who killed her perfidious lover; another of an Italian named Nino, who shot his wife; and a third of a native named Scott, guilty of the same crime. Before Recorder Goff Marie Barbieri was convicted; but, on a new trial after a reversal by the court of appeals, she was acquitted. The reversing opinion will be found in 149 Court of Appeals Reports, page 256, and is notable for the extraordinary manner in which the judge writing the leading opinion entered upon a personal criticism of the recorder. Judge Vann seems to have deprecated this, for he gave this note to a reporter: "I concur in the result." This is the, perhaps unprecedented, kind of language used at the conclusion of his opinion by Judge Miles O'Brien, formerly attorney general of the State: "The questions already discussed are sufficient to dispose of the appeal, and to show that the appellant did not have a fair trial; but the record discloses other rulings difficult, if not impossible, to defend, but to consider them would unnecessarily extend the discussion. A careful examination of the whole charge leaves the impression from its general tone and entire character that the learned recorder passed the line which limits the judicial function." Quoting from a Federal case, Judge O'Brien continues, "When a charge takes the form of animated argument the liability is great that the propositions of law may become so intermingled with inferences springing from forensic ardor, that errors intervene which the pursuit of a different course would have avoided."

The conviction of Nino was also reversed (155 N. Y. Court of Appeals Reports), but only at the expense of practically reversing the celebrated McNaughton case, where Chief-Justice Tindal of England gave the opinion in behalf of the twelve judges. Judge Bartlett, then recently elected, with only civil law experience, in delivering the opinion boldly says, after quoting the McNaughton opinion, "Such is not the law of this State." But the extent, or limitation of

mental and moral responsibility, as there defined by Chief-Justice Tindal, had been previously adopted in many previously reported cases in New York State and in other States.

In the Scott case (157 N. Y. Court of Appeals Reports) the appellate court in affirming Recorder Goff seems to have repented of the semi-personal views it gave to him in the Barbieri case; for the Scott opinion contained expressions of marked kindness toward him, and the bench was substantially composed of the same judges.

In addition to his judicial duties (which are shared by four associate judges of recent creation, in order to aid in dispatching criminal cases, yearly increasing in a population fast approaching two millions of inhabitants), Recorder Goff is ex officio member of a commission that apportions the metropolitan expenses; also of another commission which cares for the Sinking Fund of the Corporation; and of a third which adjudicates on appeal assessments for local public improvements. And in these semi-civic and semi-judicial coördinate duties, Recorder Goff has given acknowledged popular satisfaction to associates and constituents.

Recorder Goff cannot be called an eloquent orator, nor has he ever aimed to be one. But he is master of the colloquial method which is nowadays at the bar believed to be more efficacious at nisi prius, in chamber practice and in banco than in such flights of oratory as pertained to the elden times of Erskine and Brougham, or those of Wirt, Prentiss, Webster, Rufus Choate and David Paul Brown.

Recorder Goff seldom has disagreements among the juries that he charges. He speaks without hesitation; deliberately, yet by no means prosily; is magnetic in voice and look when addressing a jury; conversationally logical, never attempting persuasion, avoiding even implications of personal views when marshalling facts, and preferring simple Saxon words to those of Latin or Norman

origin. One of his recent jury charges is now presented as an average sample, and indeed it may be accepted as a model charge presenting the kernel of law without superflous shell:

"Gentlemen of the jury, it is proper for me to call your attention to certain rules for your guidance in the determination of this

case.

"The defendant at the bar is presumed to be innocent until the contrary be proved. That presumption remains with him until the moment when your mind is convinced by evidence to be contrary. When that moment arrives, then the presumption ceases. "It is the privilege of the defendant to take the witness stand in his own behalf. He may exercise that privilege or not, as he deems proper. If he does not exercise the privilege, his failure to do so must not be taken to his prejudice.

"The burden of proof rests upon the prosecution. The people are bound to prove every material fact necessary to the conviction of the defendant by a preponderance of evidence and beyond a reasonable doubt.

"Arguments of, counsel are proper to be considered by you when based upon evidence in the case, but beyond that, the opinions or conjectures of counsel should have no weight with you.

"You are the judges of the credibility of each witness on the stand. It is with you to say what witness to believe or to disbelieve; what portion of any witness's testimony to credit or to discredit.

"You are the exclusive judges of the facts in the case. The court is the exclusive judge of the law, and you are bound to accept the court's interpretation of the law

without question, but upon the facts you are the exclusive judges.

"These are general rules which you will observe and be guided by in your determination of this case.

"The issue in this case is one of fact, to be determined by you upon the evidence before you, and upon that alone; and the issue is, whether or not this defendant is guilty of receiving stolen goods with the knowledge that they were stolen. That is the one supreme issue which you have to decide, and you will be careful in your deliberations. to keep that in view at all times, and not to permit your discussions or your minds to wander upon collateral questions."

Recorder Goff has now a full decade of term left to him. But it will only be a judicial term, for the charter of the Greater New York removes his civic duties as member of the municipal boards. He is officially styled Recorder of the City and County of New York. As a city officer, he on New Year's day becomes functus officio, but he will remain a county officer and judge. There was a time when, as a county officer, the recorder presided over the County Board of Supervisors. His court of general sessions remains a county tribunal.

After New Year's Day the island of Manhattan, heretofore statutorily called New York City, becomes on the statute book the borough of Manhattan. And the recorder will remain both a New Yorker and a Manhattaner. On that day he can in his civic capacity echo the plaintive and monotonous answer on the trial of Queen Caroline, made by her loyal Italian courier, who was vainly asked questions tending to incriminate her, Non mi recordo.

Ꮐ

OOD feeling," says Mr. Oswald in his work on Contempt of Court," "nearly always exists between the bench and bar, and when it is interrupted the reason for it may generally be found to exist on both sides. There is scarcely any instance upon record in the superior courts of a conflict between the bench and bar becoming so acute as to lead to the committal of an advocate for contempt while conducting his client's cause. Even ChiefJustice Jeffreys (who is said to have browbeaten and sometimes threatened counsel) does not appear to have put in force the power of committal against counsel. And during the progress of the once celebrated Reg. v. Castro, or Tichborne case (which in its hearing occupied the time of the court for a longer period than any other trial on record, except that of Warren Hastings), although there were frequent conflicts between the bench and the advocate for the 'Claimant,' and several reminders to him by the judges of the weapon with which the law armed them, the court never went to the length of depriving the client of the services of his advocate. The natural disinclination of the court to interfere with counsel in such a way as to take his services from his client ought to form a strong reason for counsel not assuming too great a license." This passage may be taken as a good, short exposition of the true position, and of a correct appreciation of what the proper relations should be.

It is difficult to find a clear case of a barrister being punished for contempt while actually pleading for his client in court. Re Pater is, however, such a case (12 W. R. 823). Of two other cases cited by Mr. Oswald, where both persons committed were litigants, and apparently solicitors, Carus Wilson's case (7. Q. B. 984) may be, for

the present purposes, worth looking at; in the other (Reg. v. Jordan, 36 W. R. 589) Mr. Justice Cave said that the observation, "That is a most unjust remark," however said, is a gross insult to any court of justice, and if not withdrawn amounts to a contempt. Re Pater does not help us much. Mr. Pater, a barrister practicing at the Middlesex Sessions in 1864, feeling himself aggrieved by certain interruptions on the part of the foreman of the jury, remarked in his speech for the defense, "I thank God there is more than one juryman to determine whether the prisoner stole the property, for, if there were only one, and that one the foreman, from what has transpired to-day, there is no doubt what the result would be.” For this he was ultimately fined £20. On appeal to the Queen's Bench, Chief-Justice Cockburn said: "It appeared that Mr. Pater was fined for certain words uttered in his address to the jury, and I quite agree with Mr. Pater's counsel [Denman, Q. C., McMahon, and Kenealy] that the words in themselves are words which any counsel might have uttered in the honest discharge of his duty, and if they had been so uttered, though they might have been harsh and unpleasant to the party affected, that could not have been construed into contempt. But, on the other hand, if, though used in the course of his address to the jury, they were not used for the purpose of inducing the jury to come to a conclusion in favor of his client, but for the purpose of wantonly insulting one of the jurors, then I say they are an abuse of the privilege of counsel, and properly punishable as contempt of court." The court refused any relief. It will be noticed here that the contempt was not for words uttered to the bench, but the deputy assistant judge stated in his affidavit that, on his imposing the fine, Mr. Pater said:

"This shall not rest here. I will bring the subject under the notice of Sir George Grey, and very probably your removal from the bench will be the result." With other instances of barristers punished (by fine or commitment) for contempt on grounds totally different to those in question, there is no need to deal here.

66

There are some historic precedents of impassioned dialogue between the representatives of the two orders. To begin with, there is the classic story of Wedderburn in 1757. Lockhart, being against him in the Inner House at Edinburgh, showed " even more than his wonted rudeness, and superciliousness," and called him "a presumptuous boy." When," says Campbell (Life of Lord Loughborough in the Chancellors, vol. 6, p. 47), "the presumptuous boy came to reply, he delivered such a furious personal invective as never was before or since heard at the Scottish bar." Wedderburn's language, reported by Campbell, was an outrage on decency. "Lord President Craigie, being afterwards asked why he had not sooner interfered, answered, 'Because Wedderburn made all the flesh creep on my bones.' But at last his Lordship declared in a firm tone that this was language unbecoming an advocate and unbecoming a gentleman.' Wedderburn, now in a state of such excitement as to have lost all sense of decorum and propriety, exclaimed that his Lordship had said as a judge what he could not justify as a gentleman.' The president appealed to his brethren as to what was fit to be done, who unanimously resolved that Mr. Wedderburn should retract his words and make an humble apology, on pain of deprivation. All of a sudden, Wedderburn seemed to have subdued his passion, and put on an air of deliberate coolness, when, instead of the expected retractation and apology, he stripped off his gown, and, holding it in his hands before the judges, he said: My Lords I neither retract nor apologize; but I will save you

the trouble of deprivation; there is my gown, and I will never wear it more virtute me involvo.' He then coolly laid his gown upon the bar, made a low bow to the judges, and, before they had recovered from their amazement, he left the court, which he never again entered."

Another Scotchman, who also rose to be Lord Chancellor of England, played a nobler part in his contention with the bench. In 1784 the Dean of St. Asaph was indicted at Shrewsbury for seditious libel, and he was defended by Thomas Erskine. The jury found him "Guilty of publishing only." Buller, J.: "If you find him guilty of publishing, you must not say the word only.'" Erskine: "By that they mean to find there was no sedition." - Juror: "We only find him guilty of publishing. We do not find anything else."— E.: "I beg your Lordship's pardon, and with great submission. I am sure I mean nothing that is irregular. I understand they say, 'We only find him guilty of publishing.' Juror: "Certainly, that is all we do find.”—B.: “If you only attend to what is said, there is no question or doubt." E.: "Gentlemen, I desire to know whether you mean the word 'only' to stand in your verdict." Jurymen: "Certainly." B.: "Gentlemen, if you add the word 'only' it will be negativing the innuendoes." E.: "I desire your Lordship, sitting here as judge, to record the verdict as given by the jury."-B.: "You say he is guilty of publishing the pamphlet, and that the meaning of the innuendoes is as stated in the indictment." - Juror: "Certainly."— E.: "Is the word 'only' to stand part of the verdict?" Juror: "Certainly." E.: "Then I insist it shall be recorded." B.: "Then the verdict must be misunderstood; let me understand the jury." - E.: "The jury do understand their verdict.". B.: "Sir, I will not be interrupted.” — E. : "I stand here as an advocate for a brother citizen, and I desire that the word 'only' may be recorded." ― B.: "Sit down, sir,

remember your duty, or I shall be obliged to proceed in another manner." E.: "Your Lordship may proceed in what manner you think fit; I know my duty, as well as your Lordship knows yours. I shall not alter my conduct." (Campbell, Ibid. p. 432.)

The verdict was finally entered "Guilty, of publishing, but whether a libel or not we do not find."

Valuable as this precedent is, the comment of Campbell, himself a judge and Lord Chancellor, is equally precious: "The learned judge took no notice of this reply, and, quailing under the rebuke of his pupil, did not repeat the menace of commitment. This noble stand for the independence of the bar would of itself have entitled Erskine to the statue which the profession affectionately erected to his memory in Lincoln's Inn Hall. We are to admire the decency and propriety of his demeanor, during the struggle, no less than its spirit, and the felicitous precision with which he meted out the requisite and justifiable portion of defiance. The example has had a salutary effect in illustrating and establishing the relative duties of judge and advocate in England."

Another hot forensic mélée is recorded about 1817 (2 Law and Lawyers, 357). Serjeant Taddy was examining a witness in the Common Pleas, and spoke of the plaintiff "disappearing" from that neighborhood. Park, J.: "That's a very improper question, and ought not to have been asked." -T.: “That is an imputation to which I will not submit. I am incapable of putting an improper question to a witness." - P. (angrily): "What imputation, sir? I desire that you will not charge me with casting imputations. I say that the question was not properly put, for the expression "disappear" means to leave clandestinely.' T.: "I say that it means no such thing." P.: "I hope that I have some understanding left, and, as far as that goes, the word certainly bore that interpretation, and therefore

66

was improper."-T.: "I never will submit to a rebuke of this kind." — P.: That is a very improper manner, sir, for a counsel to address the court in."-T.: "And that is a very improper manner for a judge to address a counsel in."— P. (rising, very warmly): "I protest, sir, you will compel me to do what is disagreeable to me."-T.: "Do what you like, my Lord." P. (sitting down): "Well, I hope I shall manifest the indulgence of a Christian judge."-T.: "You may exercise your indulgence or your power in any way your Lordship's discretion may suggest, and it is a matter of perfect indifference to me." - P.: "I have the functions of a judge to discharge, and in doing so I must not be reproved in this sort of way." -T.: "And I have a duty to discharge as counsel which I shall discharge as I think proper, without submitting to a rebuke from any quarter." Serjeant Lens was about to interfere. Taddy protested against any interference, but Lens said, "My brother Taddy, my Lord, has been betrayed into some warmth. "I protest," said Taddy; "I am quite prepared to answer for my own conduct." - P.: "My brother Lens, sir, has a right to be heard." -T.: "Not on my account; I am fully capable of answering for myself."-P.: "Has he not a right to possess the court on any subject he pleases?"-T.: "Not while I am in possession of it, and am examining a witness."

"Mr. Justice Park then, seeing evidently that the altercation could not be advisably prolonged, threw himself back into his chair, and was silent."

Lord Brougham mentions a strange scene, of which he was witness, amusing rather than of good example. At Durham (about 1810?) a cause was being tried before Baron Wood. "There was heard an undergrowl on the other side from the Serjeant (Cockell), abusing Topping for his insolence and ingratitude, and the Baron for his ignorance and partiality, and calling for his clerk to bring him some of the stomach tincture,