should err in my judgment, there is a judicature, equal in dignity to a Roman senate, that will correct it." therefor at far greater length than I could have wished, upon the different questions on which I have found it necessary to pass, to arrive at a In the same volume of the Supreme judgment in the case at bar. These questions Court reports, from which I have taken the worst of the specimens just exhibited, there is a passage which might serve as a model of dignity and purity in judicial style. It occurs in the dissenting opinion of Mr. Justice Harlan in that important case where the Court upheld a statute of Louisiana compelling railroad companies to provide separate cars for white and colored passengers, and prohibiting passengers of either race from riding in the cars set apart for the other. Mr. Justice Harlan held that the statute was unconstitutional. He said: "The white race deems itself to be the dom inant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens, there is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. . . . It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race." are numerous, and the grave importance of some of them required me to exhibit fully the grounds of my opinion. I have touched no question which, in the view I have taken, it was not absolutely necessary for me to pass upcn, to ascertain whether the judgment of the circuit court should stand or be reversed. I have avoided no question on which the validity of that judgment depends. To have done either more or less would have been inconsistent with my views of my duty." - This passage and indeed everything that Judge Curtis wrote reflected the singular simplicity and directness of his character. He was essentially a lawyer, and to say that is of course to admit that his character had marked limitations. It would hardly have been possible for Judge Curtis to recognize the validity of a "higher law"; he would have abided by the law of the land, even though that law operated unjustly—at least it is difficult to conceive of his doing otherwise. But in so doing he would have followed his conscience, and he would have followed it with such perfect simplicity and sincerity as not to admit the least trace of bravado, of affectation, of boasting, of vanity, even of self-consciousIt was well said of him, by Mr. Elias Merwin, at the meeting of the bar held after the death of Judge Curtis: "The wonderful precision and accuracy of his mental operation, I cannot but believe, were due in a large measure to the singular rectitude and ness. force of his character." Thus far, in giving specimens of bad judicial style, I have quoted only from our most august tribunal. Doubtless, if one were to ransack the opinions of the various State courts, he could find many examples of inelegance and incorrectness. I remember one opinion, rendered by a Western court, in which the learned judge declared: "Courts are not required to hypothecate instruc tions upon a mere combination of words or syllables," etc. But in this quest one need not go far from home. From a recent volume of Massachusetts reports I take the following sen tence: "But the question is with regard to the rights of a passenger to get off the location of the railroad within which he finds himself by right." What does the sentence mean? A reference to the context shows that "location" a hideous word under any circumstances here signifies premises or track; and what the judge meant to say was that the question related to the lawfulness of the manner in which the passenger attempted to pass from the railroad track to the adjacent land, his presence on the track being lawful. In a still later volume of Massachusetts reports occurs the following sentence - all in one breath : — "If these were the only motives for the contract, and if its contents were only what we have stated, we are not prepared to say, either for substantive reason, or because such a transaction may cover others less free from objection, that it is against public policy for one man openly to pay or to promise to pay another in order to induce him to take part in a venture, and to become a director in the management of it." Of course, the worst fault here, and one which vitiates the whole paragraph, is that the writer begins by stating a proposition limited to the particular case set forth carlier in his opinion, and then, apparently forgetting that he has done so, concludes with a general proposition, applicable to every case. The expression "such a transaction may cover others," is also, of course, inelegant and incorrect; and the use of the word "substantive" in the sense intended by the learned judge, though, perhaps, good authority may be cited for it, is so technical as hardly to rise above the level of legal slang. It may be doubted also if one can speak of the manage ment" of a "venture." Here is another specimen taken from a volume of Massachusetts reports published within a few years: "In the case at bar, while the defendant's herd had been exposed to hog cholera, there was evidence that a portion of it only had been affected, and, further, that, even if affected, the meat of the animals was not necessarily unwholesome. There was no evidence that the animals whose meat was sold had ever, so far as the defendants knew, actually had the disease; and the verdict of the jury has established that they were ignorant that the meat sold by them was unwholesome." In this passage, "while" is flagrantly misused for " although," "herd" is employed where the proper word is "drove," "had had" is inelegant, and the expression "whose meat was sold" is an almost ludicrous instance of the wrong pronoun. It very nearly implies that the flesh of the hogs could be sold and carried away, leaving them intact and alive. In the same volume there is a sentence which contains no less than five suppositions, through which the mind of the reader has to travel, without the rest and refreshment even of a semicolon, in order to reach the conclusion. It runs as follows: "If there had been no consolidation, and the transfer had been direct from the S. and B. Railroad Company to another Massachusetts Corporation, we hardly can suppose that it would have been argued that the purchaser had not the same powers to take land and to complete the road, that the S. and B. Railroad Company would have had, if its time had been extended by similar words before the sale." This, of course, is intelligible, but it is not easily intelligible, and instead of giving the reader a pleasant sensation, which a well-constructed sentence does, even upon so dry a subject as the law, its effect is to weary and depress his spirits. The same remarks would apply also to the following paragraph taken from the same volume:"It cannot be argued seriously that because a sale made or attempted to be made to a parent through the agency of a minor child is illegal, it therefore becomes a sale to the minor, even if it were true that the illegality would prevent the title passing where there is a delivery, and the sale is fully executed." This paragraph could of course be "parsed" by one skilled in grammar; it is only obscure; but the following paragraph taken from the same volume, is ungrammatical as well as obscure. The suit was for damages for the killing of a milkman who was struck by a railroad train while crossing the tracks between two and three o'clock in the morning. It was alleged on his behalf that the gate-tender was negligent, and the defendant, in turn, had suggested that the milkman was asleep in his wagon. The Court said: "But if the deceased was not guilty of such gross negligence as, by the terms of the statute, would prevent a recovery, then, whether there was some neglect on his part, or on the part of the defendant's servant, or the conduct of both was not more ill-judged than might have been expected in the flurry of approaching danger, the intervention of the later causes would not necessarily prevent the neglect to give warning from 'contributing to the injury.' I do not mean to imply that the average opinion if there can be such a thing rendered by the Supreme Court of Massachusetts is so bad as the extracts just made would indicate; but those extracts were all taken from two, or possibly from three, volumes of recent reports. In general, it may, I think, fairly be said that modern opinions in this country are inferior in style to those rendered by the earlier judges. Many reasons might be given for this deterioration, as that the modern judges have received an education less classi cal than that enjoyed by their predecessors; that the multiplication and diffusion of second-rate books and magazines in recent times have lowered the literary standard of the whole community; that the former judges were less burdened with work and therefore could bestow more pains upon their written opinions than it is possible for their successors to bestow. It is perhaps true, also, that judges, at least in this State, now take a more narrow and technical view of the law than was taken in the days of Parker and Shaw; they have widened the gap between law and life, and therefore, also, between law and literature. How refreshing are the tropes that one finds occasionally in the opinions of by-gone jurists! Here, for example, is a passage from one of the last opinions rendered by Chief- Justice Parker, to whom Lemuel Shaw succeeded. The Judge was deciding the point that doves, while at large, cannot be the subject of larceny. He explained: "The reason of this principle is that it is difficult to distinguish them from other fowl of the same species. They often take a flight and mix in large flocks with the doves of other persons, and are free tenants of the air, except when, impelled by hunger or habit, or the production or preservation of their young, they seek the shelter prepared for them by the owner." The expression "free tenants of the air" is poetic, and yet it is couched in legal phraseology. After all, a judge, like anybody else, is the better for being human, for having sympathy with all other animals, including those which are dumb, for having a sense of humor and a sense of beauty. And when these qualities exist in a man, some hint of them will be disclosed even by the style in which he draws up a judicial opinion. GUILTY. BY JOHN ALBERT MACY. UILTY? If that's the law, judge, GUILTY Why then I suppose it's so. I have broke the rules, that were made for mules That have to be told to go. But a man can't stand with a book in his hand, When his blood is hot, there's times he's got And if he'd said it to me, judge, I wouldn't have been so mad. But for such a cur to speak to her! Why my fist was all I had. And maybe you'd used your tongue, judge, 1. The effect of insanity upon the capacity be totally void by the operation of the statto marry. 2. The effect of supervening insanity upon marriage, and the rights, duties and legal remedies of the contracting parties. 3. The question whether adultery committed by a spouse who is at the time insane is a bar to an action of divorce. (1) There are some obscure dicta in the earliest commentators on the law that the marriage of an insane person could not be invalidated on that account, founded, as Lord Stowell, then Sir William Scott, pointed out in Turner v. Meyers (1808, 1 Hagg. Consist. Reps. 414) "on some notion that prevailed in the dark ages of the mysterious nature and the contract of marriage in which its spiritual almost obliterated its civil character." Thus we read in Rolle's Abridgment (357; 50; 7) that "an ideot à nativitate poet consenter en marriage, et ses issues seront legitimates." By the middle of the eighteenth century, however, a more rational rule had clearly been established. It was settled in conformity with the civil law that idiots, being incapable of giving the consent which is the basis of marriage, were ipso facto incapable of marrying, and that the marriage of a lunatic was absolutely void unless it had tracted during a lucid interval. of George II this doctrine was rather absurd extent. It was provided that the marriage of lunatics and persons under frenzies (if so found by inquisition or committed to the care of trustees by any Act of been conIn the reign In the reign carried to a ute alone and without the necessity of any proceedings for declaration of nullity being taken in the Ecclesiastical Courts. It is stated that this Act was passed to meet the case of Mr. Newport, the natural son of the Earl of Bradford, who had left him a very large fortune, with remainder to another person. It remained on the statute book till 1873, since when the lunatic so found, and the lunatic not so found, by inquisition have been, as regards their capacity to marry, on the same footing. The modern English law may be stated thus: marriage, being the voluntary union for life of one man and one woman to the exclusion of all others (Hyde v. Hyde, I P. and M. 133. Re Bethell, L. R. 38 Ch. D. 394), can be validly entered into by such persons only as are capable at the time of understanding its nature and comprehending its effects as above described. It may be interesting to refer for at moment to re Bethell as illustrating the English legal idea of marriage. Christopher Bethell, whose domicile was English, went to South Africa in 1878, and afterwards resided at Mateking in Bechuanaland. In 1883 he went through a ceremony of marriage with Teepoo, a woman of the Baralong tribe, among whom polygamy is allowed, and lived with her for some time as his wife. He was killed in the colony in 1884, and about ten days after his death Teepoo gave birth to a female child. Bethell, in a document which he wrote and signed in 1883, made some |