooming- dale;" the ayaricious interests of said laAv rirm of Eyarts, Choate and Sherman kept — through one of its members, the late Prescott Hall Butler, the predecessor of Thomas T. Sherman — of Eyarts, Choate and Sherman — as Com- mittee of the person and property of plain titf-in-error — fuJsehj alleged "Committee" — Ivept plaintitf-in-error in "Bloom ingdale." Another reason for the length of this Brief is that since plaintiff-in-error was thrown into "Bloomingdale" he, strangely enough — we respectfully submit — devel- oped rather unusual literary powers theretofore utterly beyond his reach, so much so that an ordinary letter with any literary flavour was beyond him. So diligently has plaintitf-in-error worked this aforesaid literary vein dis- covered one year after his aforesaid incarceration in "Bloomingdale" that while there he wrote several hun- dred sonnets, many of which have since been published in book form and obtained high praise from critics all over the United States, as well as the "Academy" of London. In the past ten years plaintiff-in-error has writ- ten a more or less satirical — but viridic — history con- cerning what is known as the "Four Hundred" of New York — or at least the creme de la creme thereof — as rep- resented l)y the avenues of Law, Finance and Society. • 7 •, This book has received most extraordinary praise from the three or four papers. North and South, which had the courage to review same. Said history is entitled ^'Fou.r Years Behind the Bars of 'Bl()omingdale\ or The 358 Bankruptcu of Iaiic in Ncio York:' The fcaid critii-isins are found in e.rtcnso, or abbreviated, in ax)peudix to this brief, a separate volume indexed as follows : To-wit : ''Criticisms of Four Years Bchiud the Bars of 'Bloom- inydale,' Bi/ Era)i R. (lusternian, in Richmond, Va., 'Evenituj Journal,' " j). 190-197; "Criticism of Four Years Behind the Bars of 'Bloominc/dale' from the New York "World.'" p. 198; ''(^riticism of Four Years Behind the Bars of \R1oomin(/dah\' from the Raleigh, \. C, "News and Ohserrer," " pp. 198-199. During said ten years plaintift'-in-error has written some ten books in prose or in verse; all of which — without a solitary exception — have received most unusual praise from critics the country through. No attempt has been made to sell said books as yet, for the reason that i)lain- titf-in-error lacks the means to advertise said books until he should regain his large property. But totally irre- spective of any pecuniary remuneration plaintilT-in-error steadily w^orked at his so to speak — new trade — for the past ten years turning out — not actually, but on an aver- age — a book a year, all and sundry of which were most favourably received. In all of said books plaintitf-in- error 1ms taken the stand that once a man has put his hand to the plough he should not turn back. Since nine- teen fourteen plaintitf-in-error has developed his literary turn into pla^^- writing ; and written five plays — one in prose, four in dramatic blank verse. The title of the prose play is "Rohherj/ Under Laic, or the Battle of the Millionaires." This play has made — we respectfully sub- mit — a decided stir in newspaper circles — as the fifty pages, more or less, of newspaper criticism thereof indi- cate — said book — as all other of plaintiff -in-error's books — is in evidence. In conclusion. Another reason for the lengtli of this Brief — and by far the most important conceriiing this 359 learned Court's reaeliiiij; a decision — is flic sfartliiH/ f(u-f I lid I the lennicd coiniscl for (Icfciiddiit-in-crror has not licsituied to stoop to the depths of niisstating the Record — /// .s'o far (IS ill him laij — hij inissiatimj same in thr iiiosi scandalous fashion. This deplorable aspect of this extraordinary case is gone into fully in plaintitt'-in- error's Brief-in-Kebuttal, So we shall not further dwell upon this lamentable proof of the degeneracy and degi-a- dation of the New York Bar by the acts — the re ])riuted pages of testimony of said ^licajah AA'oods at the 1908 deposition concerning the regularity of sais of testiiuony were inserted, as is fully set forth where same appear in Brief-in-Kebuttal. t^Gcond : On parief ap- pears the following; monstrous misstatement. To- wit : "At the trial plaintitt'-in-error * * * sought * * * to intro- duce masses of evidence which were excluded as Jiarinci no tendencij to show * * * that the proceedings were tainted with fraud." AAlien this learned Court reaches the above in said Brief-in-Rehuttal the twenti/-()(](I pof/es of the Rec- ord there referred to — between plaint iff -in-error's trial counsel — in the trial before the learned Judge Holt in February, 11)12 — and the said learned judge — regarding his admission <»f evidence — prove that not once in the whole course of said three days' trial did the learned Judge animadvert upon the value of the evidence adduced b^^ plaintift-in-error — as said learned counsel for defendant-in-error erroneously^ states above. The learned Judge excluded plaintitf-in-error's evidence purely and solely on the ground that the learned Judge icoiild not hear any evidence on the subject u])on ^^■hich evidence was excluded. Here once more it re(]uired over twenty solid pages of the Record to refute a false state- ment of onlv three lines. When one considers that all the hostile nuiterial tes- timony of the three petitionei-s, said Winthrop Astor Chanler, Lewis Stuyvesant Thanler, and Arthur Astor Carey, is false; as well as ail hostile material testimony of Doctors Moses A. Starr, Austin Flint, Si-., Carlos F. Macdonald, and Samuel R. l^yon ; and when one con- siders — as has been abundantly shown — in the case of the learned counsel foi- defendant-in-ei-ror's erroneous statenu'uts above — that it reijuires twenty pages of truth to overwhelm a three-line lie — the cause for the extra- 361 ordinary, unprecedented, nnlieard-of leniitli of this brief is — we respectfully submit — not far to seek. Finally, the hist and most com])ellinii reason for the length of tills brief is that plaintiff -iu-error in 1S9T ob- lijiated himself by the force of what used to be known as a ''Hannibal oath"* in 1897 to spend every dollar of his income — not capital — if necessary — and to spend every year of his life necessary to the achievement of his one aim and end in life, to wit, the reformation of the Lunacy Laws throughout some 40 per cent of the States of the Union, so that a man or woman shall have as fair, open and above-board a trial if accused of insanity, as now every man and woman is assured when accused of an infamous crime. Before going into the law or the facts of this extra- ordinary case, it is necessary to observe, we respectfully submit, that Lord Byron's famous dictum : ''Truth is stranger than fiction" — is more than sustained by the lurid pages of the following cold statement of law, as practiced in the twentieth century, in the Metropolis of the United States. We are far from overstating the case, we respectfully submit, when we venture to hazard the remark that this learned and experienced Court will be nothing short of amazed — not to sav astonished — at the iniquity enthroned in the seats of the mighty, in this age so boastful of its su]ierior civilization, su- perior culture, superior knowledge — not to say superior virtue. We shall at once proceed to sustain the above Indictment. In the first place the entire case of the defendant-in- error is founded — on the evidence — upon a brazenly ad- mitted crime. The entire foundation of the case of the defendant-in-error is — on the Record — rooted in felony *Indexed Appendix as follows: "Hannibal Oath of plaintiff-in- €rror re reform of Lunacy Laws, 640-642." 362 and — on the Record — brazenly so admitted by him. In a word the Public Prosecutor has been — on ihc Record — cheated of a group of gentlemen to send to Sing Sing or Atlanta — to State or Federal IVnitentiary by the — for them — happy accident of the stepping in of the Stat- ute of Limitations. For instance, all of the witnesses against the plaintitf-in-ei-roi- are, on the Record, either confessed and admitted — on their own Record — per- jurers, or so proved by subsequent events.* In a deposi- tion dc bene esse had by Winthrop Astor (^hauler, ('hief Petitioner in the 1897 Lunacy Proceedings — brother of the plaintiff-in-error— in 1905— this gentleman con- fessed — on the Record — upon cross-examination, that he had committed perjury — by admitting that he had sworn to falsely alleged acts and words put into the mouth of the plaintiff-in-error by himself and — on the Record — his fellow conspirators in the Petition to the New York Supreme Court for having the ])laintiff-in-error seques- tered, and his estate sequestrated upon — on the Record — an utterly unfounded, and malicious, and mercenary charge of insanitv. Unfortunately, owing to unpropi- tious circumstances, the plaintiff-in-error was — in spite of almost Herculean efforts u]X)n his part — by circum- stances utterly beyond his control — estoi)i)ed from bring- ing the matter to the attention of the District Attorney — State or Federal — in New York before the Statute of Limitations stepped in. In like fashion the only two other lay witnesses* to the falsely alleged insanity of the plaintiff'-in-error were — upon the Record — proved on the evidence of Mr. Winthrop Astor Chanler to be per- jurers. Coming now to the medical experts in the case. One was such merely in name — being a most distinguished *The two other Petitioners— Ex-Lieutenant-Governor of New York, Lewis Stuyvesant Chanler, and Arthur Astor Carey. 363 practitioner in sur.i'ery, but — on the evidence — utterly at sea when it came to Psychiatry. His brother Statu- torv-Medical-Exaniiner-In-Lunacy, Dr. Moses A. Starr, was not lackinii' in technical knowledentlenien of the highest lefinement, and deep learning — to say nothing- of an air of false geniality and cordiality, pro- foundly calculated to lure the innocent and unsuspect- ing victim to his or her undoing. While in reality no murderer who ever cut his victim's throat at dead of night and from ear to ear was ever freer from anything in the least degree resend)ling pity, sympathy, or even the ordinary conventional makeshifts for conscientious scruples. These felons in fact — hut not in laic — today flourish, for the reason that the laics in forty per cent of the States of the United States are made in their favor, and in order that they may ply their trade un- detected and undisturbed by the knock of the detective or the police officer. This does not mean that the makers of the said abominable, unconstitutional and illegal laws are individually guilty in all cases ; because said laws are so wrapped up in specious phrases, and apparently — but apparently only — wholesome safeguards, looking towards safeguarding the liberties of the individual — that the lay mind is at once — ^and almost invariably — baffled by the chicanery of the legal mind, or minds, craftily drafting said traps and pitfalls masquerading as law. Next Ave have lawyers who — on the Record — act as go-betweens between the alienists and their victims. By which is meant laAAwers learned in the dark and mys- terious Laws of Lunacy; and interested — personally and professionally — in keeping said laws in precisely that 366 condition. These men are frequently personally and financially interested in some one or more Private In- sane Asvlum, as members of the so-called "Board of Governors," or whatever the liis^h-sonnding and decep- tive title may be. Their business is to see to it that the laws made at Albany and elsewhere are made in their favor, and emphatically against that of the male or female citizen of wealth — sometimes without wealth — when an even more sinister motive than avarice or malice actuates the gentlemen who control Lunacy Leg- islation in some forty per cent of the States of the L^nion, Lastly we have the Professional Heads of Private In- sane Asylums — men so scorchingly handled by Charles Reade in his epoch-making novel "Hard Cash,'' which revolutionized the treatment of the insane in Great Britain fifty years ago — the powerful preface of which is found on page 137 at the rear of plaintiff-in-error's dramatic work entitled "Robbery Under Law" in evi- dence with the rest of the literary work of plaintiff-in- ci-ror during the past ten years — that we shall not at- tempt the task. Of which we now give a five-line extract — p. 143, "Robbery I"^nder Law" — as follows: ^'The fact would appear to he that under existincj arrangements any Eng- lish man or woman may, toithout much difficulty, be in- carcerated in a Private Lunatic Asylum, when not de- prived of reason. If actually deprived of reason ivhen first confined, patients may he retained in duress, tvhen their cure is perfected, and they ought to he released. Charles Reade. Magdelen College, Oxford, October 23, 1863." As a mend)er of the legal profession, we shrink from 367 lifting- the veil liaiiiiing over this sombre and repellant case. Bnt the cause in which we luive been embarked for twenty years, (h'mands a reh'ntless and frank exposure of wrong-doinii bv wliomever done. In chjsing this section, one other point should be touched upon, which ])oint will go far towards em- phasizing the dire need for plaintiff-in-error to leave no stone unturned in putting this learned Court iu pos- session of the essential facts, to-wif. Should this learned Court reverse the opinions — in Windsor v. McVeigJi, Simon v. Crafty and Uniicd States afjaiust Throckmor- ton, all United States Snpreme Conrt rases — holding that notice and opportunity to appear and be heard are necessary for a Court to obtain jurisdiction over a ])arty or a party's property, and holding tliat a deci-ion may be set aside where it can be shown that the defendant did not have his day in Court — where facts were Avith- held from the Court, where the defendant's whole case was not heard in conse, 1901, declaring plaintiff- in-error sane and competent — See 102 Fed. Eep., 19, supra: "Tlie ConMitufioii of the I'nifvd >>tates vests in its judicial departiuciit jurisdiction over controversies hctirerii citizens of different States. The Petiiioner as a citizen of the Htate of Virginia in hringinf/ his said suit in the Circuit Court^ of the United ^^tates, ivas avail- ing himself of a rif/Jit founded upon tins constitutional provision. And lie came into that Court with a decree of the Court of the State of which he was a citizen, de- clarinfi his sanitg. We cannot disregard that decree" supported by the North Carolina decision of 1905, recooj- nizing- the validity of said Virginia decree and permitting: plaintift'-in-error to bring suit aganst defendant-in-error in said State in John Armstrong Chaloner v. The United Industrial Com pang — which suit plaintiff-in-error w(m, i)ifra. Furthermore, were plaintitf-in-error ill advised enough to permit the question of his sanity to be once more re- opened, that act would instantly jeopardize Ihe afore- said Virginia decree, now fifteen years old, apd under whose aegis plaintiff-in-error has been enabled to bring suit in the entire line of Federal Courts of New Vork up to the Supreme Court of the United States. Lunacy Proceedings, we respectfully submit are of all Court proceedings the most uncertain and doubtful. For Lunacy Proceedings depend for their decision upon the mere opinion of Court, Commission, or Jui'y, as the case may be. It is not as in ordinary cases where specific acts are known to have been committed, specific state- ments made in the well known and fully charted realm of business, or other normal affairs of life — whether rep- *Since been changed to the District Court. 369 utablc or (lisir])iital)l(' — wlietlicr iiiiioccnl or criiiiinal. Wliereas in Lunacy Proceediiiiis the matter is startliiii»ly (litferciit. Here we enter a realm in wliicli Court and Jury are wholly at sea — wholly inexperienced fi-om lack of familiarity with insane subjects and their ways — as well as the Literatui'e on Insanity and its theories. Therefore Court and Jury are far from feelini* that con- fidence in reuderiuo- a decision which follows Court and Jury, in the aforesaid normal a If airs of life. Therefore, the opinions of hostile experts in insanity may entirely sway both Court and Jury in the very best of faith upon the part of Court and Jury — but far — very far— from the best of faith upon the ])art of these knit;hts of the post — these ^Fedical men — ^who liain their liyino- by false-sw^ear- ing- — as this Brief will amply proye has been the case wdth eyery solitary JNIedical man who has testified against the sanity and competency of plaintiff -in-error. There- fore in the teeth of the long chain of unbroken eyiflence of sanity of plaintiff-in-error and of his competency, stretching oyer a period of fifty years, from his child- hood up, plaiutitt'-iu-error might possibly — we do not say probably — but might possibly be found today insane and incompetent by a New York Judge and New York jury, who believed what New York experts in Lunacy haye audaciously — and falsely as audaciously — brazenly and feloniously sworn to, against the good name and fame of plaintiff-in-error. This world has l»een well described upon one occa- sion as a "Vale of Tears." Such being the case tragedies innocently occur. No greater tragedy can l)e imagined than a miscarriage of justice. But when the miscarriage of justice is discovered to be a skilfully engineered scheme for the financial betterment of the conspirators and their legal advisers in defiance of Law — in defiance of Equity — and uch fraud, however, if proved, is no basis for a collateral attack upon an adjudication. The question whether the testimoiiy, given in sui)port of one side of the case, is or not true is one of the ques- tions necessarily adjudged in every litigation. In the case at bar the question whether the alleged perjurious testimony was true was necessarily adjudged by the Su- preme Court of the State of New York in finding the plaintitf-in-error incompetent. This Court could not determine whether or not the testimony in question was perjured without trying over again the very same issue which the New York Supreme Court decided when it made the order complained of. In accordance with these principles it is well settled that the fact that a judgment is procured by false testimony does not open it to col- lateral attack." In closing this painful exposition of the state of morals and honesty prevailing in the Metropolis of the United States at the opening of the twentieth century we need scarcelv sav that we are fullv aware of the unusualness of our strictures. But we have submitted patiently and silently for twen- ty years to extortion, insult and injury; and we do not propose to pursue a course which has brought us noth- ing but disaster piled upon disaster — any longer. Silence has been our ruin. Speaking out can do no worse. We respecffitJ]}/ suhmit to this learned and upright Court that because men are irealthij it is — to say the least — fallacious to assume ihat they can do no wrong. 37 o Wc respect f III] u submit to this learned and upright Court til at because men are leaders in Society, in Fi- nance and in Law it is — to sav the least — fallacious to assume that they can do no wrong. Lastly ive respect- fully submit to this learned and upright Court that be- cause a man or group of tnen has or have— never been found out — it is — to say the least — fallacious to assume that said man or group of men — can never be found out. Ex-Jiulj>e R. T. W. Duke — the talented and un- tirinii eross-exaniiner of tlie plaintitt'-in-error dnrino^ — so far as his professional experience, at least, is con- cerned — one of the lonj»est — if not the longest cross-ex- aminations of a witness on record — extending over some two weeks of time and occupying some five hundred pages of typed matter — again and again assaulted the plaintiff-in-error's position, in criticising men of the na- tional prominence of the "Board of Governors" of "Bloomingdale" and their — so to speak — allied lawyers, alienists, and citizens of high renown. But all to no purpose — as the pages from said cross-examination ap- pendix to this Brief conclusively prove. When a man's social, political, legal or financial position precludes just criticism of said man — and any injured party so criti- cising him is loudly — blatantly accused of suffering un- der a "^delusion of grandeur"' — as the high-sounding medical phrase of the day has it — then — we respectfully submit to this learned, and honorable Court — we arc confronting a most deplorable condition of affairs. In opening his statement in his brief to the United States Circuit Court of x\ppeals for the Second Circuit the learned counsel for defendant-in-error says, p. 1 : "The relief demanded in the action, as in all actions for conversion, js not a return of the plaintiff-in-error's property to him, but a judgment for damages, which would necessarily be measured by the value of the prop- 373 ei'tv at tlic time of the aliened eonversion. The action haviii.n heeii bej^uii in 1!K)4, and the allej^'ed conversion haviuii, oi' coni'se, taken place at a still earlier date, the recovery soiij;lit has no relation to the property now in the com mitfce's hands, and a judgment in favor of the plaintitf would rest defendant, personally", with title to the property in hand at the time of the alleged con- version, at the same time charging him with damages which would probably be much more or much less than the property's present value. The action can have no direct effect upon the very much larger amount of prop- erty which has come into the committee's hands since it was commenced." 77//s claim, we respectfiilh/ submit, is set forth in an effort to confuse the Court. It should make no difference to the Court what jnay result with reference to the property which has come into the ( 'ommittee's hands since the present action was begun. The question for the Court to determine is whether the present action is maintainable. If this ac- tion is decided in plaintiff-in-error's favor, it is true that it will result in a judgment for dauiages against said Sherman, and that the amount of those damages will be determined by the value of the property which came into his possession prior to the institution of this suit, and therefore the immediate effect of plaintiff-in-error's winning the case would not be of broader scope than the property so involved. Nevertheless, if plaintiff-in- error wins the present case, plaintiff-in-error's right to win a case thereafter to be instituted, which will com- prehend, witliin its scope all the property which has come into the possessio7i of said Sherman since the institution of the present case, will also be established, for the rea- son that said Sherman's alleged legal status as "Com- mittee" of plaintiff-in-error's estate will be destroyed 374 by the decision of the Court in plaintiff-in-error's favor in the present snit. Upon plaintitf-in-error's winning the present case of Chaloner v. Sherman, said Sherman would be imme- diately thrown into the position of a trustee, under a ^^constructive trust/' or a trustee e./" nialaficio and a suit in equity would he maintuinahlc against him, ive re- spectfulljj submit, in which he would he required to ac- count for everything that has come into his possession in his alleged capacity of "Committee/' and he Avould be required to make a full and complete delivery of the same to plaintiff-in-erroi*. See Pomeroy's Equity Juris- prudence, Volume 3, Section 1044, second, constructive trusts, which reads as follows : "Constructive trusts include all those instances in which a trust is raised by the doctrine of equity for the purpose of working out justice in the most efficient manner, where there is no in- tention of the parties to create such a relation, and in most cases contrary to the inteyiiion of the one holding the legal title, and where there is no ex- press or implied, written or verhal declaration of the trust." Again, in Section 1045 of the same work we find the following : "The specific instances in which equity im- presses a constructive trust, are numberless — as numberless as the modes by which ])roperty may be obtained, through bad faith and unconscien- tious acts."' 37? o AiiJiiii, ill Section 1047 of tlic same work, the follow inji "Jiy the well settled doctrine of e(iiiity, a con- sti'uctixc tnisl arises whenever one party has ol)- tained inonev which does not e(iuitahly belonji" to him, and which he cannot in ^ood consciem (^ re- tain, or withhold from another wlio is heneticially entitled to it; as for example, when money has been paid by accident, mistake (►f fact, or frand, or has been acut he was in bed, and he got up. He said, ''Hold on," and he got up in his night gown and began to shuffle his feet into his slippers and Avas all doubled up doing that in front of me, and then I saw what a (25) 380 perfectiv absurd situation it was, and I went back to my seat and said nothiiiii' more. I do not remember what was said. I did not talk to him any more. The other gentlemen were urging- us to keep the peace, and I con- fess I lost my temper. Q. Wasn't there really a good deal of ill-feeling be- tween all the members of your family, on the one hand, and John Armstrong Chanler, on the other, ever since his marriage? A. No; distinctly not. Q. Wasn't there considerable complaint among your brothers and sisters that they were not invited to his wedding? A. No more complaint — in fact, one of my sisters was doAvn there ; my sister Margaret was present. There was not anv feeling. Q. Didn't you yourself write ? A. Excuse me. There was no feeling anv more than a feeling of being hurt at not having been asked. That was the onlv feeling there was. Q. Well, how nmny of you felt that way? A, I should say that they all had that perfectly nat- ural feeling about it. Q. None of them was asked to the wedd\ng? A. Except my sister Margaret. That is my impres- sion. I know she was present. I do not know whether anyliody else was asked or not. Q. Who is Margaret? What is her full name? A. Margaret Livingstone Chanler. Q. Is she married since? A. No ; a single woman. (Pages 45-48). Q. Was there a law suit in North Carolina or Vir- 387 j^iiiin about this Koaiioke Rapids Power Company prop- erty? A. Ill couiiectioii with the sale of the machinery? Q. Yes. A. Yes. Q. When was that? A. I do not know that there was a law snit ; I do not know that it got as far as that. Q. Well, didn't somebody get an injnnction? A. Yes, my brother got an injnnction. Q. In what conrt was that? A. In the Court of Halifax County, I think. North Carolina. That is the United Industrial Company ; that was not the Roanoke Rapids Power Company ; that has never had any law suit. Q. There was a law suit against the United Industrial Company ? A. Yes. Q. Was the suit against the United Industrial Com- pany, or was it against the officers of the Company? A. Against the United Industrial Company, as a com- pany. Q. Brought by your brother? A. Brought by my brother, an injunction. Q. And the injunction was made permanent, was it? A. It has not been dissolved yet. We are hoping to get it done. Q. Do you remember the title of that suit? A. No, I could not tell you that. I can tell you the circumstances. Q. Well, what were the circumstances? A. The machinery in the mill was deteriorating right along, for want of use. It was a peculiar machinery, made for the knit goods trade. The mill had always been a failure in making knit goods. The offers that we 388 had for the property — people coming and wanting to lease it, people wanting to buy, they had always said, "We don't want your machinery." So we decided that the best thing to do was to sell the machinery while it was still of some value, and get rid of it, and have the empty mill standing there for a man to come in and put in his own. After a great deal of trouble we finally suc- ceeded in getting a purchaser who gave us a round sum for it, |8,000 — that Avas the best we could do, and I was advised — we were advised all around that it would be much better to do it, because otherwise it was junk, it would deteriorate and become junk. We sold it to this man, and he went down there with his workmen to remove it from the mill. My brother was informed of the proceeding and instructed an attorney in the neigh- borhood to get an injunction to stop it, stop the ma- chinery from leaving the mill. We went down there and saw his lawyer, my brother's lawyer, and talked the thing over with him, with the result that my brother agreed to the machinerv leaving the mill and the sale going through, on condition that the money for that pur- pose should be held by the receivers appointed by the Court, one of whom was his lawyer and the other was ours, Q. When was this injunction obtained? Was it in 1902? A. Oh, no; quite recently. Q. In June, 1905? A. Last summer, yes. Q. June 20, 1905, wasn't it? A. It was pretty well . Q. The suit was begun in October, 1901, wasn't it? A. About the injunction? 389 BY MR. RK^KFOKD: Q. The suit on which the iujiinetion was granted? A. I don't hardly think it was as long ago as that. Q. That is probably right. A. That is probably right if you have got it down there. I thought it was in the autumn, biit it was prob- ably in the spring. Oh, yes, they held off, they let the stuff go through, providing we sent the money down there, and that was in October, was it? BY MR. ROSENBLATT : Q. That was in October, 1904, that the injunction was obtained, and it was made permanent June 20, 1905. A. That was probably right, yes. (Pages 50-53). Q. Well, when were you last an officer of the United Industrial Company? A. I am an officer now. Q. Well, you were compelled to retire in December, '96? A. Yes. Q. Then your brother was committed shortly after to Bellevue Hospital? Mr. Bickford : Bloomingdale. Q. To Bloomingdale, I mean. A. Bloomingdale. Q. And when did you again become an officer of the United Industrial? A. I could not give you the exact date. Mr. Bickfoid : I do not think this is material, Mr. Rosenblatt. 390 The Witness : I do not know. After Mr. White gave it up. Q. Was it after the order was made appointing Mr. Butler the committee? A. That I was . Q. That you became an officer again? A. After that ; yes. Q. How long after that? A. I have to look at the books. Q. Was it after the order was made appointing Mr. Sherman a committee? A. I do not know. BY MR. BICKFORD : Q. Don't you remember how long you have been Presi- dent? A. I do not. BY MR. ROSENBLATT : Q. Are you President? A. I am. Q. Who owns the controlling interest in the United Industrial Company? A. Mv brother, J. A. (Mianler. BY :MR. BICKFORD: Q. Does lie own a majority of all the stock of the Company ? A. Yes. 391 BY yin. KOiSEXBLATT: Q. Then you owe your presidency to tlie votes i>iYen by ^Ir. Sherman as eoniniittee? A. 1 don't know without looking that uj); it is all on record in tlie book; we could have it in five minutes, when it happened and everything. Q. Did :\l]'. Sherman give you his proxy? Mr. Sherman : Excuse me to interrupt and say that there has uever been a meeting of the stockholders. I think the vacancies have been filled by the directors from time to time, in their succession. il Who are jouv directors in the United Industrial Company? A. Why don't you get the book, aud then 1 can an- swer this much quicker. Q. \Vho elected your co-directors and yourself as direc- tors in the company? A. I suppose my brother or his committee did it — must have. He has control, hasn't he? Mr. Bickford: Well, he has not voted the stock. Mr. Sherman : I said that the directors filled vacan- cies from time to time. Mr. Rosenblatt: I know, but this Mr. AVinthrop Chanler was not a director at the time his brother was committed. :Mr. Bickford: No; but the other directors appointed Winthrop ( 'hauler. The Witness: The other directors appointed Win- throp ( 'hauler. Mr. Boseublatt: How can they elect him? iNIr. Shermau : It is a New York corporation, and the directors liold of^ce until their successcn-s are ap- pointed. The \\'itness : There has never been the slightest hitch 392 in the compan^^ It has gone on smoothly and been all right for nearly four years — and there it is ; we can show von that at any moment. * * -;;• * * * * Q. While yonr hrothei- was in Bloomingdale Asylniii was he able to manage his property? Mr. Bickford : Objected to. Mr. Rosenblatt: Wlnxt is your objection? Put it on the record, and we will get the answer. A. Do you mean from a legal point of view? Q. No, I mean was he able physically to manage his property; was he able to give directions as to what should be done with his property? A. I do not know. How can I tell you? Q. Did he manage his property while he was in Bloom- ingdale Asylum? A. No, I do not think he did. Q. Were not his hands tied so that he could not manage his property while there? Mr. Bickford : Objected to. A. I should say certainly not; his hands were not tied. Q. In what respect was he able to do anything about his property while he was in Bloomingdale Asylum? A. He had interviews with Mr. White and had inter- views with ]Mr. IMiilip, who went up and saw him and would tell him what they proposed to do. Q. How do you know that? You said that (m your direct. A. Because they would come back and tell me so. That is all I know about it. •» •>:• * * * * * Q. You said that ]Mr. White was a friend of his? A. A very great friend of his; his bes;t friend. Q. Who told y>t of my knotoledge and belief, I did. (}. W'h-dt was the date of that power of attorney, do YOU know? A. I do not know anything about it. Q. How do you mean, you do not know anything? Didn't you see it? A. I may have seen it, but I had nothing to do with the making of it. Q. I know, but did you see it? A. To the best of mv knowledge and belief, I saw it. Q. AVhen? A. I do not know when — around about that time. Q. Who sliowed it to you? A. Mr. White. Q. Where? A. At his office, probably. Q. Don't you know? A. I do not know, no. Q. What makes you think? A. He mav have shown it to me at Mr. Butler's office. Q. What makes you think he showed it to you? A. Because I have a strong recollection of the thing having been obtained at that time. Q. While your brother was in the asylum? A. While he was up at Bloomingdale, yes. Q. Did you suggest to Mr. White that he should ob- tain a power of attorney from your brotlier while your brother was in the asylum? A. I did not. 394 Q. Do YOU know who did? A. I do not. Q. Do you know who drew the power of attorney? Was it Mr. Butler? A. I do not know. I presume it was Mr. Butler; he was his adviser in all that .Mr. White did, I should say. (Pages 71-72.) Q. Your brother was committed March 10th, 1897. Now how long prior to that time did you go South with Mr. White and Dr. Fuller? A. I didn't sav I went South with Mr. White and Dr. Fuller. Q. Mr. White and Dr. Fuller did go South? A. Yes. Q. And you went to Charlottesville, Virginia? A. To the best of my recollection I met them there. Q. Wlien was it you met them at Charlottesville; a month or a week before? A. In tlie neighborhood of the first of March I should think ; the exact date I can find out. Q. Did you go to Charlottesville purposely to meet them? A. Yes. Q. How can you fix tlie date? A. I think I have got it in a little diary at my office. Q. And that is the only way you can fix it? A. Possibly yes, not probably. Q. You can furnish that diary to JNlr. Sherman, can you? A. I can furnish the date. Q. I want the diarj^ A. I can "ive vou the leaf of the diarv if I can find the diary. 395 Q. Did yon see Ihirtuett, your brother's yalet, when yon Ayeiit down there? A. 1 dou't remember. Q. So Mr. John Armstrong Chiinler Ayas not in Char- lottesyille at the time of your visit, was he? A. No. Q. Where \yas he then? A. To the best of my recollection he was at his place at Merry Mills. Q. And you did not go with Mr. AYhite and Dr. Fuller to Merrv stills? A. No. Q. Did you have any conversation with them before they left Charlottesville to go to Merry Mills as to their plan of action? A. Yes, sir. (Pages 76-79.) Q. Did Dr. Fuller go down there at your suggestion for the purpose of examining your brother? A. Yes ; he didn't examine him. Do you mean examin- ing him for the state of his health? Q. Yes. A. Yes, to see what was the matter with him. Q. What did you tell Dr. Fuller in order to prepare him for such examination? A. I told him that we were informed tliat my brother was in a verv bad state of health ; that nobody could do anything with him ; that he Avas neglecting all his affairs and behaving in a most extraordinary manner and asked him to go down there as his friend's physician and see him. Q. Did you tell Dr. Fuller that these statements you made to him concerning your brother were statements derived from hearsay from letters? 396 A. Yes, sir. Q. Did you tell him you did not know auytliiiig of your own Ivuowledge? A. I don't remember. (). Did YOU tell Mr. White at that time what you had heard from Virij,inia? A. Yes. Q. Now you ha Ye very frankl}^ admitted that you and your brother were on very unfriendly terms at that time ; is that so? A. I never said that. Q. Didn't you say he kicked you out of the office of president of the United Industrial Company in De- cember? A. Yes,. but there is a much better expression ; insisted on my resignation. Q. The phrase that he kicked you out was your own phrase, was it not? A. Yes, there was no violence of any s(>rt used. Q. There was a very angry altercation? A. Yes. Q, And it reached such a point that you were on the point of assaulting him when you stopped to reflect that your brother was in bad health and it would not be the right thing to assault him; is that so? A. Practically. Q. That is a pretty violent altercaticm, is it not? A. Pretty violent altercation ; he had insulted mo before strangers. Q. Insulted you in what way: you didn't say anything about that? A. I beg your pardon, I did. I told you that after abusing me he said : "And w^hat is more I am going to have your matters looked into, the estate accounts looked into, and have them examined by an accountant, for I am not at all sure that things have gone right." 397 Q. And from that time to this day ycm have never seen vour brother, have vou? A. 1 never have. Mr. Biekford : "^'ou have seen him once? Witness: I saw him gettinjj; on the phitform, but I had no chance to talk with him. Q. Am I exa<>geratinj; then if i say your relations to him \\ere unfriendly at the time when you applied for his commitment? A. On ni}' part, no, absolutely no. Q. The relations were not brotherly, were they? A. A man could refuse to see his l)rother even if he should express his affection or dislike either way for him. (}. Under those circumstances why didn't you send Lewis ('hauler down there to investigate your brother's condition of health instead of goins; yourself — wasn't Lewis more friendly to him than you? A. I don't recollect whether Lewis was asked to go or not. Q. Who asked you to go? A. I was the only one to go. Q. Why? A. Because I was associated with him in business and his friends asked me to do it, and I was the oldest one of the family. 1 had seen him more recently than any of the others. Q. How recently had Lewis seen him ? A. I don't know, possibly not for many months. (}. Row do you know that? A. I don't know it. Q. Did you have any conversation with Lewis before you went down there? A. Yes. Q. Didn't the question come up as to whether he or you should go? 39S A. I don't think so. Q. Did Lewis personally know anything about the condition of your brother's health? A. I don't think so. Q. Do you know whether Lewis ever visited him at Merrv Mills? A. I do not. Q. Did Lewis tell you that he had visited him at the time? A. No. Q. Did Lewis tell you that he knew anything at all about your brother's, the plaintiff's, condition of health? A. No. Q. Now did Mr. Carey know anything about your brother's condition of health at the time of the commit- ment? A. Except what Dr. Fuller told him. Q. I mean in addition to what he was told by Dr. Fuller and by you, did Mr. Carey know anything at all about the condition of your brother's health? A. No, not at that time. (Pages 79-80.) Q. So that Mr. Carey had not seen your brother for at least two years prior to the time of commitment? A. I don't know that. Q. W^asn't that discussed lietween you when ]Mr. Carey came down here? A. It may have been. Q. Now why, I ask you, that is because you probably remem1)er that in your application for your brother's commitment you and Mr. Lewis Chanler and Mr. Carey sign a petition in which you state that "Mr. John A. Chanler has, for several months, while at his home in 399 Virj^iiiia, been aeting in a very erratic manner. He has limited himself to a peculiar diet; he has burned his hands by carrying hot coals in them ; he lias devised many peculiar schemes, such as a roulette scheme to beat Monte Carlo, and he has given as a reason of these and other acts that he is inspired by a spirit which di- rects him ; for the past three weeks entirely he has con- stantly talked of these delusions; has neglected his health; has injured his person and has been at times highly excited," and then all three of you sign an affi- davit stating that you knew the contents of the fore- going petition and that the same was true of your own knowledge except as to matters therein stated to be al- leged on information and belief, and there are no mat- ters in the petition which are stated on information and belief; now how did you come to make that affidavit that you made these facts of jour own knowledge? A. Can I say I was told this and that by so and so and had seen him and talked with him? You knoio I didnt see him myself. You know Lewis nor Carey didn't see him. (Pages 80-82). Q. Do you remember that in your petition you did not state the names of a single one of the witnesses on whose reports you claim to have acted? A. If that is the way the petition reads. Q. AVho framed this petition? Do you know who wrote it out? A. I do not. Q. Do you remember whether you did it or whether vour lawver did it? A. I didn't do it and I had no lawver. Do you mean at the time of the commitment? 400 ■ Q. Yes. A. No; 1 had no lawyer. Q. Hadn't you consulted with Mr. Winthrop, Jr., of the tiriii of Jav & Candler? A. To the best of my recollection no. / consulted Mr. Henry Lewis Morris, who teas our family lawyer, but I don't think he had anything" to do with drawing the petition. Q. Who went down with you, what lawyer, to Judge Gildersleeve? A. To the best of my recollection there was no lawyer except my brother Lewis, who is a lawyer. Q. Lewis is a lawyer? A. Yes, sir. Q. Do you remend)er whether he drew this petition? A. I do not. Q. Do you remember whether you read the petition over before vou signed it? A. Certainly. Q. You knew that it was a very serious matter you were stating? A. Yes. Q. And that the statements contained in this petition were very solemn statements? A. Yes. Q. And had to be very carefully considered? A. Certainly. Q. And that vou considered verv carefullv this state- ment, didn't you : "Mr. J. A. Chanler has for several months, while at his home in Virginia, been acting in a very erratic manner?" A. Yes, sir. Q. You considered that carefullv? A. Yes, sir. Q. Why did you speak of his home in Virginia? Did 401 you know he had a home in Vii-oinia? A. I knew he had a honse there, Q. Why did you call it a home? A. I didn't say I called it a home. I didn't write the petition. Q. You signed it and swore to it? A. Yes. Q. And you know what home means, don't you? A. I do." How a man with the slightest respect for the truth can deny the contention of fraud and perjury, where the party implicated has been forced, under cross-examina- tion, to admit his wronodoing as frankly and unequivo- cally as said Winthrop Astor Chanler was forced to ad- mit his wrong-doino- — we respectfully submit— we ut- terly fail to see. Furthermore. The same spiteful and malicious spirit again appears in the following gratuitous slur on the plaintiff-in-error upon the part of the counsel for the defendant-in-error — in the very next paragraph of said defendant-in-error's said statement, to wit: "At the trial, the plaintiff-in-error (who did not personally ap- pear) sought by his counsel to introduce masses of evidence." The slur in "who did not personally appear" is palpably intended to convey the idea to the Court that the plaintiff-in-error was afraid to appear. Whereas the proved fact is that the plaintiff-in-error's spine was so injured — a nervous affection thereof — by years of false imprisonment in "Bloomingdale," that he was un- able to testify except in a reclining attitude, and only then at certain hours and for a briefer period than that of the daily session of a Court. Therefore — for the above reason — and that reason only, the plaintiff-in- erroi- did not personally appear in New York, but did (26) 402 personally appear in (liarlottesvillc, Virginia, and de- pose from on or about the first day of October, 11)11, to on or abont the middle of January, 1912, Avith con- tinnances on Saturdays and public holidays. Continuing;- his Statement the defendant-in-error says, page 3: ''At the trial the plain tift-in-error, (who did not personally appear) sought by his counsel to introduce masses of evidence which were excluded as having- no tendency to show either that the Supreme Court of the State of New York lacked jurisdiction to make the order of 1899 adjudging the incompetency and appointing the original Committee or that the proceedings were tainted with fraud of any such character as would open the adjudication to collateral attack. Plaintiff-in- error's counsel having failed to introduce or offer evi- dence sufticient to show even prima facie either that the New York Court was without jurisdiction, or that its order was invalidated by fraud, the learned Trial Court at the close of this case directed a verdict for the defendant-in-error." The foregoing statement is erroneous in the extreme, whether the statement be taken as a whole or separated into its several parts or heads. The learned Judf/e Holt fiatli/ refused to hear evi- dence upon said heads. It was not a question of in- sufficiency of evidence. The learned Judge Holt sivrplj/ refused to hear any evidence and frankly so stated. On this point we refer the Court to the printed record, pages 24 to 43 and 47 to 59, inclusive. Coming now to the Points, Page 4 et seq. in the learned counsel for defendant-in-error's said brief, be- fore the Circuit Court of Appeals. 403 POINT I. "THE LEARNED TRIAL COURT DID NOT ERR IN EXCLUDING EVIDENCE OFFERED TO SHOW THE MENTAL CONDITION OF THE PLAINTIFF A VARIOUS TIMES. "It is perfectly well settled that the issue decided by an Adjudication of the Court of one jurisdiction will not be relitigated in the Court of another, and that the Adjudication must be taken at its face value, unless shown to have been rendered without jurisdiction or procured by extrinsic fraud." To which we respectfully submit that the law and the facts in this case prove that said Adjudication was rendered l)oth without jurisdiction and was procured by extrinsic fraud — if by extrinsic fraud is meant fraud which was not 'known to he fraud at the time of the Adjudication. Since the question of the perjury of the three Petitioners was never brought forward in the 1897 — the Commitment Proceedings — nor in the 1899 Proceedings before a Commission-in-Lunacy and Sher- iff's Jury; for the conclusive reason that the plaintiff- in-error was neither present nor represented by coun- sel at either Proceeding. Continuing the defendant- in-error says, pages 4 and 5 of his said brief : "Accordingly, the question whether or not plaintiff- in-error was actually insane when so adjudged could not be litigated in this action (Matter of Curtiss, 137 App. Div., 584; 109 N. Y. 36). All evidence tending to prove his sanity in 1899 was therefore utterly irrele- vant and properly excluded. The same reasoning holds true with added force as applied to his mental con- dition in 1897 and in 1901." 404 To whicli we respectfully submit, firsts that since the 1897 and 1899 Proceedings are shown to be null and void, the question of sanity at once becomes a main issue. Second,, That since the question of the plaintiff -in-error's sanity was set up in the defendant- in-ervor's answer it becomes inore than ever a main issue. See 162 Federal Reports^ where the learned Judge Noyes says, page 39, supra: ''The defendant joins issue upon the fact of sanity after the New York orders were made." Continuing the learned counsel for defendant-in- error says, page 6 of his said brief : "If and tvhen the defendant-in-error offered evidence to show that the plaintiff-in-error was presently insane^ evidence on that subject would become highly material. The rulings complained of in these assignments of error, so far as they relate to evidence of plaintiff-in-error's sanity after 1901, simply excluded matter not relevant at the time when offered and which would become rele- vant only in case the defendant-in-error should offer evidence in support of his affirmative defense." To which we respectfully submit the words of the learned Judge Noyes, 162 Federal Reports^ supra: ^^The defendant joins issue upon the fact of sanity after the New' York orders were made." Continuing the learned counsel for defendant-in- error says, page 6 of his said brief : "The ruling of the Trial Court, excluding the record of the Proceeding in Virginia in 1901, which purported to adjudge that the plaintiff-in-error was sane, was cor- rect for the same reason. This adjudication might be important evidence upon the issue of sanity irJinierrr that issue was itself before the Court, but could not be received during the plaintiff-in-error's case." 405 To which we respectfully submit the words of the learned Judi!,e Noyes, 162 Federal Reports, supra: "The Constitution of the United States vests in its judicial Department jurisdiction over controversies between citizens of different States. The Petitioner, as a citizen of the State of Virginia, bringing his said suit in the Circuit Court (since changed to the District Court) of the United States, was availing himself of a right founded upon this constitutional provision. And he came into that Court with a decree of the Court of the State of which he was a citizen, declaring his sanity. We can not disregard that decree/^ And also : "The defendant joins issue upon the fact of sanity after the New York orders were made." AYliich in turn is supported by Mr. Justice Harlan in Arrowsmith v. GJeasou, 129 U. S. 86. ]Mr. Justice Har- lan said : — "But this Court observing that the constitu- tional right of the citizen of one State to sue a citizen of another State in the courts of the United States, in- stead of resorting to a State tribunal, would be wortli nothing, if the Court in which the suit is instituted could not proceed to judgment and afford a suitable measure of redress; * * * we have repeatedly held that the juris- diction of the Courts of the United States over controver- sies hetiveen citizens of differcni t^tates, cannot he im- paired hij the Jaw of the l^tates k hich prescrihe the modes of redress in tlicir Courts, or which regulate the distrihit- tion of their judicial power — As said in Barroiv v. Hin- ton, 99 U. S., the character of the case is always open to examination for the purpose of determining whether, ration e materiae the Courts of the United States are in- competent to take jurisdiction thereof. State rules on the subject cannot deprive them of it." Continuing the learned counsel for defendaut-in-error says, pages 6 and 7 of his said brief: 406 ''The remarks, in the opiiiiou of this Court, iu Chanlcr V. HJicrmaii, 162 Fed. Rep., 19, to the effect tliat the present sauit^^ of the plain tiff -in-error is at issue in the cause, do not affect the correctness of the rulini;s under consideration. The (juestion before tlie Court in that Proceeding was siiiijtljj whether the X)laintift'-in-error was entitled to a writ of protection to enable him safely to come to New York to try his case. To decide this ques- tion the Court was obliged to consider what questions the plaiutiff-in-error iniylit have to litigate during the entire trial. One of these questions uitdouhtedlij iras that as to his sanity at the times of the alleged conversion and after- irard. If the verdict had not been directed in favor of the defendant-in-error, the latter might conceivahly have offered proof in support of the allegations of continued insanity, which would then have become a highly im- portant issue. Under the circumstances that issue icas not reached. The ruling of the Trial Court, therefore, was not in conflict with that of this Court as expressed in that opinion." To which we respectfully submit the words of the learned Judge Noyes, 162 Federal Reports, supra. ''The defendant joins issue ujxin the fact of sanity after the Neiv York orders were made.'' Continuing the learned counsel for defendant-in-error says page 7 ct seq., of his said brief : POINT II. ''THE RULING OF THE TRIAL COURT, EX- CLUDING EVIDENCE OFFERED TO SHOW THAT THE PLAINTIFF IN-ERROR, WHEN COMiMITTED TO BLOOMINGDALE HAD BEEN FRAUDULENT- 407 LY LTKED INTO THE iSTATE OF NEW VOKK I-^OK THE PlTin»OSE WAS NOT EKIIONEOUS. ''Ill the tirst place, as has already been stated, the learned Trial Court assumed for the jjurposes of the case that the plaintilf-in-error had been fraudulently lured (Transcript of Record, p. 3t), fols. 73-74). The actual ruling excluding the evidence of the fact assumed caiiiioi, therefore, have been erroneous. The Court, how- ever, was also right in disregarding tlie fact assumed, and treating it as immaterial. The alleged luring, if it took place, occurred before the 1897 Proceeding and be- fore the plaintilf came to New York in February of that 3'ear, That Proceeding did not, of course, adjudge the plaintitt'-in-error to be an incompetent, but merely pro- vided tentatively for his detention for his own and the public good. It had nothinf/ ichatcver to do irith the Proceed i II (/ two years later by which the plaintiff-in- error was adjudged incompetent. The latter was a whollj^ new Proceeding, begun by the issue and ser- vice of fresh process, and in it the A\liole question of the plaintitf-in-error's then j)resent sanity was tried out. The tribunal was not in any sense governed by the ea? parte order of commitment, but was free to decide the question absolutel}' as matter of /fr.s'f impref^sioii. If the plaintiff-in-eiTor was brought within range of the order of commitment by means of a process of fraudu- lent luring that might affect the order of commitment, but it CO II not affect an independent adjiidicatioii made ifcarfi tater.'^ To which we respectfully submit that the seven fol- lowing cases — set forth at large, and rulings given in great fullness under Point 1, The Nineteen Points of Law, i. p. 333, note (Supreme Ct. 1st District, Spec. Term 1873). Metcalf v. Cla,rk, 41 Barb. 45 (1804). So far, we respectfully submit, from the Commitment Proceedings of 1897, providing — as the counsel for the defendant-in-error claims above — "merely tentatirely for the detention of the plaintiff-in-error for liis own and the public good" — said Connnitment was pennanent, definite and for all time. The onlyreason why the Chan- ler family — the parties behind both the 1897 ans being out of the question between said parties and Nie plaintiff- in-error, since the latter was lying in a cell in ''Bloom- ingdale" under a charge of insanity. So far from "the alleged luring * * * luul nothing- whatever to do with the Proceedings two years later by which the ])laintiff'-in-error was adjudged incompetent" — as the counsel for the defendant-in-error claims abov^ — said luring went to the very heart of the said 1(^99 Proceedings; tainted them with fraud of an incurable character and irrre the sole and oiilij inecvs of h^Hnginfj ike latter, 1899 Proceedii)(/s, to pass. For without the luring in 1897, the 1897 Commitment Proceedings would never have taken place, since the plaintiff-in-error was living (juietly at his home, ''The Merry ]\rills," Cobham, Virginia, and had arranged his business affairs in New York in order to permit him to remain at "The ^Merry Mills'' for an indefinite period- - and it is self-evident, therefore, that, tvitJioiit the 1897 410 Proceed iii(/.s, tJio.se of IcSUlJ coiihl not hare coiik' to /»a.ss. So fai* fi'om the 18D9 Sheriff's Jury Proeeediug being — as coniisel for (lefeiidaiit-in-ei'roT asserts above — "a wholly new Proceeding begun bv the issue and service of fresh process, and in it the whole (question of the plaintiff-in-error's then present sanity was tried out" tJie fact is tJiaf the 1S97 (Unin)iitmeiit l^roeeediiu/s irere Hia<1< part (iiid parcel, art and jxirt of said Sheriff's Jiirij 1899 J'roeeediii(/.s Jti/ bciii;/ joined thereto — as an exami- nation of the record in the New York Supreme Court will show. Tlie 1897 Proeeedint/s irere speeifieaUif joined to the papers making u}) the 1899 Proceedings. And so far from "the plaintiff"-in-er]'or's then present sanity being tried -rd insane — until after conviction. As the first herouics a convict so does the second become a lunatic — an in<-o)upetrnt. The learned counsel for defendant-in-error himself supports our vieiD in the following phrase — under Point I of his said brief — to wit : ''The presumption of sanity would no doubt have taken care of the plaintiff-in-error.^' But, we respectfully submit, the soundness of our posi- tion requires no authority — beyond the authority of 4:1: loiiic lo sui)]>(»i-t. Tims. Were il a (iiicstio!! of a i('i>u- lai-lv (leclarcd iiisaiic i)ersoii llio matter would bear an entirely ditferent aspect. And there could be no ])()ssible objection to deceivino- a judicially declared lunatic. F>ut in the case at bar the conditions were ut- terly ditterent. There was no question of a regularly declared lunatic, of a judicially declared insane person. Far from if. There was merely the question of a parcel of unscrupulous and avaricious relatives who had been estrauiied from the plaintiff -in-error since the time of his marriage in June, 1888 ; because, at the bride's "re- (;uest, only one iiuMuber of the ("hauler family received an invitation to said wedding. This led to a breach in the natural family relations between the plaintiff-in- error and the ('haulers, which is fully and graphically set forth in sundry letters received from Winthrop Astor ("hauler and his wife, on evidence in the deposi- tion of the plaintiff-in-error, mention of w^hich is found on ])]». 144-150 of ap])endix to this brief, which shows the intensity of the animosity thus aroused, and the ominous threat of future trouble in consequence. LETTERvS SHOWING BAD BLOOD BETWEEN PLAINTIFF-IN-EKKOR AND THE THANLEK FAMILY, pp. 144-154, Trial Brief. THE CHANLER FAMILY LETTERS. ^'Rokeby," Barrytown, N. Y., June 23d, 1888. (To John Armstrong Chaloner. ) Dearest Brogf : — Many thanks for your delightful letter flowing with metaphorical milk and honey. I am so glad you are so happy, dear old boy, and that fPlaintiff-in-error. (27) 418 you find the (Ireaded iiiiUTJa.u,o state not such a l)uive Margaret love from ns all. ( From AVintbrop Astor Cbanler. ) ''Rokeby," Barrytown, N. Y., June 19. My Dear Margaret: — I have been waiting until I could control my temper before answering your letter. If ever two people deserved a good spanking those two are Brog and you. Of course you were but as putty in his hands, and backed him up in his absurd mysteries — but still your own common sense, if no other feeling, should have told you that he was quite wrong in acting as he did. Now I suppose you are wondering what I am driving at. Wait a bit until I tell you a story. A detachment of the British Army in India was on the march. An officer was very anxious to know wheth- er the army was to halt- the next day and asked one of the staff officers, who had once been a friend of his, about it. ''I really do not know the intentions of the General" was the reply. Then says the Chronicler, returning to his tent disgusted with the airs of his former companion he was met by his servant with the information that the army was to halt the next day. "Where did you learn that?" said the officer. "Major M's (the staff officer) washerman tell me." So Major M. could tell his "washerman" that he might take ad- vantage of the halt to blanch his linen, but he could not communicate it to an old friend ; although from the 421 situation of the army it mattered not, in a military point of view, if the fact were known from one end of India to the other. Just read, mark, learn, etc., this parable and I think you will see how the cap fits. You could write to Mr. Morrisf and tell him to be sure the "d" was left out of the name, etc., etc. — and yet you could not send one line or word to anv member of your family so that we could drink the bride's health. As it happened Archie's alleged telegram never reached us. Alida at "Tranquillity"? and all of us at "Rokeby" heard it from an outsider and the daily papers. Of course Brog, like Sir xVndrew Aguecheek, will have fifty ^'exquisite reasons'' for it all. He always has. It won't make much dijference now what he says. It is all over the country that not a single member of his family knew he was going to be married so soon. That don't look well, does it? 1 am (/lad lie is irhcrr he is so iinirJi appreciated for his stock is helow par up here. I cabled the news to Bess, lest she too should hear through the papers. Alida wrote me a piteous letter today asking for news — what news can I give her? That you leave Virginia in a week? Another little point for you and Brog to digest at vour leisure is this. The outcome of his sublime and fatuous predilection for mystery is that as your name was only in one paper the great majoritv for whom he poses think that no member of his family was present at his wedding. You can draw your in- ferences. This is all I am going to say on the subject, except fSaid Henry Lewis Morris — the Chanler Family's lawyer. See affidavit of Egerton L. Winthrop, Jr. (T. R., pp. 141, 142, fols. 273-276.) IThe country place at Allamuchy, Hackettstown, Warren County, New Jersey, of the late astronomer Lewis Morris Rutherfurd. 422 that it is useless to tell Amelie an3^thing about it. She has nothiug to do Avith it, and need not be made uncom- fortable. Yours, W. (From Winthrop Astor Clianler. ) "Rokebv," Barrytown, N. Y., June 22, 1888. My Dear Margaret: — On our return from Albany to- da^^, where we had dined and spent the nit>ht with Mrs. Pruyn, I found your lono' letter. Your reasons for not letting us know are precisely what we all supposed them to liave been. Of course, we all knew perfectly well that you wanted to send us word and that Archie would not let you. When you say that you did not consider it proper for you to discuss the matter with and differ from him we disagree with A'ou entirely. It was your business to fight any such proceeding on his part with all your might. Particularly so when you thoroughly realized how we would feel as you say you did. In fact, eyery word in your letter and in Brog's to Daisy goes to confirm us in our opinion. The Riyes had a perfect right to wait till after the wed- ding before cabling to the Col. if they so wished. They had plenty of relatiyes in the house to back them up in anything they chose to do — if the Herald is to be belieyed. Besides there are a half dozen ways in Avhich Brog could haye let us kno\y the day before if he had wished. He could haye written or telegraphed in French. As soon as he had had his interyiew with the Herald reporter he could haye sent us word. The whole ti'ouble is that he apparently looked upon the family in the same light as 423 the public — icitli a stroiH/ jn-cfci-riicc for lite public I am }i(>( !J-, yet loill make them show it for a long time to come. In the most important epoch of his life he has made a fool of himself and hurt his wife in the eyes «)f the puhlic. You can show him both my letters on con- dition that he does not tell his wife about the contents more than is necessary. I will write to liim as soon as J can talk of something else. Yours, W. P. S. — Remember I want you to show both my letters to Brog. You can leave the matter of repetition to his own judiiment. W. (From Winthrop Astor Chanler to John Armstronj^ Chaloner. ) "Rokebv," Barry town, N. Y., June 21, 1888. Dear Broo- : — Just a line from an outsider to disturb the perfect bliss of Arm Ida's garden. Ask for and read the two letters I have written to Mari>tir(^( iu the name of the Rokehyites and use your own jud^uieut about re- 424 peatiiig the contents. Love to Armida — We don't want any (•uttini>s from the Hci-ahl oi- any other of yonr friends the Journalists. Yours, W. P. S. — The weather here is very warm, 93 in the shade today — / wonder if you wouldn't find it cool in spite of the thermometer. (From Jolin Arnistron<» Chaloner to Winthrop Astor Chanler. ) "Castle Hill," Albemarle rounty, Virginia, June 27th, 1888. Dear Wintie : — 1 have received jouy note of J une 21st, and I shall want an apology from you in writing, before anything further can pass between us. Yours, J. A. C. Nine years later AVinthrop Astor ('hauler makes fully good the direful threat contained in the following sin- ister language — taken from his aforesaid letter of June 22, 1888. To wit : "I am not going to discuss the matter any further as regards the disagreeable posi- tion he has seen fit to put us all in; and its result in the eves of the world, of whom he seems to stand in such dread. Nor am I going to discuss the utter fizzle of liis attempt at secrecy. / u-iJl siniphj sai/ that he has done the reri/ tJiinr/ of all otJicrs he should not hane done under the circuuisttDiccs: and that he has hurt 425 the feelings of his entire connection on this side of the water ^ in a tvay that though they may say nothing, yet will make them shoto it for a long time to come. In tlie inoKt Impovtant epoch of his life he has made a fool of himself, and hurt his wife in the eyes of the public." And when we add to the above the unnatural hatred of his brother — there is no other word for it, we respect- fully sunibit, upon the evidence of- said Winthrop Astor Chanler's acts — and when we add to the above the un- natural hatred of said Winthrop Astor C'hanler for his brother — the plaintift"-in-error — displayed by his — said Winthrop Astor Chanler's — attempt to physically as- sault said brother — the plaintiff-in-error — even though the latter u-as in bed and unicell at the time — as is fully set forth in the portions cited, supra, of the deposition de bene esse of said Winthrop Astor Chanler. As was said above, there was no (juestion here of a regularly declared lunatic, of a judicially declared insane person. There was merely the (juestion of a parcel of unscrupulous and a\ari(ious relatives, who had been estranged from the plaintift'-in-error since the time of his marriage in June, 188S; who had subsequently — one and all — (luarrelled with plaintilf-in-error because of said marriage; and, subseqiu^ntly, had not scrupled to employ agents to inveigle plaintiff-in-error \\'ithin the confines of the State of New York with the — on the evi- dence — indisi)utable purpose of there incarcerating plain- tiff-in-error for life, and, upon the death — in the course of time— of plaintiff-in-error, of possessing themselves of plaintift-in-error's property of largely over a mil- lion dollars in value, and steadily increasing in value. The balance of the cilation above from defendant-in- error's brief is so honeycombed with sophistry, so riddled l)y fallacy that it is, we respectfully submit, simply and palpably beneath seri(ms notice. We shall, therefore, content ourseh'es bv saving that the leai-ned counsel 426 for the defeudant-in-error //«6' put the cart he fore the horse in a mamwr unimraUeled in our professional ex- perience. That said learned counsel for defendant-in-error glibly dubs tlie plaintitf-in-error an '•incompetent person'' long before any legal proceedings declaring the plaintiff-in- error a lunatic or an inco)iiprlrnt person had ever been had. And this in the teeth of the aforesaid remark of said learned counsel for defendant-in-error — page five of his said brief under Point I thereof — to-wit : ''the pre- sumption of sanity" (until judicially found insane — "lawfully adjudicated" as said learned counsel puts it — page five of his saifl brief) "would, no doubt, have taken care of the plaintiff -in-error until such time as an answer setting up the defense should have been served." The following words would have had equal force in said sen- tence, to-wit. "The presumption of sanity" (until judi- cially found insane) — "lawfully adjudicated" — not fraudulenthj lured into a foreign jurisdiction we might respectfully add "would, no doubt, have taken care of the plaintiff-in-error until such time as he should be (as the plaintitf-in-error had not been) judicially found in- sane 'lawfully adjudicated'." The "presumption of canity" spoken of by the learned counsel for defendant-in-error befoi'e a party has been "lawfully adjudicated" insane, is well supported by the following remark from the learned Judge in his opinion in Evans, Committee v. Johnson, ^W'st Virginia Supreme Court of Appeals L. R. A. 737, referred to extensively on page 208, of this brief. The learned Judge says "Will it be said, in answer to this that he is insane, and that notice to an insane man will do him no good? The response is that his insanity is the very question to he tried." It will be fully shown that there never was, nor ever had been any question of the peace and quiet of the 42^ uood people of tlic^ ('ity and State of New York being threatened by an irrnption upon the part of the plaintiff- in-error. That — strange though it may sound to a New Yorker — tlie phiintiff-in-error niucli preferred life in Virginia to life in Ne\\' Y'ork. That the plaiutiif-in-error had proved this by relin(|uishing, far from reluctantly, his citizenship in the State of New York and promptly taking it up in the State of Virginia after buying the four hundred acre estate of "The Merry Mills" and fit- ting u]) its old-fashioned house as his permanent home. That plaintilT-in-error found life in Virginia so much to his liking that on the evidence of the record he gave life in New York as wide a berth as possible — only going there at long intervals for short trips and with a specific purpose as the object of each trip — as the following letter from the former proprietor of the hotel at wdiich he stop- ped Avhen visiting New York proves. "LETTER TO rLAINTIFF-IN-ERROR FROM THE PROPRIETOR OF THE HOTEL KENSINGTON, NEW YORK (SINCE DECEASED) CONCERN- ING HIS INFREQUENT VISITS TO THE HOTEL (pp. 100-101 Trial Brief). Cash Capital, |1,700,000. John R. Bland, Geo. R. Callis, President. Secretary-Treasurer. The United States Fidelity and Guaranty Company, Baltimore, Md. Andrew Freedman, Vice President, Sylvester J. O'Sullivan, Manager. 66 Liberty Street, New Y^ork, March i4th, 1905. Mr. John Armstrong Chanler, "The Merrv Mills," Coldiam, Va. 428 My Dear dianler : 111 reply to your letter recinesting- my views regarding your alleged former residence at the Hotel Kensing- ton, Fifth avenue and Fifteenth street, Borough of Manhattan, Citj of New York, in 1806 and 1897, I beg to state as follows : I was Proprietor of that Hotel from April 1st, 1894, to April, 1897. I do not think you ever stopped there prior to my assuming control of it. I do believe you came there solely on my account. You never were in any sense a resident guest of that Hotel. You never were any other than a transient guest. You never en- gaged rooms there other than by the day. Your visits there were infrequent, yet I believe you stopped there every time you came to New York while I conducted that Hotel. As a rule, you came on each year to the Horse Show, and on those visits you, of course, spent the week said Show was in progress, and I believe on one, or possibly two occasions, your visit at that sea- son was prolonged to several weeks. Other than the Horse Show week mentioned above, my recollection is that you did not come to that Hotel more than once or twice a year, and on some of these visits your stay was only for a day or two. I well remember having several prolonged conver- sations with you about some large enterprises you had on hand in North Carolina, and that almost the entire year of 1895 was spent by you in the South in the con- duct of said enterprises. Yon were at the Kensington during the Horse Show week in November, 1896, and left there for the South in December.-]- You returned again in FehruaryX of fCorroborating the testimony of John Penn Morris. Pp. 16-22, Appendix. tCorroborating the testimony of William Kennie. Pp. 57-64, Appendix. 429 1897, and left in March. Of course, I could not recol- lect the exact dates of your arrival and departure on those visits, but 1 aiiain repeat in the strongest terms possible that yon never were at any time to my know- ledge a resident guest of that Hotel, but were always looked upon by myself and all the attaches of the Hotel as a transient guest. Very truly yours, SYLVESTER J. O'SULLIVAK The plaintiff-in-error had no intention whatever of visiting New York for a long and indefinite period. That plaintiff-in-error's said letter to Captain Micajah Woods proves said contention where he mentions his desire for a prolonged stay in Virginia as the cause of his arranging' his l)nsiness affairs in New York so that he could l(?«ve the Metropolis for an extended and in- definite period. That the unscrupulous relatives of plaintiff-in-error sent out to have, and had him brought within the confines of the State of New Y^ork for an illegal, dishonest and nefarious purpose. That the peace of New York was never threatened by the presence within its borders of plaintiff-in-error. That he much preferred to live in peace and quietude in the country- side of Virginia to courting the noise and hubbub of the Metropolis. That all this talk upon the part of the learned counsel for defendant-in-error to the effect that — page 8 of his said brief — 'T7/e State itself has a vital interest in the proper disposition of incoinpetent persons" — and again page 9, ibid — "The Court can not and loill not shirk the dutji irliicli it aires the whole public of determining tvhether or not the person in question belongs to the class which requires supervi- sion'^ is nothing more nor less than so much sonorous buncombe upon the part of the learned counsel for de- fendant-in-error. 430 All this talk upon the part of the learned Counsel for defendant-in-error is palpably hollow — unequivo- cally insincere. We respectfully submit that in place of all this absurd sophistical elaboration concerning the protection of the good people of New York from the danger of the pres- ence of the plaintiff-in-error within that populous State's borders, it would be far more germane to the public good to protect the public from the felonious machina- tions of people as utterly devoid of scruple or principle, or even of natural affection as the Chanler family, male and female, are shown to be in the premises; to protect the public from the machinations of people so rrsemhliiif/ hioidits as do the Chanler family. Continuing, the learned counsel for cU'f(Mi(lant-in-error says, page 9, rf srq., of said l)rief l)ef()re the Circuit Court of Appeals: POINT III. "THE LEARNED TRIAL COURT DID NOT ERR IN EXCLUDINO EVIDENCE AS TO THE RESI- DENCE OF THE PLAINTIFF IN 1897 AND 1899. 'The rulings excluding evidence of this character were certainly correct. The Supreme Court of New York had jurisdiction both in the Commitment Proceeding and in the Proceedings for the appointment of a Committee, whether the plaintiff-in-error was a resident of this State or not, so long as lie was within the State when the Proceedings were begun, and had property here. Finalh', the fact that the plaintiff was a resident of New York, was one of the facts at issue and adjudged 431 in the 1899 Proceedinos. The (luestiou of his residence was for the New York Court to determine, and its deci- sion is final {Kiimici- v. Kuniicr, 15 N. Y. 535)." We need not go further into the first allegation of said learned counsel — we respectfully submit — than to observe that the Supreme Court of New l^ork never ac- quired jurisdiction over the person of the plaintiff-in- error for the following reasons. First: that he was lured within the jurisdiction of the State of New York by fraud, deceit and trickery. *S'eoo//(L' that lie had no notice of the 1897 Proceedings — the Commitment Pro- ceedings. Third: that he was not afforded an opportunity to appear and defend at the 1899 Proceedings — the SheritT's Jurv Proceedings. Nor need we go further into the second allegation of said learned counsel — we respectfully submit — than to observe that the 1899 Proceedings aforesaid alleged, never hud aiii/ existence in Jair for the reason aforesaid: — lack of ojipoi-tiiiiit!/ to appear and defend — and that therefore no question thereat determined, had any exis- tence in Jly palpable, brazen sophistries than the followiui; supra — so pal])able as to be beneath the notice of an honest, truthful and logical lawyer — more than to held them forth for the view of this learned Coui't in all their nakedness. To wit. ''The question whether the testimony given in support of one side of the case is or is not true is one of the questions neces- sarily adjudged in every litigation.'" Among the present group of fallacies set forth with such assurance by the learned counsel for defendant-in- error the above is, we respectfully submit, surely the cap- tain jewel in the carcenet. For if what said learned counsel for defendant-in-error asserts above were not a fallacy, where then would be the famous case of Tovey V. Yoiiiif/, cited by the learned Mr. Justice Miller in United Htalcs v. TJii-ocl-inorfoii. And where would be the learned words of the Lord Keeper in the High Court of Chancery? Accordiny to the Lord Keeper perjury can slip by the Trial diidf/r unnoticed. Discussion of U. *S. v. Throckmorton. Mr. Justice Miller said : "There is no question of the general doctrine that (28) 434 fraud vitiates the most soleiiiii eoutraets, dociiiiients aod even judgments — in cases wliere, by reason of sometliing- done by the successful party to a suit, there was, in fact, no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as by keeping him away from Court, a false promise of a compromise; or wliere the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; — these, and similar cases Avhich show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. In all these cases and many others which have been examined, relief has been gi-anted, on the grounds that, by some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the Court. On the other hand, the doctrine is ecjually well settled that the Court will not set aside a judgment because it was found- ed on a fraudulent- instrument, or perjured evidence, or for any matter which was actually presented and con- sidered in the judgment assailed. ]Mr. Wells, in his very useful work on Ixr.s Ad judicata, says. Section 499: 'Fraud vitiates everything, and a judgment, equally with a contract; that is, a judgment obtained directly by fraud. The principle and the distinction here taken was laid down as long ago as the year 1702 by the Lord Keeper in the High Court of Chancery, in the case of Tovey v. Yoiuhj, Free, in Ch. 193. This was a bill in Chancery brought by an unsuccessful ])arty to a suit at law, for a new trial, wJiicli was at that time a very common mode of ohtaininu' a new trial. One of the 435 grounds of the bill was that coiuplainaiit had discovered Biiiee the trial was had, that the principal witness against him was a partner in interest with the other side. The Lord Keeper said : 'New matter may, in some cases, be ground for relief; but it must not be what was tried before ; nor, when it consists in swearing only, w ill T ever grant a new trial, unless it appears by deed, or writing, or that a witness, on whose testimony the ver- dict was given, were convict of perjury.' " As is con- clusively proved by the originator of the said principle — namely the Lord Keeper —the perjury of a witness "on whose testimony the verdict was given" uinst he dis- covered and charged not during, but after the said trial. In other w^ords, the perjury must not have been known to be perjury — and as perjury — to have been considered by the court during said trial. The perjured witness — in a word — gives his perjured testimony, upon which "the verdict was given," without either the Court or the other side knowing at the time of the trial that same was perjured. Thereafter said discovery is made and a new trial granted on the strength of the newly discovered perjui'y. Counsel for defendant-in-error attempts to show by this very case of United states v. Throclnnorton. that provided a witness has perjured himself in a given trial —and no matter that neither the other side nor the Court knew at the time of said trial that said witness was a perjured witness, yet, nevertheless, because the witness gave his said perjured testimony, as aforesaid, at said trial, that therefore the question of the perjury of said witness was ipso facto necessarily "actually presented and considered^' in said trial as perjurij! Whereas, the truth is the direct antithesis thereof. Namely: that said perjury, not liaring J)rrn discovered at the time of said trial, it could not have been "presented" at said trial. 436 Not having- been "presented'' it* necessarily could not have been ''considered" And counsel for defendant-in-error sapiently holds that although neither the Court nor the other side l-neiv at the time of said trial that it was perjury; that therefore when — after said trial — a new trial is sought upon the ground — upon the total! 1/ new question — of the perjury of said witness — that a new trial cannot be granted because the said perjury — altlioiifjli itiiJcnown and unhintcd at at said trial — ''was actually presented and considered'' at said trial; when — in truth — it had been neither one )ior the other! In other words — according to the legal, mental pro- cesses of counsel for defendant-in-error — if a perjured witness, unhehnown to the Court and other side — per- jures himself at a given trial and ''gets away with it" — gets the Court and other side to believe it, that therefore, thereafter, when the other side catches up ivith the per- jurer, and moves for a new trial — that, because the per- jurer has — unbeMiown to the Court and other side — per- jured himself successfully, which is to say, of course, without being caught, — that then — according to counsel for defendant-in-error — wheti said perjurer is "caught with the goods'' — his crooked and slick work, when dis- covered, cannot be taken into consideration by the Court — cannot be ^'considered" ! To conclude. The perjury of ^Ir. AA'inthro]j Astor Chanler, in the Commitment Proceedings in 1S97, afore- said, is proved upon him in the cross-examination of that gentleman, by counsel for plaintiii-in-error in said Deposition de bene esse, supru, given by said gentleman in or about November, 1905 —on file in the New York Supreme Court. Said gentleman swore in said Commitment Proceed- ings — said Commitment Papers — that he had heard and 437 seen the plaiiitiff-iii-error in Chaloner against Sherman say and do irrational tilings at the said plaintitf-in-error's home in Viroinia. Upon the strength of which false oath ''the verdict was given," and the plaintiff-in-error lost his liberty and the control of, and enjoyment of his property for years and years. Whereas in said Proceed- ings in 1!)05, dr bene esse — as has been show^n, i^Hpra — said gentleman admitted on the stand — under cross-examination — that he had never in his life been at, or in, said home of said plaintiff-in-error in Virginia — nor had aiiij of the other Petitioners! To resume. A second famous fallacy is now pushed forward by the learned counsel for defendant-in-error in the follomng bare-faced statement. To wit, "This Court could not determine whether or not the testimony in question w^as perjured without trying over again the very same issue which the New York Supreme Court decided when it made the orders complained of." And, lastly, we have this pearl from the lips of the learned counsel for defendant-in-error. To wit, "In ac- cordance with these principles it is well settled that the fact that a judgment is procured by false testimony does not open it to collateral attack." And then said learned counsel has the assurance — the verily desperate hardihood — to bring forward this very case of United states v. Throekmorton, in support of said learned counsel's outrageous attempted assault on the Truth as well as on logic* *Mr. Justice Harlan says : In Arrowsmith v, Gleason, 129 U. S., infra. "As said in Barrow v. Hunton, 99 U. S., 80, 85 (25: 407, 408), the character of the case is always open to examination 'for the purpose of determining Avhether, ration e materiae the Courts of the United States are in- 438 Coutiniuiig the learned counsel for defendant-in- error says, pages 11 and 12 of his said brief: ^'The contention that the plaintitf-in-error was fraudu- lently lured into the State of New York in 1897 is not of this character. Such fraud, even if it resulted in the commitment of the plaintiff-in-error to an asylum, did not deprive him of the power, which in fact he had in this instance, if he had chosen to exercise it, of pre- senting every essential of his case to the court Avhich adjudged him incompetent. As was pointed out by the Supreme Court of the United States in Simon v. Craft, 182 U. S., 427, an inmate of an asylum may well be perfectly free to conduct his defense in such proceed- ings with entire efficiency ; and in the absence of alle- competent to take jurisdiction thereof. State rules on the subject cannot deprive tlion of vT." * * * ^"The most sole in )i transactions and jndgments may, at the instance of the parties, be set aside or rendered inopjerative for fraud. * * * It is generally parties that are the victims of fraud." * * * ""Relief is to be obtained not only against writings, deeds and the most solemn assurances, but against Judg- ments and Decrees, if obtained by fraud and iniposition. * * * Such relief l>eing grounded on a new state of facts, disclosing * * * imposition upon a Court of Justice/' And in Marshall v. Holmes, Mr. Justice Harlan said : 141 IT. S., infra: "On the other hand, if the Proceedings are tanta- mount to a bill in equity to set aside a decree for fraud, in the obtaining thereof, then they constitute an original and independent Proceeding, and according to the doc- trine laid down in Gaines v. Fuentes, 92 U. S., 10 (23: 524), the case might be within the cognizance of the !\^deral Courts." 439 (jafion, proof, or oftVr to prorr that he was iiiterfenHl with, the Court will ])r('suine that he was not. If, then, thero was any hirinu' in 1S97, it did not aflVct. the 1S9<) Proceediniis." The hardihood disi)layed by the learned counsel for defendant-in-error in briniiinii forward a case so indis- l)iital)ly provinii the contentions of his adversary; name- ly, the plaintiff-in-error, as U. aS. v. Throckmorton, is almost equalled by said learned counsel for defendant- in-error's i)uttino- in the case of ^inwn v. Craft. For nothiuii could sui)port the contentions of the plaintitf-in- error more strongly than this same case of Simon v. Craft — unless it be the aforesaid case of United States V. Throckmorton. The case of Simon v. Craft is again brought forward by said learned counsel for defendant-in-error in sup- port of said counsel's "Point Y" in said brief. There- fore we shall touch said case but lightly under Point IV of said counsel's said brief and treat said case at length in replying to said counsel's "Point V." Said learned counsel for defendant-in-error starts out — we respectfully submit— with two fairly large fal- lacies where he says: "The contention that the plain- tiff-in-error was fraudulently lured into the State of New York is not of this character." To which we re- spectfully submit that were it not for the luring there wonhl liarc hern no 1897 Proceedings at all — for the simple reason that there could not have been — for there would have been no plaintiff-in-error to be falsely im- prisoned and perjured into "Bloomingdale" had the plaintiff-in-error not been "fraudulently lured" as said learned counsel for defendant-in-error deftly phrases said felonious actions of his allies and backers, the Chanlers. 440 Contiiiniiii;-, said learned counsel for defeiidant-in- error says : ''Such fraud, even if it resulted in the eonunitment of the plaintitT-in-eiTor to an asylum, did not deprive him of the power, which in fact he had in this instance, if he had chosen to exercise it, of presenting- every essen- tial of his case to the f'ourt which adjudged him incom- petent." Strange though it sounds, there is not one solitary word of truth in the above sonorous sentence from the learned counsel for defend ant-in-error. As will be shown when we come to consider said counsel's next Point— "Point V" — (1) "Such fraud — {did) deprive him of the power." (2) "Which in fact he had (not) in this instance. (3) "(although) he had chosen to ex- ercise it, of presenting every essential of his case to the ('ourt which adjudged him incompetent." Merely as a sign of bona fides upon our part to short- ly make good the proof of the aV)ove, we now respect- fully submit that plaintiff-in-error was bed-ridden at the time of the 1809 Proceedings on the testimony of the Medical Superintendent of "Bloomingdale"— Dr. Samuel B. Lyon, supra — had been so for three weeks previous to the said Proceedings Avhich were held twen- ty miles from his cell in "Bloomingdale" — and — lastly — that plaintiff — on the record — was neither present at, nor represented bg counsel at said Proceedings. Where- as Mrs. Yetta Si)non — the alleged lunatic in Simon \. Craft, who, by the Avay, we respectfully submit, was on the evidence and indisputably a bona fide lunatic from the incipiency of the case of Simon v. (Jraft — was repre- sented at her trial — by a guardian ad litem. (Concluding his "Point IV" the learned counsel for dcfendant-in-error sasvs, "As was pointed out by the Supreme Court of the United States in Simon v. Craft, 441 182 U. S., 427, ail inmate of an asyliuii may well be perfectly free to comlnct liis defcMiee in snch Proceedings with entire efficiency; and in the absence of allegations, proof, or offer to prove, that Le was interfered with, the Conrt will ])resnme that he was not. If then there was any hiring in 1807, it did not affect the 1891) Proceed- ings." The great difference between the case of fiimon v. Craft and Chaloner v. >>iherman is, we respectfully sub- mit, summed up in the above lines. There was no proof or ojfer to prove that fraud ivas on ployed against Mrs. Simon at any stage of the case. Whereas fraud shows its foul head from the very incipiency of Chaloner v. Sherman. There iras no proof or offer to prore that Mrs. Simon tras not insane from the incipiency of Simon v. Craft. Whereas indisputable evidence — documentary — in the shape of a letter of several thousand words in length written by plaintiff-in-error in his cell within about one hundred days of his arrest and incarceration in "Bloom- ingdale" to his late counsel, the late Captain Micajah Woods, Commonwealth's Attorney of Albemarle Coun- ty, Virginia — plaintiff-in-error's home county at said time — in evidence and known as Exhibit — roliereas in- disputahle eridence — documentary and otherwise — is in evidence in Chaloner against Sherman to prove the un- impeachahle sanity of the plaintiff-in-error from his birth. There was no proof or offer to prove the slightest sign of a conspiracy against Mrs. Simon. Whereas there is indisputable evidence— documentary — in the shape of the letters of June, 18S8, from members of the Chanler family* to plaintift'-in-error in evidence supra pp. 417- *As well as the letter from said Stanford White to Princess Troubetzkoy, indexed in Index of Exhibits, Appendix, as Exhibit C. 442 424, of this brief, breathing- out thveatenings and nuit- terings of trouble to come, is in evidence in Chaloner v. iSherfnmi. There was no proof or oti'er to prove the slightest ill- feeling towards Mrs. Simon. Whereas indisputable evi- dence — documentary — in the shape of the alienation in the plaintif-in-errors letter aforesaid to Captain Mica- jah Woods of a violent altercation with Winthrop Astor Chanler — tJic Chief Petitioner in the 1897 Proceedimjs — is in erifhnee in Chaloner against Sherman to prove that not a restige, shred or atom of natural affection ex- ists between a solitary mcmlter of the Chanler family, male or female, and the plaintiff -in-error. That all and sundry the Chanler family dislike the plaintiff-in-error heartily, and lose no opportunity to show said dislike; and that the sole and only interest said Chanler family take in plaintitT-in-error is a strony and ever present de- sire to circumvent the wishes and last loill and testament of the plaintiff-in-error in order to cheat the Universities of Viryinia and North Carolina out of the fortune of a niillion dollars or more the plaintiff-in-error has deeded, besides leaving in his will, to the said Universities. There was no proof nor offer to prove that the party or parties in whose custody Mrs. Simon was, was or were inimical to her. Whereas indisputable evidence is in evidence in Chaloner ayainst Sherman, that the Medical Staff of The Society of The New York Hos])ital at "Bloomingdale," as well as the "Board of Governors" of said Private Insane Asylum had every reason to feel chagrined at the freely uttered threats of the plaintiff- in-ei'ror to publicly expose them and their methods so soon as he should obtain his liberty. Lastly, there was no proof nor offer to pro re that the party or parties in whose custody Mrs. Simon was, tvas or were pecuniarily interested in or benefited by retain- 443 ///// her in ciisiod}/. Whereas iiii>i/ v. Mother, 48 N. Y., 313, that a sufficient opportunity to be heard was afforded by pro- ceedings under a statute whicli made the giving of an expensive bond a prerequisite to the right to defend. In deciding this case the Court said that opportunity to defend is not denied, though made 'difficult, so long as it is not impracticahle/ ''Moreover, as regards this subject, this Court is not in the usual position of Appellate Courts when consider- ing exclusion of evidence. Ordinarily it has to be pre- sumed that the excluded evidence would have shown all that the offer stated. Here, however, the excluded evi- dence is available, if the Court chooses to examine it, as it apparently consisted wholly in depositions covered by a stipulation (p. 154). From the plaintiff-in-error's own testimony in his colossal deposition, it abundantly ap- pears that he absented himself from the 1899 hearing by his own choice, being free to attend and to consult counsel (Plaintiff's deposition, Vol. V, pp. 122-142). The passages referred to seem to us to demonstrate the fact so completely that no amount of evidence to the contrary could convince the Court that the phiintiff-in- error's failure to appear at the 1899 hearing was because opportunity to be heard was denied hilii. It is to be remembered tliat the i)laintiff is himself a lawyer, to 447 whom, if sane, the importance of tlie 1809 Troceeding was (lonl)tless evident. •'Tlie above reasoninji a})i)ears to cover all tlie special assiannients of error which recinire anv notice. A num- ber of other ([nestions were, however, discnsyed at the trial, and to meet the possibility that discussion in re- liard to them may lurk, undetected by us, somewhere concealed in the vast bulk of the plaintitf-in-error"s brief, we feel that we should add a brief discussion of ea( h. "^Most of those which we liave not specifically discussed attack only renmrks and expressions of opinion by the ('ourt, which wei-e not in any true sense rulings. On s^uch utterances eri'or cannot be assigned {Gihson v. L^/f/ier, 190 Fed., 203)." A still further reason for giving defendant-in-error's ""Point A'" above is that it contains a perfect galaxy of fallacies and sophistries, whose l^rilliancy we wouhl shrink from detracting from, by SLibtracting therefrom so much as one line. The learned counsel for defendant-in-error says above: "It is to be noted that itoirlicrc in the Tirief or in the Kecord is it (piestioned tliat the plaintiff-in-error actually received diie aiuJ tiiiicli/ notice of the 1899 Pro- ceeding, as a])pears from the record thereof ^^■hich is in evidence." The cynical audacity of the above, fights hard with its soi)histry for the mastery. The allies <»f the learned counsel for defendant-in-error — the C'hanlers — are very <-areful — in the Commitment Proceedings of 1897 — as the Commitment Papers show — to deprive tlu^ ])laintiff-in- error of what the learnelaintiff-in-error was contiiKHl in Blocuningdale, was phy- sicallv unable to attend the trial, and was thus denied his opportunity to be heard. As above noted, however, it has been expressly decided by the Supreme Court of the United States, that confinement in any asylum does not by itself vitiate a notice otherwise duly served in such proceeding (Simon v. Craft, supra: see also Woer- ner on American Law of Guardinnship, p. 401). These authorities demonstrate that the mere fact of detention in an asylum upon commitment at the time notice is served and the Proceedings had, is not in itself sufficient to show that the notice did not give the alleged lunatic opportunity to be heard. They show that in the absence of evidence the Court will presume that opportunity to defend was afforded." We respectfully submit that the above is a mere repetition upon the learned counsel for defendant-in- error's part of what he said under "Point IV" supra. 449 Coiitiiuiiiiii, the leanuMl counsel foi- (Icfciidimt-iii-eiTor says : ''Accordiuiily, to show that the Suin-ciiic Court in the 1891) I*i-oc(MMlin,ii had no jurisdiction, llic phiintitt'-in- error wouhl have been obliged to iH'ove thai o])])ortiinity to he licard was (U'nicd him otiierwise tlian by liis mere enf(U'ced residence in Bh>ominii(lale. The only otfer on this score is the offer to prove 4he plaint itT-in -error's ]>hysical disability at the time." * * * 77/c ahoiy ist one of the most crtrcnic of all tlir cr- roucoiis st((ffiiieiit-s iitlci-ed hi/ the Jctinivd cindi-scl for ror<(l hi] tlie (iiitJiorities of ^' Bloom ill (/(tale." ronse(iuently it was a physical im])ossibility for the plaintiff-in-error to see a lawyer. It was equally an impossibility for the ])laintiff-in-error even to send a lettei' to a lawyei- outside the rei^ular channels of the mail — which channels — as aforesaid — were barred to plaintift'-in-erroi-"s free use — it bcin;; im])ossib1e for plain- titt'-in-error to send a letter to a lawyer with a view to retainin,u him to tii;ht his case, unless plaintiff-in-error ran the risk of liavinji- the said letter taken to the said lawyer by a false and treacherous friend — by wdiich is meant a foi-mer friend of plaintiff -iu-error who since (29) 450 his incarceration went over — body and soul — to the other side — for rcasoufi and causes hest l-iioirn to said false friend — while at the same time pretending to be the same staunch and loyal friend of plaintiff -in-error that plaintiff-in-error had formerly supposed said false friend to be. Tliere were a certain number of said traitors who were permitted by the authorities of "Bloominodale" to pass throuj2,h the lines — to borrow a military phrase — for obvious reasons. To wit. To act as spies — in the interest if not also in the actual pai/ — of the Chanler family. Two of said false friends were the late Stanford White, and tJie former law partner in New York City of the plaintiff-in-error, namely H. Y. IV. Philip. This false friend so worked upon the confidence of plaintiff-in error that he entrusted him with the deliv- ery in person — the lioing all the way to Charlottesville, Viriiinia — to Captain Micajah Woods aforesaid — of the vitally im])ortant letter aforesaid from plaintiff-in-error to said Woods, written July 3rd, ]ainst paying any attention to the prayer for help of the plaintiff-in-error as represented by said long letter. Said Philip was eminently successful. Said Philip handed said letter to said Woods with the following unique and sole com- ment. '^Do nothinfi in tlie pranises without first con- sultinfi me."^ This so alarmed said Woods that he did absolutely nothing towards granting plaintiff-in-error\s said prayer in said letter of July 3d, 1897, to bring — in connection with the late XTnited States Senator from Virginia, John Warwick Daniel — habeas corpus pro- ceedings looking to the plaintiff-in-error's release from captivity. The following excerpts — appendix — from the testi- 451 mony of said Captain Micajali Woods, at the first Depo- sition of plaintilf-in-error in October, 1908, at Char- lottesville, Virginia — at which Deposition the interests of the other side were looked after by the learned coun- sel for defendant-in-error — supports our above conten- tion, we respectfully submit, that said letter of July 3rd, 1897, was taken personally by said H. Y, N. Philip to said Captain Micajah Woods. PLAINTIFF'S LETTER OF JULY 3RD, 1897— RE- CEIVED IN FALL OF 1897. Testimony of Captain Micajah Woods. "13th Q. Ditl you receive a letter from the plaintiff in October, 1897? A. I think that was about the time I received a let- ter. I don't remember the exact month. 14th Q. How did you get this letter? A. The letter was brought to me by a New York lawyer by the name of Philip, Mr. Philip." Furthermore, it should be unnecessary for us to state — we respectfully submit — that the professional cau- tion of a practitioner of law is notorious. "Abundant caution" is the invisible motto emblaz- oned on the walls of everv well grounded lawver's cham- bers. It is, therefore, absurd to suppose tliat a lawyer could, by any possible incentive — save the actual pay- ment of hard cash, in advance, and in hand — which un- der the circumstances was a physical impossibility for the rich, but unfortunately situated plaintiff-in-error — his funds being in the hands of his false friend Stanford White, and subsequently in those of said false friend's brother-in-law, said Prescott Hall Butler, of the firm of 452 Evarts, Clioate and Sherman, as it now exists — it is, therefore, absurd to suppose, we respectfully submit, that a lawA^er iud)ued with the paramount caution of his profession, would for one moment — consider taking the case of the unfortunately situated plaintift-iu-error who — heforv paying said adventurous and daring lawyer his fee — must have his case iron by said lawyer — when said lairi/cr iroiihJ first hare Jiis curs pUed h// the false as alani)inf/ statcuiciits of the eiiiissaries of fJic ChanJer famili/ and the i^ocietij of The Nen: York Hospital {"BlooniiiH/tJale") to the unequivocal effect that plain- titt-in-error was a shrewd, crafty, highly educated luna- tic; who appeared normal in every particular, but who was, upon the authority of the eminent alienists form- ing the "Medical t^tafe" of ''Bloomiugdale"— in reality hopelessly — eren danf/eron.sii/ insane. We respectfully submit that the word "dangerously" would insure the average lawyer's giving plaintilf-in-error's case a fairly wide berth. 1( is therefore, we respectfully submit, as false as ab- surd to claim — as does the learned counsel for the defen- dant-in-error^ — that: "The only offer on this score (that opportunity to be heard was denied him) is the offer to prove the plaintiff-in-error's physical disability at the time." Continuing the learned counsel for defendant-in-error says, ])p. 1,') and 14 of his said brief: "This is ]>!/ no means sufficient. If ]dnjsical disahilitjj to attend a trial vitiates notice, how many of the jndg- ments rendered by the courts in ordinary eivil cases would be open to collateral attack? If in any true sense an alleged lunatic who is ill and physically unable to appear when the case is called for trial is denied oppor- tunity to be heard when the Court tried the case tvith- out him ercrji other litigant who is in the same unfor- 453 tunate predicament is e(|nallj denied opportunity to be heard. No one, however, has as yet had the temerity to advance this proposition." The sophistry and falhicy of the learned counsel for the defendant-in-error lierein shines resplendent. Who ever heard, we respectfully submit, of a sane and com- petent attorney's comparino- a civil case with a criminal? A case coiicerninf/ hniactj iv, in truth, a criminal case in effect. Which is to say that it concerns the same elements as does a criminal case; namely, the physical liberty and control of the property of the accused. It is, therefore, in the highest degree sophistical and fal- lacious to attempt — as does the learned counsel for de- fendant-in-error — a parallel between the two. Furthermore. In his said claim : "If physical dis- ahility to attend a trial vitiates notice^ how many of the judgments rendered by the courts in ordinary civil cases would be open to collateral attack? If in any true sense an alleged lunatic who is ill and physically unable to appear when the case is called for trial is denied op- portunity to be heard when the court tried the case vithout him, every other litigant who is in the same un- fortunate predicament is equally denied opportunity to be heard. No one, however, has as yet had the temer- ity to advance this proposition." As in his aforesaid claim, pp. 152-153, in his aforesaid Statement, the learned counsel for defendant-in-error again seeks to confuse the Court by his reference to procedure in ordi- nary civil eases. There is ahsolutely no requirement ''in ordinary civil cases'' that the defendant he present in Court. He may be present or absent as he chooses, or as circumstances permit, and the validity of the Pro- ceedings, and of the judgment rendered are nor atfeitcd either one way or the other. • In Lunacy Proceedings, hon-erer. we respectfully sub- 454 mit, the practice is quite different. As such Proceed- iiif/s involve the right of the man to his liberty, the policy of the Law, and generally the letter of the Law, con- templates and requires that the alleged lunatic be per- sonally present, although the statutes quite frequently provide that his presence may be dispensed with. The present case is one ichich had its origin in fraud and deception practised upon both the alleged lunatic and the Court. That fraud and deception teas continu- ous. By means of it the falsely alleged lunatic was placed in, and confined in "Bloomingdale," a^id was reduced to that p)hysical state which prevented his per- sonal presence in Court during the 1899 Proceedings. And, therefore, it was by means of that fraud and deceit that he teas deprived of his opportunity to be heard in the said 1899 Proceedings, before the Commission and Sheriff's Jury. The parties in interest in opposition to plaintiff-in- error tvere the same throughout the Proceedings. They were guilty of the fraud under which, plaintiff-in-error, a citizen of the sovereign State of Virginia, was in- duced to leave that Commonwealth and go to New York City within the territorial jurisdiction of the Court, which it was tlieir intention to use for their fraudulent purpose: namely, for ylaintiff'-iu-errors incarceration; and for tJir stripping of phiiniiff-in-error of liis prop- erly. They continued the yraetiee of that fraud through the various stages of Procedure under the Ncw> York Lunacy Law, to, and including the hearing before the Commission and the ^^hcriff's .Jury: ulien, by reason of plaintiff-in-error' s physical disability, brought on by their fraudulent acts, it urns impossible for him to be present. Fraud practised upon, a Court which is eon- ducting a Hearing in Lunacy — that fraud being for the purpose of inducing the Court to dispense with the 455 personal preseiue of the alleged lunatic before the Jury, and aciualhj rcfiHltiufj in the Court so dispensinoj with his i)resence — sJunild be held by this learned Court, we respectfully submit, and irill be held — we confidently believe — on the authority of I'liited States versus TJiroch-iiioitoii, siijira, to vitiate the entire Proceedings. Said learned counsel for defendant-in-error says: '*Tlie only offer on this score is the offer to prove the plaintiff'-in-error's physical disability at the time." But this is not the only offer. This is only said learned counsel's way of stating to the Court what he would have the Court construe to be the only off'er. The oft'er really is to prove the plaintift-in-error's physical dis- ability at the time, brought on hi/ Jiis incarceration in '"Blooniingdale/' accomplished hij means of fraud and, conspirac}/, practised not only upon him, hut upon every Judicial Official of the State of New York who was in any manner connected u:ith his case. As has been said above — a case concerning lunacy is in trutJi a criminal case in effect. The ett"(M't is identical — in ])laintitt'-in-error's case — with a conviction, on a charjie, of murder in the Second Degree— iiiV,iw\y, total deprivation of liberty for life; tottii disfranchisement for life; total deprivation of the enjoyment'^ 4. (^i])s IX AND X" Trial Brief, p. 245. And that the i)ractice from tiiat day for centuries — up to 1754 — was as follows: "A petition to the Lord Chan- cellor suggesting idiocy or lunacy in a ]>articular per- son of competent jige and verified by affidavit of facts to issue a writ to the Sheriff or Escheator of the county where liis residoice was, to try by a jury and personal emiinination of the ])arty whether that suggestion was true or not." Here, we res]K'ctfully submit, from tlic dimmest anti- quity of the Common Law we tind the hall mark of Criminal IM-ocedure branding Lunacy Procedure. We find first : the Sheriff or Escheator — the latter the offi- cer who looked after escheats — or land forfeited to the Kinu bv T-ebellion. The Sheriff — a strictlv criminal officer- — the Escheator a Politico-Criminal officer. We find ne.rt: the birth-right of all Englishmen, the most priceless of their political possessions, trial by jury. We find lastly: trials non in (ihsentia: not as was ]>laintiff- in-error's, but trijils face to face — confronted bv his ac- 457 ciisers. And who (ir<' liis lU-ciissfTs? Men in a jon'Kjn State — as was the Sheriff's Jury in the 1S90 Prooeed- ings. Not — his own neighbors — in "the eonnty where his residence was" like the cloud of witnesses to plain- tiff-in-error's sanity in the Virginia Proceedings of Nov- ember 6, 1901; and in the Deposition at Charlottesville, Virginia in 11)08* At this point it is necessary to point out, we respect- fully submit, that it is a mistaken notion of the origin of the Law of Lunacy to suppose— as some New^ York State decisions hold — that the jurisdiction of the Lord Chan- cellor over persons of unsound mind in England was in its origin a Chancery or Equitable Jurisdiction, such as the jurisdiction over married women, for it was origin- ally in the King as pater patriae, one of whose preroga- lives it was to guard lunatics, idiots, etc., and take care of their lands. Although there are several New York decisions hold- ing that procedure in lunacy cases, being derived from the Court of Chancery, is within the power of the Su- preme Court of that State to modify at its pleasure, without constitutional or common law restrictions as to notice, trial by jury, etc., these cases proceed upon a mistaken notion of the English law at the time of the adoption of the New York State and Federal Con- stitutions. The accompanying authorities show the following to be the case. The jurisdiction of the Chancellor over persons of unsound mind in England was not in its origin a chancery or equitable jurisdiction such as the jurisdiction over married women, but was originally in the king as pater patriae, one of whose prerogatives it was to guard lunatics, idiots, etc., and take care of their lands. *Appenclix, pp. 1-120, inclusive. 458 Statute De Praerogativa Regis 17 Edw. TI. st. I., A. D. 1324. Caps IX and X. Cap IX. (Couceruing idiots.) 'The King shall have the onstodv of the lauds of na- tural fools" (idiots) ''taking the profits of them with- out waste or destruction, and shall find them their neces- saries, of whose fee soever the lands be holden. And after the death of such idiots he shall render them to the right heirs ; so that bv such idiots no alienation shall be made, nor shall their heirs ])e disinherited." Cap X. { Concerning lunatics. ) "Also, the King shall provide when any ( that before- time hath had his wit and memory) happen to fail of his wit, as there are many lu^ving lucid intervals, that their lands and tenements shall be safely kept without waste and destruction, and that thev and their house- hold shall live and be maintained competently from the issues of the same; and the residue beyond their reason- able sustentation shall be kept to their use, to be de- livered unto them when they recover their right mind ; so that such lands and tenements shall in no wise with- in the time aforesaid be aliened ; nor shall the King take anything to his own use. And if the party die in such estate, then the residue shall be distrilnited for his soul bv the advice of the ordinarv." 459 This prerogative was exercised by the King through his chaiU'(4lor, not qua Chaiicenor, hut merely as a miuis- terial officer or agent. The right and duty to act for the King could have been delegated to any other Crown officer. The royal prerogative in regard to lunatics wight he delegated to other great officers of State, 4 Bro. C. C. 233. An instance is recorded of the warrant having been given to the Lord High Treasurer^ 2 Dick. 553. The true source of the Chancellor's power in cases of lunacy, idiocy, etc., is always recognized by the English courts, is iiientioned by Blackstone, and was applied in Sherwood v. Sanderson, 19 Ve&. Jr., 280. Lord P:idon, Chancellor (18-5) at p. 285 said: ''This application (for costs made by the petitioners in an unsuccessful proceeding to declare Kitty Sherwood luna- tic ) considered first as made in the lunacy alone is made to the Lord Chancellor not as Chancellor, but as the person having under the special ivarrant of the crown the right to exercise the duty of the crown to take care of those who cannot take care of themselves. The ap- plication has therefore no concern with anything pass- ing in the Court of Chancery, hut is made to the person holding the Great Seal, to whom the Crown has usually thought i)roper to vest this jurisdiction, as it would he made to any other person having that authority/'' The Lord Chancellor "or Lord Keeper ( whose au- thority by statute 5 Eliz. Ch. \S, is declared to be exactly the same) is with us at this day created by the mere delivery of the King's Great Seal into his custody * * * is the general guardian of all infants, idiots and luna- tics; and has the general superintendence of all charit- able uses in the kingdom. And all this orer and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery ; where- 460 in, as in the exchequer, there are two distinct tribunals; the one ordinary, beini;- a court of common law ; the other extraordinary, beinii' a court of equity * * * in this ordinary, or lei^al, court is also kept the officina justifiae out of \yhich all original writs that pass under the j>reat seal, all commissions of * * * bankruptcy, idiocy, lunacy and the like do issiie." Bl. Comm. Bk. III. Chap. III. pp. 641, 642. In a note to E.r Parte Ogle, 15 Ves. Jr., 112, the re- porter refers to the Lord Chancellor sitting in lunacy as "the great officer who administers this branch of the Crown's prerogatiye. " From time immemorial it was held in England that the King, and a fortiori, his Chancellor, had no power to seize the lands or person of a lunatic or idiot with- out previous adjudication of the fact of idiocy or lunacy through the verdict of a jura founded on personal ex- ami nation. 'The Crown as parens jurtriae has by virtue of its pre- rogatiye the care and custody of the person and estate of those of non sane memory and Ayho, from want of understanding are incapable of taking care of them- selyes. This royal preroyatire seems to have existed anterior to ihe statute of 17 Ed. II., called Urer., Regis. ^ which is declaratory only ; the date of its origin is not easy at this remote period to ascertain with cer- tainty. It is, howerer, a right which is never exercised hut upon a previous rjifice {or Inquisition) found." Elmer, Pr. in Lun. |». 1 and author, cit. In Loi'd Ely's Case, I Ridgw. Pari. Ca. 515 (1764), the Court charging the jury empaneled in a commission de lunatico said : "In order to come at this jiroof (re(|uired to rebut 461 tJie U'fjal /nc.siiiHpfioH of saniti/) the priK'tice in former times was on a petition to the Lord Chancellor sug- gesting; idiocy or Innacy in a particular person of com- petent age and verified by affidavits of facts to issue a writ to the sheriff or Escheator of the county where his residence was, to try by a jury and personal e.immina- tioii of the party whether that suggestion was true or not. The practice of latter years has been to try these matters under such a special commission as this upon which you have been sworn/' (Pp. 520-1.) In 1751, the Chancellor said : ''The old way was bv writs directed either to the Escheator or the vSheritf; the modern way, and for a lonii' time, is bv commissions in the nature of these writs; and so it is called a writ de Iiinatico inquirendor Ex parte Soiithcof, 2 Yes. Sen. 401. At the common law and down to the act of 1833 (3 i 4 William IV, V. 36) the English lunacy practice was as follows : "The question whether a person was idiot or lunatic was determined either by writ or by commission. The former procedure which was the more ancient, con- sisted in the issue of a writ lo the Sheriff or Escheator of the eoiiiifj/ where the alleged idiot or lunatic resided: to try hjj a jiiri/ and personal e.ramination of the party whether he was idiot or lunatic or not. The writ was issued by the Lord Chancellor on a petition suggesting idiocv or lunacv, and verified bv affidavits of facts, and was returnable into the Court of Chancery, and any person found idiot or lunatic in this way had a right of appeal to the Court of Chancery or the King in Council. "In the course of time the second mode of inquiry above referred to superseded the first. Commissions were issued by letters patent under the Great Seal from 462 the coinmon law side of the Court of Chancery, directed to five persons as commissioners, who, or any three or more of them, were to inquire upon the oaths of good and lawful men of the count ij, whether the party named in the commission was idiot or lunatic or not, and as to the extent or value of his property. The commissioners held their inquiry generally in or near the place of abode of the supposed idiot or lunatic; the inquisition, which was required to be made by indenture, and sealed with the seals of twelve jurymen, was returned into Chan- cery, with the commission, within a month after it was taken; and thereafter, if the verdict was one of idiocy or lunacy, the Lord Chancellor referred to one of the ordinary Masters in Chancery the matter of the lunacy, and in particular the duty of ascertaining and reporting upon the property and next-of-kin or heirs-at-law of the person so found by inquisition — questions which although included in the commission were not, in later practice at any rate, investigated by the Commissioners or their jury." Renton. "The Law of and Practice in Lunacy, pp. 329-330. (London 1896.) \ Matter of Runey Dey, alleged to be a lunatic, 9 N. J. Eq. Rep. 181 (1852). Chancellor Benj. Williamson said: ''No person can be deprived of the right to manage his OAvn affairs or of his personal liberty without the intervention of a jury, and in cases of lunacy the verdict of the jury is to be founded, as in all other cases, upon satisfactory and unexceptionable evidence submitted to their consideration." The verdict of the jiiry in such cases, unlike a verdict on feigned issues framed hy a Chancellor in an equity suit, was held conclusive on the Chancellor, and did 463 not mercUj Herrc to hifonn his conscience. If the jury decided in favor of sanity, the (liaiicrUor had no poiver to act further, and the rerdict related hack and an- nulled Jiis previous proceediujis. // the jury found the alleged incompetent insane, it was a matter of abso- lute rif/ht on tlie latter s part to traverse the return and have the issue tried the second time. A trarerse to the return to an jnquisiHon findinf/ a person lunatic is a right by law, even though the Chan- cellor is satisfied: Et parte Wragg' & Ed- parte Feme, 5 Ves. Jr. 450. "The traverse is de jure. It is no favor. The parties apply by petition, stating that they are dissatisfied with the finding; and that stops the commission." Per Loughborough, Ch. Ew parte Feme, 5 Yes. 832. In re Farrell, 6 Dick, Ch., (N. J.) 353. (51 N. Y. Eq., 353. ) 2 & 3 Edw., YI. c. 3 & 6. (1815) ^hcru-ood v. Sanderson, 19 Yesey Jr., 280. "It is remembered that originally the King as parens patriae, liad custody of idiots and lunatics and their property * * * and that it was his habit to com- mit such persons and property to the care of commit- tees. "Later, to avoid solicitations and the shadow of undue partiality in the bestowal of sucli offices, lie became accus- tomed bv warrant under his roval sign manual to dele- gate his power in such matters to the Chancellor who was the keeper of the Great Seal under which grant, by letters patent, to the committee was made. "It became the practice of the Chancellor first to in- 464 quire into the idioey or lunaey, aud to that end to issue a coniniission under the Great Seal directed to persons as commissioners, who were to inquire throiujh a jury as to the matter <»iven them in charge bv the commis- sion; and after a return to the commission, linding idiocy or uusouudness of mind, as the case might be, and trial of a traverse of the inquisition, if the subject of the iu<|uisition should possess sufficient intelligence to M'ish to traverse, to proceed to grant the custody of the person and the property of the idiot or lunatic to a committee.'' (Per Chancellor McCUll, 1893.) Ill re Famuli, supra, at ]). 358. If the second jury found him sane, the proceedings theretofore taken were annulled, and the Chancellor had no power to award costs out of the alleged incompetent's estate, having no jurisdiction irhatever OA^er it. Hlirr wood v. i^andcrsou, supra. In tlie matter of Clapp, 20 How. Pr. 385, held, if the ijKluisitiou finds the alleged lunatic sane, the Court has never acquired jurisdiction to charge the expenses on liis estate. "'But after a junj has passed upon the question and found the alleged lunatic of unsound mind, the Court upon confirming the inquisition acquires com- plete jurisdiction over tlie lunatic and his property." (P. 889.) (Per E. D. Smith, J., 1861.) 77/r onlji instance in irliich I lie (liauccJior could take charge of persons alleged to he incompetent before the qucstio}) of their competency had been determined by the verdict of a jury, was where such care was necessary to preserve the person of the incompetent or the public 465 peaco, (ukI in this case it iras an extraordinary exer- cise of irhat u'c here call the police power, and limited to its precise and narroio end of preserving the person of the incompetent or the safety of the pnhlic. The in- terference must he temporary, pendinf/ the execution of a commission. Temporary Commitment Pending Inquest. "^Aliilc tlie rule is fully reco_i>nized that the Chan- cellor can not permanently assume the custody of a sup- posed lunatic's person or estate without the verdict of a jury, yet it has been held that he may temporarily interfere and take care of persons as to whom a commis- sion has been allowed, until the jurji have passed upon the case." Barb. Oh. Pr. Bk. V, Chap. 6 (Vol. 2, p. 240.) Com:\iitment Only for Safe Custody While Awaiting Trial by Jury. "When a deliu({uent is arrested * * * i^^ ought regularly to be carried before a justice of the peace * * * The justice before whom such prisoner is brought is bound immediately to examine the circum- stances of the crime alleged; and to this end by statute 2 & 3 Ph. & M. ; ch. 10, he is to take in writing the ex- amination of such prisoner, and the infornuitiou of those who lu'iug him ; which Mr. Lambard observes, was the first warrant given for the examination of a felon in the English Law. For at the common law nemo teuehatur prodere seipsum ; and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men. If u]ion this inquiry it manifestly a])pears that either no such crime Avas com- edo) 466 mitted ; or that the siispieio'i ciitcM'taincd of the pris- oner was wholly grouudless, in such cases only it is lawfnl totally to discharoe him. Otherwise he must either be committiHl to prison, or o'ive bail; that is, put in securities foi- his appearance, to answer the charge against him. I'lii.s cominitiiient, therefore, being only for mfc ciistlodi/, wherever bail will answer the same in- tention, it ought to be taken, as in most of the inferior crimes.'' Page 1001 Black. Comm.; Chase. In tlie case of Hri/cc v. (irdlidiit, which came before the House of Lords, sitting as a court to hear ai>peals from the courts of Scotland, the (liancellor said, with reference to the English practice: "The Court itself eini do uothinf/ except to interpose some temporary care when thai temporary care is found to be necessary, and to .sv/k/ the matter to - ti]1()ii itself the care of any individuals either as to their ])ersons or their property, on the ground that they are of unsound mind, without the verdict of a jury." This was also the ancient laAV of Scotland. So Elmer, Pi-, in Lun. and author, cit. (supra.) ''The Crown as parens patriae has, by virtue of its pre- rogative, the care and custody of the person and estate of those of non-sane memory and who from want of un- derstanding are incapable of taking care of themselves. This Roi/aJ prerof/ative seems to have existed anterior to ^he Statute of IV E<1. IT. called Prarr. Regis, which is declaratory only : the date of its origin is not easy at this remote period to ascertain with certainty. It is, however, a right which is never exercised, but upon a previous offiee {or inquisition ) found.'' So Lord Erskine in the Cranmer Case. "I have no authority to act upon his liberty and his property, except u])on a rercliet.'^ In Cranmer, Ex parte, 12 Vesey Jr. 445. (1806). A commission was issued to inquire whether H. (\ is a lunatic. The jury found that he was so debilitated in mind as to be unable to manage his affairs. On mo- tion to confirm: held, return should be set aside and a new inquiry ordered for the railure of the jury to find a "lunatic" or not in the words of the commission. The Chancellor (Erskine) observing: "I have no authority to act ujion his liberty and his property, except upon a veidict, expressed in legal words." Hence the jurv must find on the issue of the alleged 468 incompetent's sanity, unambiguously ; else the court is improperly substituted for the jury. Accordingly, the Chancellor quashed the inquisition and ordered a new one. On the second application for a fresh commission (in- stead of a fresh execution of the former one, be it re- membered) the Chancellor said (api)arently in response to the query of counsel) : "The party certainly must be present at the execution of the commission. It is his privilege.'^ (p. 455.) That the foregoing is a correct statement of the origin of the powers of the Chancellor in lunacy cases is ad- mitted in Hughes v. Jones, 116 N. Y. 67. ''The origin and history of lunacy proceedings throw some light -ipon the subject. It was provided by an early statute in England that "the King shall have the custody of the lands of natural fools ( idiots ) taking the profits of them A\dthout waste or destruction, and shall find them in necessaries, of whose fee soever the lands be holden ; and after their death he shall restore them to their rightful heirs, so that no alienation shall be made by such idiots, nor theii* heirs be in anywise dis- inherited." - (17 Ed. II. Chap. 9.) The same statute provided for lunatics or such as might have lucid intervals, by making the King a trus- tee of their lands and tenements, without anv beneficial interest, as in the case of idiots, who were the source of considerable revenue to the crown. [Id. chap. 10; Beverley's case, 4 Coke 127r/ ; 1 Blackstone's Comm. chap. 8, No. 18, p. 304.) This statute continued in force from 1324 until 1863. (Ordronaux Judicial As])ects of Insanity, 4.) 469 The method of procedure thereunder is described by an early writer as follows: "And, therefore, when the Kinj? is infornied that one who hath lands or tenements is an idiot, and is a natural from his birth, the king may award his A^rit to the Escheator or SJieriff of the county where such idiot is to inquire thereof." (Fitzherbert de Nat. Brev. 232. ) The object of the tvrit was to ascer- tain by judicial investigation whether the person pro- ceeded against was an idiot or not, so that the King could act under the statute, for his right to control idiots or lunatics and their estates did not commence until office found. (Shelford on Lunatics, etc., 14.) Sul)- sequenbly authority was given to the Lord Chancellor to issue the writ or commission to inquire as to the fact of idiocy or lunacy, and the method of procedure was by petition suggesting the lunacy. (Id.; In re Brown, 1 Abb. Pr. 108, 109.) It was the ordinary writ upon a supposed forfeiture to the crown, and the proceeding was in behalf of the King as the po- litical father of his people. {Id.; Fitzherbert de Nat. Brev. 581.) As the means devised to give the King his right by solemn matter of record, it was necessary before the Sovereign could divest title. (3 Bl. Com. 259; Phillips V. Moore, 100 U. S. 208, 212 ; Anderson's Diet. tit. Oflace Found.) It Avas used to establish the fact upon which the King's rights depended, as in the case of an alien who would hold land until his alienage was authoritativelv estab- lished by a public officer upon an inquest held at the in- stance of the government. Whether the basis of the action was lunacy or alienage, or otherwise, the pro- ceeding was in behalf of the public, represented by the King. (Id.) The inquisition was an inquiry made by a jury before 470 a iSlieriff', Corouer, Esclieator or other goverumeut of- ficer, or hy coiimiissioiiei\s specially appointed, concern- ing any matter that entitled the sovereign to the pos- session of lands or tenements, goods or chattels, by rea- son of an escheat, forfeiture, idiocy and the like. ( Chit. Prerog. 246, 250 ; Staunt. 55, Rappalje & Lawrence Law Diet, tit. Inquest of Oflace.) ''Thus the law came to us from England, and after the Revolution the care and custody of persons of un- sound mind, and the possession and control of their estates which had belonged to the King as a part of his prerogative, became vested in the people, who, by an early act, confided it to the Chancellor, and afterwards to the Courts. (Laws of 1788, chap. 12, 2 Greenl. 25; LaAvs of 1801, chap. 30; Laws of 1847, chap. 280; I. R. S. 147; 2 id. 52.) '^'^But while the same poicer 'was confided, the jrrac- tice or method of exercising that poiver was not regu- lated h)j the legislature, so that, almost of necessity, the English course of jtroccdure was folb)wed. i ^Matter of Brown, supra.) "For nearly a century there A\as no statute author- iziuo anv court or officer to issue a commission of in- quirj^, except as the right to judicially ascertain who were lunatics, etc., was implied from the acts commit- ting their care and custody at first to the Chancellor and later to the Supreme Court. The right to judicially learn whether a person was a lunatic or not was in- ferred from the right to his care and custody, provided he was sucli. Thus it appears that these Proceedings have always been instituted in hehalf of the public, at first /// hehalf of the King, as the guardian of his suh- jects, and then in hehalf of the people of the State, who succeeded to the rights of the King in this regard. "In both rouiitries the theorg of the proceeding was 471 the mnie, restiiij*' \\\Hm tlie interest of (lie public, as is a])i)areut from an exaniiiiation of the various statutes, aud (k^cksioiis ui>oii the subject already cited. That interest is promoted by taking care of the persons and property of those who ai-e unable to care for themselves, and, by ]>reservinii their estates from waste and loss, preventing them and their families from becoming bur- dens upon the ])nb]ic. The liKiittxltloii is an essential step pi'eliiniiiaiif to ((.spinning roittrol. It is a judicial determination that the person in-oceeded against is one of the class of persons whose care and ciistorocess of law" as used in the Xew York State and Federal Constitutions, implies the right of trial by jury before the liberty of an individual could be interfered with bv the court of Chancerv in the exercise of its Lnn- acy powers, exce])t where the [»olice ])owei-, in cases of fu- rious nuulness. requires a temporary restraint poidituj (in adjudication of inmniti) hi/ "due process of lawJ' In other words the right to trial by jury "in all cases in ichicJi it liii-s heretofore been used'' includes the right in Lunacy cases, which right tin New York State Consti- tution provides (Art. I, Sect. 2) shall "reniain inviolate forerer." Com])are Art. L, Sect. 1, of the ( %)nstitution as follows : ''No member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers." Where ci-ime is concerned nothing could be fairer or more equitable than the safeguary whar ])rocess of rtnisoning does it come to pass, that it is saf(M- in this day and genera- 472 tioii foi' a man to be accused of murder, arson, theft, or what not, so be that it is strictly and unqualifiedly criminal and vile in its nature, how comes it to pass nowadays, that crime is safer than insanity? How is that result obtained? How is it jiot at? On the charge of the vilest crime the alleged criminal is notified of the charge, summarily or otherwise, he is then allowed free and untrammeled access to (ounsel, and if too poor to employ counsel, the law presents him with one. There- upon he has his day in court, protected by all the laws of evidence and procedure in the regular course of jus- tice, l)eing confronted with the accusation against him and the witness or witnesses Thereto — and being allowed to rebut their testimonv and bv his counsel cross-ex- amine them. What on the other hand is the case with the unfortunate, law-al)iding citizen, accused of insanity, or incompetency? With the honorable exception of a few States* of the United States, which give an alleged lunatic or incom- petent as fair a chance for his liberty and property as an alleged criminal ; with the said exception, no coun- try of the first class todav gives the said alleged luna- tic or incompetent any show at all for his liberty or property. The alleged lunatic or incompetent in said countries is summarily arrested without the slightest warning. In nine cases out of ten he does not even know that he has been "examined" as to his sanitv, bv alleged ex- perts therein; as the universal rule among alleged ex- perts in insanity, among so-called ''alienists," is to grossly deceive the party they allegedly "examine," and to lie to him, and cheat him in every way possible of the truth of their occupation and errand. ♦Michigan, Mississippi, Texas, Colorado, and Washington, all afford trial by jury to an alleged lunatic. 473 SoiiK'times thev come — as Dr. Mos(^s Allen Starr came to Chanler on his alleged "examination" in March, 1897 — in the guise of an oculist. Sometimes they come in the guise of gentlemen of leisure, who have no business on earth but to amuse themselves, and whose present pressing business is to amuse the alleged lunatic. Sometimes they come as business men, with a business proposition to advance and, after a few convivial drinks, and a few such bogus business visits, clap their unsus- pecting victim into a mad-house cell. The above are a few of the tricks of the medical trade as practiced by so-called experts in lunacy. There are three ways in which the alleged lunatic may obtain his freedom. First— hj a procedure de luna- tico inquirendo before a sheriff's jury. In that event the alleged lunatic must be more fortunate than Chanler was, or he will not be able to get before that august body. If there is the least likelihood of the alleged lunatic's desiring to go before said body, he will encounter such craft as Chanler encountered at his trial in 1899, before a sheriff's jury. Chanler was confined in the mad-house branch of the "Society of the New York Hospital," said mad-house being falsely known in his proceedings as "Blooming- dale." Said bogus "Bloomingdale" is situated at White Plains, the county seat of Westchester. Chanler had, will he, nill he, been an enforced resident of Westchester County for over two years, from 1897 to 1899. That would seem to give Chanler an enforced domicile in Westchester County. Surh being the case it would seem only natural that any legal proceedings to inquiue into his mental and physical state of being should justly be held at the Court of competent jurisdiction, nearest 474 liis said enforced domicile. There lie has been livini>- for more than two yeai's; there he is, therefore, more or less known ; there he is to be ij;ot at and examined hy the said Sheriff's Jury, provided said Sheriff's .Jnry is an honor- able body of men, worthy of their weighty responsibility of deciding on the earthly fate, on the earthly happi- ness, of a fellow citizen of the United States, who is charged with no crime, whose rei)ntation is that of a law- abiding, decent citizen, held on the innocent charge of a mental affliction. The nearest Conrt of competent jni'isdiction to said bogns ''Bloomingdale" was the Sn- l)i'eme Conrt sitting at White Plains. All the necessary machinery of jnstice was at hand — at the very cell door of Chanler — to be set in motion ft, l)y the Sheriff's Jnry in de lunatico inquirendo proceed- ings institnted as it tnrned ont, by the same parties, or two ont of three of the same 7)arties, who ran him in as an alleged lunatic, without notice, trial, or opportunity to be heard in ISDT. Such was the situation. Add to said situation the fact that Chanlei' was sutfering from a neryous affection of the spinal cord, sui)erinduc"d by the fearful neryous strain he had ])erforce und^M-gone, for more than two years ])ast. This said nervous affection of the spine left his mind ])erfectly clear — as Ids letters from his cell to lawyers he attem])ted to retain in his case duly prove — but it r' short of a hide in thickness, as to render its ])resence on a person with an ordinary sensitive skin little short of torment. Such being' the fact, it is impossible under th(^ circnm- stances, and on the evidence, to (h)ubt tltat (Mianlei- was a real sufferer from said nervous ailiiKiil, wliicli was relieved by the irritation on the surface of the ski?), set up by the said porous plaster. It being therefore provrop- erty, freedom and happiness for life of a law-abiding citizen of the United States? AVhy but for the purpose of depriving said law-abid- ing citizen of the United States of all three, of property, of freedom and of happiness as the result proves. 'First. — At said proceedings the alleged experts in insanity of the other side, swore two opposite ways. Said alleged experts in insanity swore Avhite was black. Said alleged experts perjured themselves on the evidence — until, figuratively speaking, they were black in the face. Said alleged experts tirst swore to the effect that Chanler had nothing the matter with him, in spite of the presence upc^n his person of the said porous plaster, in spite of his being in bed upon their visit to him in 1899, and in spite of his having been so far at least three weeks previous to said visit. Whereupon, a question having arisen — on the strength of said swearing — of having Chanler brought before the Sheriff's Jury at said pro- ceedings, whereupon said question of having Chanler brought before the Jury at said proceedings, hav- ing arisen upon the strengtli of said swearing, a piti- ful spectacle is produced, to wit. At once, and in the twinkling of an eye, the three alleged experts in insanity of the other side, proceed at once to eat their own oaths, and in a body, swear to the exact con- trary of what they had previously sworn. For example. When they thought there was no chance of Chanler's be- 477 iug brought before the jury, said alleged experts swore to the effect that he had nothing the matter with him and eonld readily eome to court if he chose. So soon, however, as a chance cropped up of Chanler's being brought to court — or possibly if fair play had been intended, of a committee made up of members of the Sheriff's Jury, of a chance of said committee of the Jury's visiting and examining Chanler in his cell — so soon, however, as said chance cropped up, the said al- leged experts in insanity, one and all, solemnly mount- ed the stand and as solemnly swore tliat Chanler was not able to be brought to court without detriment to him. If such a spectacle in an alleged court of justice is not open and palpable perjury, what is it? As might be imagined by anyone reading said proceedings a slight discrepancy such as perjury, however open, however pal- pable, passed without a hitch. Nay, more. The dis- tinguished body sitting as the Sheriff's Jury on said occasion, not only swallowed the above palpable perjury without blinking, but on top of such a feat performed —so to speak— a juridical "stunt" of its own, by rising in the person of its distinguished foreman and protesting to the effect that it mattered not to them what condi- tion Chanler was in, whether he was well or ill, that the only thing they desired was to cul the Proceeding short— said Proceedings did not last thi'ee hours, all told— and that to do that they were perfectly willing to consign (lianler to a living death upon their verdict that he was a madman and a fool. As Chanler observes in his affidavit "I shan't say that the jury was bought, l)ut I shall say that if they had been bought they could not have acted differently." So much for the first of the said three ways in which an alleged lunatic may obtain his libertK^ 478 iSecoud. — By beiii^' fortunate eiumjiili to (•oiumunicate with the outside workl in spite of the Cerberus-lilve vigi- lance of mad-house doctors, employees, and keepers. I'nder the rules of New York mad-houses, every letter that goes out from them must be inspected by the au- thorities of said mad-houses. AYhat chance has an al- leged lunatic to communicate with counsel? Third. — If as fortunate as ('hauler, he may escape. DISCUSSION OF THE UNITED STATES CON- STITUTION, SHOWING CRIMINAL PEOCEED- INGS AND LUNACY PROCEEDINGS ANALO- GOUS IN NATURE. As we said above. In the Proceedings in 1899 before said Commission and said Sheriff's Jury, a palpable breach of constitutional privilege was perpetrated, (1) by the Court's failure to order Chanler's production before said bodies in court; (2) failing this the Court's failure to order that said Commission as well as said jury, or, at least committees made up of nuMnl)ers of those bodies, visit Chanler in his cell in the Society of the New York Hospital, at White Plains, for the pur- pose of examining him. T^pon the maxim "Analogy holds good in laAv" how would it look to read in a Court report that the alleged burglar was pronounced hj a brace of doctors as phj^sically incapacitated from appearing in court at his trial, and that in consequence the trial went on in said alleged burglar's absence and tlie jury duly tinding said alleged burglar guilty of the crime alleged, duly convicted said burglar, whereupon the Court duly sentenced said burglar in said burglar's absence to ten years penal servitude? By what right has an alleged burglar more right to a hearing before the Court and jury that tries him and condemns him, than an honest alleged lunatic, or an honest alleged in- 479 eoiiipetent, before the Court and jury that tries lihii and condeiiiiis Iiim:^ By what ri<>lit has an alleged hnri;lar more ri.uht to the enjoyment of a speedy and publie trial by an ini])artial jury, than an honest alleii'ed lunatic or an honest alleiied incompetent? By what rieteiit? By what right has an alleged burglar more right to have com- pulsory process foi* obtaining witnesses in his favour than an honest alleged lunatic, or an honest alleged in- competent? By what right, lastly, has an alleged burg- lar more right to have the assistance of counsel for his defense, than an honest alleged lunatic or an honest alleged incompetent? We maintain that not only is it by NO rif/Jit, hut tliat all pvoccediugs before juries, or Sheriff's Juries, or before a judge, referee, or commis- sion, are flagrantly illegal and profoundly unconstitu- tional when an alleged lunatic, or an alleged incompe- tent is declared insane, or incompetent, or both — as was the case in Chanler's case — either without having been brought before the aforesaid judge, or referee, or commission, or jury, or Sheriff's jury, or — if for any reason this is not done — a Committee made up of mem- bers of the aforesaid jury or the said Commission and Sheriff's jury have not taken the trouble to investigate the cause of the absence, from his trial, of the said alleged lunatic or the said alleged incompetent by visit- ing him and inquiring into it personally. Otherwise the door to perjury and even murder — as indicated by the instances thereof hereafter cited in said Preface — is opened wide; otherwise said Proceed- 480 iuos take on a farcical character analagoiis to xjroceed- ings at which the astral body of an alleged lunatic is sat upon by a Commission and a Jury of — phantona^. Otherwise the Fourteenth Amendment to the United States Constitution would be contravened. It says, Section 1, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citi- zens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property , without due pro- cess of law, nor deny to any person within its jurisdic- tion, the equal protection of the laws." The right * * «■ i,f^ ^g confronted ivith the ivitnesses against Jiiiii; to have compuUorii process of ohtaining loitnesses ill his faror; and to hare the assistance of Counsel for Jiis defense^' are the ^'privileges" of alleged-criminals in jeopardy — in conse(|uence of their alleged crimes — of life, liberty, or property, according to the aforesaid Sixth Amendment to the United States Constitution. If the said "privileges" of alleged criminals are denied to honest alleged lunatics and honest alleged incompe- tents in jeopardy — on a charge of lunacy or incompe- tency — of liberty or pi-operty, or to ang person without distinction of race, colour, honesty, or lack of honesty, intelligence, or lack of intelligence, health, or lack of health, wealth, or lack of wealth, sanity, or lack of sanity, competence, or lack of competence, in jeopardy — on any charge that entails loss of liberty or loss of property — of lil)erty or propertj^, such a proceeding does ipso facto 'Uihridge the privileges" of alleged criminals in the case of said honest alleged lunatics, and said honest alleged incompetents, as well as in the case of said ang person, in contravention of the aforesaid Fourteenth Amend- 481 meut which savs ''No State shall make or enforce aiiv law which shall dhridf/c I he pririlcges * * * of citi- zens of the United States." It is therefore unconstitntional to "abridge the pri- vileges" of alleged criminals in the case of said honest alleged lunatics and said honest alleged incompetents, as Avell as in the case of said aiii/ prr.soii. It is therefore unconstitutional to guarantee "The right * * ^ fQ he confronted irifh the witnesses (u/dinsi lihn; to hare com /Hilsorfj jirocc-ss for ohtainuKj witnesses in liis faroiir : (uiil to hare the assistance of Counsel for his defense," wherever the liberty or property of an alleged felon is at issue, and withhold them wher&ver the liberty oi' prop- erty of a law-abiding citizen, on a charge of lunacy or incompetency, is at issue, or wherever the liberty or property of said an// /terson, on said any charge is at is- sue. If the above pro])ositions are corrcM-t it follows: ( 1 » that "the right * * * to be confronted with the witnesses againsf him ; to havc^ c(tmpulsory process for ol)taining witnesses in his favour; and to have the assist- ance of Counsel for his defense'' — forms part of the "jn-i- vileges" of alleged lunatics and alleged incompetents in jeopardy — on a cliarg(^ of lunacy or incompetency — of liberty, or i)roperty; as well as of said an/j person in jeopardy — on any charge that (Mitails loss of liberty or loss of property — of liberty or property: (2) that so forming part it cannot be abridged. Furthermore. To "abridge the privileges" of alleged crinnnals in the case said honest alleged incompetents, and said an// person, is ipso facto to create class distinction in legal procedure in favour of alleged criminals, and opposed to said honest alleged lunatics, and said honest alleged incompetents, as well as opposed to an// person without distinction of race, colour, honesty or lack of honesty, intelligence or lack of intelligence, health or lack of health, wealth (31) 482 or lack of wealth, sanit}' or lack of sanity, coinpetence or lack of coinpetence in jeopardy — on an^' charge that entails loss of liberty or loss of property — of liberty or property. Such an absnrd anomaly ipso facto npsets an ecpial protection of the laws, and throws more pro- tection of the laws around the rights of an alleged crim- inal than those of an honest alleged lunatic, or an honest alleged incompetent, or those of said any persioii. Such an absurd anomal,y is in direct contravention of the Fourteenth Amendment to the United States Constitu- tion, aforesaid, which says "Nor shall any State * * * deny to anif person within its jurisdiction, tlic c///// person.'- It is therefore unconstitutional to guarantee "The right * * * to be confronted with the wit- nesses against him ; to have compulsory process for ob- taining witnesses in his favor; and to have the assistance of counsel for his defense,-' wherever the liberty or prop- ertv of an alleged felon is at issue, and withhold it wher- ever the liberty or property of a law-abiding citizen, on a charge of lunacy or incompetency, is at issue, or wher- ever the liberty or property of said "any person-' on said any charge, is at issue. Furthermore. If the above pro- positions are correct we have shoAvn : (I) that "The right * * * to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour; and to liaA^e the assistance of counsel for his defense,'' — forms part of the privileges of alleged lunatics and alleged incompetents in jeopardy — on a charge of lunacy or incompetency — of liberty or property, as well as of said "^any person,'- in jeopardy — on any charge that entails loss of liberty or loss of prop- erty — of liberty or property; (2) that so forming part 483 it cannot be abridjiecl. 11 follows therefore that "The right * * * to be confronted with the witnesses against him ; to have compulsory i^rocess for obtaining witnesses in his favour; and to have the assistance of counsel for his defense," in the case of said alleged luna- tics, and said alleged incoinpeteuts, as well as in the case of said 'V/y/^ pcrsoii' An due process of law. It fol- lows, therefore, that due process of law in said respect, touching said alleged lunatics and said alleged incom- petents, as well as touching said ''ainj person- ■ is identi- cal in said respect, with due process of law touching al- leged criminals and alleged malefactors. Concluding re- marks in reply to brief of defendant in error before Cir- cuit Court of Appeals. COMPARISON OF A CIVIL CASE WITH A CASE IN LUNACY We shall now, we respectfully submit, in closing this section, give a brief instance which throws into some- what dazzling relief the audacity, sophistry and falla- ciousness of the learned counsel for defendant-in-error. Said learned counsel says, with inipudence little short of brazen, we respectfully submit, that: "'If in any true g'ense an alleged lunatic who is ill and physically unable to appear when the case is called for trial is denied op- portunity to be heard when the Court tried the case with- out him, everi/ other litigant who is in the same unfor- tunate predicament is equally denied opportumity to be heard.'' Let us take the civil case of a Commission Mer- chant in New York City sued for the defective condition of a carload of onions shipped from Flint, Michigan. The commission merchant is seized at the time of the civil suit with a nervous affection of the spine which forces him to keep his bed. He, of course, has free ac- cess to counsel. The latter draws up the Answer to the Complaint in said civil suit, and brings same to the 484 Commission Mercliaut, wlio signs and swears to same in bed before a Notary. Therenpon the ease is called. Thereupon the case is heard and the Answer to the Com- mission jNIerchant read out in open Court. And a portion — say a bushel — of the res- (jestac — said carload of onions — whose physical condition is in dispute — duly at- tested — is brought into Court, and marked ''Defendant's Exhibit A." The onicms are found to be sound, and in a healthy condition, and the Commission Merchant wins the case. Take now the case of an alleged lunatic whose sanity and competence are in (luestion. In the first place he mmiof sen(>' the aforesaid statement l)ased on what ire saw in flic iicirsjuipers. Plain tiff-in-error, we respectfully submit, was, at the time— utterly eut off from all communieation with his own business aff'airs — dependent upon the newspapers for aJJ inforinafioii regardiiif/ Jiis own private affairs of irhatever nature — as he is fodaij. But it is far from immaterial — the use said learned counsel for defen- dant-in-error attempts to make of our error — // error it be — by lal)elino; it a '^delusion" and ''the work of an insane nidii" — to quote the exact words of said learned counsel for defendant-in-error, page 831 ihid. Our in- ference — on page 507 ihid — that the ('haulers- had ex- erted influence of some sort upon said David B. Hill in order to induce said Hill to desert the plaintiff-in- error after visiting plaintift'-in-error in his cell and Jicarin;/ that foul pJai/ had heeii used af/ainst plaiii- tiff-in-error — that pcrjiiri/ had been had recourse to — anioiif/ olhcr things — cmr said inference was based, we respectfully submit — upon the hypothesis that no lawyer mindful of his oath to protect the laws wouhl have allowed such a suspicious circumstance as the presence of foul play — the presence of perjury — to pass unnoticed — we respectfully submit — without good and sii hsian t ia I rea son s. It might be well to state — we respectfully s\d)mit — that said two letters from said Woods were dated March 20th, and March 80th, 1900. riaintiff -in -error, thoiu/h placed on ''parole" in the earlij sunnner of 1800 — at the time of the 1809 Proeeedinf/s — was phj/sicallij iinahle to irall: at all until Aiif/iist of said i/ear — as irill he sJiown shortlji 1)1/ the Record. He then began to walk, and kept it up until by January, 1000, he was able to walk fircire 488 miles ill three hows — a distance sufficieut to ena'>le him to post letters under liis ''Bloomingdale" alias, tj e alias J he employed for this purpose while in ''Bloominj^, ale" — of ''James Chihvorth" at Kensico Postoffic-e, si: miles from White Plains, wherein ''Bloominodale" is located? The next effort plaintiff-in-error made to procure counsel Avas the sending- of a letter to Attorney George H. Barnes, of New York City, a former classmate of plaintiff-in-error at Colundna University — asking his good offices to employ the distinguished counsel Delos McCurdv of New York Citv — personally known to plain- tiif-in-error — besides both said McCurdy and plaintiff- in-error l>eing mend)ers of the jNIanhattan Club, New York City — to bring habeas corpus proceedings looking to ])laintiff-in-error's release from "Bloomingdale." Through no fault of his, said Barnes signally failed in retaining said McCurdy for plaintiff-in-error. The his- tory of this is fully given in the deposition of plaintiff- in-erroi-. It is touched on here — in the case of said Barnes — on ])ages 2(;0-278 and 405-471 and 477-484 and (501 -002, Appendix. The next effort plaintiff-in-error made to procure counsel was the sending of various and sundry letters to his venerable friend the late Thomas Jefferson ^Nlil- ler of the said Manhattan (^ub, New York (Hty— from Kensico, AA'estchester County, New York, aforesaid, un- der plaintitt'-in-error-s then alias aforesaid of "James Chilworth" — which alias was changed each time plain- tift"-in-error fled from and into a different State of the United States in the pursuit of liberty and happiness. For instance: upon ileeing from "Bloomingdale" Thanksgiving Eve, 1900, into the State of Pennsylvania, plaintift-in-error assumed the alias of "John Childe." At the expiration of some nine months — more or less — and upon ])laintiff-in-error"s departure from the State 489 of J*(Miii:'ylvaiiia into the State of Viri;inia, plaintilf-in- 'vroi- a!«',Jdiiied the alias of 'Maiuos Chilton" for the six weeks, i^^ore or less — dnrino which he was at the "Arling- toTi TTo '1," Lynchlmrii, N'iriiinia, in whieh city of Lyndi- bnrii', tlie late Tnited States Senator John Warwick Daniel had liis law oHfices and home. As afoi-esaid : The next effort plaintiff -in-eiTor made to pvocnre counsel was the sending, of various and sun- dry letters from Kensico, Westchester County, New York, under plaintiff-in-error's then alias of "James Chilworth'' — in order to enable plaintiff-in-error to send and receive letters unbeknown to the "Bloomingdale" authorities — by whom the sending of uucensored letters ^vMs — as aforesaid — forbidden — to plaintiff-in-error's old and tried friend, the late Thomas Jefferson :\liller, of the :\Ianhattan Club, aforesaid, by whom plaintiff-in-error had been introduced to said Delos Mc(Hird.y. Said somewhat voluminous correspondence is indexed — Ap- pendix — under the caption : "Miller, Thomas J., Cor- respondence with plaintift'-in-error re Delos ^McCurdy," 457-470. \Vc rvspccifiilhi siihiiiit tliat the Icifcr from said ThODKi.s Jeffci-soii Miller to pUtiiitiff-iii-en-or ddfed merely ''^epteinher 'IXfli — oit pafje MV2 ibid — f<]i(uihi hare the year "1901" — a/f'i.red tJierefo; since said letter was in reply to one from plaintiff-in-errcu- written in Sep- tember, 1901, after plaintiff-iu-error's escape frcmi ''Bloomingdale" and arrival in Virginia.- To resume. Said Thomas Jefferson :\Iill(n- had done his best to induce the learned Delos McCurdy, of New York, to take plaintiff'-in-error's case, but, through no fault of his— said Thomas Jefferson Miller— said Delos McCurdy did not take plaintiff-in-error's case. The next effort plaintiff-in-error made to procure coun- sel — and this was plaintiff-in-error's last and final effort 490 prior to his escape' in despair of proeiiring counsel on any terms while in so inauspicious a locality as a Mad- house — the final effort plaintift'-in-error made to procure counsel was a correspondence instituted with an old col- lei;e classmate and brother New York lawyer — touched upon on pp. 470472, //)/(/ — Halstead II. Frost, Jr. This proved as unfruitful as all plaintiff -in-error's former cor- respondence in the premises. >S'o plaintiff-iii-crior con- eluded to escape and did ihereiipon, Tlianksgiring Eve, 1900 — escape, and fled to PhiladelpJiia, where he remain- ed in a private sanatorium for si.ic months under ob- servation at the hands of leading alienists at liis own request in order to offset ihe nearlij four j/rars of en- forced confinement in '' Bloom ingdale.'^ A verij few n-eels of ohservatioii sufficed to prove plaint iff -in -error's entire sanitg and ce in New York earlier, but profes- sional engagements have kept me busy here. I had 497 hoped to be there last week or tliis week, when I in- tended to see yon personally after consnltation with onr nuitnal friend, JMr. Brisbane, bnt find myself nn- able to get away at present. It was iiM])ortant before takini> any action that I shonld learn more of vonr sit- nation from mutual friends. Under the eireumstanees by reason of my other engagements and the absence of more authentic information in regard to your sit- uation I do not see my way clear at present to take up your case. I regretted to learn of your illness, and trust that by complete rest you nuiy speedily recover your health. With kindest regards, I remain, Very truly yours, DAVID B. HILL. We respectfully submit that the above letter is surely a remarkable one to emanate from a la^yyer in the practice of his profession — as said David B. Hill then was — who has had a colossaj criiiH' shown to him by a man fully capable of satisfying his pecuniary compen- sation — to put it somewhat mildly — so soon as said lawyer should have had the honour, the courage, the character and the sense of Professional duty — not to speak of public duty to the administration of .Justice and the support of Law and Order — not to hint at Patriotism or any of the political cafchn'ords so frc- qucntJij sonorous!}) faJUng from the rarchj closed lips of the Hon. Dar.id Bennett Hill — to set the wheels of Justice revolving and enabling the unfortunately sit- uated plaintitf-in-error to avail himself of that — to a lawyer at least — sui-ely reasonable, surely Constitu- tional privilege — to wit — his day in court. But no. Said distinguished Statesman and defender of Demo- cratic principles for so many years in the very centre (32) 408 of tlic aiciin of National politics supinely folded his hands and then swiftly and craftily "sidestepped" — so to sj)eak — any future consecjuences of his afore- said desertion of an American citizen in distress and the ])al])al)le victim of as vile, venal and bold-hloodedly mali<'ions and nefarious a consi)iracy as history -holds any record of — hy crcatinff an utterly false iiiiprcssion ill Jii.s said letter. Which conveys the idea that said David I>. Hill has merely heard of ])laintiff-in-error"'s ti'onble — in the first place — and that said trouble is merely a jilii/sieal one as insiiiuificant, in fact, as a pass- inji' physicjil indisposition! Said David B. Hill would never for one moment be suspected — from the per- usal by a third party of said letter — of havin^i' discussed a <2;reat crime with a brother mend)er of the Bar of New York — plaintiff-in-error — in the cell of said lawyer for some two hours, as he did (Appendix, 598), and l)een put thorouj>hly in touch with the whole nefarious situation to such an extent that all any competent at- torney needed to have done would have been to verify the alle_nations of plaintiff-in-error; which would have resulted in convincinii any comi)etent attorney that jM^rjury and nothini; more legal or substantial than ])erjury, sujryorted hi/ fanrili/ dissensions of i/ears' stand- ing, iras tlic foandation of the situation. The reason said David I>. Hill had the recklessness to write such a l(4ter to a l>rothei- lawyer in the aforesaid almost un- parallel(Ml ])redicanient of distress, lawlessness and reck- less disregard of the least vestige of his Constitutional rights, is that said I)avi. Hill well knew the ])ow(M-fnl cotcTic. the iiildcd cliqnc, coiisistinu' of the proudest, wealthiest, oldest anar thereof, as well as the surely not audaciously bold Public Prosecutors — either State or Federal on Manliattan Island.* Fur- thermore, said David B. Hill very well knew that the most prominent attorneys would be at once retained by the ])laintiff-in-error''s enemies, wliich said promi- nent attornevs would t till the air with loud outcries *Where rich men who are socially prominent are concerned — not where East Side "gangsters" are in issue. Vide the utter collapse of the formerly truculent W. Travers Jerome in re the prosecution of the Traction Magnates after said doughty Public Prosecutor's visit to said magnates "inner offices." After — as a New York City paper expressed it editorially — said Jerome: "Caught his foot in a Traction frog." ■5- As does said Joseph H. Choate, Jr., in his said Opening Speech — "Exhibit I," Brief, Appendix, p. 830 — "The most eminent and re- spected citizens of this city!" And again, when Hon. Frederick A. Ware — in his Opening Speech, p. 820, Appendix — spoke the simple truth about "Bloomingdale," and described it as said Dr. Samuel B. Lyon did [(T. R.. p. 114, fol. 224). Q. "Is the Bloomingdale Asylum for the Insane part of any Institution in this city? A. It is the Insane Department of the New York Hospital."! — adding what is vouched for by the outrageous mulct of some twenty thou- sand dollars aforesaid of plaintiff-in-error's money — vouched for by 500 against the preposteroiisness of asserting- that men in the position — social, financial and otherwise — of the so- called "Governors" of "Blooniingdale" could under any conceivable circumstances err or go astray — as is so frequently the case with less wealthy, prominent and powerful men than said "Governors" of "Blooming- dale." Said David B. Hill well knew the proneness of the mob to admire and stand in awe of wealth and posi- tion, and therefore the tendency of the mob to disbe- lieve any attack upon the rectitude of the rich. Last- ly, said David B. Hill well knew that plaintiff-in-error was civUiter mortuus in New York and would in all probability be in articulo mortis and beyond — before he emerged — or at least his corpse — from "Bloomingdale." There was, therefore, little risk in writing such a false and deceptive letter as the one said Hill did. The extraordinarv — the inonstroiis, inhuman — atti- tude of said Delos McCurdy towards plaintiff-in-error is not far to seek. Either said Delos McCurdy was as afraid of said embattled and gilded Phalanx — said Board of "Governors" of "Bloomingdale" as, on the evidence — was said David B. Hill — or said Delos Mc- Curdy happened to be in the employ, professionally, of some member of said Boaraiiist the liberty, property, happiness and Con- stitutional rights of an American citizen and a brother member of the Bar of New York must become subservi- ent thereto. The amaziu<»ly peculiar attitude of plaintiff-in-error's old friend, the late Captain Micajah Woods, Common- wealth's Attorney for Albemarle County, is charge- able first, last and all the time to the poisonous venom injected into said Woods' mind by plaintiff-in-error's aforesaid false friend and former law-partner, said H. V. N. Philip. It will l)e remeuibered that said Philip succeeded in ingratiating himself into the confidence of plaintiff-in-error sufficiently to induce plaintil¥-in- error to entrust to his keeping the most precious docu- ment in the world to plaintiff-in-error. To wit, the long letter aforesaid to said Captain Micajah Woods, set- ting forth the iniquity of the conspiracy concocted against plaintiff-in-error by plaintiff-in-error's unnat- ural millionaire brothers and sisters, to possess them- selves of plaintiff-in-error's large and steadily grow- ing estate. It will be remembered that said H. V. N. Philip was false to said trust and instilled a fatal doubt into the mind of said AYoods bv saving to him in ef- feet : "Do nothing in this matter without first notify- ing me." The fatal effect of said words is readily dis- cernible from the tenor of said AVoods' letter brought to plaintiff-in-error by said H. V. N. Philip upon the latter's return from Charlottesville, Virginia, where said AA^oods resided. Said letter promised to give the whole matter the most careful consideration, to advise with the late United States Senator, John Warwick Daniel, of A'irginia, and then to let plaintiff-in-error hear from him. We here insert said letter. 502 "LETTER FROM CAPTAIN MK^IJAH WOODS TO PLAINTIFF-IX-ERROR, DATED OCTOBER 14, 1897; pp. 25S, I'.VJ, I'dO, Appendix. Q. By Counsel for Plaintiff: Mr. (^laloner, I hand you a lettei- and the envelope^ that contains it, and ask you to describe both the envelope and letter, and the circumstances under which they were received? A. This is an envelope addressed Mohn A. ( 'hauler, Esq., N. Y. Politeness of,' name underneath blotted out by me for fear that the asylum authorities would get hold of it. Tliis letter was received by me, as a fjencil note in blue pencil indicates, made under the sig- nature of the writer in the following ^^'ords 'About three, Saturday afternoon October Kith, 1897. .1. A. (\' This is a letter that I received from the late Micajah Woods, the Commonwealth's Attorney of All)enmrle County, Virginia. I was in 'Bloomingdale' (falsely so called). The Society of the Ne\>' A^ork Hospital, White Plains, and reads as follows : 'Charlottesville, Va., October 14, 1897. Tn the left hand to|> corner ap])ears the following in print : '^licajah Woods, Attorney at Law, Comnum wealth's Attorney.' 'John Armstrong Chanler, Esq., Mv Dear Sir :— ' 'Mr.' and the name that follows has been blotted out by me, and the remainder of the letter reads as fol- lows : 503 'has this day (h'livcred to inc your scaled ((Mniiuiiiica- noii, coiitaiuiiiL;- enclosures. 1 assure yon I will Jiive the whoh^ matter the most careful consideration. I will advise with the gentlemen yoii refer to and will then let von hear from me. 1 am now eni;a«ied in trial of important cases in court and will be so en-iajied durinii the next week. With my best wishes and sincere re!j:,ar(ls. Sincerely your friend, MICA.] All WOODS.' Tliis is Ihe rejily to the letter just olfered in evidence, which was sent by me to Captain Woods by a special messeni»er to Charlottesyille on or about the lotli of October. By (Vmnsel for IMaintitf: We iile this letter and envelope in evidence, and ask that the same be marked for identification and made a pai-t of the evidence in tliis case. Said letter and envelopes are marked 'Plaintiff's Ex- liibits 3<) and 31)-a.' '' * * * Wv i-espectfully submit that we have not ov(M'drawii the situation in describing];' the treachercms words of said H. V. X. rhilip as havin.o- had a "fatal elfect" upon said Captain Micajah Woods' plediicd word--as set forth in said letter, dated October 14th, 1S!)7, to plaintifl"-iu-error. For not a line canu^ to plaintiH'-in-error until in the early part of the year 1!I()0, plaintiff-in-error wrote said Cap- tain Woods. >Ve now insert letters from and to said Captain Woods to plaintiff-iii-error under the hitter's then alias afore- said of James (Mnlworth from Kensico, Westchester County, New York — some six miles from White Plains. *> 7 504 LETTEPvS PASSING BETWEEN CAPTAIN MICA- JAII WOODS AND PLAINTIFF-IN-EIJROi: IN 1900. From ''Blooniiiigdale," 4:73-47r), Appendix. By the Witness: Tlie next letter is numbered "(I)."' Tliis contains two letters from the late Captain Micajah AVoods, Commonwealth's Attorney for Albemarle Coun- ty, Va., one dated ''Charlottesville, Va., 20 .March,' 1900," addressed to "Jas. Chilworth, Esq., Keusico, N. Y.," which I now read: "Mv Dear Sir: — Yours received, I scarcely know what to do or advise in your case. I am so constantly engaged here both day and night in my business, that I have been unable U) ffo to N. Y. to consult with certain friends of vours as to what course to pursue. It is certain that some promi- nent friend of yours in N. Y. could serve you more efficiently than I could, as I am a stranger to the people there and not familiar with the N. Y. procedure in such cases. I would suggest that you communicate with James Lindsav Gordan, Asst. Dist. Attornev, New Y^ork City; he is an old friend of yours — on the ground, and familiar with the influences that will have to be exer- cised to restore vou to libertv arid the exercise of your rights. "I certainly sympathize with you in youv situation, and sincerelv wish I could do something for your relief. "My people are all well. With kindest regards, I am Sincerely yours, (Signed) MICAJAH WOODS." Then my reply in blue pencil to the same, to Captain ^licajah Woods, dated March 20, from White Plains, 505 "The Society of tlie New York Hospital," White Plaius, N. Y., March 2(ith, 1900," which I ikav read: "Hon. Micajah Woods. "My Dear Captain : — "Yours of Marcli 29tli to hand. I am very much ob- liged to you for replying to my previous note so promptly, I fully comprehend the difficulties surrounding your position. The gentleman you suggest I should employ in my case is unavailable. I have, however, otlier lawyers in view. I have just written one of them in relation to my case and made an ap])ointment foi- one meeting secretly. You will readil^^ understand the importance to me and my case of my letter to you dated July 3rd, 1897, and its enclosures, to- wit : a certified copy of ray commit- ment papers and a page from "The Quick or the Dead." I have a rough penciled copy of the said letter, but it is not in shape for ready reference or easy legible reading. As this letter contains a comi)lete and exhaus- tive histoi-A' of my case, written A\'hen the events were fresh in my mind, you will easily see its importance to me in giving a complete and succinct recital of the events which led to my arrest and what followed, to my law- yers, I, therefore, enclose a special delivery stamp, which is almost as sure as a register stamp, to insure the safe arrival of the aforesaid vitally important docu- ments to myself. Please mail them to James CliUwortli, Kensico, Wcstchesfer Co., 'Ncic York. I hope before long to haye the pleasure of calling on you in Charlottesville and laughing over the predicament in which I am at present. In the meantime, please let the strictest secrecy clothe everything I have written von. 500 "Hopiiii; to hear from you by roluni mail, and with sincere regards. Sincerely yours, -JOHN AKMSTRONG CHANLER." (The original signature is in ink.) Tlien another letter from the said Captain Micajah Woods, dated ''(^larlottesville, Va., 30 Maj-ch, 1900," which I now read : ":My Dear Friend: — "Yours received. 1 have mailed to you this morning the documents you wish. The paper you wrote is clear, strong and logical, and will be of immense service to your friends and attorneys in N. Y. I do earnestly hope your efforts to secure relief will be successful ; you must let me know the progress you make in this line, and advise nu^ of the name or names of your N. Y. Attorneys, and at the proper time, if I can pos- sibly leave here, I will go on and confer and co-operate with them. ''With my best wishes and kindest regards, 1 am Sincerely yours, (Signed) MICAJAll WOODS." "Jas. (^hil worth, (J. A. r.) Keusico, P. O., Westchester (\i., N. Y." All of which shows that 1 was doing my best to get (mt of "Bloomingdale," by legal means; that I had no idea wdiatever of escaping; that I wanted to get out on habeas corpus proceedings. The first use I made of my liberty wiien I c for a judicial investigation of plaintiff-in-error's sanity as an escaped lunatic had been tliat day filed in the County Court of Albemarle County at Charlottesville, and that said case would be heard at the approaching term of said Court, to wit, the October term. That, thei-efore, the said counsel prayed the learned Court to sus})end the present Pro- ceedings until after the October Proceedings aforesaid, in the Albemarle County Court, could take place. Where- upon and providing that said Proceedings found the plaintiff-in-error sane and competent, that then, and in that event, the said thirteen hundred dollars should be paid over to plaintiff-in-error's counsel for plaintiff- in-error, any counsel for Committee of Mi'. Chalouei- i said .loliii !>. Moon), the petition was not tiled at the last Court, hut it was understood that it would be heard today, and we are here today to have the matter investijiated." As aforesaid the last ])hase of the amazin>> of the ]S'ew York Su- preme Court of the County and State of Ne^y York in the matter of the said John Armstrong' Chanler, an alleged incompetent person, also this day filed, which Record and Proceedings are duly attested and exem- plified in the mode prescribed by law for their admis- sion as evidence in the Courts of this State and show that the said Chanler was by the said wSupreme Court of the State of New Y^ork on the 23rd day of June, 1899, duly adjudged a lunatic and person of unsound mind; and the report of George Perkins, trustee, dated May 4th, 1901, and was argued by counsel ; on consideration where- of it appearing to the Court that the decree of sale en- tered in this cause at the Special May Term, 1900, of this Court was entered by the consent of the said Moon, as guardian ad litem of the said (lianler, in so far as the said decree prescribed the terms upon which the Hawk wood lands, in the Proceedings mentioned, should be sold by the trustees, Geo. W. ^lorris and Geo. Per- kins, who were directed to sell said lands, but by inad- vertence there was an omission to expressly recite therein that the same was entered with tlie consent of the said guardian ad litem, in so far as it varied the ternss upon which the deed of trust upon the said lands prescribed a sale, thereupon on motion of said guardifin ad litem, and bv his consent, now given, as shown l)v his endorse- ment on this decree, it is now ordered by the Court that said decree entered at the ]May Special Term, 1900, be, and the same is hereby, corrected, with respect to the said omission, so as to expressly declare and show, with like effect as if expressly recited in said decree 520 wlieii entered, that the said deeree was entered by con- sent of th(^ guardian ad Jifcin as aforesaid. And it further appeariu**- to the Court that the said niodifloation of the terms of sale prescribed in said deed of trust was to the interest and advantage of all parties interested in the said land, and that the said J. A. Chan- ler ^^■as shown to have been duly adjudi^ed a person of unsound mind by a court of competent jurisdiction, the Court doth adjudge, order and decree that the sale set forth in the report of the trustee, George l*erkins, lile,s inciuirino- into the sanity (►f John Armstroni; Chaloner, instituted in Albemarle County, Virginia, by C. Euffln Randolph, on September 20, 1901, which case was decided on November 0, 1901? A. Yes, and associated with me were the following gentlemen : Senator John W. Daniel and his partner, Mr. Fred Harper, and ^Nlr. Armistead C. Gordon, of Staunton, Va., as attorneys for Mr. John Armstrong Chaloner. 23rd (I Under what procedure and what law did C. Kuffin Kandolph file his application against the plain- tiff in the Albemarle County, Virginia, Troceedings in 1901? A. The proceeding was instituted in the Ccmuty Court of Albemarle County, Va., under the provision of Section 1()98 of the Code of Virginia of 1887, which reads as follows : ''Sec. 1698. When Committee of Residents appointed in other cases. — If a person residing in this State is so found, be suspected to be insane, the Court of the County or corporation of which such person is an in- habitant, shall, on the application of any party in- tei-ested, proceed to examine into his state of mind, and 531 being satisfied that he is iusaue, shall appoint a Com- mittee of him." 24th Q. Has there been any change in this section since said Proceedings were had? A. No, sir ; there has been no amendment of that sec- tion. 25th Q. Any change at all? A. No, sir ; no change whatever. 26th Q. Was the Coiintv Court of Albemarle Countv a Court of record? A. It was. 27th (2- Was it the Court of the County of which John Armstrong Chaloner was then an inhabitant? A. Yes, sir. 28th Q. Under the Law and practice of Virginia was this application sufficient and regular in form? (By Mr. Choate: Objected to as too general.) (Note — It is conceded that the witness is qualified as an expert to testify and no objection is raised on that ground. ) A. We gentlemen who represented Mr. Chaloner in that Proceeding as attorneys, considered it a regular and proper Proceeding under that Statute. 29th Q. And do you now consider that it was regular and sufficient? A. I do. 30th Q. Did the plaintiff, John Armstrong Chaloner, appear in the Albemarle County, Va., Proceedings in 1901 in person. A. He appeared in person and was examined by the Court. 31st Q. In the answer filed by the defendant in this 532 case it is said tliat these Albemarle County, Virginia, Proceedings of 1901 should be vacated and set aside for the reason that the petition was not sworn to, or other- wise verified, what have you to say about this? A. There is nothing in the statute under which the Proceeding was instituted that required the Petition to be sworn to. 32nd Q. Is there any provision or any Law in Vir- ginia which would require that this should be sworn to? A, Not that I know of in a Proceeding of that char- acter. 33rd Q. In the same answer, it is said that these Albemarle County, Virginia, Proceedings should be vacated and set aside because the said petition or ap- plication of Cary Ruffin Randolph was not presented to the County Court of Albemarle County, but it was presented to the Hon. John M. White, Judge of said Court; what have you to say about this? A. The Petition in the case referred to was ad- dressed to the Judge of the Court, as is the practice and custom in Virginia, in a Proceeding of an Equitable character. In my long experience as a practicing at- torney in the Courts of this State, I do not recall that any bill in Chancery or any Petition in an Equitable Proceeding was addressed otherwise than to the Judge of the Court. There is a distinction in Virginia, which still holds between the Equitable and the Legal juris- diction of our Courts, and in an Equitable Proceeding — that is, suits in Chancery, Petitions of an Equitable character — the practice is uniform and unbroken so far as I know, for all the Proceedings to be addressed to the Judge of the Court. 34th Q. Are Minor's Institutes, Barton's Chancery Practice and Sands' Suits in Equity considered legal authorities in Virginia? 533 A, They are considered leijal authorities and the forms that are given in all of said works show that the custom and practice in Virginia is to address the plead- ings to the Judge of the Court. 35th Q. What was the object of the Proceedings in- stituted by Gary Ruftin Randolph, in Albemarle County, Va., on September 20, 1901? ( By Mr. Choate : I object to that as opening for the contents of a writing.) A. The Petition, according to my recollection, shows upon its face the object of the Petition, namely, to ascer- tain bv an investigation whether a Committee should be appointed to take charge of Mr. Chaloner's estate. 36th Q. Did C. Ruftin Randolph, in person, sign the Petition or application filed in Albemarle County, Vir- ginia, on September 20, 1901, asking the Court to ex- amine into the state of mind of John Armstrong Chal- oner and determine whether a Committee of his person and estate should be appointed? A. My recollection is that he did. 37th Q. Did C. Ruffin Randolph, who filed the ap- plication or Petition in this Proceeding, have such an interest in the matter as is required by Section 1698 of the Code of Virginia? A. Mr. Randolph was a resident of this State, owned property in the neighborhood of Mr. Chaloner, resided near and was a neighbor of Mr. Chaloner's, and, of course, was interested as such in the question as to whether he was sane or insane. 38th Q. In your opinion, did he have an interest in the matter such as to meet the requirements of Sec- tion 1698 of the Code of Virginia? A. It was the opinion of the attorneys associated 534 with liie and my ()i)inioii that Mr. Randolph was so in- terested as to jnstify him in tiling- the application which was made to the Court. 39th Q. And also is it now yonr opinion that he had such an interest in the matter? A. Yes, sir. 40th Q. At the hearing of this case, on November 6, 1901, in the County Court of Albemarle County, Va., was C. Ruffin Randolj^h present in said Coui-t in person as petitioner in said Proceedings? A. Yes, sir. 41st Q. Was this Proceeding instituted and con- ducted and prosecuted in good faith, with a bona fide intent and purpose to have the Court examine into the state of mind of John Armstrong Chaloner and deter- mine whether a Committee of his person and estate should be appointed? (By Mr. Choate: I object to that as leading and calling for the conclusion of the witness as to the state of mind of the said petitioner who brought the Proceed- ings, and also as incompetent.) A. It was. 42nd Q. Were the said Albemarle County, Va., Pro- ceeding eae parte? A. Well, sir, the Petition was filed by Mr. C. Rufan Randolph, a citizen of the State aind a resident of the County of All)emarle, Va., and Mr. Chaloner was noti- fied of it, and appeared with the witness before the Court, so far as the requirements of the Statute were concerned, Mr. Randolph represented the people of the State and of the Countv, and Mr. Chaloner his own in- terests, and they were regarded as necessary parties. 43rd Q. Was there evidence introduced in said Al- bemarle County, Virginia, Proceedings competent and 535 sufficient tiikIcm- tlic N'iriiiiiiji Law to justify the decree tliat was entered on Xoveniher (Jtli, 1901? A. The case was heard \\y .hidi>e .John M. White, who was tlien .Indjue of Albemarle County Court, and now is .Jud^e of the (Mrcnit Court of Albemarle County. He is repirded as one of the soundest and best judi>es in the State, and after hearini; the testimony his decision was that there was no occasion for the appointment ol" a T'ommittee of the person or estate of Mr. Chaloner, and the Petition was dismissed. 44tli (}. In your o])inion was the evidence competent and sufficient under the Viri>inia Laws to justify the deci-ce that was entered? A. It was. 45th i}. In your o])inion the County Court of Albe- marle (.'ounty has jurisdiction both of the subject-matter and the ])arties? (By Mr. Choate: Objected to as calling- for conclu- sion. ) A. In my opinion it had jurisdiction. 4()th (^ It is also alleged in said answer tiled in this present case that no process or notice of said Albe- marle (\)unty, A'irginia. I*i'oceedings, at any stage thereof was ever issued or served, and no such process or notice was ever served upon the stfid plaintiff, John Armstrong Chaloner, or upon IM-escott Hall Butler, who it alleges was then a citizen of New York, and of the Citv and Countv of New York, either individuallv, or as Committee of the person and ])i-operty of the plaintiff, John Armstrong Chaloner, or u])on this defendant, niean- ing Thomas T. Sherman, either individually or as Com- mittee of the person and property of the said plaintiff, meaning John Armstrong Chabmer, or upon any of the 536 heirs-at-law or next of kin of the said John Armstrong (''hak)ner, and that no heirs-at-law or next of kin of the said John Armstrong Chaloner, and neither the said Prescott Hall Butler, nor the defendant, Thomas T. Sherman, ever appeared in said Proceeding, either in- dividually or as Committee as aforesaid, in person, or by attorney or counsel ; what have you to say about this? A. Under the Statute under which this Proceeding- was' instituted there is no provision, and was no provi- sion for giving notice to any person, except the party sus])ected of being insane, and in investigations under (he section of the Statute which I have recited, and under investigations before Justices touching the sanity of a person, there is no law requiring notice to be given to the next of kin or the parties holding the estate of the party suspected, or any part thereof. 47th Q. Under the Law in Virginia, then, it is not necessary to give notice to any one except the alleged incompetent person, is that the effect of your answer? A. Yes, sir. 48th Q. In this case, in your opinion, is it material whether notice was given to the plaintiff, John Arm- strong Ohaloner, or not, since he appeared in Court at the hearing in the Albemarle County Proceedings, in person and by attorney on the date of the hearing of the matters at issue? A. It is not material. / irill add thai his appear- ance in Court was evidence of the fact that he had notice. 49th Q. And was or not that sufficient? A. That was sufficient. 50th Q. , Was the order or decree entered in the Albe- marle County, Virginia, Proceedings on November (>, 1001, inquiring into the sanity of John Armstrong Chal- 537 oner, a tinal order or decree on the merits of the issue then and there in controversy? A, I now so regard it. 51st Q. Do jou now so regard it? A. I now so regard it. 52nd Q. Has said order or decree since been ap- pealed from, annulled, set aside, vacated, reversed or in any particular modified or changed? A. Not that I have ever heard of, and 1 would have known of an^' such appeal, modification or change. 53rd Q. Is said order or decree still in full force and effect as rendered? A. It is. PROCEEDIXGS OF 1901 POSTPONED AT RE- QUEST OF REPRESENTATIVE OF OTHER SIDE. Testimony Capt. Micajah Woods, 213-218. 54th Q. As I understand, the said. Albemarle County, Virginia, Proceedings were instituted on the 20th day of September, 1901, was there any continuance at the request of any one I'epresenting John Armstrong Chal- oner's relatives, or his then alleged Committee? ( By Mr. Choate : I object to that as leading, as lli]"^ fact. calling for a conclusion of the witness on a matter of A. My recollection is that a memhcr of this har, Mr. John B. Moon, Avho was then thought to represent the Xew Yorlx Committee of Mr. CUaloner, requested that the matter of the investigation might he laid over and not go)ie into at the October Court. 538 55th Q. AVliat did Mr. Moou say to you when he called ou you at the time you have just referred to? ( By Mr. Choate : I object to that as cailiug for hear- say and as immaterial. ) A. I do not remember exactly what Mr. :Moon said. Mv recollection is that he told me in general terms that lie had been approached in sonic ivay hjj the New York ('oinniittee to look after these Proceedings in Virginia, an dthat he wished time to confer with the Vommittee. I don't remember that he told me directly that he had been eniiai;ed as counsel, hnt as a matter of conrtesg to Mr. Moon, the inrestigation was laid over for a month. 56th Q. When Mr. :Moon called to see you with refer- ence to this continuance, whom did he purport to repre- sent, if any one? (By Mr. Choate: I object to that as calling for a con- clusion and as leading.) A. Mv recollection is not distinct as to the parties or party that Mr. Moon represented, according to his state- ment. / got the impression from n-ltat he said that he had heen reqnested hg the Xew York Committee to watch the Proceeding in Virginia in hehalf of the Com- mittee and in hehalf of Mr. Chaloners family. 57th Q. Who is Mr. John B. :\Io(m? A. He is an attornev-at-law in this citv. 58th Q. Was he an attorney-at-law and practicing at- torney at that time? A. He was. 59th Q. In what capacity was he representing the Committee or the members of Mr. Chaloner's family, if at all? 539 ( I>Y Mr. Clioatc: I objoct to that as calliiiii- for a coiichision, also as iiicompetent, the witness liavin^ii' said that he eneral way he iras remit that it is difficult to peruse the following (dimax and grand pnale of the allegations of said Messrs. Flint and Macdonald, without a smile. Said excerj)ts, found on ])ages 747-748 of said "Exhibit G."— to wit: Dr. Carlos F. Macdonald on the stand. A. "Yes, sir; and it presents all the ear marks of typical ])aranoia. In the physical and mental condition there is no symptom lacking to make it a perfectly typical case of paranoia. If one wanted a case for teaching or describing a case in a text-book, you could not describe it more graphi- cally than simply taking this case as it presents itself. It is the most strikiuf/ case of paranoia that I have ever seen in my life. J should saj/ that Mr. Chanler is the 54G most ti/pical classical case of paranoia that I have ever seen. I have seen thousands of them.'' Affidavit, May 5, 1899, of Dr. Carlos F. Macdonald, ''Deponent further savs — that the said Chanler is now, in his opinion, a hopeless paranoiac, Ms mental disorder being incurable and progressive/^ And the late Dr. Austin Flint, Sr., is good enough to say — p. 748, ibid. — said Dr. Flint on the stand — Q. "And from what form of insanity is he now suffering? A. He is a typical case of what is known as paranoia, or chronic delusional insanity. Q. In your opinion, Doctor, is that progressive and incurable? A. It is incurable and progressive and will finally terminate in dementia. If I may be allowed to say those cases fre- quently live for a very much longer time, quite different from paresis. Q. In your judgment, is Mr. Chanler now capable of taking care of his estate and person? A. No, sir ; he is not. Q. Is his physical condition all out- lined with that form (paranoia)? A.. /Nothing could be more typical of that form of the disease. It is an. absolutely typical case (of paranoia) from every point of view." Owing to the fact that plaintiff-in-error received per- emptory orders from the learned Judge Hand of the Federal District Court for the Southern District of New York that his Deposition then in progress at Char- lottesville must be immediately terminated or the case of Chaloner against Sherman would be sent to the foot of the calendar — said orders being received in January, 1912 — plaintiff-in-error was not quite able to take up all of the allegations of said Dr. Carlos F. Macdonald, in the above excerpt. We respectfully submit that the evidence above given shows that this was owing entirely to lack of time to reach each and every allegation of said Dr. Macdonald and emphatically not to disinclina- tion so to do. 547 Which assertion, wo respectfully submit, is fully sub- stantiated by the fact that many of the allegations against plaintiff-in-error's sanity — touched upon from another angle — so to speak — are indexed in Appendix, as follows : To wit : "Testimony of Drs. Flint and Mac- donald disproved by plaintiff-in-error," pp. 532-547. We respectfully submit that we have unmasked the chican- ery, deceit, malice and ignorance displayed by Doctors Carlos F. Macdonald and Austin Flint, Sr,, in their aspersions upon the competency and sanity of plaintiff- in-error — in the above. Continuing the learned counsel for defendant-in-error says, p. 16 of said brief : "The above reasoning appears to cover all the special assignments of error which require any notice. A num- ber of other questions were, however, discussed at the trial, and to meet the possibility that discussion in re- gard to them may lurk undetected by us, somewhere con- cealed in the vast bulk of the plaintiff-in-error's brief, we feel that we should add a brief discussion of each. Most of these which we haven't specifically discussed at- tack only remarks and expressions of opinion by the Court (Trial Court) which were not in any true sense rulings. On such utterances error cannot be assigned ( Gibson v. Luther, 196 Fed. 203. ) " We venture to say that in said twenty-odd "The Parallels;" covering twen- ty-odd assignments, no attack that we have made upon a ruling — direct or indirect — of the Trial Judge Jias been unsupported by a ruling directly in point, and in our favor, by 162 Fed. Rep. 19, the learned United States Court of Appeals for the Second Circuit — Justices La- combe, Coxe and Noyes sitting. Continuing, the learned counsel for defendant-in-error says under Point VI, p. 16 of said brief before the Circuit Court of Appeals: 548 POINT VI. -THE LAW UNDER WHICH THE 1899 PRO- CEEDINGS WERE CONDUCTED IS NOT UNCON- STITUTIONAL FOR LA(^K OF ANY REQUIRE- MENT THAT NOTICE BE GIVEN TO THE AL- LEGED LUNATIC." This is an attempt to make Coustitutional a Statute Avhicli is defective aud uiieonstitutioiial if cousidered by itself. The attempt is made to bolster up this Statute by saying that general principles of Law require notice. Our position is, we respectfully submit, that the ques- tion of the Constitutionality of the Statute must be deter- mined by a consideration of its own contents, and not by reading into tlie Statute something which is not there. Supported by Earl, J., in Htiiart v. Palmer, 74 N. Y., inpXL "The Constitutional validity of Law is to be test- ed, Hol by wliat lia.s been done under it, but by what may, by its authority, be done." As the Statute under consideration is one which re- lates to a particular Proceeding, and defines the pro- cedure, we must assume that the Legislature of the State of New Y^ork, in enacting the Statute, intended to require nothing more in the way of procedure than is specified in the Statute, and intended that the Lunacy Proceedings provided for in the Statute should be valid and binding if conducted in strict accordance with the Statute; and without any formalities not therein specified. Considering the Statute in this light, axd finding that it omits an 11 provision for notice to the alleged lunatic, it is unconstitutional. In the case of People, ed- rel, Maurice J. ^nllivan, Re- 549 lator V. John G. Wcndcl and Mary E. A. Wendcl, Respon- dents, 33 Misc., 49() (Supreme Court, Kings, Special Term, December, 1900). Marean, J., said : '^Slic had ii<» notice of the application, either personal or by substituted service on some person in her behalf, and there Avas no hearino- at which she Avas either present or represented by any other person. She had been finally adjudged insane and committed to perpetual restraint, without notice or hearing. Slie is deprived of her libertj^ there- fore, without due process of law ( People e.r rel Ordicaij v. *S'f. Saviour s Sanitarium, 34 App. Div. 363). The Insanitij Laic, so far as it permits this is in violation of the Constitution. "She is discharged."' In the case of TJir J*eople cr rel, Elizabeth Ordway v. St. Saviour Asylum, 34 App. Div. (N. Y.), 363, this very question was squarely presented and passed upon. Elizabeth Ordwav, bv agreement with her familv, and friends, permitted lierself to be committed to St. Saviotir's Asylum for one year for the purpose of treat- ment. Pursuant to that agreement Proceedings were had under the Statute of New York and she was com- mitted to that institution by the Court for tlie period of one year, unless sooner discliarged by the Trustees of the Asylum. There was no notiee of the Proceedings served on her. She, however, was fully cognisant of the Proceed- ings, which were had ivith her consent and permission, and, pursuant to the Commitment order, she was received in the Asvlum. Sometime thereafter, she desired her freedom, and, tlie Trustees refusing to discharge her. 550 she sued out a writ of hahea.^ corpus. The return of the Trustees showed the records of the Proceedings under which she was committed and pLiced in their custody. Counsel for Miss Ordway demurred to the return, and argued that the Proceedings tvere void as being in con- travention of the ConstitiitioiiaJ prorision requiring due process of Laiv, and the Court sustained the demurrer, holding the Proceedings void. Among other things, the Court said : "Acts of the Legislature which go beyond the allowance of temporary confinement or restraint, until trial or hearing may be had. and the ac- cused have his day in Court in some way custom- ary or adequate to enable him to present his ease, are invalid exercise of legislative power. * * * It siirelij cannot he said tliat the procedure au- thorized hji tlie acts under which this relator was committed and. which created, ihe wrong, is due process of' law s'unphj because the Legislature chose to authorize that procedure/' In the case of Sidney H. ^^tuart, Jr., Appellant v. George W. Palmer, as Collector, etc., et al, Respondents, 74 N. Y., 183 (May, 1878). Earle, J., held: "I am of the opinion that the Constitution sanc- tions no law imposing such an assessment, with- out a notice to and a hearing or an opportunity of a hearing by the owners of the property to be assessed. It is not enough that the owners may bg chance have notice or that they may as a matter of favor, have a hearing. The law must require 551 jiolicc to (Jkiii, and give tluMu the rifjlit to a licar- iiifi and an op/foiiiiiiiti/ to be heard. * * * "The Constitntional validity of hiw is to he tested, not h\ wliat has heeu done nnder il, hut hy what iiiai/, hy its anthorfty he done. The Legis- hiture may preserihe the kind of notice and the mode in wliich it shall he given, hul it caiiiiol dis- pense with all iiotiee. * * * ''The Legislature can no more arhitrarily im- pose an assessment for which property may he taken and sold than it eaii render a juihjnient a(/aiiist a /ter.soii icithout a lieariiKj. It is a rule founded on the first prineipJes of natural justice older than written Constitations, that a citizen shall not he deprived of his life, liherty or prop- erty icithout an opportuuiti/ to he heard in de- fense of his right, and the Constitutional provision that no person shall he deprived of these 'without due process of law' has its foundation in this rule. This provisicm is the most imporiant guaranti/ of personal rights to he found in the Federal or Htate Constitutions. It is a limitation upon arbitrarg power, and is a guaranty against arhi- trarg legislation. No citizen .shall arhitrarihj he deprived of his life, lihertg or proper tg. Tliis the Legislature cannot do, nor autliorizc to he done. In the case of Re W. H. Lamhert ((^»1.), 55 L. R. A , 85G. Hari-ison, .7., said : *'An examination of the foregoing provisions of the Statute shows that there is no provision for the giving to the alleged insane person any notice of the Proceedings against him, and that under 552 its provisions the tirst intiiiiatioii tliat he may liave thereof may be when the Sherilf takes him into his custody under the Order of Commit- ment. The person makinj-- the application for the Commitment is not required to give any notice thereof, nor is there any requirement that he shall be informed of the object for which the physicians are examining him." * * * "The Statute thus clearly provides that the Proceedings before the Judge in a case like the present may l>e entirely ex jxirfe, and that he may be satisfied that the alleged insane person is insane by merely examrning the certifieatc and petition. He may issue the Order of Commitment upon the opinion of the two Examiners, without any examination by himself of the person sought to be committed, fjr of the Examiners who have made the certificate, and without any knoirledge of the facts or testimony upon which they have made their certificates. In thus acting upon these documents, he takes as the basis of his action the opinion of the examiners ascertained as before shown, that the individual is insane. The opin- ions of practitioners of medicine, however, upon the (luestion of insanity, are not always uniform or infallihle, especially if such opinion is formed ex parte, or without an opportunity for a full investiyation of the eliarye. The uiere certificate of an opinion tlius obtaincMl ouyht not to be a sufficient warrant for an order for the Commit- ment of a person in an Insane Asylum. There should at least be the semhlance of a judicial in- vestigation, of Avhich a puhlic record, can he pre- served, he fore a ]ierson can be deprived of his liberty. * * * 553 ''What constitntcs due jn-ocess of law may not be readily foriinilated in a detinition of univer- sal application, l»nt it incdudes in all cases the ri(/lit of the iM'i'son to sncli notice of tlu» (daini as is appropriate to the proceedings and adapted to the nature of the cause, and the i-i// Jiint upon their authoritji. In Matter of lihuritt, 131 N. Y., 541, the (%)urt, after discussing at some length the necessity for notice — pointing cmt that Section 2325 of the Code does not touch the (juestion of the right of the alleged lunatic to have notice — discussed the distinction between cases in which notice to tlie lunatic should be given, and cases in which it need not be given; and, aftei- e.rpressiiu/ Ihe opinion that tlie Proceeding then under consideration hy the Court was inraJld, for wdnt of notice to tlie alleged lunatic, tlu^ Court aJxindoned the >i. Fraiici.s Xader, 127 N. Y., 327, is not au autlioritj for the proposition asserted 1»y counsel for the defeudant-in-error that "Th(? power of the Court over lunatics is main- ly iidierent and not derived from the Code. The Code regulates it in certain particulars. In all particulars not so regulated, Proceedings in Lunacy are governed by the Chancery practice existing before the Code was enacted. That prac- tice required notice of the execution of the Com- mission." In the Court's opinion there is no reference to such matter. Matter of Andrcus, 192 N. Y., 514, involved the power of the Supreme C(mrt of the State of New York to re- move a Committee of the estate of a person adjudged insane and to appoint a new Committee, without notice; and it was sought to sustain the authority of the Court in this regard upon the broad ground that, in the exer- cise of its jurisdiction over lunatics, idiots, habitual drunkards, and persons of unsound mind generally, authority is in the Court, of its own motion, in the absence of Statute, to remove the Committee of the estate of a person who has been committed. The Conrt, hon-ercr, deternvined the fjuestion hjf reference to the several Actions of tJie Code of Ciril Procednre relat- in- the Commission as the Court directs to be inserted therein." the whole Section shonhl he considered. It is as fol- lows : "Section 2328. CONTENTS OF COMMIS- SION. — The Commission mnst direct the Com- missioners to cause the Sheriff of the county specified therein to procure a Jury ; and that they inquire by the Jury into the matters set forth in the Petition; and also into the value of the real and personal property of the person alleged to be incompetent, and the amount of his income. It may contain such other directions with re- spect to the subjects of the iuijuiry or the man- ner of executing the Commission, as the Court directs to be inserted therein.'' This section Jtas no reference irJiaterer to the matter of process or notice. That matter is covered by the pro- visions of Section 2325. The function of the ])resent Section (2328) is to give directions to the Commis- sioners as to what they shall do under the Commission in the matter of prociiriiif/ a Jury and inquiring into the matters set forth in the Petition, and other related matters. Furthermore. Our aforesaid contention is absolutely confirmed by the ruling of the learned kludge Wood- ward in Matter of O.^honi, 74 A. D., cited by the learned counsel for defendant-in-error in his said brief. The learned Judge said, (Under Point VIII, in said learned counsel's brief) : "This conteni])lates a continuance of the original Proceeding in whicli (/// of the parties 564 shall be permitted to be lieard, and not an independent Proceeding where all of the parties may be slmt out from participation." Continuing, the learned counsel for defendant-in-error says, under Point VIIT, p. 17, of said brief: POINT VIIL "NO NOTICE OF THE APPLICATION FOR THE DEFENDANT-IN-EPvROR'S APPOINTMENT IN 1901 IN PLACE OF PRESCOTT HALL BUTLER, DECEASED, WAS GIVEN, BUT NONE WAS RE- QUIRED." "No notice of the application for the defen- dant-in-error-s appointment in 11)01 in place of Prescott Hall Butler, deceased, was given, but none was required." The foregoing proposition was advanced by the learned counsel for the defendant-in-error in the Court below. In support of this he states — "There is no Statutory requirement of notice in such a Proceeding, which is, of course, a mere substitution by the Court of one person for an- other as its officer. This it mav alwavs do at its discretion," citing Matter of Griffin, 5 Al)b. Prac, (N. S.) 96; Matter of Oshoni, 74 A. D., 113. 565 111 Matter of (} riff in, the question of notice was neither involved nor mentioned, in the one-page report of the case. It appears that the Petition was filed and a hear- ing- had, but there is not a word on the subject of notice, and ichy counsel cited this case, when notice is the suh- ject of discussion, is more than iv.e can comprehend. In Matter of Oshorn, 74 A. D;, 113. Woodward, J., said: "It is true, by the provisions of Section 2339 of the Code of Civil Procedure, a Committee over the person of the property is subject to the direc- tion and control of the Court by which he was appointed witli respect to the execution of his duties; and that he may be suspended, removed, or allowed to resign, in the discretion of the Court, but this is a judicial discretion to be exer- cised in conformity with the rules and practice of the Courts, and not capriciousli} and loithout a patient hearing of all matters which legitimately bear upon the question. * * * The Code pro- vides that in all subsequent Proceedings after the determination of the incompetency of the per- son, the lunatic, idiot, habitual drunkard, shall be designated 'an incompetent person.' This con- .templates a continuance of the original Proceed- ing in which all of the parties shall he pennitted to he heard, and not an independent Proceeding where all of the parties may he shut out from par- ticipation/' This is not a ruling that no notice of an application to suhstitute one Committee for another need he given, but the precise and exact opposite thereof. To- wit: "This contemplates a continuance of the original Proceeding, 5G6 ill wliicli (til of the parties shall be permitted to be heard, and not an independent Proceeding where all the parties may be shut out from participation." Counsel for defendant-in-error further stated — "The change does not aft'ect the substantial rights of the incompetent. If anyone is entitled to notice of such a change, it is not the incom- petent who, as an adjudged incompetent, must be deemed incapable of receiving or acting upon such notice. In any event, failure to give notice of such change in no manner impairs or vitiates the juris- diction of the Court," and cited Matter of Andrru:^. 192 N. Y., 514. In Matter of Audreu's, Willard Bradley, J., said: ''The parties entitled to notice of the Proceed- ing for the appointment of a Committee should hare notice of the Proceeding for his removal. * * *?? Notice to the plaiutiff-in-crror of the Proceeding for the appointment of Prescott Hall Butler was, we respect- fully submit, absolutely necessary. Counsel of record in the original Proceeding, in which Butler was appointed, recognized this and attempted to give a legal notice, aJ- though, as we have heretofore pointed out, the notice urns illegal because the Statute under ichich the Proceeding was conducted did not provide for such a notice. There- fore, the necessity of notice of the original Proceeding being conceded, notice of tlie Petition to suhstitute de- fendant-in-error in the place of Prescott Hall Butler was necessary under the rule announced in Matter of An- drews, above quoted. 567 VI<:TTA SLMON, Plaintiff, JOHN N. (IJAFT. {hi r.rlcuso. Appendix, ]). 32!).) 182 F. vS. Supreme ('ourt Keports, 427. Arj-ued March 12tli, 1901. Decided May 2nd, 1001. Statement by Justice White. Writ of error to review judgment of Supreme Court of Alabama in favor of John N. Craft, which was entered by a lower State Tri- bunal ui)on a verdict rendered on the second trial of an action in ejectment wherein Yetta Simon was IMaintilf. Facts are as follows : In 1889 Plaintiff, a widow, resided in M(>bile, Ala. She lived in and owned a lumse there, which is the real estate affected by the action of eject- ment herein. January 30tli, 1889, K. (J. liichard, as a friend, tiled in tlie Probate Court of Mobile County, a Petition for an in(|uisition of Lunacy as to Mrs. Sinum, stating- that she was 49, a resident of ^fobile, of unsound mind and incapable of governing herself or of conduct- ing and managing her affairs. Cpcm the Petition an oi'der was entered for a hearing on February 6, 1889, aniveu to one proceeded Miiniiist as beinii of uiisoniid mind of the couteniphited trial of the (]uestion of his or her sanity. .Is- ), "and during the pendency of the said Proceedings (before the Sheriff's Jury in 1899) in said Supreme Court of New York, this Plaintiff was at all times under duress of imprisonment and absolutely sub- ject to the orders and control of said corporation (popu- larly known as 'Bloomingdale') or of its Superintendent, and at no time during the pendency of said Proceedings was the Plaintiff free to appear, either personally or by counsel before the said Supreme Court, or any officer or officers thereof, or any Commissicmer, Commissionei's, or Jury thereof without the consent and direction of the said Superintendent of said Asylum, except upon the order of said Supreme Court, and no such direction was given by said Superintendent, nor was any such order of said Supreme Court made or given by said O<0 Supirnie Court, aud in and during the entire Proceed- inii's this Plaintiff, witli the know ledge, consent ar.d co- operation of said Supi-enic Court, and its Judges, Com- missioners or Agents, was forcibly, wrongfully, unlaw- fully and in violation and defiance of his Constitutional rights and privileges, deprived of the power and oppor- tunity to act, write or speak freel^^, and to freely com- municate or consult with counsel or to appear or attend before the said Supreme Court or before its Commis- sioners or Jury, or to confront the parties who had in- stituted and prosecuted the said Proceedings in said Supreme Court, and had tlu^'ein charged the Plaintiff Avith lunacy and incompetency, or to ascertain the natur<^ of the charges made against him, or to hear the testimony ottered in supi)ort Thereof ov fo cross-examim' the witnesses hired and produced by the T^etitioiicrs ther(Mn to give such testimony." SccoikI. There was but one Proceeding in Mrs. Simon's cas(\ I'cr coiitrd, tliere were two in plaintitt""s. In Mrs. Simon's case the sole and only Proceeding was legal, in that it did not confine the Defendant for an indefinite period before a Jury Trial was had to examine into the (|uesti(m of Defendants' sanity. Mrs. Simon was taken into custodv Januarv Slst, 1889, in consonance with the Petition on which an order was entered f(n' a- Hearing on February (Jth, 1881), before a Jury. Thereupon a Hear- ing was had before a jury. Prr contra, in Plaintiff's case. Plaintiff was taken into custody upon a final Pro- ceedings, which Proceedings upon their face recount, as Mr. I\osenblatt says in his Complaint (Pec. 7), "that said order of ]March 10, 1807, was made without notice to this Plaintiff', and without any opportunity given to him to oi)pose or contest the making thereof, and with- out permission to IMaintiff to appear before said Court T>~() in person or by counsel, but on the contrary, said Su- preme Court in and by said order of ^Marcli 10, 1897, expressly directed that no notice be sj;iyeu to the plaintiff thereof or of the application therefor." Upon said illeaal Proceedin"s Plaintiff was confined in duress of imprisonment at ''Bloomingdale" — popularlj^ so- called— from March 13th, 1897, the day of Plaintiff's arrest and incarceration therein until, more than t^yo years later, the Proceedings before the Sheriff's Jury in 1899 we^e had. That said 1897 Proceedings were ut- terly illegal, unconstitutional, null and yoid we need go no further tlian said case of ^^imoK \. Craft to proye; for therein the learned Justice says (page ) : "The essential elements of due jn'ocess of Law are notice and opportunity to defend." Both said "essential elements of due process of Law" are glaringly, are grieyously lack- ing, upon the face of the said Court Record in said Pro- ceedings of March 10, 1897. Now let us examine the situation under which the Proceedings in 1899 before the Sheriff's Jury took place. We now reach a partial parallel with ^Irs. Simon's case. Said second Proceedings in 1899 slightly corre- spond upon their face — hui upon their face only — with those of ^Irs. Simon l)efore the Jury. In her case she was held by a public officer who had no motive in with- holding frohi her the opportunity to appear and be heard in defense of her rights before the said Jury. She at no time alleges that said sheriff had any motive to so withhold her, nor does she allege that he actaaJhj - to Court, bring suit for heavy damages against said corjjoration for false imprison- ment. The parallel between Plaintiff's case and Mrs. Simon's here, therefore, comes to an abrupt end. Moreover, thai the retitioncr.s, who had placed Plaintitf in said Asylum in 1807, Jiud a mniive to kec]) him there and to continue through a third party — the falsely al- leged Committee of IMaintitf's person and estate, to be appointed at said 1899 Proceedings — had a motive to con- tinue tlie said mulct of Plaintiff's property by said Asy- lum /.v proved by the affidavit of said Egerton L. W'in- tlirop, Jr., of said Petitioner's counsel, in said 1899 Pro- ceedings in said Decretal Order tiled June 23rd, 1899, in which he admits that the reason why his firm were compelled to conduct the said Proceedings ''with great care and much attention" was hecause I'luintiff hud threatened to lake legal .sfep,s to pvor-ure I'luintiff's re- lease from imprisonment. Why should Petitioners find it necessary to conduct said Proceedings with "great care and much attention," except for fear that Plaintiff should have an opportunity to actually have his day in Court and expose their conspiracy, fraud, and perjury, as Plaintiff is about to do now; that, in spite of said Petitioners, Plaintiff has a(hi<'ved the p(>ssibility of a *Twenty thousand before his escape.. (37) 578 (lav in Court. Plaintiff was thus between two fires, riaintiff" was thus between the Petitioners, wlio had a motive to prevent his getting to Court for fear they would be shoAvn up thereby, and Plaintiff' was thus be- tween the said ofJieers of the said asylum, who, with their employers, had a two-fold motive to withold him from Court (a) lest the said more than five thousand dollars per annum mulct (page 5) should thereby cease and determine, (b) lest Plaintiff" should bring and win a heavy damage suit against them for false imprison- ment. A very different situation surely from that of ]Mrs. Simon between R. G. Richard, her Petitioner, against wliom she at no time alleges foul play, and the said sheriff. Third. In strong contrast to the action of the said New York Supreme Court and the said Commissioners and Jury, upon Plaintiff's non-appearance in person or by counsel at said Proceedings in 1899, the Court, in Mrs. Simon's case, "in order to protect her interests, entered an order appointing a guardian ad litem/' in the matter of the Petition to inquire into her lunacy" (page 334), and moreover, the said learned Justice emphasizes the importance of the said citations by quoting them as above. No such Guardian was appointed by said New York Supreme Court nor by said Commissioners and Jury in Plaintilf s said partially parallel Proceedings in 1899. The parallel between Mrs. Simon's case and Plain- tiff's here definitely comes to an end, for Mrs. Simon, by the said appointment of said Guardian ad Utem, did appear by said Guardian ad Ufcin before said Jury. AVhereas Plaintiff having no such Guardian ad litem ap- pointed, and not appearing personally, did not a])pear before said Commissioners and Jury. The opportunity which was afforded by the Court to Mrs. Simon to ap- pear by counsel — by said Guardian ad litem — was em- 579 phatically not afforded Plaintiff. Plaintiff' therefore did not, as Mrs. Simon did, have his Constitntional pri- vilei>e of due process of Law to appear and be heard, or, in the learned Justice's words, ''an opportunity to de- fend." That the said Guardian ad iitein, the said Vaughn performed his duty honorably must be taken as proved since Mrs. Simon has at no time criticized his per- formance of said duty. Lastlij. The learned Justice says (pai-e 332) : "At the trial below" (and we nmy add at no subsero- rided the Uahauia Statute was the same in 1870 as in the Simon case — while the party was under the custody of an impartial officer, presumably, to-wit, the sheriff, who, presumably, would have no motive to throw ob- iSO staclcs ill said part^^'s way to prevent said party's ap- pearance in i)erson or by counsel in Court to defend him- self. Upon the above hypothesis of fair play upon the l)art of the sheriff, said party would have as fair an op- portunity to procure counsel or to be present in Court, or l)oth, as an alleged criminal in the custod}^ of the same shei'ift" liad by law. Not so, however, in plaintiff's case, as shown above. The parallel between "the service of the writ" in Airs. Simon's case and Plaintiff's falls to the ground, so soon as one examines the circumstances afore- said. The Alabama Supreme Court knowing that, pre- sumably, the sheriff' would have no motive to prevent the l)arty's access to counsel ; no motive to open said party's letters; no motive to forbid said party's sending letters unopened and unread (page 7) by said sheriff, naturally presumed that, in the absence of charges of foul play, of course, said party was as good as brought into Court by "the service of the writ" if said party cared to go to Court. Not so, however, in Plaintiff's case where the Avrit was served when Plaintiff w^as in false imprison- ment at the hands of parties whose rules were that no mail of anv kind could leave the said Asvlum without be- ing ])reviously read and approvefl of by the said officers of said private corporation, said ''Bloomingdale," pop- ularly so-called. In Alabama the service of the writ pre- sumably \-c. In New York, on the other hand, the service of llic writ ])resumably does not, as shown above. The only points made by Mrs. Simon's counsel which ai)])ear well made are points 2nd, 4th and 5th, but .said /loiiils haAc no weight under the said circumstances, since, as has been said, the learned Justice pointed out that Airs. Simon iicrer once hinted at foul plai/, and foul play is whixt makes said points of interest. I'oiiif 2d. "No provision made in or by said Proceed- 581 iiit>s whereby said Simon might be present at the in- ([nest." Po'uif -itJt. "In that said writ left it to the jndgment of shei'iff whetlier said Simon slionhl be aUowed to ap- ])ear at incjnest." Point olJi. ''In that said writ authorized the sheriff to restrain Yetta Simon of her liberty and deprive lier of the opportunity to l)e lieard at the inquest." Foul play is not only hinted, but proved in Plaintiff's ease, and he hangs all his argument in his brief for notice, and opportunity to appear and be heard; and the intervention needed of a Jury before a person ean be permanently deprived of libertj^ or property; and the il- legality of trials in ahseiitia; and that it is legally neces- sary to bring the person before the Jury, or that a Com- mittee of the Jury view the person if the former is not ])ossible, Plaintitf hangs all his arguments therefor (page S) upon foul play in his special case, and plaintiff also brings authority to support his said ccmtentions, and \\here necessary argument by analogy supporting Plain- tiff's claim that the United States Constitution iinpliefi that the privileges of alleged lunatics are as carefully safeguarded as those of alleged criminals — and arc the same — and must not be ahrUh/ed. If anv further argument were needed to excuse the length of plaintiff's Brief, both in weight of authority and exhaustiveness of argument, it is furnished by the language of the learned Justice (page 333), which con- clusively proves that said learned Justice has never had presented to him the possibilities of fraud and the temp- tation thereto, and the unconstitutionality of the per- mitting said possibilities of fraud and the temptation thereto to remain upon the Statute books of any State furnished by ahrkh/infj the prirUcf/cs of alleged ci-iniinah9 where alleged Initaties arc citnrrriicd — possibilities ri82 i>C wliieli transcend the powers of the iniaiiination and re- (piire the hard lii>ht of fact to bring them before the mind of a tribnnal. We quote. "The contention now urged is that notice importvS an opportunity to defend/' Til is i.s imdemahJc. But the hiwyer for Mrs. Simon went astray in attempting to infer — in the absence of allega- tion of fraud l)y Mrs. Simon against anybody at any time — that because Mrs. Simon was taken by the sheriff into custody she "was hence prevented by the sheriff from attending the inquest or defending through counsel, if she wished to do so, in consequence of the notice which she received." It, of course, does not follow ipso facto that because the sheriff had her under arrest that he therefore prevented her from defending herself by coun- sel or from going to Court. Here is where the said lawyer went astray in his argument. The learned Justice continues: "It seems, however manifest — as it is fairly to be inferred the State Court interpreted the Statute — that the purpose in the com- mand of the (page 9) writ, 'to take the person alleged to be of unsound mind, and, if consistent with her health or safety, have her present at the place of trial,' was to enforce the attendance of the alleged iioii compos, rather than to authorize a restraint upon the attendance of such person at the Hearing." The above .is un- doubtedly "the purpose in the command of the writ," but, it may well be asked, ichat is to prevent a dishonest slier iff from acting otherwise?* In a criminal case *It is not what has been done, or ordinarily would be done under a Statute, but what might be done under it that determines whether it infringes upon the Constitutional right of the citizen. The Consti- tution guards against the chances of infringement." Bennett v. Davis. 90 Me., 37 Atl. 865, cited in Re W. H. Lambert, Cal., L. R. A. 55 (1902) supra. And again. Earl, J., in Stewart v. Palmer. 74 New York, supra: "The Constitutional validity of Law is to be tested, not by what has been done under it, but by what may. by its authority, be done." >8a would it be heard that the sheriff derided that tlie al- leged burglar was physically uuable to atteiid ('ourt aud thereupon judgment Avas taken against the said al- leged burglar, and he was tried in absentia and impris- oned for, say ten years, without an actual bona fide confrontation of Judge, Jury and witnesses upon his part? Wh3^ should the privileges of an alleged criminal throAv more safeguards around his liberty, more for- mality than those of an innocent alleged lunatic? We quote the learned Justice (page 332) to wit: "At the trial below there was no offer to prove by any form of evidence that Mrs. Simon was, in fact, of sound mind when the Proceedings in Lunacv were instituted, or that she desired to attend, and was prevented from attending the Hearing, or was refused opportunity to consult with and employ counsel to represent her. The entire case is thus soJeJij based on the inferences which are deduced, as stated, from the face of the return of the sheriff, and upon the assumptions thus made it is contended that the Statute, as well as the Proceedings thereunder, were violative of the clause of the 14th Amendment to the Constitution of the United States, which forbids depriving anyone of life, liberty, or prop- erty without due process of law." Per contra. Plaintiff contends upon proved facts upon Court Records, not up- on "assum/ption s/' At the trial below — the Proceedings had at Cliarlottes- ville, (page 10) in the County of Albemarle, in the State of Virginia, before the County Court of Albemarle, aforesaid, November 6th, 1901 — there was every offer to prove by every form of evidence that Plaintiff was, in fact, of sound mind when the said Proceedings of No- vember 6th, 1901, to inquire into Plaintiff's sanity and competency were had. At the present trial there has been every offer to prove that Plaintiff was, in fact, of sound mind when the Proceedings in New York City 584 were instituted March lOtli, 1897, aud when the Pro- (reedings in New York City were instituted in 1899, and that Plaintiff desired to attend, and was prevented from attending the said Hearings, and was refused opportunity to consult with and employ counsel to repre- sent him. 585 CONCLUSION It must, therefore, be jipparent that the phiiutitf-iu- eiTor, ci eitizeu and resident of Vir^ ^^^^ ler- ^^^ 3ohn Armstrong 3 1158 01253 6776 g n ■iiiil! iiii \' :: W