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ful money of the United States," means any thing, it is simply, that the debt should be paid in lawful money, as distinguished from State bank bills. But the idea that this or any other "contract to pay a debt in gold or silver coin is, in legal import, ** an agreement to deliver a certain weight of standard gold," smells a little too strong of the schools for practical life. An agreement to deliver a certain weight of bullion of a certain fineness is clearly an agreement to deliver a specific article of personal property; but that is not this case. Very true, "the currency acts themselves provided for payments in coin ;" and that is the reason why the revenue, the interest on the public debt, and the like, must be paid in coin. The obligation to pay in coin rests on the statute, not on the agreement of the parties. True, also, "the merchant who is to pay duties must contract for the coin;" that is, he makes a specific contract for the delivery to him of so much coin; so "the bank which receives coin on deposit," agrees to return the same number of coined dollars on demand; so the "messenger who is sent to the bank or the custom house" agrees to deliver so many coined dollars. These are all contracts, not "to pay" a debt, but to deliver so many coined dollars. They are not debts but obligations or undertakings to deliver so many coined dollars. So, if "the government, needing more coin than can be collected from duties, contracts for the needed amount," it is an agreement for the delivery of the specified number of coined dollars, and may be enforced as such. So of "depositors of bullion at the mint," the government agrees to return to them a coined dollar, half eagle or eagle for every so many grains of the bullion at the standard fineness. This, also, is an agreement to deliver coined gold. And these instances certainly "are not debts," but agreements to deliver specific articles.

"an

The error of the United States Court consists: 1st. In treating this mortgage as evidence of " agreement to deliver a certain weight of standard gold," etc., when the whole circumstances and surroundings of the case and of the parties clearly show that nothing was more foreign to the minds of the parties than a sale or purchase of gold; the debtor borrowed the money and gave this mortgage to secure its payment, and the creditor loaned the money and took the mortgage to secure its payment; the insertion of the gold clause was merely declaratory of the law which authorized the creditor to demand lawful money; and the presumption that the "intent was that the debtor should deliver *** a certain weight of gold," etc., is, to say the least of it, without any foundation in the transaction. Treated as a contract for the sale and purchase of gold, it would be void for uncertainty. It was simply a loan of money; nothing more. And in this, its natural and true light, the act of Congress of 1862 allows its payment in legal tender notes.

2d. In announcing or undertaking to establish the doctrine or rule of practice, that in a common law action, upon a contract to deliver coin, the judgment may be entered for coined dollars and parts of dollars. Such a judgment can be entered only in an equity action for a specific performance.

It is to be hoped this decision will be reviewed and

overruled, or at least never followed as a precedent, and the sound, practicable and heretofore well-established doctrine of the New York court reaffirmed.

LAW AND LAWYERS IN LITERATURE.*

VII.

ARISTOPHANES,

In the "Wasps" we have a most vivid picture and admirable satire of the administration of law in ancient Athens. The state treasury was replenished by fines imposed by the courts upon delinquents, and of the money thus extorted a great part was bestowed on public feasts and amusements. Under such circumstances, a rich defendant stood but a slender chance of escape, and the six thousand dicasts, or jurymen, of Athens, acquired a passionate fondness for attending the courts. In the comedy, "Philocleon," an old dicast has become nearly insane in his eagerness to discharge his official duties. "He cannot sleep for thinking of the bench, and prefers to his comfortable bed at home a shake-down at the door of the court. that he may secure a good seat in the front row when the business commences. There, with his staff in his hand, and his judicial cloak on his shoulders, his delight is to sit all day earning his three oboli, and having his ears tickled with the gross flattery by which litigant parties at Athens sought to conciliate the favor of the judges." His son is much disgusted at his father's mania, and determines to prevent his going abroad: and so guards the outer door, and stretches a net over the court-yard. The old dicast tries to escape by way of the chimney; but, in spite of his assertion that he is smoke, is dislodged. Next he pretends to be anxious to go out to sell an ass; but the son offers to do it for him, and bringing out the animal, discovers that the old man had strapped himself under its belly. Another attempt to escape by creeping along the roof tiles is baffled. Just then a chorus of his fellow dicasts, dressed and painted to resemble wasps, call on their way to court to inquire why their brother does not accompany them. The wasps and the father rail against the son, who, in defense, asserts that his father has been cheated, and that the career of the dicast is a state of abject servitude. The old man insists that he has by virtue of his office an almost despotic power. The chorus is appointed to determine the justice of the dispute, and the argument commences. In Philocleon's account of the delights of his office, the poet lashes the abuses of the system with an unsparing hand. The result of the argument is that the chorus entreat the old man to submit to his son's wishes. But as the passion is still strong on him, the son suggests that he shall institute a domestic court and try causes at home. Opportunely, a dog, Cleon, appears, and complains that another dog, Labes, has carried off and eaten a Sicilian cheese. The old man insists on trying this cause immediately. So the indictment is framed:

"The dog of Cydathenus doth present Dog Labes, of Exone, for that heSingly, alone-did swallow and devour One whole Sicilian cheese, against the peace." The trial goes on, speeches are made pro and con, and the old dicast votes an acquittal for the first time

*Entered, according to Act of Congress, in the office of the Clerk of the District Court of the United States for the Northern District of New York, in the year 1870, by IRVING BROWNE.

in his life, asking pardon of the gods for such an unprecedented act. The son promises to take care of the old man, and the play ends.

RACINE.

Closely modelled, in several scenes, upon "The Wasps" of Aristophanes, but of more intelligible, because of more modern interest, is "Les Plaideurs" of Racine. The absence of any translation of this exquisite comedy, either in prose or verse, so far as I can learn, is my excuse for offering translations by myself of some passages. We have, as dramatis persona, Daudin, a judge, fond of exercising his powers; his son, Leandre, a gay youth, to whom the study of the law, for which his father designs him, is irksome; L'Intime, the judge's secretary; Petit Jean, the house porter, illiterate; and the Prompter, who helps the advocate, Petit Jean, in the trial scene; also Chicaneau, a citizen, and La Comtesse, both litigious. Leandre and Daudin make their first appearance in a dialogue, in which the old man expostulates with his son on account of his dissolute course, and reproaches him for despising the law. The hereditary pride of the old French judge is strikingly illustrated:

"Money is not earned so fast in my dominion. Each one of thy fine ribbons cost me 'n opinion. My gown makes you ashamed! And you the son of a judge!

Should'st act the gentleman? Oh, Daudin, that's all fudge!
Consider, in my wardrobe and in my sleeping-room,
The portraits of the Daudins; all these have worn the gown.
It is a good profession. Compare, too, price for price,
The New Year's gifts of a good judge, and those of a
marquis:

Remark what we shall be at th' end of next December:What 's then your gentleman? A post in th' antechamber."

The son tries to convince the father that his health demands repose and retirement, and to induce him to stay at home and temporarily give up business. The old gentleman being indisposed to accede, the son threatens restraint. The judge says that life to him, without the exercise of his official duties, is a punishment. The son tells him he can set up a domestic court. At that moment the porter opportunely rushes in, announcing that the house-dog, Citron, has carried off and devoured a capon. The judge seizes on the idea, orders the arraignment of the offender, and assigns the porter to the prosecution, and the secretary to the defense. The trial then goes on, with the aid of the Prompter, the advocates having first been crammed for their respective parts. I give below a translation in full of this admirable scene, in which the tedious prolixity and irrelevancy of the advocates and their oratorical affectations, with the ad captandum argument of presenting the prisoner's family in court, which even now-a-days is so effective when the action is against a railroad and the relatives are women in weeds, are drawn in such a masterly manner:

Daudin:

Come, who are you down there?

Commence then.

Daudin:

Prompter: Gentlemen

Petit Jean:

Oh, take a lower key,'

For if you prompt so loud they never can hear me, My lord

Oh, sir,

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I think I understand good breeding better'n that. Daudin: Be covered, I repeat.

Petit Jean (putting on his hat, to Prompter):
Well, Prompter, now be dumb;
That which I know the best is my exordium.
Your honors, when I consider with exactitude
The world's inconstancy, full of vicissitude;
When I behold so many races different,

So many wandering stars, not one star permanent;
When I view Cæsar and his fortune;
When I behold the sun, when I behold the moon;
When I behold the state of the Babylonians,
Transferred from Persia to the Macedonians;
When I behold the Lorraines, at first despotic,
Pass to a monarchy, and then grow democratic;
When I behold Japan-

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And you?

Leandrê:

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Sychosis

Petit Jean: Prompter:

Oh dear! The horse

I come to help their halting memory.

Petit Jean:

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Oh dear me! what's the use of beating round the bush?
They teach me to speak words in length a fathom each,
Big sounding words, that would from here to Poutoise
reach,

Now, I don't see the sense of all this hurly-burly;
In short, to find a fowl I came this morning early';
There's naught your dog won't steal, if it but take the
shape on

Of fowl, and now he's gone and gobbled up our capon -
A capon from the Maine; here's nothing to decide;
The first time that I find him, I'll soundly tan his hide.

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Say, can't you soften down the shrillness of your tone?
L'Intimé (in his ordinary voice):
Oh, yes, I've many of them. (In a pompous tone:) What-
ever diffidence

May justly be aroused by said fame and eloquence,
We rest upon your truth, as Hope leans on the anchor,
And trust your sense of right to mitigate all rancor.

Before the great Daudin innocence is power;

Yes, before the Cato of Normandy, the lower,
That sun of equity whose beams have never languished:
Vict'ry delights the gods; but Cato 's for the vanquished.

Daudin:

Now truly he pleads well.

*I infer that the inhabitants of Maine were notorious "experts.'

In courts of equity Your Aristotle hasn't the least authority. Come, to the point.

L'Intime:

Pausanias, in his Corinthiacs,

Daudin:

To the point.

L'Intimé :

Rebuffe

Daudin:

To the point, I tell you. L'Intimé :

The great Jacques

Daudin:

The point, the point, the point! L'Intimé:

Harmenopul, in fact,

I'll enter your default.

Daudin: L'Intimé:

Oh dear, how rash you act. Then have the facts. (Quickly.) This dog to the kitchen drawing nigh,

A capon plump and sweet within he did espy:
Now he for whom I speak with hunger there was hasting;
He against whom I speak was nicely plucked and basting;
Then he for whom I speak, seized on, took off, secreted
Him against whom I speak. The larder thus depleted,
He's taken on a writ. Counsel plead pro and con;

A day's fixed. I'm to speak, I speak, and now I've done.
Daudin:

Tut, tut, tut, tut! Learn better how to try your case.
Th' irrelevant you give at a deliberate pace,
Th' important you run over at a gallop strong.
L'Intimé:

The former, may it please you, sir, is fine.
Daudin:
It's wrong.
Were causes ever known to be in this way pleaded?
What say th' assembly?

Leandrè:

This style is now most heeded. L'Intime (in a vehement tone): Where were we, gentlemen? They come. And how come? They chase my client, and they force a mansion. What mansion? Why, the mansion of our own judge. They force the cellar which serves us for refuge. Of brigandage they then accuse us, and of theft, We're then dragged headlong forth, and to our accusers left,

To master Little John, your honor-I attest.

Who does not know the law. If any Dog (Digest

De vi, and see the paragraph Caponibus),

Is manifestly contrary to such abuse?

And when it turned out true that my poor client Citron
Had eaten all or most of the aforesaid capon,
Against this trifling deed you will not hesitate
To weigh our former actions, and let them mitigate.
When has my client ever been reprimanded?

By whom has this your house always been defended?
When have we failed to bark at robbers in our town?
Witness three low attorneys, from whom we've torn the
gown.

They show you certain fragments to accuse us by;
Receive these other fragments to help us justify.

Petit Jean:

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Well, then, before the birth

Of time, of the material system, and of the earth,-
The world, the universe, and nature universal,
Lay buried in the bosom of the material.

The elements the fire, the air, the earth, the water,—
Piled up or buried, are nought but a heap of matter,
A dire confusion, a mass of matter formless,
Chaos, disorder, and brooding rout enormous.

As Ovid sings, there was, on all the face of nature,-
Called chaos by the Greeks-one rude indefinite feature.
(Daudin, being sleepy, nods, and falls heavily.)
Leandrè:

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Why, now, I seem to be quite taken with compassion,
And this which I behold is fit to touch that passion!
I am quite bothered here. The fact alleged so presses;
A crime's averred; th' accused himself confesses.
But if he is condemned, equal's th' embarrassment.
For then these pretty children must be to th' asylum sent.
But I am occupied. I cannot see a person.

In the last scene, our author depicts the indifference with which courts had grown to regard the torture of litigants upon the rack, or "putting the question," as it was termed:

Daudin:

Have you, then, never seen a party put to torture?

No, and believe I never would for my salvation. Daudin:

I wish you'd gratify for this your inclination.

Isabelle:

Oh, when th' unhappy suffer, can any one stand by?
Daudin:

Why, to fill an hour or two, it answers passably.

This, from a magistrate who was so overcome at the sight of the prisoner's orphaned family, is pretty strong satire, but not extravagant, as observation shows. In a dialogue between Chicaneau and La Comtesse, the former gives the following account of his experience in litigation:

Attend. For fifteen years or twenty past, an ass
Over my meadow had accustomed been to pass

And there disport himself, by which much waste he made,
For which before the village judge my plaint I laid.
The ass I attach. An appraiser's nominated,
At trusses two of hay the waste is estimated.

In short, with this award, after a year, they fling

Me empty out of court. And then an appeal I bring.
Now while th' appeal in court was sleeping at its ease,-
Remark particularly, madame, if you please,-
My lawyer, Drolichon-- no fool - on my petition,
Obtained by bribery a premature decision,

And thus I gain my cause. On that, what next is done?
My opponent tricky resists the execution.
But while procedure on procedure thickens,
My adversary lets in my field his chickens.

To ascertain, unto the court it then seemed meet,

How much of grass one chicken in one day can eat.
Issue at last is joined. In fine, when everything
In that condition stands, the cause they say they'll bring
To 'n end, April fifteenth or sixteenth, 'fifty-six.
I write fresh score. I put in evidence, and mix
Plaints, pleas and inquests, inspections compulsory,
Appraisals, transfers, three interlocutory

Orders, and grievances, fresh acts, reports, res gestæ ;
I forge my name in letters issued by Majesty:
Fourteen appointments, twenty writs, six allegations,
Productions six and twenty, twenty just'fications,
Judgment in short. My cause is swallowed in expense
Amounting to about five or six thousand francs.
Call you this doing right? Is this the way they adjudge?
After fifteen or twenty years! There's no refuge
For me left open but petition civil.

-

The Countess is also an old hand. She has been in law thirty years or more. Chicaneau says that's not much, and asks how old she is. Sixty, she replies. But most of her suits are finished. She has on hand only four or five little affairs- one against her husband, and others against her father and her children. She has endeavored to live honestly, but to live without litigation cannot content her. She is no compromiser; she will have all or nothing, and will sell her chemise if necessary.

LAW OF ARREST WITHOUT WARRANT.

III.

The right of an officer to arrest without warrant, while the individual is in the act of committing the offense, was discussed in the preceding article. We now proceed to a discussion of the right of an officer to arrest after the offense is committed.

The common experience of mankind is that when heinous crimes, as felonies, are committed, there is a much stronger motive for the offender to escape the consequences of his crime than there is when only mere misdemeanors are perpetrated; and, therefore, the law has clothed the peace officer with greater power to arrest without warrant for such offenses. A prompt arrest and punishment should be rendered tolerably certain, and in order to protect the rights of society and insure public safety, the officer should be untrammeled in immediate pursuit of the felon, and,

if necessary, proceed without the delay of obtaining a warrant in such cases. The law has therefore given an officer much more authority to make such arrests than it has a private individual. An officer may arrest any person, if he has reasonable ground to suspect he has committed a felony, whether any felony has been committed or not by the party suspected or arrested, or by any person.

made to engraft a limitation to the power of an officer to arrest as before stated, and to allow him to arrest only when there is reason to suspect that the party accused would otherwise escape." This position was first advanced by Sergeant Russell, in Davis v. Russell (5 Bingham, 359). It would be of serious consequence, said he, to the liberty of the subject and the peace and comfort of society, if a constable is to be empowered to arrest on his own suspicions and judgment, where he has no reason to fear an escape, and may with propriety lay the case first before a magistrate.

If such a proceeding were allowable, the most re

cess.

In 1 Lead. Cr. Cases, p. 197, note, Mr. Bennett says: "The first enunciation of this doctrine is in the Year Books, 7 Hen. IV; Hilary Term, pl. 35. Again, in Ward's Case, in 1636 (Clayton's Reports, 44), we find another recognition of the right of an officer to act upon the charge or accusation of a third person; but Samuel | spectable individuals, even judges themselves, might, v. Payne (1 Doug. 359, 1780) was the first distinct adju- | dication upon this important question of law. Ledwith v. Catchpole (Caldecott's Cases, 291, 1783) is another important case. The main distinction between Samuel v. Payne and Ledwith v. Catchpole is, that, in the former, the party arrested was, by a third person, reported to the officer as guily of a felony, and the officer proceeded upon that charge alone, while in the latter there was no charge against the suspected person in particular, but the officer acted upon his own suspicion that he was the true offender. But it is clear that, in either case, if the officer acts bona fide, and upon reasonable grounds, he is not guilty of a trespass. See Cowles v. Dunbar, 2 Carr. & Payne, 565. Every American case on this question, which we have examined, refers to Samuel v. Payne as authority. It was decided by the celebrated Lord Mansfield. Ledwith v. Catchpole was decided by the same distinguished jurist, who, on a motion for a new trial, said: "The first question is, whether a felony has been committed or not; and then the fundamental distinction is, that if a felony has actually been committed, a private person may, as well as a peace officer, arrest; if not, the question always turns upon this: Was the arrest bona fide; was the act done fairly and in pursuit of an offender, or by design or malice and ill-will? It would be a terrible thing, if, under probable cause, an arrest could not be made. Many an innocent man has and may be taken up upon such suspicion; but the mischief and inconvenience to the public, in this point of view, is comparatively nothing. It is of great consequence to the police of the country."

upon the unfounded assertions of any unprincipled persons, be dragged from their beds to a prison. But this limitation was not sanctioned by the court. The same effort was made in this country in Rohan v. Sawin (5 Cushing, 281), but with the like want of sucThe judge below sanctioned this doctrine, and ruled in accordance with it, but this was reversed on exceptions. "We do not find," said the court, "any authority for thus restricting a constable in the exercise of his authority to arrest for a felony without a warrant. The probability of an escape or not, if the party is not forthwith arrested, ought to have its proper effect upon the mind of the officer, in deciding whether he will arrest without a warrant; but it is not a matter upon which a jury is to pass in deciding upon the right of the officer to arrest. The question of immediate necessity for an immediate arrest, in order to prevent the escape of the party charged with | felony, is one the officer must act upon under his official responsibility, and not a question to be reviewed elsewhere."

It was attempted by the plaintiff, in Beckwith v. Philby (6 Barn. & Cress., 635), to make an essential distinction between the rights of an officer whether he acts upon his own suspicion or upon the charge and accusation of another. It was admitted that, in the latter case, it is his duty to make the arrest, and it is not incumbent on him to prove the actual commission of a felony, But it was claimed, that, if he assumed to act upon his own suspicion, he then placed himself in the situation of any private citizen, and could justify himself only on proof that a felony had been in fact committed. But any such distinction was entirely negatived by the court, and it was there broadly laid down, that a constable, having reasonable cause to suspect that a felony has been committed, has authority to arrest the party suspected, although it afterward appear that no felony has been committed." Mr. Bennett (1 Lead. Cr. Cases, p. 200, note) has the following: "The attempt has sometimes been

The great principle that underlies all authorities upon the foregoing questions seems to be, that although many innocent persons may be arrested from an abuse of such authority by imprudent and careless officers, when exercising their own judgment as to a proper cause to arrest without warrant, yet it does not overbalance the good which results to society by the exercise of such authority as will insure the prompt arrest of felonious offenders.

But in misdemeanors, after being committed, there is not the same motive to avoid arrest, as the punishment is much less. And, therefore, little is lost by the delay in obtaining a warrant in such cases, and the liability to arrest innocent persons on suspicion greatly diminished. Besides, it might be better that many of this class of small offenders escape, than sanction the above principle of the law of arrest in the apprehension upon suspicion for mere misdemeanors; for, at best, it is an arbitrary rule, and can only be justified by the stern necessities of society in the arrest of felons.

The following are elementary treatises and reported cases, where the foregoing questions are discussed to some extent, viz.: In England, Lawrence v. Hedger (3 Taunt. 14); Nicholson v. Hardwick (5 C. & P. 495); Hobbs v. Branscomb (3 Camp. 420; 1 East. P. C. 301; 2 Hale, P. C. 83, 84, 89; Roscoe's Cr. Ev. 242; 4 Black. Com. 290; 1 Chit. Cr. Law, 22). In America, Rohan v. Sawin (5 Cush. 281); Eanes v. The State (6 Humphreys, 53); Wakely v. Hart (6 Binney, 316); Holley

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