subd. 9) to teach him reading. writing and arithmetic. Finally, suppose the guardians "inquire into the treatment thereof," why should they be the expiration of the term of service, a "new Bible;" to which the Code of 1862-88 added "a suit of good clothing." The omission to adopt this improvement from the unwritten law is partly re-required to "redress any grievance?" It is impospaired by giving him a "civil suit" at the end of the term and of the article, unless he should insist on bringing an action. By the final clause of § 71 "every indenture" is to be filed in the county | clerk's office. This, doubtless, includes both counterparts, in each instance. Sections 72, 73 and 74 treat of "indentures, by whom signed," in three several cases. The first of these sections has two sets of subdivisions; subds. 1, 2; and again, subds. 1, 2, 3, 4, 5 and 6. Some slight awkwardness might arise in consequence of this feature, but, with care, it will be possible to make an unmistakable reference, e. g., by specifying, where such is the desire, "the Domestic Relations Law, second subdivision second of section seventy-second." sible. That is the prerogative of "a court of justice" (Code Civ. Pro., § 3333). "As provided by law:" what law? Written or unwritten? If there be anything inexcusable in a revision or codification, it is the last quoted expression. Imagine the "poor guardians," having inquired into the treatment thereof, and wishing to secure the redress of a grievance, coming to this revised and codified Domestic Relations Law," for guidance, only to find themselves glibly referred to the " provisions of law." If these "guardians" should prove remiss or become befogged, the minor would, nevertheless, not be remediless, for, by § 75, "if the master or employer fail to perform any provision of the indenture the whole world to the rescue "any By § 74, an indenture by a charitable corporation person" may sue in the minor's behalf! The inex"shall be signed: " 1. By the officers. 2. By the master or employer; and, 3. May be signed by the child. The "minor" (defined under "unlawful marriages") becomes a "child" in § 71, subd. 9, § 73 subd. 3, and three times in § 74; yet, though the latter term is not defined, the meaning may gener ally be gathered from the context, as in subd. 9 of § 71, which requires that "if a minor is indentured by the poor officers," there must be "an agreement that the master or employer will cause such child to be instructed" in reading, writing and arithmetic; where the allusion, by the aid of the particle "such," is placed beyond doubt. It appears, from § 73, that a minor, whose support shall become chargeable" to a "municipal corporation," may be one whose support "was chargeable to the county," or "chargeable to the town," or "chargeable to the city." haustibility of this panel of the plaintiff's is not more remarkable than the nature of the action to be brought. The action is brought (at law) "to recover damages for such failure; " then the court (in equity) cancels the indenture; and renders “judgment against such master or employer for not to exceed one thousand dollars; which, on collection, is to be paid over for the use and benefit of "such minor," to the "parents or guardian of the child!" If the master or employer die (§ 76), the personal representatives of the master or employer may assign the indenture. Thereupon "the assignee shall become vested with all the rights and subject to all the liabilities of his assignor." His assignor being the personal representatives of a decedent, it would seem that they had neither rights nor liabilities in the premises. If they had statutory authority to assign, the contract would have been unnecessary. It is pleasant to close the review of our relations with praise of an undeniable improvement in the substance of the law of "indentures." By § 39 of the R. S. of 1827-28, it was made unlawful to attempt to restrain, by agreement or oath, a journeyman or apprentice from setting up "his trade, profession or employment in any particular place, shop, house or cellar!" By section 77 of the new codification, the prohibition, by a chaste condensation, terminates before reaching the shop, thus effecting a saving of four words, and avoiding an implication of a destitution, on the part of shops, houses and cellars, of the quality of locality, which is negatived by the most advanced researches in the science of physics. At one point, it must be confessed, there is a The temptation to find fault with this revision. last sentence of § 73 declares that "the poor officers, by whom a child is indentured, and their successors in office, shall be guardians of every such child and shall inquire into the treatment thereof, and redress any grievance, as provided by law." Here is a creation of guardianship, in article 7, whereas it should have been in article 5. Are they guardians in socage, or of the person, or of both person and property? If guardians of the person, by deed (of indenture), then, under § 52 (art. 5, ante), they may take the custody and charge of the tuition of such minor ” (i. e., child), which would be inconsistent with the duty of the master or employer (§ 71, 160 Broadway, New York city. Yours truly, THEO. F. C. DEMAREST. The Albany Law Journal. ALBANY, JUNE 27, 1896. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] DURIN nate himself shall never be prosecuted for the offences to which the testimony relates. The same divided court also holds that the constitutional privilege of refusing to give selfincriminating testimony, was not intended to shield a witness from personal disgrace attaching to the exposure of his crimes, but only from actual prosecution and punishment; that the act of 1893 offered protection to persons who were required thereby to give self-incriminating. evidence before the Interstate Commerce Commission, which extends to any possible prosecution in the State courts, as well as Federal courts, and even, if there is a bare possibility that, by his enforced disclosures, the witness may be subjected to criminal prosecution in a State court, the danger is so remote and improbable and of so exceptional a character, that it is not within the contempla have already cited; furthermore, the fact that a witness may be prosecuted and put to the annoyance and expense of pleading his constitutional immunity by way of confession and URING the month of February, 1893, an act was passed by Congress which provided in effect that no person should be excused from testifying before the Insterstate Commerce Commission on the ground that his testimony would tend to criminate him; but that he should not be prosecuted or subjected to any penalty on account of any transaction concerning which he might testify. At the time it was presumed that the act was passed in view of the opiniontion of the constitutional provision which we of the Supreme Court of the United States in Counselman v. Hitchcock, 142 U. S. 547, which held that section 860, of the Revised Statutes, providing that no evidence given by a witness should be used against him, his prop-avoidance, is a detriment which the law does erty, or estate, in any manner, in any court of not recognize and to which the constitutional the United States, in any criminal proceeding, provision does not extend. did not offer that complete protection to a witness which the constitutional amendment was intended to guarantee. The Supreme Court of the United States has recently, by a majority vote of its members, decided that the act of 1893 is constitutional; on the ground that it completely shields a witness against any criminal proceedings which may be aided di rectly or indirectly by his testimony, and Mr. Justice Brown delivered the opinion of a majority of the court, which in part was: The maxim. "Nemo tenetur seipsum accusare," had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a that in effect the act operates as a pardon for the offences to which it relates, and therefore the act is not in conflict with the provisions of the fifth amendment to the Constitution of the United States, which provides that no person shall be compelled in any criminal case to be a witness against himself; that though the Constitution vests in the President power to grant reprieves and pardons for offences against the United States, except in cases of impeachment, crime under investigation, the ease with this does not prevent Congress from granting which the questions put to him may asamnesty either before legal proceedings are sume an inquisitorial character, the temptation taken, during their pendency, or after convic- to press the witness unduly, to brow-beat him tion and judgment; and it is therefore compe- if he be timid or reluctant, to push him into a tent for Congress to provide that a witness who corner, and to entrap him into fatal contradicis required to give evidence tending to incrimi- I tions, which is so painfully evident in many of VOL. 53 No. 26 the earlier state trials, notably in those of Sir Nicholas Throckmorton and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly imbedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enact ment. Stringent as the general rule is, however, certain classes of cases have always been treated as not falling within the reason of the rule, and, therefore, constituting apparent exceptions. When examined, these cases will all be found to be based upon the idea that, if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness, the rule ceases to apply, its object being to protect the witness himself, and no one else; much less, that it shall be made use of as a pretext for securing immunity to others. nation upon their statements. State v. Wentworth, 65 Me. 234; State v. Witham, 72 Me. 531; State v. Ober, 52 N. H. 495; Com. v. Bonner, 97 Mass. 587; Com. v. Morgan, 107 Mass. 199; Com. v. Mullen, 97 Mass. 545; Connors v. People, 50 N. Y. 240; People v. Casey, 72 N. Y. 393. 2. For the same reason, if a prosecution for a crime, concerning which the witness is interrogated, is barred by the statute of limitations, he is compellable to answer, Parkhurst v. Lowten, 1 Mer. 391, 400; Calhoun v. Thompson, 56 Ala. 166; Mahanke v. Cleland, 76 Iowa, 401; 41 N. W. 53; Weldon v. Burch, 12 Ill. 374; U. S. v. Smith, 4 Day, 123; Fed. Cas. No. 16,332; Close v. Olney, 1 Denio, 319; People v. Mather, 4 Wend. 229, 252-255; Williams v. Farrington, 2 Cox Ch. 202; Davis v. Reed, 5 Sim. 443; Floyd v. State, 7 Tex. 215; Maloney v. Dows, 2 Hilt. 247; Wolfe v. Goulard, 15 Abb. Prac. 336. 3. If the answer of the witness may have a tendency to disgrace him or bring him into disrepute, and the proposed evidence be material to the issue on trial, the great weight of authority is that he may be compelled to answer, although, if the answer can have no effect upon the case, except so far as to impair the credibility of the witness, he may fall back upon his privilege. I Greenl. Ev., §§ 454, 455; People v. Mather, 4 Wend. 229; Lohman v. People, 1 N. Y. 379; Com. v. Roberts, Brightly N. P. 109; Weldon v. Burch, 12 Ill. 374; Cundell v. Pratt, 1 Moody & M. 108; Ex parte Rowe, 7 Cal. 184. But, even in the latter case, if the answer of the witness will not directly show his infamy, but only tend to disgrace him, he is bound to answer. (1 Greenl. Ev., § 456.) The cases of Respublica v. Gibbs, 3 Yeates, 429, and Lessee of Galbraith v. Eichelberger, id. 1. Thus, if the witness himself elects to waive his privilege, as he may doubtless do, since the privilege is for his protection, and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure. 1 Greenl. Ev. § 451; Dixon v. Vale, 1 Car. & P. 278; East v. Chapman, 2 Car. & P. 570, 1 Moody & M. 46; State v. K―, 4515, to the contrary, are opposed to the weight N. H. 562; Low v. Mitchell, 18 Me. 372; Coburn v. Odell, 10 Fost. (N. H.) 540; Town of Norfolk v. Gaylord, 28 Conn. 309; Austin v. Poiner, 1 Sim. 348; Com. v. Pratt, 126, Mass 462; Chamberlain v. Wilson, 12 Vt. 491; Locket v. State, 63 Ala. 5; People v. Freshour, 55 Cal. 375. So, under modern statutes permitting accused persons to take the stand in their own behalf, they may be subjected to cross-exami of authority. The extent to which the witness is compelled to answer such questions as do not fix upon him a criminal culpability, is within the control of the Legislature. (State v. Nowell, 58 N. H. 314, 316.) 4. It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands, with respect 311, 321. * * * As gress the power to pass acts of general amnesty, and is ordinarily exercised only in cases of individuals after conviction, although, as was said. by this court in Ex parte Garland, 4 Wall. 333, 380, "it extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." * * It is argued, in this connection, that, while the witness is granted immunity from prosecution by the Federal government, he does not obtain such immunity against prosecution in the State courts. We are unable to to such offense, as if it had never been committed. Roberts v. Allatt, Moody & M. 192, overruling Rex. v. Reading, 7 How. State Tr. 259, 296, and Rex v. Earl of Shaftesbury, 8 How St. Tr. 817; Reg. v. Boyes, 1 Best & S. All of the cases above cited proceed upon the idea that the prohibition against his being compelled to testify against himself presupposes a legal detriment to the witness arising from the exposure. the object of the first eight amendments to the Constitution was to incorporate into the fundamental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother coun-appreciate the force of this suggestion. It is try, the construction given to those principles true that the Constitution does not operate by the English courts is cogent evidence of upon a witness testifying in the State courts, what they were designed to secure and of the since we have held that the first eight amendlimitations that should be put upon them.ments are limitations only upon the powers of This is but another application of the familiar rule that, where one State adopts the laws of another, it is also presumed to adopt the known and settled construction of those laws by the courts of the State from which they are taken. Cathcart v. Robinson, 5 Pet. 264, 280; McDonald v. Hovey, 110 U. S. 619; 4 Sup. Ct. 142. The danger of extending the principle announced in Counselman v. Hitchcock is that the privilege may be put forward for a sentimental reason, or for a purely fanciful protection of the witness against an imaginary danger, and for the real purpose of securing immunity to some third person, who is interested in concealing the facts to which he would testify. Every good citizen is bound to aid in the enforcement of the law, and has no right to permit himself, under the pretext of shielding his own good name, to be made the tool others, who are desirous of seeking shelter behind his privilege. Congress and the Federal courts, and are not applicable to the several States, except so far as the fourteenth amendment may have made them applicable. Barron v. Mayor, 7 Pet. 243; Fox v. State, 5 How. 410; Withers v. Buckley, 20 How. 84; Twitchell v. Com., 7 Wall. 321; Presser v. State, 116 U. S. 252; 6 Sup. Ct. 580. The There is no such restriction, however, upon the applicability of Federal statutes. sixth article of the Constitution declares that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws. of any State to the contrary notwithstanding." The act in question contains no suggestion that it is to be applied only to the Federal It declares, broadly, that "no person courts. * * * * * * The act of Congress in question, securing to shall be excused from attending and testifying witnesses immunity from prosecution, is virtubefore the inter state commerce comally an act of general amnesty, and belongs to mission on the ground a class of legislation which is not uncommon that the testimony * * * required of him either in England (2 Tayl. Ev. § 1455, where may tend to criminate him," etc. "But no a large number of similar acts are collated) or person shall be prosecuted or subjected to any in this country. Although the Constitution penalty or forfeiture for or on account of any vests in the President "power to grant reprieves transaction, matter or thing concerning which and pardons for offenses against the United he may testify," etc. It is not that he shall not States, except in cases of impeachment," this be prosecuted for or on account of any crime power has never been held to take from Con-concerning which he may testify, which might trust or the office of executrix or administratrix, and that the provisions of the act as to the liabilities of married women shall extend to all liabilities by reason of any breach of trust or devastavit by any married woman being a trustee, executrix or administratrix, and her husband shall not be subject to such liabilities unless he has intermeddled in the trust or administration. In this way she may accept any possibly be urged to apply only to crimes under the Federal law, and not to crimes, such as the passing of counterfeit money, etc., which are also cognizable under State laws; but the immunity extends to any transaction, matter or thing concerning which he may testify, which clearly indicates that the immunity is intended to be general, and to be applicable whenever and in whatever court such prosecution may be had. But, even granting that there were still a bare possibility that, by his disclosure, he might be subjected to the criminal laws of some other sovereignty, that, as Chief Justice Cockburn said in Queen v. Boyes, 1 Best & S. 311, in reply to the argument that the witness was not protected by his pardon against an impeachment by the House of Commons, is not a real and probable danger, with reference to the ordinary operations of the law in the ordinary courts, but "a danger of an imaginary and un-limited by this section, then the act requires substantial character, having reference to some amendment as regards the administration of extraordinary and barely possible contingency, trusts by married women. so improbable that no reasonable man would suffer it to influence his conduct." Such dangers it was never the object of the provision to obviate. trust of land or any interest in land or other per- woman as The death of Austin Abbott, whose books, many of which have special reference to New York law, have made him known to all the members of the profession in this State, and whose connection with so many students, as a learned instructor, has brought him in touch. with many hundreds of young practitioners throughout the country, comes at a time when death has likewise claimed many other distin A very curious condition is found in England in regard to the power of a married woman trustee. Mr. Justice North, in the case of Allsop v. Harkness et al., recently decided that a married woman trustee cannot effectually convey real estate without the concurrence of her hus-guished jurists. The New York Law Journal band and without the acknowledgment by a married woman. In this particular case the trust was created and accepted in 1885, and the woman was subsequently married in 1889, after which the Married Woman's Property Act came into operation. The judge took the view that the above act only applied, and was only intended to apply, to the property of a married woman, to which she was entitled to before the act went into effect, and not to property held in trust. If this decision is right, and it seems to meet with the approval of the legal profession, it would appear that the Married Woman's Act creates a ridiculous state of affairs, for section I states that a married woman shall be capable of entering into and rendering herself liable to the extent of her separate estate on any contract; while section 24 states that the word contract shall include acceptances of any most fittingly eulogizes Mr. Abbott, in the following words: "Dean Abbott possessed rare qualities of systematic research and succinct. statement, and his faculty of original thought, far from being smothered by the weight of erudition, was constantly aiming to apply the results of past experience to new questions arising in the progress of the law. He was profoundly interested in the present agitation for international arbitration. His influence has been constantly exerted in favor of reforms, and his sound understanding, aided by his great learning, made his suggestions uniformly of practical value. His career furnishes an encouraging exhibition of the truth that faithful devotion to professional work not only brings professional success, but that his work may be an instrument of a higher order of service to the public." |