court to reverse a prior judgment when convinced of its error.' He then proceeds to point out what seem to him to be the errors of the decision, and says that it is by no means certain that the latter judgment will not be reversed.'

-CARDINAL MCCLOSKEY AND ATTORNEY-GENERAL PIERREPONT.Something refreshing comes from Brooklyn, refreshing because it is not a scandal. It is told in "Stiles' History of Brooklyn," and relates to two worthy men, Cardinal McCloskey and Attorney-General Pierrepont, and to two worthy women, the mothers respectively of these two gentlemen. The cardinal and the attorney-general are both natives of Brooklyn, and were both born in the middle of the same cold winter.' McCloskey's father, who was a poor milkman, lived in a humble house near the residence of Hezekiah B. Pierrepont. Just after the birth of the babe who was to grow up and become a prince of the church, Mrs. McCloskey was taken very ill, and was unable to nourish her child. In this emergency, Mrs. Pierrepont, hearing of the helpless condition of the mother and her infant, went herself and nursed the child until the mother was able to do so-a state of affairs which must have been very humiliating to a milkman. Mrs. Peirrepont's own child and the one which she charitably nursed at her breast, advanced through the world with equal thrift. One went into the law and the other into the church, and each has reached the highest position in his calling.-[Chicago Times.

-SOME time since, one Miller, an ex-guager, who was closely identified with the Chicago whisky-ring men in their palmy days, was discharged from his position for some technical irregularities in his accounts. The secret service men at once took hold of Miller, and by proper management impressed him into their service, to assist in the conviction of members of the ring. For sometime it was supposed that the ring was unaware of the fact of Miller's going back on them, and depending upon this Miller was accustomed to going to their meetings with the object of spying, and reporting proceedings to the Detective Bureau. On Friday evening, however, when, according to custom, he put in an appearance he was suddenly attacked by a man who drew a pistol and fired, with the evident intention of shooting Miller through the heart. The ball, however, struck his arm and thus saved his life. As the man who fired the shot had his face averted, Miller was unable to recognize him, but there is little doubt but that it was a member of the ring, who had determined to put him beyond the possibility of giving evidence. The government hereafter take care of Miller and will keep him in a place of safety until his services are required to testify against the ring.-[Washington Chronicle.

-APROPOS of the O'Connell centennial, a foreign correspondent tells the following anecdote illustrative of his acumen : "O'Connell was defending a prisoner who was being tried for a murder committed in the vicinity of Cork. The principal part of the evidence was strongly against the prisoner, and one corroborative circumstance mentioned was that the prisoner's hat had been found near the place where the murder had been committed. A certain witness swore positively that the hat produced was the one which was found, and that it belonged to the prisoner, whose name was James. By virtue of your oath,' said O'Connell, are you positive that this is the hat? Yes,' was the

reply. Did you examine it carefully before you swore in your information that it was the prisoner's?' 'Yes.' 'Now let me see,' said O'Connell, as he took up the hat and began to examine the inside of it with the greates care and deliberation, and spelt aloud the name of 'James,' slowly, thus: 'J a-m-e-s.' Now, do you mean those letters were in the hat when you found it?' demanded O'Connell,' 'I do,' was the answer.' 'Did you see them there?' 'I did.' 'This is the same hat? It is.' 'Now, my lord,' said O'Connell, holding the hat up to the bench, there is an end to this case; there is no name whatever inscribed in the hat.' The result was the acquittal of the prisoner."-[Albany Law Journal.

-DR. KENEALY'S CONVICTION.-Curiosity having been excited as to the

the defendant's part. Taking all the circumstances into consideration, the court felt there was no ground for imputing that the defendant meant to do anything wrong, but he inflicted a punishment in an excessive manner, which could not be justified, and therefore the court felt bound to punish him as an example to others not to exceed the bounds of moderation in chastising children. Sentenced to one month's imprisonment in the Queen's prisonof course, in the first class."-[The Law Times.

44

-LORD LYTTON'S description of O'Connell at a monster meeting:

Once to my sight the giant thus was given,

Walled by wide air and roofed by boundless heaven,
Beneath his feet the human ocean lay,

And wave on wave flowed into space away,
Methought no clarion could have sent its sound,
E'en to the centre of the host around;
And as I thought, rose the sonorous swell,
As from some church tower swings the silvery bell,
Aloft and clear from airy tide to tide

It glided easy, as a bird may glide--
To the last verge of that vast audience sent;
It played with each wild passion as it went;
Now stirred the uproar-now the humor stilled,
And sobs or laughter answered as it willed.
Then did I know what spells of infinite choice
To rouse or lull has the sweet human voice.
Then did I learn to find the sudden clew

To the grand, troublous life antique-to view,
Under the rock-stand of Demosthenes,
Unstable Athens heave her noisy seas."

"

-THE knells of four of the great courts which have been already consolidated into one Supreme Court of Judicature," have been successively rung in the columns of the Times. And upon Tuesday last the leading journal presented its readers with a well-executed historical account of the court of chancery, which has just risen for the vacation" and will never sit again." We would recommend those of our readers who should happen to be interested in something more than the technicalities of "concurrent administration," to study the three columns and a half which the Times devotes to tracing the history of the court "which was originally the source and fountain of the common law," and whose equitable jurisdiction only arose in after ages when the nature of men's relations and transactions were no longer to be provided for by simple remedies." It is unfortunate, however, that the writer should have shown a bias towards equity upon an occasion when the rival claims of law and equity ought to have been stated and pronounced upon with judicial fairness. He speaks, for instance, of "a stupid rule of the common law that payment of a bond debt could not be proved unless by an acquittance under seal." The rule, which was soon dropped," may have been stupid enough, but the writer might well have mentioned one or two of the admitted defects of the equity system, such as the admission of hearsay evidence, and the invention of the doctrine of "illusory appointments." See II Geo. 4 & 1 Will. 4, c. 46, which reciting that considerable inconvenience hath arisen from the rule ofequity," establishes the rule of law in this curious case of conflict. It is, we think, the chief merit of the new procedure about to come into operation that, recognising the defects of both systems, it has taken care to provide for the survival of the fittest parts of both. Those who imagine that a reign of entirely equitable procedure and practice is about to be inaugurated will soon find out their mistake.-[The Law Times.

-OLD TIME BILL OF LADING.-The following is a verbatim copy of an old bill of lading, dated December 24, 1773, and shows among other things, the dependence upon Deity pervading the merchants of that day:

in April 1850, for the alleged excessive punishment of his son, we produce the following extract from the proceedings: Lord Campbell said: This is a mos: distressing case, but you (the jury) and I must deal with it according to the rules of law, and must recollect the oaths we have taken. I rejoice that the whole truth has come out, and that no serious stain will attach to the character of

ncss,

Mr. Kenealy. He appears to have taken the most tender care of this child, who is his illegitimate child, and that he has treated the child with all kindand taken care of his education as well as his personal wants; but we must consider whether part of this charge is not clearly made out, and if it be it will be your duty to return a verdict of guilty. His Lordship told the jury that they must acquit on the first count, though he could see no reasonable doubt as to the second." When called up for judgment on May 31st, Mr. Crowder, for the guardians of the West London Union, did not press for heavy punishment. Mr. Justice Patteson, in delivering judgment, said: "The motive on which Kenealy inflicted personal punishment appeared to have been to correct the child for its own good, and not from any wrong feeling on

William Lee, in and upon the good ship called the Friendship, whereof is Master, under God, for this present Voyage, William Roman, and now riding at Anchor in the River Thames, and by God's Grace bound for Virginia, to say, One Case, one Trunk, one box of Merchandize, being mark'd and numbered as in the margin, and are to be delivered in like good order and well condition'd, at the aforesaid Port of Virginia, (the Danger of the Sea

only excepted) unto Mrs. Anne Washington, at Popo's Creek, Potomac River, or to her Assigns. Freight for the said Goods being paid, with Primage and Average accustom'd. In Witness whereof the Master or Purser of the said Ship hath affirmed to 3 Bills of Lading, all of this Tenor and Date; the one of which 3 Bills being accomplish'd, the other 2 to stand void. And so God send the good Ship to her desir'd Port in Safety.—Amen. Dated in London, 24th Dec. 1773.

WM. ROMAN."

On the margin is a nine-penny stamp, of the customs, and the usual invoice marks. The owrer will present it to the Alexandria, Washington Lodge

museum.

SEYMOUR D. THOMPSON,

Editor.

}

HITCHCOCK V. GALVESTON.-In order that the elaborate review of this case, to which we yield a large portion of our space this week, might not trespass too much on our regular matter, we have enlarged the reading matter of this number to twenty pages. Without expressing any opinion as to the soundness of the view taken by Mr. Circuit Judge Woods (although at the time we printed his opinion its reasoning seemed conclusive), we wish to say that we are glad of the opportunity of publishing so able a criticism of it. One of our objects in publishing a law journal is to afford a medium for the free discussion of legal questions, and for the criticism of recent judicial decisions, when such criticism is conducted, as this is, with candor and becoming respect to the court. Such discussions of unsettled questions must prove beneficial alike to the bench, to the bar and to the progress of juridical science.

WOMAN'S RELATIONS TO CIVIL GOVERNMENT.-Mrs. Annie Savary graduated recently in the Law Department of the University of Iowa, and received the degree of LL. B. On the occasion of her graduation she read an address with the above title, which is published in the August number of the Western Jurist. It is woman-like and poetical, and, as such addresses generally do, illustrates the truth that when a woman speaks, she speaks as much with her heart as with her head. Or, to compare her in this respect with man, as Byron has more forcibly expressed it—

"Men with their heads reflect on this and that,

But women with their hearts on Heaven knows what!''

Mrs. Savary truly says, "The history of woman is the history of the domestic and moral life of mankind.” She does not charge man with being the author of all woman's woes, but gives a philosophical explanation of "the subjection of woman," which is creditable to her good sense, when she says: "When the first man raised his strong arm between woman and her offender, he declared a statute, which fixed the physical relations of the two sexes. That statute has never been repealed. Physical force was the firt law-making power, and, through this, man became the first law-giver."

Mrs. Savary might have carried this illustration further. She might have shown that woman never can be the equal of man in politics, and in the management of public affairs, until she becomes his equal physically, or until the laws are executed and the peace of society defended by moral and not by physical power; that is to say, until the teacher discharges all the functions of the soldier and the policeman.

Mrs. Savary evidently thinks-and we think so too-that times are changing for the better-that the rough ages are growing mild. She concludes her address in the following beautiful sentences:

When we wish to typify harmony, which is only beauty and power combined, we clothe it in woman's form. Wisdom, justice, truth, liberty, are all represented as women. The drawbridge, the moat, the thick castle walls, are things of the past. The portcullis is open, and emancipated man calls to his God-given companion, to come forth and help him to make the world beautiful. The statutes of free Iowa have proclaimed her equality before the law. The college doors are open, the professions are ready to welcome her, and the republic enters upon the new century, reinforced by a moral power, which is

to do more for human government than Waterloo, Gettysburg or Sedan. The men who have led the way to freedom are those who have prepared themselves by a life-study of its principles. It is the self-made men who give lustre to woman must begin to burn it. She must understand what Cassius said to Brutus: "It is not in our stars, dear Brutus, but in ourselves that we are underlings." The disciples of the past, the followers of those who compelled Galileo to abjure and curse the doctrine of the movement of the earth, will still continue to fix a limit to woman's powers, until she soars above systems and creeds to where sex is forgotten in the realm of intellect, remembering always, that "ignorance is the curse of God; knowledge the wing wherewith we fly to Heaven."

free governments. The midnight oil has lighted up the civilized world, and

The State and an Individual as Joint Tort-Feasors. Elsewhere, in the case of Metz v. Soule et al., we print a somewhat novel decision, lately pronounced by the Supreme Court of Iowa, holding that the state and an individual may be joint wrong-doers, and that where they have jointly committed a wrong and the state has granted compensation on account of the wrong, which compensation has been accepted by the person wronged, this is an accord and satisfaction as to the other wrong-doer. The facts (which are not fully stated in the official statement prefixed to the opinion, but which we condense from the abstract of the case used on the hearing before the Supreme Court of Iowa), were briefly as follows:

In the spring of 1871, the plaintiff Metz was a convict in the Iowa penitentiary. Soule, Kretsinger & Co., the defendants, had contracted with the state for its convict labor at 41 cts. per diem. Metz was put to work for them in their polishing shop. The convict who before that time had oiled the shafting, was taken sick. Metz was selected to act in his place. After doing it once, and having his clothing caught, he begged to be let off, saying the work was dangerous and he could not do it. He protested thus to the defendants and also to the guard, who was in the room or shop for the purpose of preserving discipline, etc. The foreman refused to exempt him, from the service. The guard was authorized by the warden to act for the foreman while the foreman was necessarily absent from the shop. Acting under instructions from the foreman, while he was at breakfast, the guard ordered Metz to oil the shafting. He had to climb a light ladder to do so; while doing it he was caught on the revolving shaft (which the jury found was dangerously constructed), was whirled around many times, his feet and ankles striking the joist, and thus beating his feet into bags of bloody jelly. Both feet were amputated. The governor pardoned Metz, and the state made him a present of a pair of wooden feet. He petitioned the legislature for relief, on the ground that the injury happened while he was acting under the imperative orders of an agent of the state, and that the state ought to be responsible for the act of its agent. In compliance with this petition the legislature passed the following act:

An Act for the relief of Joseph Metz. Sec. I. Be it enacted by the General Assembly of the State of Iowa. There is hereby appropriated out of any money in the state treasury not otherwise appropriated, the sum of one hundred and fifty dollars per annum, payable monthly, for the benefit and support of Joseph Metz.

The pension was accepted, and was regularly paid to the

stationary custom of such race at variance with the needs and requirements of such society. The gulf thus cut between the custom and the want of primitive society, must necessarily be, and in practice always has been, so fertile a cause for the origin of legal fiction, so easily discernible at this distant day, that we may well pardon the assumption of Mr. Maine, that this is the only cause of legal fiction.

There are two causes that have ever given rise to legal fiction, and they may both be found in the constitution of man: The first is his disposition to be conservative; the other, his disposition to be just; and the one often merges in the other. It is a law of society, as well as of the constitution of man, to cling to the old. With illustrations of this proposition, every observer must be familiar. For it is not seldom that the unprejudiced observer, placing himself in superposition, sees plainly the need of improvement on some well established custom or law, to which the greater part of society clings with incredulous tenacity, despite their tacit admission that improvement is needed; their veneration seems to be wounded at every attempt at change, though it be for the better. Is not the criminal code of England, at the beginning of the present century, a striking illustration of this fact? See the speeches of Lord Brougham; essays and speeches of Sir James MacKintosh, and 4 Blackstone, 1, 2, 3, 4. But social necessities and opinions are always in advance of law and of custom, and therefore what should be law, is often only a dead letter on the statute book, because it is inapplicable to the wants and the requirements of society. Yet a great part of mankind not yet educated to comprehend the needs of society, and the need of innovation upon the custom, ever oppose all progress; or as Christina, Queen of Sweden, said of Louis XIV," they use their right hand to cut off their left." Under these circumstances, fictions of law have always been resorted to as a remedy to afford relief. It is not at all difficult to understand why this should be so. "They" (borrowing the language of Mr. Maine), "satisfy the desire for improvement, while at the same time they do not offend the superstitious disrelish for improvement."

Are

But many instances have we in our English common law, as in the Roman civil law, where fictions of law were not invented to gratify the conservative disposition of man, but his love for justice, right or liberty; and under such circumstances they have always been found invaluable expedients, to evade the rigor of the enacted law. Every lawyer is conversant with instances illustrative of this proposition. But would it not be wrong to say, that fictions of law can only obtain before primitive law is embodied in a code? Would not a legal fiction furnish the same relief, when resorted to to evade statutory enactments that have a tendency to abridge our liberty or our rights? And has not in fact such been the case? not the multiform constructions which judges have put upon the earlier English statutes striking examples? And notwithstanding many of these constructions are the result of subtle reasoning and abstract consideration, they have won for their authors laurels of legal fame. See Lord Coke's construction of the Stat. of Mortmain, I Inst. 2; 1 Bla. Com. 479. See also the Stat. DeDonis, 13 Ed. I, c. I, sec. 2, and the construction upon that statute in the Tattarum Case, 12 Ed. IV, 19; 2 Bla. Com. 116; 1 Washb. R. Prop. 82-87; and an account of the invention of the doctrine of Fine and Recovery. Id.

Instances might easily be multiplied, but enough have been cited, to show that the spontaneous development of the law does not terminate with codifying primitive law, as hastily observed by Mr. Maine. So far from this being the case, in construing statutes judges are licensed by well established principles of law to resort to legal fictions whenever such course serves the end of justice. Blackstone says there are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy; that is, how the common law stood at the making of the act; what the mischief was for which the common law did not provide; and what remedy the parliament hath provided to cure the mischief. And it is the business to so construe the act as to suppress the mischief, and advance the remedy. See 1 Bla. Com. 87, and 7 Co. Litt, 11, 42.

But we should not lose sight of the fact that in all complicated sciences in which facts and principles have to be proved, the same logical processes are made use of, and the maxim that "homogeneity of method, is never disturbed at the instance of fiction," holds good in law as in other sciences. The facts in a given case may be lost sight of, the logical processes of reasoning may be pursued upon fictitious premises, and the conclusion reached may be the same as if the facts in the case had formed the premises. And fictions in law (in pleading), as in other sciences, are often only used for convenience and brevity, as the alphabetical letters in algebra.

Legal fictions thus form an indispensible link in the chain of law and of civilization, which we do not think deserves the ridicule of a Bentham nor the eulogy of a Maine, but which has taken its place in the progress of nations as an indispensible expedient, and should be considered as such. WM. M. STANLEY. PEKIN, ILLS.

The Law of Municipal Powers. In the late case of D. G. Hitchcock & Co. v. The City of Galveston, decided at Galveston, in the Eastern District of Texas, on the 22d of February, 1875, by Mr. Justice Woods, of the Circuit Court of the United States, and reported in 2 CENTRAL LAW JOURNAL 331, some conclusions were arrived at by the Court, respecting the powers of municipal corporations, which render, it seems to the writer, the opinion of the learned judge justly liable to dissenting criticism.

The circumstance of professional connection with the case, and that, too, on its losing side, while suggesting the natural bias of the writer as counsel in reviewing the decision, invites also the most unsparing analysis of his views, and therefore he feels no hesitancy in their presentation.

There are many branches of the case which-within the limits of proper remark upon the court's opinion as such— can not be considered, and their preliminary elimination would appear essential to an intelligible comment upon the points remaining within the legitimate scope of review.

The suit was brought by the plaintiffs for damages alleged to have resulted from the city's breach of a contract with them to fill, grade, tamp, roll, curb and pave certain sidewalks. The damages asked did not embrace any item for the breach of the contract to pave. The construction of their rights as presented in the pleadings of plaintiffs was, that they had an absolute contract to do all the work name