Central Law Journal.

St. Louis, Mo., July 15, 1921.

THE AMERICAN BAR LOSES BOTH ITS LEADERS.

The American bar has two titular leaders, the Chief Justice of the Supreme Court and the President of the American Bar Association. Both of these leaders passed away this year in less than one month of each other.

Hon. Edward Douglass White, Chief Justice of the Supreme Court, died at Washington, May 19, 1921, at the age of 76 years. Hon. William A. Blount, of Pensacola, Fla., President of the American Bar Association, died at Johns Hopkins Hospital, Baltimore, Md., June 15, 1921, at the age of 70 years.

Both of these men were strong and accurate types of the American jurist and lawyer. They both had humble beginnings, both hewed their own ways to the places in the profession for which they were best fitted and both have served their profession with distinction to themselves and honor to the country which they loved so well.

Both of these men were from the South, whence so many of the leaders of the bar in this country have come. But there was no narrow, sectional spirit in either of these great lawyers and the Bar of all sections of the country have been quick to appreciate the loss which the profession sustains in their death and with one voice have declared them worthy of a high place on the honor roll of the American Bar. The closing words of Associate Justice McKenna's tribute to the Chief Justice, delivered from the bench, May 31, 1921, are appropriately repeated in this connection. The learned Justice said:

"This is of the past in barest outlinewhat of the future? Anticipating it I see no shadow on his fame, no lessening of his example nor of the impression his life and

services have made upon the country. venture comparisons. I make full concession of the recognized and illustrious merit of those who have preceded him. I make full admission, in assured prophecy, of the abilities of those who will succeed him, yet, considering his qualities and their exercises, I dare to say that, as he has attained he will forever keep a distinct eminence among the Chief Justices of these United States."

Edward Douglass White was born in Lafourche Parish, La., Nov. 3, 1845. His ancestors came from Tennessee, but he was in sentiment and practice, as well as by the accident of birth, a son of Louisiana. He was educated at Georgetown University, Washington, D. C. At sixteen years of age he entered the Confederate army and served until July 6, 1863, when he was captured by Union troops at Port Hudson. In 1868, he entered the law office of Chief Justice Bermudez at New Orleans, and during the same year was admitted to the bar.

Like most lawyers of the South in reconstruction days, Mr. White was, most of the time, to use a common phrase, "up to his ears" in politics. He was elected to the State Senate in 1872. He was ap pointed an Associate Justice of the Supreme Court of Louisiana in 1876, which position he relinquished in 1879 to resume the practice of law. He managed the successful campaign of Gov. Nicholls, and that achievement easily made him one of the recognized leaders of the Democratic party in Louisiana. In 1888, he was elected to the United States Senate.

When Mr. White became a United States Senator, he became a national figure and was almost instantly recognized as President Cleveland and the friendship that one of the leaders of his party in the Senate. He was an ardent supporter of sprang up between them, as well as the President's recognition of his legal ability, accounted for his appointment to the Supreme Bench Feb. 19, 1894, after the Senate had rejected two successive nominations of New York lawyers.

Justice White's career on the bench is well known to practicing lawyers today. He has been a determining factor in many epochal decisions and has written more important opinions than any other member of the Court except Marshall. His great ability as a judge was recognized by President Taft, who, disregarding party advantage, elevated Justice White to the position of Chief Justice, December 12, 1910. It is said that the solemn and dignified Justice could not restrain his tears as he contemplated such unprecedented recognition of his accomplishments as a judge by one who, by experience and position, was so well competent to pass judgment on his ability. Next in importance to the formative period of American constitutional law, which Chief Justice Marshall guided with a master hand, was the period of our emergence to a more commanding position in world affairs, which began at the close of the Spanish-American war. Great economic forces were unloosed by that conflict, just as others have been unloosed by the recent world war. Strange ideas were advanced and weird ideals held up which were altogether foreign to any previous American conceptions of right and justice. In addition, there were many necessary changes in governmental machinery to be made, including the commission control of railroads, and the whole range of administrative law which has been rapidly developing.

In the long series of decisions dealing with these question in the last twenty years, Chief Justice White has had a leading part, and amply justified Justice McKenna's tribute heretofore quoted.

Of Mr. Blount, what can we say except that he was a lawyer of extraordinary ability? What more can be said of any practitioner? Although located in a comparatively small city, he displayed his ability as a lawyer so effectively that the profession everywhere came to recognize in him those characteristics and attributes which everywhere combine to make the successful practitioner, namely, a great legal and for

ensic ability, united with keen business judgment.

But it takes more than legal ability and keen business judgment to make a successful lawyer, in the best sense of that word. He should enjoy a wide acquaintance with polite literature; must have and maintain. the highest ideals in his personal and professional life, and should possess a personality that attracts his brethren at the bar, as well as wins verdicts in the courts. Blount had all these attributes of character and of mind and they drew to him the affections of all lawyers who knew him (and they numbered thousands in all parts of the country), especially those who have been in the habit of attending the meetings of the American Bar Association.

Mr.

The writer had begun to enjoy a more intimate acquaintance with Mr. Blount as a member of the Conference of Commissioners on Uniform State Laws, in behalf of which movement Mr. Blount labored so arduously and so successfully. Mr. Blount had been the President of the Conference and had contributed generously from his time and energy to bring about the chief purposes of the Conference, to which he was most devoted, namely, the Codification of American Commercial Law. He wished to see the law applicable to business relations stated in clear language, in comprehensive statutes and adopted uniformly by all the states, so that lawyers and business men having to do with the commercial interests of the country might not labor under any uncertainty as to their rights and obligations.

Mr. Blount had other ideals common to the great majority of lawyers, of which a passion for our Constitution and the institutions of our country stood forth most prominently. Although democratic and liberal in his attitude toward needed changes in the law to meet new conditions, he stood like a stone wall against the destructive onslaughts of blind and ignorant demagoguery. In this respect he is a worthy example to be held up to future genera

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:

"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!'"

NOTES OF IMPORTANT DECISIONS

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 on 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:

"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, because 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

& 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. (III.), 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:

"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.

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).

The Supreme Court reversed the judgment because of an instruction on the duty to retreat, which, it seems to us, would have been

held sufficient in the majority of state courts. The trial judge instructed the jury among other things that "it is necessary to remember, 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 seri ous bodily harm," the defendant was not entitled to stand his ground.

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."

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 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 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."

"A VINCULO MATRIMONII."

Not long ago, I overheard a woman in conversation with a man, whom I knew. They met after a long interval. The woman seemed quite respectable.

"Since I saw you last," she announced, “I have been married again and divorced again. My last husband was a nice man. I liked him and he treated me right. But he was a traveling man, and that kept him away from home, and I didn't like that. So I divorced him. As long as lawyers will get divorces for one-why not?"

A casual remark, this, to be sure; but rather a sweeping condemnation of the relationship between the legal profession and the divorce evil. If it were only a vague and vagrant spore of feeling engendered by individual experience and floating on a chance wind, it would deserve to be ignored. One has learned, however, from the common currents of popular opinion, such as the press and photo-play, that many people share such a belief. It is a very usual assumption that lawyers hold themselves out to get divorces for money. Grounds and moral considerations are looked upon as unnecessary adjuncts to the end of a decrée. One evening, lately, I witnessed a motion. picture. In the course of the action, the heroine rather precipitately approached a lawyer on the subject of a divorce. Her counsellor undertook to lecture her and to suggest that she return to the connubial fold. The retort she made mirrors the mind of many on the matter. "I did not come for advice. I came for a divorce." Away with the facts and the law, away with the interest of the State, away with religious scruples. Divorces are for sale-how much the price? What a travesty of the reality! What a blindness to, the truth of things! If one's connection with such problems, warrants conclusions that refute such criticisms. perhaps it is only fair to the public interests. and to one's profession to set out those conclusions with candor.

To begin with, it must be remembered that family differences rarely reach the lawyer's office before they have become broils! The last word has been said, the last dish has been thrown--the rupture is beyond repair-before the lawyer is consulted. For the most part the lawyer rushes in where the spouse fears to tread. It is ex post facto work for him. To be sure, there are many exceptions. I recollect one instance of a client who came to us to get our approval to contemplated murder. He was armed with a shooting-iron. He had intercepted a code of signals for assignation between his wife and another man. A handkerchief left at a certain mail box meant that he was away from home, et cetera. So he planned to shift the signals and thus inveigle his victim to his house, where he waited to annihilate him. We advised horse-whipping -why stand trial for murder on account of a prostitute? However, the incident passed off. Like all bad men of the blustering kind, he could not achieve courage enough to encompass his own programme.

Usually, the chance to "pour oil on the troubled waters" is denied the lawyer. There is no oil on hand. The best, the most reconciliatory advice, must be indirect. One cannot directly instruct or lecture the mind beside itself with rage, or fixed in cold and bitter anger. Yet deftness will accomplish much. I read to-day a letter written by an old and wise lawyer to an irate woman. She had inquired of him whether he would get her a divorce. In reply, he stated-evidently he had known her well-that he was retired. "But I am not so old and helpless that I cannot represent you if you wish. The trouble with you is that you cannot stay mad with your husband long enough to get

a divorce. And think of the children. I suggest to you that you consider well whether you will want to marry again. If not, then give up the idea of a divorce."

There was more, and it was all sage and sensible. It indicated to her that she was only in a passing tempest, and that she