T The Albany Law Journal. ALBANY, JUNE 20, 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.] railway and which prohibited passengers from following the time-honored suburban custom of carrying packages. Mr. Bullock was attacked by the conductor and a detective when he entered the car at Hoboken with two bundles, and was ordered to place them in the express This he refused to do. Thereupon they were taken from him and sent by express. In the scrimmage to retain the packages Mr. Bullock's coat was torn ; when the parcels reached him two weeks later some car. HON. Isaac H. Maynard, formerly judge of spoiled. "The railroad, as of the groceries were the Court of Appeals, and senior member of the firm of Maynard, Gilbert & Cone, died suddenly, in his room at the Kenmore hotel in this city, on June 12, 1896. Judge Maynard was born April 9, 1838, at Bovina, Delaware county, N. Y. He entered Amherst College in 1858, and graduated in 1862, with honor. In 1875 he was elected member of Assembly from Delaware county, and was nominated, in 1883, by the Democratic party, for the office of Secretary of State, but was defeated. On April 1, 1887, he was appointed by President Cleveland, Assistant Secretary of the Treasury, to succeed Hon. Charles S. Fairchild, and in 1892 was appointed for the S. Fairchild, and in 1892 was appointed for the second time as first Deputy Attorney-General of the State of New York. Judge Maynard was a man of rare legal ability in his chosen profession. As judge of the Court of Appeals, he was regarded as one of the strongest members of the court, and his opinions were marked by great legal learning, and by a clear and precise appreciation of the facts involved. For the past few years most of his practice was before the Court of Appeals, where his masterly arguments were generally marked by success. Judge Maynard was particularly thorough in practice, and his briefs, as well as his opinions, were marked by logical argument and precise learning. The bar of this city and State have lost a most learned member and faithful student. In the Morris Circuit in New Jersey the jury in the case of Bullock v. The Del., L. & W. R. R. Co., returned a verdict which will be of interest to the public generally. It seems that Bullock brought suit against the company for damages because of a rule that recently went into effect on the defendant's VOL. 53 No. 25. as a defence, used the wording of the commutation ticket upon which Mr. Bullock was riding, and contended that by that contract the plaintiff had no right to carry parcels into the car, and that if he did so convey them the officers of the company had a right to take them from him by force. The case hinged on the construction of the wording of the contract; the ruling was given by Mr. Justice Magie, who said that a contract which read "personal passage only " did not restrict the commutator to the clothes he had on, but permitted him to carry such articles as he might have obtained for his own use or as might have reference to the purpose of his journey. This does not allow the commutator, however, to carry with him articles for home consumption that do not relate to the personal business of the commutator. Groceries, such as the parcels in question, are not such personal belongings as were necessary for his journey. The remedy in such a case as this is to inform the commuter that he is violating a rule of the railroad. Then if he refuses to put away the packages the officials have a right to refuse to carry him, and if he should refuse to leave the car then they would be justified in using such force as is necessary to put him off the train; but under no circumstance have they the right to take from him any of his belongings, without his consent. All the testimony in the case went to show that neither the conductor nor the detective made any effort to put Mr. Bullock off the train, but only insisted upon his taking the packages into the express car, which, when he refused to do, they might exert force to put him off the train. The verdict was divided into three parts; first, $1 for tearing plaintiff's coat; second, $5 for spoiling the groceries of the plaintiff; and, third, $1,000 for the insult offered. It was piled by the Statutory Revision Commission; this was passed by the Legislature with, we understand, the changes we have alluded to from the original draft. We do not seek to place the brought out on the trial that the rule of the railroad company was made to protect the United States Express Company and that the express company had been finding fault because the commuters had been in the habit of carry-responsibility for these important changes in the ing home articles, which they bought in New York city, instead of sending them by express. We have devoted considerable space and given much attention to the subject of codification of existing statutes. We publish in this issue of the LAW JOURNAL part of the letter on the codification of the Domestic Relations Law by Theo. F. C. Demarest, of New York city. We have always been in favor of a systematic codification of the existing statutes on the grounds (1) that it would relieve lawyers very much from the perplexing condition into which the Revised Statutes have reached by reason of innumerable amendments, and (2) because we thought that certain parts of the common law might properly be codified with existing statutes. We must, however, protest against important changes of existing statutes when codified into general laws. We have heard recently too much criticism of the codification of laws in regard to taxation, now known as Chapter 708 of the Laws of 1896. Naturally a subject of this kind was one which would have to be treated with the greatest discretion, and it was only fair to existing corporations who are taxed under the law that the amount of their taxation should remain as it had previously been, and that no attempt should be made to further tax them under the guise of a general law. There is too much of this legislation we have described in every legislature. It is variously termed and the names are not pleasing to the ear. It is sometimes done for good and practical reasons, and sometimes the excuses are more personal. The point, however, of this comment is to call attention to the fact that the different franchise and other taxes imposed under the codification of the tax law of 1896 have been changed, increased, diminished, according to the sweet will and pleasure of the Legislature and other names we will omit. It will be remembered that Hon. J. Newton Fiero and Hon. Chas. A. Collin were appointed a committee to codify the tax law. Their codification failed to pass several legislatures, and this year a law was com franchise or other tax on any individual or body of men, but that some person or persons influenced the Legislature by advice — or otherwise-in the changes that were made is evident, and we regret exceedingly that such codification of such important subjects was free from such objectionable features. Senator Hill, of the Committee on Judiciary of the United States Senate, has submitted a report upon the bill in relation to contempt in United States courts, and which is the result of the deliberations of the committee. The bill defines direct contempts to be those committed during the sitting of a court or a judge in chambers in its or his presence; all other contempts are indirect. It provides for the immediate and summary punishment of direct contempt without written accusations. Special interest in the bill centers in the provisions for the punishment of contempt of court committed not in the court's presence, as in the Debs case. as follows: The provision upon this point is That upon the return of an officer or process or an affidavit duly filed, showing any person guilty of indirect contempt, a writ of attachment or other lawful process may issue, and such person shall be arrested and brought before the court; and thereupon a written accusation, setting forth succinctly and clearly the facts alleged to constitute such contempt shall be filed and the accused be required to answer the same by an order fixing the time and place of hearing; and the court may on proper showing extend the time so as to give the accused a reasonable opportunity to purge himself of such contempt. After the answer, or in case of refusal to answer, the court may proceed to hear the accusation upon such testimony as may be produced. If the accused answer, the trial shall proceed upon testimony produced as in criminal cases, and he shall be confronted with the witnesses against him; but such trial shall be by the court, or in its discretion, and upon application by the accused, a trial by jury may be had, as in any criminal case. If found guilty judgment shall be entered accordingly, prescribing the are discussed with great clearness and ability, punishment. and there, among other things, it is said, that, "there is a marked difference in respect to the property rights of the wife under our law and at common law. The wife is liable under our statute, if she have a separate property, in common with the husband, for necessaries furnished the family. The husband and wife are placed upon an equal footing, in respect to the interest each may have in the estate and property of the other, and husband and wife may contract with each other, and she with strangers, as if she were sole." And again in the same case it is said: "The policy of the law should be, and is, to do justice, and to give to the injured wife not merely what necessity but what justice demands. This has been so repeatedly recognized in the courts of this State, that citation of authority elsewhere would seem unnecessary." The bill, which allows appeal to the Supreme Court will apply to all United States courts, excepting the Supreme Court. It is not unlikely that the bill will become a law during the present session of Congress. Its most important provision, of course, is that permitting a jury trial for persons accused of contempt. It will be observed, however, that jury trials are only to be had at the discretion of the court. It was thought by the framers of the bill that in thus opening the way for a jury trial, they had done all they could. If the bill becomes a law with this clause, public opinion will do the rest, and judges will be compelled to grant jury trials when justice to the accused demands them. This question of jury trials was a mooted one in the committee. About half the members favored a trial by jury, whether the court consented or not, and others were opposed to trial by jury, so the bill as reported is a compromise. A novel question in the law of divorce has recently been decided by Judge Gibbons in the Circuit Court of Illinois, in the case of Groth v. Groth. The court holds that a husband has a right to alimony and solicitor's fees. The opinion is quite exhaustive, and the material part is as follows: "It is hardly necessary to cite authorities in support of the proposition that this court, unless limited by statute, possesses the same power and exercises the same jurisdiction which prevailed in the High Court of Chancery of England. The Constitution of this State has conferred upon this court general and original jurisdiction of all causes in law and equity. Its jurisdiction is not only conferred by the Constitution, but it may adjudicate upon many questions as inherent in its very organization. (Maher v. O'Hara, 4 Gilm. 424.) It is also well settled, that the giving of a new remedy by statute, in no wise affects the original jurisdiction of a Court of Chancery. Such new remedy is regarded as cumulative, unless the prior jurisdiction or remedy is thereby expressly limited. Labadie v. Hewitt, 85 Ill. 341. In the case of Cole v. Cole, 142 Ill. 19, the practice, power, policy, and jurisdiction of the court respecting divorce and alimony, In Harding v. Harding, 144 Ill. 588, it is said: "There is the same reason why the wife, who is compelled to live apart from her husband, without fault, should receive that reasonable support that he is bound by law to provide her, pending the determination of her suit that exists when she is complainant in a divorce proceeding. To refuse to allow her a reasonable support pendente lite, would, in many cases, be to deny her the right to prosecute her suit altogether." This is not statute law-simply courtmade law. If it be good law in behalf of the wife, why not in behalf of the husband? To use a trite old phrase, “what is sauce for the goose is sauce for the gander." It is further said in this case, that "it would seem equitable and just that the wife, who is prosecuting her suit in good faith, should be placed upon an equality with the husband, and if his income be insufficient to maintain her, and to carry on the litigation, his income should be required to contribute before she should be required to ex haust her estate." Each of the Hardings had a separate estate, but the income from the estate of the wife was not sufficient to support herself and children in keeping with their station in life, and all the reasoning by the court, in support of adopting and enforcing equitable and just rules in her behalf, beyond those which the statute afforded, should apply with greater force to the case at bar. Every reason of right, justice and morals is in favor of the proposition, that the duties which the husband and wife owe to each other, are reciprocal. It appearing, therefore, that the husband is a confirmed invalid and unable to support himself, and that his wife has an estate from which she derives an income, I hold that the husband is entitled to receive from such income an allowance for his support of $5 a week, pending the suit, and he is also entitled to $25 solicitor's fee, to enable him to defend the suit. Appeal is prayed and allowed to the Appellate Court. A case of unusual interest has been recently decided by the Federal Supreme Court in the decided by the Federal Supreme Court in the case of Talton v. Mayes, 16 Sup. Ct. Rep. 986, which held that the crime of murder committed by one Cherokee Indian upon another within the jurisdiction of the Cherokee Nation is an offence, not against the United States, but against the local laws of the Cherokee Nation. On this point the court said: tution of the United States and such acts of Congress as have been or may be passed regulating trade and intercourse with the Indians; and, also, that they shall not be considered as extending to such citizens and army of the United States as may travel or reside in the Indian country by permission according to the laws and regulations established by the government of the same." This guaranty of self-government was reaffirmed in the treaty of 1866 (14 Stat. 803), the thirteenth article of which reads as follows: "Art. 13. The Cherokees also agree that a court or courts may be established by the United States in said Territory, with such jurisdiction and organized in such manner as may be prescribed by law; provided that the judicial tribunals of the Nation shall be allowed to retain exclusive jurisdiction in all civil and criminal cases arising within their country, in which members of the Nation, by nativity or adoption, shall be the only parties, or where the cause of action shall arise in the Cherokee Nation, except as otherwise provided in this treaty." So, also, in "An act to provide a temporary government for the Territory of Oklahoma, to enlarge the jurisdiction of the United States Court in the Indian Territory, and for other purposes," approved May 2, 1890 (26 Stat. 81), it was provided, in section 30, as follows; By treaties and statutes of the United States the right of the Cherokee Nation to exist as an autonomous body, subject always to the para-government mount authority of the United States, has been recognized. And from this fact there has consequently been conceded to exist in that Nation power to make laws defining offences and providing for the trial and punishment of those who violate them when the offences are committed by one member of the tribe against another one of its members within the territory of the Nation. "That the judicial tribunals of the Indian nations shall retain exclusive jurisdiction in all civil and criminal cases arising in the country in which members of the nation by nativity or by adoption shall be the only parties; and as Thus, by the fifth article of the treaty of 1835 to all such cases the laws of the State of (7 Stat., 481), it is provided: Arkansas extended over and put in force in said Indian Territory by this act shall not apply." And section 31 of the last mentioned act closes with the following paragraphs. "The Constitution of the United States and all general laws of the United States which "The United States hereby covenant and agree that the lands ceded to the Cherokee Nation in the foregoing article shall, in no future time without their consent, be included within the territorial limits or jurisdiction of any State or Territory. But they shall secure to the Cherokee Nation the right by their na-prohibit crimes and misdemeanors in any place tional councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people, or such persons as have connected themselves with them; provided always that they shall not be inconsistent with the Consti within the sole and exclusive jurisdiction of the United States except in the District of Columbia, and all laws relating to national banking associations, shall have the same force and effect in the Indian Territory as elsewhere in the United States; but nothing in this act shall be so construed as to deprive any of the courts of the civilized nations of exclusive jurisdiction over all cases arising wherein members of said nations, whether by treaty, blood or adoption, are the sole parties, nor so as to interfere with the rights and powers of said civilized nations to punish said members for violation of the statutes and laws enacted by their national councils where such laws are not contrary to the treaties and laws of the United States." The crime of murder committed by one Cherokee Indian upon the person of another within the jurisdiction of the Cherokee Nation is, therefore, clearly not an offence against the United States, but an offence against the local laws of the Cherokee Nation. Necessarily, the statutes of the United States which provide for an indictment by a grand jury, and the number of persons who shall constitute such a body, have no application, for such statutes relate only, if not otherwise specially provided, to grand juries impaneled for the courts of and under the laws of the United States. The question, therefore, is, does the Fifth Amendment to the Constitution apply to the local legislation of the Cherokee Nation so as to require all prosecutions for offences committed against the laws of that nation to be initiated by a grand jury organized in accordance with the provisions of that amendment? The solution of this question involves an inquiry as to the nature and origin of the power of local government exercised by the Cherokee Nation, and recognized to exist in it by the treaties and statutes above referred to. Since the case of Barron v. City of Baltimore, 7 Pet., 243, it has been settled that the Fifth Amendment to the Constitution of the United States is a limitation only upon the powers of the general government; that is, that the amendment operates solely on the Constitution itself by qualifying the powers of the national government which the Constitution called into being. To quote the language of Chief Justice Marshall, this amendment is limitative of the "powers granted in the instrument itself, and not of distinct governments framed by different persons and for different purposes. If these propositions be correct, the Fifth Amendment must be understood as restraining the power of the general government, not applicable to the states." The cases in this court which have sanctioned this view are too well recognized to render it necessary to do more than merely refer to them: Fox v. Ohio, 5 How., 424; Withers v. Buckley, 20 How., 84; Twitchell v. Com., 7 Wall., 321; Edwards v. Elliott, 21 Wall., 532, 557; Tearson v. Yewdall, 95 U. S., 294, 296; Davis v. Texas, 139 U. S., 651, II Sup. Ct., 675. The case in this regard, therefore, depends upon whether the powers of local government exercised by the Cherokee Nation are Federal powers, created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this court have long since answered the former question in the negative. In Cherokee Nation v. Georgia, 5 Pet. 1, which involved the right of the Cherokee Nation to maintain an original bill in this court as a foreign State, which was ruled adversely to that right, speaking through Mr. Chief Justice Marshall, this court said (page 16): "Is the Cherokee Nation a foreign State in the sense in which that term is used in the Constitution? The counsel for the plaintiffs have maintained the affirmative of this proposition. with great earnestness and ability. So much of the argument as was intended to prove the character of the Cherokees as a State, as a distinct political society, separated from others, capable of managing its own affairs and govern ing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a State from the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violations of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our government plainly recognize the Cherokee Nation as a State, and the courts are bound by those acts." It cannot be doubted, as said in Worcester v. Georgia, 6 Pet., 538, that prior to the formation of the Constitution treaties were made |