Central Law Journal.

ST. LOUIS, MO., SEPTEMBER 24, 1920.

"IT IS NOT SUFFICIENT TO RELY UPON THE STATES."

Some years ago the writer warned the members of the National Credit Men's Association, composed of the ablest men in American commerce, then sitting in annual session at Pittsburg, that he "ventured to predict that States Rights will be gradually absorbed unless the State Legislatures suitably accommodate their local laws to the manifest needs of interstate commerce." That "the preservation That "the preservation of state autonomy means the guarantee of the true liberty against certain difficulties and a possible oppression from centralized power."

That prediction has been vindicated by the Supreme Court of the United States (Missouri v. Holland, 40 Sup. Ct. Rep. 382), and in much shorter time than was justified by the deepest apprehension. The Court passed favorably upon the "Migratory Bird Act," with the merits. of which we are not now concerned, for it is an assault upon a sacred principle to which attention is directed. The possibility of the failure of the states to act was thoughtfully drawn squarely before the Court as an argument in support of its view, and for that reason is thereby emphasized. Said the Court:

"But for the treaty and the statute, there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the government to sit by while a food supply is cut off and the protectors of our forests and of our crops are destroyed. It is not sufficient to rely upon the states. The reliance is vain ***

It is not now proposed to point to the ruthless violation of the Tenth Amendment to the Constitution and the sacred assurance of its proposers, that the powers not specifically delegated were ex

pressly reserved to the states. We shall speak of that at another time, remarking, however, that it can be incontrovertibly established that the Constitution would have failed of adoption but for the assurance contained in the Tenth Amendment -and that it should have failed.

Our present object is to endeavor once more to awake an interest in the Tenth Amendment and thereby arouse the states from a lethargy that threatens to permit the undermining of the Federal Government through the destruction of the compromise spirit that animated it. To do this it is not necessary to contend against the Hamiltonian doctrine of centralization of power nor the Patrick Henry demand of no power at all at Washington. Let us instead follow the reasoning of the noble, unselfish and beloved Madison, who sacrificed a treasured friendship with the Father of his Country because of the latter's leaning to Hamilton and who earned the personal and political antagonism of Patrick Henry because of a desire to give that strength to the Federal Government nec

essary to maintain it.

Amongst the law editors, no man has endeavored more earnestly and more intelligently to sound the warning of the inevitable danger lurking in the ignoring of the Tenth Amendment than has Judge R. T. W. Duke of the Virginia Law Register. Living as he does under the shadow of Monticello and hard by the tombs of Madison and Monroe, one could visualize him communing with the spirits of the founders; of listening to their words of warning and wisdom; and pointing ever to their own watchfulness in preserving to the states those powers that would forever prevent an empire in North America. It is most sincerely to be desired and needed that the spirit animating this life-long editor should pervade the entire editorial fraternity that there may go forth to the judges and lawyers

and laymen of America an irresistible call to arms.

The Tenth Amendment has stood like a Gibraltar against the wind-puffs of the expediencies of politicians and the hurricane assaults of ruthless ambition, but it cannot withstand the acid attacks of the Supreme Court eating away its foundation. It has stood these hundred years and much more, as a great protecting wall, shielding an infant republic as it has grown into strength. Who will answer for the consequences of its destruction; who can predict the end? Let him who would try familiarize himself with the debates and correspondence of the Fathers between the years 1776 and 1790. He need read no more.

THOMAS W. SHELTON.

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DOES THE FACT THAT ONE JUROR IS AN ALIEN AFFECT THE VERDICT?-Our attention has just been called to a nisi prius decision of the Court of Quarter Sessions of Allegheny County involving the question of the effect upon a verdict in a criminal case of the fact, unknown to either the State or the defendant, that one of the jurors was an alien. It was held, in that case, that an affidavit presented to that effect after a verdict of guilty was not a ground for a new trial. Commonwealth v. Dombek, 68 Pitts. Leg. Jour. 231. In explaining the view of the Court on this interesting question Judge Carpenter, who spoke for the Court en banc, said:

"It may be conceded that if the fact of alienage had been known to defendant or to either counsel, the proposed juror would have been excused, or challenged for cause. But he was examined on his voir dire and accepted, and before being sworn as a juror was asked by the Clerk if he was a citizen of the United States and whether he was of kin to the prisoner at the bar. To the first question he answered 'Yes;' to the second, 'No.' That he failed to differentiate, or that he assumed that 'citizen' and 'resident' are synonymous, is evident. There is no suggestion that he intentionally gave an untrue answer, and nothing appears tending to impeach his intellectual capacity, his integrity or his impartiality. We are, therefore, brought face to face with and must answer, the concrete question-Does the fact that one of the jurors was an alien, that fact being unknown to the defendant, or to

either counsel, until after the verdict was recorded, make it our legal duty to grant a new trial?

"We have called attention to the statutes relating to the selection of jurors. This brings before us the question, Does the Commonwealth, by directing that jurors be selected from the whole qualified electors' assume the duty of selecting only qualified electors for jury service? Does the law create a legal presumption that all jurors selected are qualified electors? Or, to put the question another way, Does the statute relieve the defendant from the consequences of failure to exercise his right to challenge? We are of opinion that these questions must be answered in the negative."

At the early common law, both in England and America, as shown in the early case of State v. Groome, 10 Iowa 308, it was the duty of the State to see that there were twelve competent jurors selected and that it was not defendant's duty by preliminary examination or investigation to assure himself of this right. In Queen v. Mellor, L. J., 1858, Vol. 27, N. S., C. L. 121, the English Court of Criminal Appeal decided by a vote of eight to six to affirm a judgment on a verdict of guilty where one of the jurors was not the person actually called and accepted. The modern rule as stated in State v. Pickel, 103 Iowa 714, is that the competency of jurors is a matter of challenge only and that if one who has no right to sit on a jury nevertheless is accepted by the State and the defendant, although either or both may be ignorant of his disqualification, that fact will not affect the verdict subsequently rendered in the case.

ADMISSIBILITY OF EVIDENCE SECURED BY INDUCEMENT OF GOVERNMENT OFFI CERS. Many decisions by lower federal and state courts have been to the effect that no conviction would be allowed on evidence of wrongdoing brought about by the inducement or connivance of government officers. These decisions fail to make a distinction between an act that incites a crime and one which merely offers an opportunity for its commission. In the first place the alleged wrongdoer is given an incentive to commit the crime which he did not have before. His passions or cupidity are aroused by the act of the officers and thus the officer compels him to do that which he otherwise would not have done.

This distinction is well illustrated by the recent case of Fiunkin v. United States, 265 Fed. 1, where the Circuit Court of Appeals (9th

Cir.) held that the fact that government officers furnished marked money, with which morphine and cocaine were bought under their directions, did not bar a prosecution for the sale of such drugs without payment of the tax thereon, since they did not incite or entrap defendant to commit the offense, having had nothing to do with defendant's possession of the drugs or willingness to sell them.

In the course of an interesting opinion the court said:

"It is argued that the defendant was induced through the machinations and instigation of the government officers to commit the offense, or, in other words, that he was entrapped by such contrivance of the officers to do the thing which the law condemns. The evidence fails to show, however, that such was the case. The officers had nothing to do with the defendant's having the drugs in his possession. They had nothing to do with his willingness to sell the same for a consideration. They had nothing to do whatever with the conditions that prevailed prior to the time they sent the addict to the store to make the purchase, nor with the defendant's state of mind or purpose of action, should opportunity present itself, of dealing with the drug as a commodity for sale to those who were willing to buy. Nor did they offer any inducement to the defendant to sell, except that they did, through Collins, offer to buy, and proffered the amount of money that defendant fixed as the price he was willing to take. Nothing beyond this appears in the testimony. It is true that the defendant was entrapped by what was done to sell the drug to the government officers, and to put himself in a position of yielding up evidence of his commission of the offense. But this does not signify that the government officers lured him, or incited or induced him, to do what he would not otherwise have done, if any other addict had applied to him to purchase the drug."

The same rule has been announced by the Supreme Court of the United States where the Supreme Court of the United States where decoy letters were sent through the mails to ascertain whether parties are indulging in unlawful practices. Grimm v. United States, 156 U. S. 604, 15 Sup. Ct. 470, 39 L. Ed. 550, is a case where such a decoy letter was sent through the mail under an assumed name, and was answered, also through the mail, giving the information requested. Defendant was indicted for unlawful use of the mails in giving the information, and the court held him guilty of the offense, notwithstanding the officers of the government thus participated in inducing him to write and post the offending letter. Other authorities are to the same purpose. Goode v. United States, 159 U. S. 663, 16 Sup. Ct. 136, 40 L. Ed. 297; Andrews v. United States, 162 U. S. 420, 16 Sup. Ct. 798, 40 L. Ed. 1023.

HAS THE LAWYER LOST CASTE?

The Central Law Journal in its issue of July 30th discussed editorially the question-"Is the Legal Profession Losing Its Influence in the Community?" in which you arrive at the conclusion that the profession on the average is as influential as it ever was.

I wish to add to your argument some ideas which I expressed in an address to the El Paso County Bar Association at Colorado Springs, Colo., January 20, 1917, and to express my disagreement with those in and out of the profession who assume that the members of the profession, individually, have a less estate in the regard of the community than they had fifty or one hundred years ago, or more, or that the profession, as a whole, has declined in the public regard.

I propose to show that this complaint, that lawyers have been reduced in rank, is a part of the psychology, which, in every era, induces men to think some other time, not their own, the golden age. I undertake to say, that, leaving out of consideration the element and influence of wealth, neither the members of any other profession, nor those following any other occupation, exercise an influence, in the affairs of this people, equal to that exercised by the members of the bar. Members of the legal profession preponderate in public life, and this very predominance brings down upon us attacks from less fortunate professions and arouses the jealousy, which always accompanies consciousness of inferiority.

Lawyers have been considered, in all ages, fit subject for the jest of the wit and the gibe of the wicked; the shafts of every cynical pretender have been winged toward them. They have always been a shining mark for the sarcasm of the iconoclast, the satire of the misanthrope and the sneers of the vulgar. We do not know when Ecclesiastes was written, but the book, of which it is a part, probably antedates all

other authorities commonly quoted in our arguments and cited in our briefs; we are accustomed to look upon that book as a very fountain of wisdom. Let me quote:

"Say not thou, What is the cause that the former days were better than these? for thou dost not enquire wisely concerning this."-Ecclesiastes, 7-10.

The account, given by Saint Luke, of certain interviews between Jesus and the lawyers, does not indicate that all of the profession were well thought of by all the people, even as long ago as Christ's time. In the face of that indictment, which according to the disciple, and which must be taken as true, the lawyers of that day did not deserve to be followed as the accepted leaders of men.

A waggish follower of Jack Cade said: "The first thing we do, let's kill all the lawyers," and he met with a ready assent from the motley followers of that distinguished prototype of our modern reformers, as ready as could be expected from any assemblage of the rabble today. This indicates that there were people, at that time, who were not unanimously possessed of the good will towards us which is now attributed.

Ben Jonson, Robert Burton and Charles Macklin; John Gay and Oliver Goldsmith; Junius, Colton and Percival, writers fairly representative of the two centuries before the last, each took his several fling at law and the lawyers. This quotation from Burton's "Anatomy of Melancholy:"

"Our wrangling lawyers *** are so litigious and busy here on earth, that I think they will plead their clients' causes hereafter some of them in Hell."

Old Sam Butler's "Hudibras" (1663) devotes so many swinging lines and jingling rhymes to lawyers, that it is difficult to select the ones which best show his poor opinion, but these will suffice:

"Your pettifoggers damn their souls, To share with knaves in cheating fools." A reference by Daniel Webster to "the mean, money-catching abominable practices

which cover with disgrace some of the modern practitioners of law," shows that the ills which afflict our day were not unknown in his.

We have scalawags and scoundrels in the profession now, but we had them when Warren wrote "Ten Thousand a Year," more than three-quarters of a century ago; the reputation of the profession, as a whole, does suffer because Quirk, Gammon and Snap are still in it and Jaggers still invites to crime, but, evidently, similar conditions have existed in all times and all countries, which have known lawyers as a profession.

Voltaire is reported to have said:

"I never was ruined but twice-once when I gained a lawsuit-and once when I lost one."

It is indeed true that in all the times and all the countries referred to, those who jested and those who gibed, those who satirized and those who sneered, well realized that ours is the only profession which is able to safely guide the private fortune of the individual or the Ship of State.

It is not true that either the character or standing of the profession, as a whole, has shrunk. In a time when ignorance predominated among the masses, the members of the learned professions, medicine, law and the clergy, stood out as belonging to a higher caste, and the members of these professions held, relatively, a different position in the community from that held by them now.

The general diffusion of knowledge among the people has rendered the learning of the lawyer less singular; in an age when the higher learning is within the reach of every citizen, when every community supports a high school, when, at almost every crossroads logarithms are expounded and dead languages translated, when every State supports a university, and every considerable community has its own college; in an age when the advancement of the arts

and sciences has harnessed unknown forces to the chariot of civilization, it is to be expected, it is necessary, that there shall be learned men besides lawyers and doctors and ministers, and learned professions, other than the professions so denominated one hundred years ago.

The great prosperity, resultant upon the development of a virgin land, has produced such fruitfulness of riches that those who are the clients now are often as well, and sometimes better, educated than the lawyer. It frequently happens, in these days, that "mere tradesmen" have university educations something formerly reserved for the nobility, the gentry and those destined for the learned professions.

Terms of money, possibly, have become more generally accepted as the standard by which to measure the success and the ability of men, but the millionaire has eclipsed the lawyer of standing nowhere, except in the meetings of the money changers and in the salons of the merely rich. Neither in the public life to which I have referred, nor in the communal interests and activities in which men more generally participate has the lamp of the lawyer, when lighted by learning and integrity, been made dim by the glare of the plutocratic headlight.

There is a story of a great Irish lawyer who had a brother, less distinguished, also a member of the profession. The latter being asked for the secret of his brother's success with juries answered:

"Well, sor, first he butthers them up and then he slathers them down."

I have "butthered the reader up" so far; I think I shall now follow the case cited, and "slather him down."

Lawyers have faults! Yes, much as you may be surprised to hear me say it, they have faults! When you take the profession as a mass, when you get them assembled in public meeting, for instance, they are so apt to cease to be lawyers and

become mere men. So many of them have political ambitions, latent or rampant, and are cowed by the real or supposed view of the general public; so many are afraid of offending their clients; then very many of them are afraid of the judges-little judges and big judges, state judges and federal judges, and courts of all degrees, from the J. P. to the S. C., there never seems to be obtainable that unity of action, on public questions, which counts so much in the scale of influence. There is, of course, a reason, creditable to our profession, why this is so. Curiously enough, the higher you climb on the intellectual ladder, the less likely you are to obtain a uniform view. Lawyers, who are accustomed to think logically and to arrive at conclusions through the reasoning faculties, who, starting from a common point, constantly reach opposite poles by the same mental processes, cannot be expected to arrive so readily at a unanimity of view as a body of business men who have merely the rise and fall of prices. to consider, or to follow a leader like a lot of laborers, whose class spirit is appealed to, and becomes the mainspring of their action. Notwithstanding this, I think the lawyers of the country should have taken a stand, as lawyers, on many of the agitations for radical changes in the charters of our liberties and our whole sociological structure, which have been going on for the last twenty-five years and are still in progress. It may not be expected that we should pronounce, as a profession, on Votes for Women, Prohibition, Eugenics, or Birth Control, but we should have expressed clear-cut opinions for or against the Initiative, the Referendum, and the Recall, including: (a) of officials generally; (b) of judges; (c) of judicial decisions.

We did go so far as to condemn the recall of judges, but either failed to realize, or lacked courage to declare, that the same reasons, which can be urged against the recall of judges apply, with equal force, to the recall of any other official. I should