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Central Law Journal.
services have made upon the country. I venture comparisons. I make full conces
sion of the recognized and illustrious merSt. Louis, Mo., July 15, 1921.
it of those who have preceded him. I make full admission, in assured prophecy,
of the abilities of those who will succeed THE AMERICAN BAR LOSES BOTH ITS him, yet, considering his qualities and their LEADERS.
exercises, I dare to say that, as he has at
tained he will forever keep a distinct emThe American bar has two titular lead
inence among the Chief Justices of these
United States." ers, the Chief Justice of the Supreme Court
Edward Douglass White was born in and the President of the American Bar
Lafourche Parish, La., Nov. 3, 1845. His Association. Both of these leaders passed
ancestors came from Tennessee, but he away this year in less than one month of
was in sentiment and practice, as well as each other.
by the accident of birth, a son of Louisiana. Hon. Edward Douglass White, Chief
He was educated at Georgetown UniverJustice of the Supreme Court, died at
sity, Washington, D. C. At sixteen years of Washington, May 19, 1921, at the age of
age he entered the Confederate army and 76 years. Hon. William A. Blount, of Pen
served until July 6, 1863, when he was sa cola, Fla., President of the American Bar
captured by Union troops at Port HudAssociation, died at Johns Hopkins Hos
In 1868, he entered the law office of pital, Baltimore, Md., June 15, 1921, at
Chief Justice Bermudez at New Orleans, the age of 70 years.
and during the same year was admitted to Both of these men were strong and ac
the bar. curate types of the American jurist and
Like most lawyers of the South in relawyer. They both had humble beginnings,
construction days, Mr. White was, most of both hewed their own ways to the places
the time, to use a common phrase, "up to in the profession for which they were best
his ears” in politics. He was elected to, fitted and both have served their profes
the State Senate in 1872.
He was ap sion with distinction to themselves and
pointed an Associate Justice of the Suhonor to the country which they loved so
preme Court of Louisiana in 1876, which well.
position he relinquished in 1879 to resume Both of these men
the practice of law. He managed the sucSouth, whence so many of the leaders of
cessful campaign of Gov. Nicholls, and the bar in this country have come. But
that achievement easily made him one of there was no narrow, sectional spirit in
the recognized leaders of the Democratic either of these great lawyers and the Bar of all sections of the country have been quick party in Louisiana. In 1888, he was elect
ed to the United States Senate. to appreciate the loss which the profession
When Mr. White became a United sustains in their death and with one voice
States Senator, he became a national fighave declared them worthy of a high place
ure and was almost instantly recognized as on the honor roll of the American Bar. The
President Cleveland and the friendship that closing words of Associate Justice McKen
one of the leaders of his party in the Senna's tribute to the Chief Justice, delivered
an ardent supporter of from the bench, May 31, 1921, are appro
sprang up between them, as well as the priately repeated in this connection. The
President's recognition of his legal ability, learned Justice said:
accounted for his appointment to the Su"This is of the past in barest outline
preme Bench Feb. 19, 1894, after the Senwhat of the future? Anticipating it I see no shadow on his fame, no lessening of his
ate had rejected two successive nominaexample nor of the impression his life and tions of New York lawyers.
Justice White's career on the bench is ensic ability, united with keen business well known to practicing lawyers today. judgment. He has been a determining factor in many But it takes more than legal ability and epochal decisions and has written more im- keen business judgment to make a successportant opinions than any other member of ful lawyer, in the best sense of that word. the Court except Marshall. His great abil- He should enjoy a wide acquaintance with ity as a judge was recognized by President polite literature; must have and maintain Taft, who, disregarding party advantage, the highest ideals in his personal and proelevated Justice White to the position of fessional life, and should possess a personalChief Justice, December 12, 1910. It is ity that attracts his brethren at the bar, as said that the solemn and dignified Justice well as wins verdicts in the courts. Mr. could not restrain his tears as he contem- Blount had all these attributes of character plated such unprecedented recognition of and of mind and they drew to him the his accomplishments as a judge by one who, affections of all lawyers who knew him by experience and position, was so well (and they numbered thousands in all parts competent to pass judgment on his ability of the country), especially those who have
Next in importance to the formative been in the habit of attending the meetings period of American constitutional law, of the American Bar Association. which Chief Justice Marshall guided with The writer had begun to enjoy a more a master hand, was the period of our emer
intimate acquaintance with Mr. Blount as a gence to a more commanding position in
member of the Conference of Commissionworld affairs, which began at the close of
ers on Uniform State Laws, in behalf of the Spanish-American war. Great econ- which movement Mr. Blount labored so aromic forces were unloosed by that conflict, duously and so successfully. Mr. Blount had just as others have been unloosed by the re- been the President of the Conference and cent world war. Strange ideas were ad
had contributed generously from his time vanced and weird ideals held up
which were and energy to bring about the chief puraltogether foreign to any previous American
poses of the Conference, to which he was conceptions of right and justice. In addi
most devoted, namely, the Codification of tion, there were many necessary changes in American Commercial Law. He wished to governmental machinery to be made, in
see the law applicable to business relations cluding the commission control of rail- stated in clear language, in comprehensive roads, and the whole range of administra
statutes and adopted uniformly by all the tive law which has been rapidly developing.
states, so that lawyers and business men In the long series of decisions dealing having to do with the commercial interwith these question in the last twenty ests of the country might not labor under years, Chief Justice White has had a lead
any uncertainty as to their rights and obing part, and amply justified Justice McKen- ligations. na's tribute heretofore quoted.
Mr. Blount had other ideals common to Of Mr. Blount, what can we say except the great majority of lawyers, of which a that he was a lawyer of extraordinary abil- passion for our Constitution and the instiity? What more can be said of any prac- tutions of our country stood forth most titioner? Although located in a compara- prominently. Although democratic and libtively small city, he displayed his ability eral in his attitude toward needed changes as a lawyer so effectively that the profes- in the law to meet new conditions, he stood sion everywhere came to recognize in him
like a stone wall against the destructive those characteristics and attributes which
onslaughts of blind and ignorant demaeverywhere combine to make the successful
goguery. In this respect he is a worthy practitioner, namely, a great legal and for- example to be held up to future genera
NOTES OF IMPORTANT DECISIONS
tions of lawyers constraining them to stand as the lawyers of all generations have stood for the fundamental rights and liberties of the people.
We could not more appropriately close this eulogy of the two great leaders of the bar, who have just passed from our midst, than to quote from one of the most recent public addresses of the late Chief Justice at the annual dinner of the American Bar Association, Sept. 5, 1919, when he appealed to the lawyers who were coming into the ranks to keep high the banner of professional public service given into their hands by those who have kept it victorious and unsullied in the past. The closing words of this great address were chaste in thought and diction and may well be cherished as a memorial of our beloved Chief Justice. He said :
FEDERAL ESTATE TAX TAKES PRECEDENCE OVER STATE INHERITANCE TAX. - The controversy of the federal treasury department and New York officials in respect to the enforcement of the federal estate tax has been settled in favor of the federal act, in the recent case of New York Trust Co. v. Eisner, 41 Sup. Ct. 506, wherein the Supreme Court holds that since the federal estate tax imposed by Act Sept. 8, 1916, c. 463, tit. 2, $ 201, attaches to the estate before distribution, and is a tax on the right to transmit, or on the transmission at its beginning, it attaches to the whole estate, except so far as the statute sets a limit, and taxes imposed by the states on the right of individual beneficiaries cannot be deducted as charges against the estate allowed by the laws of the jurisdiction, the deduction of which is authorized by section 203.
The plaintiffs in this case also raised the constitutional objection that the estate tax was a direct tax, and therefore beyond the power of the federal government to levy. The Court dismisses this objection by reference to the case of Knowlton v. Moore, 178 U. S. 41. Plaintiff's attorney, however, contended that the cases were not parallel, since, in the Knowlton case, the tax considered was levied
the right to take a legacy, while the estate tax is levied directly upon the corpus of the estate. To this contention the Court replied:
"I must confess that sometimes, as my thoughts turn to the future and the vast probable increase in our population, to the infinite opportunity which liberty affords to those who misguidedly or with intentional wrong preach the destruction of our institutions under the guise of preserving freedom, a great dread comes to me that possibly some day in the future the forces of evil, of anarchy and of wrong may gather such momentum as to enable them to overthrow directly or indirectly the constitutional institutions which the Fathers gave us and thus deprive us of those blessings which have come from their possession. But this pessimism is also only momentary for, lo! as I strain my vision to the dawn of the generations which are to come my heart rises with exaltation and gratitude because it is given to me to see an advancing force full of love for individual liberty and free government and fixed in the purpose to perpetuate-them. Ah! as I look at its noble array, confidence in the future becomes assured and I cannot but exclaim : “All hail, the American lawyer of the generations which are to follow! Come! Come in your allotted time so that individual liberty may endure, representative government be perpetuated and the only safe and peaceful highway for the advance of democracy in its true sense be made certain!'”
"It is argued that when the tax is on the privilege of receiving the tax is indirect because it may be avoided, whereas here the tax is inevitable and therefore direct. But that matter also is disposed of by Knowlton v. Moore, not by an attempt to make some scientific distinction, which would be at least difficult, but on an interpretion of language by its traditional use-on the practical and historical ground that this kind of tax always has been regarded as the antithesis of a direct tax; ‘has ever been treated as a duty or excise, be. cause of the particular occasion which gives rise to its levy.' Upon this point a page of history is worth a volume of logic.”
Whether the federal estate tax should be computed on the net value of the estate after the state inheritance tax has been deducted or before, has been a question upon which various state courts have differed. New York has insisted that the state taxes must be paid first. In re Gihon, 169 N. Y. 443; In re Sherman, 222 N. Y. 540. See also In re Week's Estate (Wis.), 172 N. W. 732; Gleason to
& Otis Inheritance Taxation (2nd Ed.) 66. On the other hand, the majority of the state courts have held that the federal tax should be deducted before computing the state tax. Har. per v. Shaw, 176 Mass. 190; People v. North Trust Co. (Ill.), 124 N. E. 662; State v. Corbin (Wash.), 181 Pac. 910; State v. Probate Court, 139 Minn. 210, 166 N. W. 125; Re Knight's Estate (Pa.), 104 Atl. 765. The Supreme Court adheres to the latter view without, however, binding the states to allow a deduction of the federal tax in computing the state tax. On this point the Court said:
held sufficient in the majority of state courts. The trial judge instructed the jury among other things that "it is necessary member, in considering the question of self defense, that the party assaulted is always under the obligation to retreat so long as retreat is open to him, provided that he can do so without subjecting himself to the danger of death or great bodily harm." The instruction was reinforced by the further intimation that unless "retreat would have appeared to a man of reasonable prudence, in the position of the defendant, as involving danger of death or serious bodily harm," the defendant was not entitled to stand his ground.
"If the tax attaches to the estate before distribution-if it is a tax on the right to transmit, or on the transmission at its beginning, obviously it attaches to the whole estate except so far as the statute sets a limit. "Charges against the estate” as pointed out by the Court below are only charges that affect the estate as a whole, and therefore do not include taxes on the right of individual beneficiaries. This reasoning excludes not only the New York succession tax, but those paid to other states, which can stand no better than that paid in New York. What amount New York may take as the basis of taxation and questions of priorty between the United States and the State are not open in this case.
Justice Holmes admits that these instructions bring up "with sufficient clearness whether the formula laid down by the Court and often repeated by the ancient law is adequate to the protection of the defendant's rights."
FAILURE TO RETREAT NOT CATEGORICAL PROOF OF GUILT IN HOMICIDE CASES.-It is not often that the Supreme Court of the United States discusses questions arising under the administration of the common law of crimes. It is therefore interesting to note the views of this Court on the duty to retreat when attacked before killing the at. tacking party. Brown v. United States, 41 Sup. Ct. 501.
In this case it appeared that deceased had threatened defendant's life. That on the day when the killing took place, deceased quarreled with defendant over the removal of some earth which had just been excavated. Deceased drew a knife and advanced toward defendant, threatening to kill him. Defendant retreated about twenty feet to where his coat was lying on the ground, drew a revolver out of the coat pocket and fired two shots at deceased, from which he died. The homicide was at a place in Texas under the exclusive jurisdiction of the United States. Defendant was indicted for murder by the Federal grand jury, and convicted in the District Court, and the conviction was affirmed by the Court of Appeals (257 Fed. Rep. 46).
In reaching his conclusion that the common law rule of the duty to retreat is too rigid, Justice Holmes has the following interesting comment to make. The learned Justice said:
"It is useless to go into the developments of the law from the time when a man who had killed another no matter how innocently had to get his pardon, whether of grace or of course. Concrete cases or illustrations stated in the early law in conditions very different from the present like the reference to retreat in Coke, Third Inst. 55, and elsewhere, have had a tendency to ossify into specific rules without much regard for reason, Other examples may be found in the law as to trespass ab initio, Commonwealth v. Rubin, 165 Mass. 453, 43 N. E. 200, and as to fresh complaint after rape. Commonwealth V. Cleary, 172 Mass. 175, 51 N. E. 746. Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respect. able writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not exceeded the bounds of lawful self defense. That has been the decision of this Court. Beard v. United States, 158 U. S. 550, 559, 15 Sup. Ct. 962, 39 L. Ed. 1086. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him. Rowe v. United States, 164 U. S. 546, 558, 17 Sup. Ct, 172, 41 L. Ed. 547."
The Supreme Court reversed the judgment because of an instruction on the duty to retreat, which, it seems to us, would have been
"A VINCULO MATRIMONII."
To begin with, it must be remembered
that family differences rarely reach the lawNot long ago, I overheard a woman in
yer's office before they have become broils ! conversation with a man, whom I knew.
The last word has been said, the last dish They met after a long interval. The woman
has been thrown--the rupture is beyond seemed quite respectable.
repair-before the lawyer is consulted. For
the most part the lawyer rushes in where the "Since I saw you last," she announced, “I
spouse fears to tread. It is ex post facto have been married again and divorced again.
work for him. To be sure, there are many My last husband was a nice man. I liked
exceptions. I recollect one instance of a him and he treated me right. But he was
client who came to us to get our approval a traveling man, and that kept him away
to contemplated murder. He was armed from home, and I didn't like that. So I
with a shooting-iron. He had intercepted divorced him. As long as lawyers will get
a code of signals for assignation between (livorces for one-why not?"
his wife and another man. A handkerchief A casual remark, this, to be sure; but left at a certain mail box meant that he rather a sweeping condemnation of the re- was away from home, et cetera. So he lationship between the legal profession and planned to shift the signals and thus inveigle the divorce evil. If it were only a vague his victim to his house, where he waited to and vagrant spore of feeling engendered by annihilate him. We advised horse-whipping individual experience and floating on -why stand trial for murder on account of chance wind, it would deserve to be ignored. a prostitute? However, the incident passed One has learned, however, from the com- off. Like all bad men of the blustering kind, mon currents of popular opinion, such as he could not achieve courage enough to the press and photo-play, that many peo- encompass his own programme. ple share such a belief. It is a very usual assumption that lawyers hold themselves Usually, the chance to "pour oil on the out to get divorces for money. Grounds and
troubled waters" is denied the lawyer. moral considerations are looked upon as
There is no oil on hand. The best, the most unnecessary adjuncts to the end of a decrée. reconciliatory advice, must be indirect. One One evening, lately, I witnessed a motion cannot directly instruct or lecture the mind picture. In the course of the action, the
beside itself with rage, or fixed in cold and heroine rather precipitately approached a
bitter anger. Yet deftness will accomplish
much. I read to-day a letter written by an counsellor undertook to lecture her and to
old and wise lawyer to an irate woman. She suggest that she return to the connubial fold.
had inquired of him whether he would get The retort she made mirrors the mind of her a divorce. In reply, he stated-evidently many on the matter. “I did not come for
he had known her well—that he was retired. advice. I came for a divorce." Away with
"But I am not so old and helpless that I the facts and the law, away with the interest
cannot represent you if you wish. The of the State, away with religious scruples. trouble with you is that you cannot stay Divorces are for sale—how much the price? | mad with your husband long enough to get
a divorce. And think of the children. I What a travesty of the reality! What a
suggest to you that you consider well whethblindness to the truth of things! If one's
er you will want to marry again. If not, connection with such problems, warrants
then give up the idea of a divorce.” conclusions that refute such criticisms, perhaps it is only fair to the public interests There was more, and it was all sage and and to one's profession to set out those sensible. It indicated to her that she was conclusions with candor.
only in a passing tempest, and that she
lawyer on the subject of a divorce. Her m