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& 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. Harper v. Shaw, 176 Mass. 190; People v. North Trust Co. (Ill.), 124 N. E. 662; State v. Cor. bin (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 to 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 attacking 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 X. E. 746. Rationally the failure to retreat is a circumstance to be con. sidered 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 respectable 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 T'. 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
would do well to let Time clear the air and the body of the family so as to require smooth the waters---yet he did not question surgical treatment--then we are called in. the justice of her complaint. Had he done And we find a curious condition of things. so, she would have scoffed at his advice and
For one thing, we learn that something hastened other-whither. Aye, and fared like eighty per cent of the divorce cases are worse, for he did much to restore the sway consent affairs. This, of course, includes of reason.
in the definition of "consent" examples Libel to the contrary, lawyers do a great of mere utter indifference. The trial judges deal to discourage divorce. Not those law- sense this. The lawyers know it. Comyers, however, who, in an excess of virtuous
pare the number of "fought" divorces with self-esteem, proclaim a rule not to partici- the number of those uncontested. It is compate in divorce cases. One very good friend paratively seldom that the parties tilt the of ours prints on his letter head, “No em- issue out in court. When they do, heaven ployment desired in criminal cases, or di- forfend the lawyers engaged. The partie vorce cases." These men are ostentatiously are so acrimonious, the evidence is so disshirking their duty. The law authorizes di- putatious and sometimes so revolting, that vorces for certain causes. Lawyers admin- the lawyer promptly forswears marriage, ister the law. The field of the law is as for now and for the life to come. broad as life itself. To fence off one portion Customarily, on the other hand, the battle of the field and refuse to do one's share to- is over before the legal proceedings have ward weeding out of it the tares of disrepute begun. The parties have "agreed to disis to stand in the sandals of the Man with agree" permanently. In such a case, so One Talent. If unworthy things are done in incessantly recurring, it is for the lawyer the conduct of divorce litigation, the self- to diagnose the situation. Having sized respecting practitioner can, by taking his the matter up, he can pretty well tell whethpart in the fray, see that the rules are er there is hope of a reconsideration. Oftenobserved and the best principles of justice times, his investigation is ex parte: but quite vindicated. Whether or not he be sucessful | frequently, both parties appear and detail in this, he is a sworn minister of the law, and retail their difficulties. At this point. and it approximates contempt in him to the essential thing is not to study the facts refuse service where the law commands it. from the point of view of their adequacy as Such an attitude is very similar to, and quite a basis for divorce; but rather to develop as reprehensible as, that exhibited by anoth- the possibilities for the future in case the er friend of ours, who attaches to his card present fracas is adjusted. Once convinced in a law directory the warning: Collections that, regardless of the consequences, the under $1000 not solicited,” forgetting that cohabitation is forever ended or vice-versa, the chief reward of the profession is the the lawyer can proceed to examine the comopportunity to do charity.
plant in its legal bearings. In the event he No, we need a draft law to subject some has concluded that no divorce is necessary, of the purple purists of our guild to the he can often bring about peace by rejecting burdens that the rank and file of us bear. the case made as insufficient in law. On But, even left to ourselves, the rest of us the contrary, should he adjudge the severstrive to exalt our mistress to the limit of ance complete--and should no especial our puny strength. The sum of our efforts equities intervene-he can afford to be relawith reference to the divorce problem is tively indifferent to the case-made. He is. distinctly an alleviation of the evil.
in this latter instance, “making the best of When the family trouble has passed the a bad business." These people are done stage of cure through the medicines of with each other. Then, certainly, it will subsympathy and forgiveness and has poisoned | serve the State's interests better to regularize their status. U'nder these circumstances, ties. If they will not keep their marriage there is a pitiful revamping of aged slights vows, the court's coercion cannot avail. and ill-treatment. Some of the bills that are Refuse these slackers freedom, and immordrawn, and in the absence of opposition, | ality will increase. Thus, rebelling against "stick" are almost laughable. Simmered | the inevitable, the Judges must continue to clown, and with the verbiage boiled out of cut the gordian knot of marriage, on the them, they amount after all to a rehash of most trivial evidence, where both parties ancient and half-forgotten tiffs united with invite the sword of separation. Naturally, some single recent occurence that brought collusion is frowned upon, and, when the about the present crisis. Yet they serve evidence thereof appears, blasted with the their purpose. No defense is made. Quite fire of condemnation. Yet the court rolls possibly, in a round-about way, the respond | mutely attest its prevalence in the huge ent pays the costs of court and the fee of proportion of undefended divorce suits. complainant's lawyer. The decree issues. A circuit judge of our acquaintance, apIf there is anything improper in the pro pointed about a year ago, states that he has ceedings the bench shares the opprobrium signed divorce decrees at a rate of one every thereof with the bar, for the bill and the other day since taking office. His circuit evidence goes through the court's hands. is a small one, thinly populated. Vone of those wise and human jurists—and, Where a contest is waged, and especially believe me, the nisi prius wool-sack is where the interest of minor children is inadorned by a fine body of men-is deceived. volved, or a property settlement is necesThey know the insides of these matters. sitated, the Judge becomes far more than They can read the truth, the whole truth and a lay figure. Now, indeed, the procedure nothing but the truth from between the lines becomes solemn and the case real. In such of the papers. They see the "other man" circumstances it is that that judge, whom peering round the corner with hands out we personally most love and admire, shines stretched to the emancipated “injured" one. forth best of all as a Judge of supreme They understand the disappointment that merit. . The case is practically taken from comes when one, who has married for the lawyer's hands. Incessant consultations wordly possessions, learns, in disillusion occur. First one of the parties and then the ment, that poverty is to be her, or his, por other is summoned alone to the judge's tion. They appreciate that trouble-breeding chambers. At last, the lawyers sitting condition that arises when the "old man" ineffectively.by, are informed of the result. marries again and brings in a new and A reconciliation or a compromise has been young wife to occupy the home and divide accomplished. The instructions are imperathe inheritance with adult offspring of a for- tive. “Draw an order to that effect.” Marmer union. These factors are the roots of velous the achievements of this man over the divorce evil. They do not appear in the the recalcitrant and even the incorrigible! language of the records; but one can hold Many a home has him to bless. He sees in the parchment to the light and they will be- his office the power and privilege to do come visible as water-marks stamping the equity-and he does it with a strong arm whole character of the case. In the out- and a compelling spirit of service. come of divorce suits, the State is interested. As the stories of matrimonial tribulation The Judges are the conservators of the come to us--and they come, of course, conState's interest. But though they see the tinually, many more in number than ever collusion, and know the insubstantiality of eventuate in litigation—the causes are, by the case made, they have also to recognize and large, easy to classify. The tap-root that, ultimately, in personal affairs such as cause of all is mere bad sportsmanship. these, the event is in the hands of the par These people have not really meant that
vow that forsaking all others they will
a new adventure impends and cleave to this one woman, or man, till death the aid of the law is sought. shall part the twain. They made their bar- Quite often the cause is simple non supgain — hastily often, improvidently many port. This is no ground in Florida-I times—but they made it. And now they re- differentiate "ground" from "cause"-but pent it, and wish to retract it. They are it is the kernel of the thing, nevertheless, not willing to play the game through. the milk in the cocoanut." After a long All that wonderful promise, exquisitely period of neglect, coupled perhaps with phrased, beautifully meaningful, to sustain absence, the patience of the injured spouse and cherish in joy and in sorrow, in health breaks and she seeks relief. and sickness, in prosperity and adversity, Many times, too, intrusive relatives, inand to be faithful accordingly, was for them laws or step-somethings, jangle the keys essentially sound without sense. A few
out of harmony. Her son or his mother lapses into drunkenness, a few brutal created the situation-constantly this is speeches, a decline of fortunes and the demonstrated in the instances that come breach is made.
under our observation. Many, many marriages are motivated, These are some of the chief causes. They apparently, by property considerations. The are not "grounds"--any of them. Property divorces, like the marriages, are likely to be disputes, officious relatives by marriage, actuated by a similar motive to that bringing non-support, incompatibility,
the about the marriage, viz: an arbitration of "eternal triangle," unassociated with vice, property squabbles. Near here is a town are not accepted, at least in this State, as settled under a development scheme where "grounds” for divorce. Indubitably they many of the residents are old soldiers. are the causes, the mainsprings, the prompt Numbers of these old men have married ers, of the great majority of divorces younger women. Practically all the vet- sought. In order to win the end desired, erans are septuagenarians. Domestic trou- they camouflage themselves in a dress of bles have, in natural course, ensued. In grounds that often presents a bizarre and these cases the property feature is often grotesque pattern to the eye. Under the predominant. The struggle was not to re- disguise, that same shrewd eye can usually tain the bond of affection but to force a discern the true cause. property adjustment or to maintain a grip The point is, however, that to the lawyer on a miserable little pension.
or the judge, causes and grounds are The triangle is another prolific cause for secondary. Lawyers and judges, in these divorce. One or the other spouse has be- divorces problems, deal largely in "faits come infatuated elsewhere. We know of accomplis." It happened to us the other one instance where a married man fell in day, that a client consulted us about his love with another man's wife. In order to family difficulties. At length, and in the legalize the tangle, both couples had to be usual irrelevant way, he discoursed on the divorced and the new one formed. Yet it faults of his wife and his own virtues. was a case of necessity. Failure to rectify Should he get a divorce? We advised it would undoubtedly have bred illicit rela- against it. The case made was very frail. tionship Time and again, indications “She just neglects me, and I won't stand it." show that the husband-to-be finances the The woman seemed mercenary, it would be case of the wife against the husband that simpler to threaten her with desertion by is. Sometimes, the impropriety of the will. He got up to go. “Well you see, I triangle existence is not so obvious. Hus- put her trunk and things out in the yard band or wife left the domicile years and this morning and told her to go and never years ago. Nothing was done.
! Now come back. So I thought I had better ask