The New York Herald Newspaper, December 14, 1869, Page 8

8 UNITED STATES SUPREME COURT Important Decision by the Chief Justice— Authority of Congress to Tax the Cireula- tion of Statc Banks Sustained—Powers of Government to Create a National Currency—Constitutionality of ets for the Emission of Treasury Notes Affirmed. WASHINGTON, Dec. 1%, 1869. No. 153. President, Directors and Company of the ‘Veazte Bank vs. Jeremiah Fenno, Cottector.—Chiet Justice Chase delivered the following opinion: ‘The necessity of adequate provision for the finan- cial exigencies created by the late revellion suggest- ed to the administrative and legislative departments of the government important changes in the systems ef currency and taxation which had hitherto pre- vailed. These changes, more or less distinctly sbowno in administrative recommendations, took We within a limited range, form and substance in legislative acts, have now to consider, ‘hose whicn relate to circulating notes aud taxation of cireulation, At the misted little skill, prudence, and integrity. bursement in the transactions of the national gov erument of anything except gold and siiver, and the laws of the State reauiring the reaemption of bank noies in coin on demand, prevented the disappear- ance of gold and silver from circulation, There was then no authorized mauonal currency except coin, and no national taxation was imposed in any form on the State bank circulation, ‘The first act autnorizing the emission of notes by the Treasury Department for circulation was that of July 17, 1861 (12, U.S. St, 259), The notes issued under this act were Treasury notes, payable on de- mand in coin, $50,000,000, and was pended gpecie payment. coin in whe payment of on the 25th of February, 1862 (12, U, S. 341), & new policy became necessary, country, and was adopted, circulation, under the name of United States notes, made payable to bearer, be payab’ op demand, to the amount of $150,000,000, and this amount was increased by subsequent acts to $450,000,000 of which $50,000,000 Were to be heid in reserve and only to be issued for &@ special purpose and under special directions as to withdrawal irom circulation, (Act of July 11, 1862, 12 U. 8. St., 632; act of March 3, 1863, 12 U.S. St, 710.) These noves, until after we close of the war, were @iways convertible into, or receivable at par tor bonds payabic in coin, and bearing coin interest at @ rate Dot leas than five per cent; and the acts by which they were authorized declared them to be Jawful mouey anda iegai tender. This currency, issued direcuy by the government lor the disdurse- ment of the war and vther expenditures, could nov obviously be a proper object of isxauon; but on we oth of February, 1863, Was passed the act anthoriz- 4ng balional banking associations (12, U. 5. St., 670), in watch, for the frst time during many years, Con- reas recognized the expediency und duty of impos- {tax Upon curreucy. By this acta tax of ten per cent annually was \inposed on the circulation of the associations authorized by it, Soon after, by the act of March 3, 1463 (12, U. 5. St, 712), @ similarly lighter tax of une per cent annually Was imposed ob the circulation of State banks in certain propor- tions to their capital and of two per cent on the ex- and the same act reduced the tax on the na- tional associatious to the same rate, Both acts also imposed taxes on capital and deposits, which need not be noticed here. Ata later date, by the act of June J, 1464 (13, United States Statutes, 111), which Was substituted for the act of February 25, 1363, au- paper national banking associations, the rate of tax on circulation was continued and appliea to the Whole amount ofit, and (he shares of their stockhold- ere were also subject to taxation by the Stutes; anda few days afcerwards, by the act of June 30, 1864 (13, United States Statutes, 277), to provide ways and means for the support of the govern- ment, ihe tx on te circulauon of me State banks was also conunued at the same annual raw of one per cent, as beiore, bul paymeut was required ip montaly in- Sluiments Of Oue-Lwellth Of one per ceni, With dnontily reports from each State bank of tue amount In circhiauon. Jt can hardly be doubted that the Object of this provision was to inform the proper authorives of the exact amount ol paper money in circuiation, with a view Lo its reguiaion by law. It War the first step taken by Congress tn that direc- tion, and 10 was lollowed, some months tater, by the act of March 3, 1865, armendatory ot the prior iuter- Dal revenue acts, te sixth section of which provides “that every national: banking association, State bank or State bunking association shall pay atax of ten per ‘agate ou the amount of the notes of any State bank or State banking asociation paid out by them after the Ist day,of July, 1860." (1d, U. 5. bt, 484.) The same provision was reoacted, with # more ex- tended appiication, on the 1sth of Jaly, 1566, ip these words: Kvery national banking axsoctation, State bank or State Danking association shall pay a tax of ten per centim on the ame ‘of notes of any person, State bank or State banking fastitution used for circulation and patd tbe lat day of August, and such tax sual and paid ip such mapnt ‘ball be prescribed by the Com- miswover of Internal Ker ie. 14 U.S. St, 116) The constitutionality of the last provision is now drawn ia question, and ihe bref siatement of the recent legisiation of Congress has been made for the urpose of placing in a clear light its scope and bear- ing. especially as developed in the provisions just cited. it wiil be seen that wifen the policy of taxing bank ctrculation was first adopted in 1463 Congress was inciined vo discriminate for rather than against the circulation of the state banks; but that when the country had been sniticiently furnisied with a national currency py the issue of the United States and of national bank notes the discrimination was turned, and very decidedly turned, in the opposite direction. ‘The general question now before ua is whether or not the tax of ten per cent Imposed on State banks or Dational banks, paying out the notes of individ- ual or State banks used for circulation, is repug- Rant to the Constitution of the United States. It 1s presented by # certificate of diviaion of opinion be- tween the judges of the Ctreuit Court of the United States for the district of Maine, in a suit brought by the President, Directors and Company of the Veazie Bank against Jeremiah Fenno, Collector of Internai Revenue, tor the recovery of the tax, penalty and costs, paid by the bank to the collector under pro- test, and to avoid diatraint. The Veazie Bank cor- poration chartered by the State of Maine, with au- thority to issue bunk notes for circulation; and the notes on which Lue tax imposed by the act was col- lected were issued under thia autnority. Tuore 8 nothing ip the case Showing that the bank sustained any relation to the State as a financial agent, or that its authority to isaue notes was con- forrea or exercised with any special reference to over than private interests. ‘The case was pre- sented to the Circuit Court upon au agroed stave- Ment of facts, aud upon a prayer for instructions to the jury the judges found themselves oppozed in opinion on three questions, the first of which was thia—Whether the second clause of the ninth sec- tion of the act of Congress of the 13th of July, 1866, under whic the tax in this cage was levied and col- jected, is a valid and constitutional law. The other two questions diver from this,ia form only, and need not be recited, Jn support of the position that the act of Congress, #0 far as it provides for the levy and coliection of the tax, is repugnant to the consiisution, two propos: tions have been argued with much force and 4 nestness. The first is, that the tax in question is direct tax and has not been apportioned among the States agreeably to the constitution. The second is, thatthe act imposing the tax impairs a franchise granted by the State, and that Congress has no neve to pass any law with that intent or effect. ‘oe first of these propositions will be first examined. The aiMculty of defining with accuracy the terms Used in the clauses of the coustitution which confer the power of taxation upon Congress Was felt in the convention which framed that Austrument, and has aiway? been experienced by courts When called upon to determine their meaning. The general intent of the constitution, however, seems clear. ‘The general government, adiministered by the Congress of the Goufederation, had been re- duced to the verge of inpotency by the necessity of relying for revenue upon requisitions on the States; andit Was & leading object in the adoption of the constitution to relieve the government to be orga- Lied under it from this necessty and confer upon 1 ample power to provide revenue ny the taxation of persous and property, And nothing i clearel from the discussions in Convention the discussions which preceded final ratifica- fon by the necessary number of States, than the purpose to give the power to Congress as to the tax auion of everything except exports in its fullest ex- tent The purpose is apparent, aivo, trom the terms in which # taxing power is granted, Tue power is “to lay ald coilect taxes, euties, beginning of the rebellion the circulating medium con- almost entirely of bank notes issued by numerous independent corporations, variously organized under State Jegislation: of various de- grees of credit, and very unequal resources, admin- istered often with great and not unfrequently with The acts of Congress then In force prolibiting the receipt or dis- The amount authorized by it was increased by the act of February 12, 1862 (12, U. S. St., 538) to $60,000,000. On the 3ist of December, 1861, the State banks sus- Untl this time the ex- penses of the war had been paid in coin or in the demand notes just referred to, and for some time afterwards they continued to be paid in these notes, Which, if not redeemed in coin, were received as duties, Subsequently, St, m conse- quence of the suspension and the condition of tne The notes hitherto issued, as Las Just beeu stated, were called Treas- ury notes, and were payable on demand in coin, ‘The act now passed authorized the issue of bills for but not expressed to not to be a direct tax. chise granted by @ State, which Congress npon any principle exempting the reserved powers of the States Irom impairment by taxation, must be heid to have no authority to lay and collect. @ay that there may Mot be such a tax. ie that the reserved rights of the States, such effect to NEW YORK HERALD, TUESDAY. Imposts and excises, to the debts and provide forthe common defence and general welfare of the United States.” More com- rehensive words could not have been used. EXx- pore only are, by another provision, excluded from ts application. There are, indeed, certain virtual Mmitations arising from tue principles of the constl- tution itself. It would undoubtedly be an abuse of the power if so exercised as to impair the separate existence and independent self-government (county of Lane vs. State of Oregon, 7 Wall, 7) of the Stal or Uf exercised for ends inconsiatent with the limi grants of power in the constitution, And there are directions a8 to the mode of exer- eising the power. If Congress sees fit to impose a cupitation or other direct tax it must be Jald In pro- portion to the census, If. Congress determines to impose duties, im} and excises they must be uniform througuout the United States. These are not property iJimitavons of power. They are simply rules prescribing the mode in which it shall exercised by thems It still ea- tends to every object of taxation except exporte, and may be ve wo every object of taxation to which it extends, in such measure as Congress may determine. ‘The comprebensiveness of the power thus given to Congress may serve Wo explain, at least, the absence of any atvempt,by members of the Convention to deiine, even in the debate, the terms of the grant, ‘the words used certainly described sne whole power, and it was the intention of the Convention that the whole power should be con- ferred. The definition of particular words, there- fore, became unimportant. It may be said, indeed, that this observation, however just in its application Ww the general grant of power, cannot be applied to the rules by which different descriptions of taxes are laid aud collected. Direct taxes must be laid and collected by the rule of apportion. ment, Duties, imposts and excises must be laid aud collected under the rule of uniformity. Tae meaning of the first rule ta very clear, but there has always been a diversity of opinion as to the subjects to which it is to be applied. The sense of Congress has been shown, as we tuink quite clearly, in every act imposing direct taxes. In each of these acts @gross sum has been levied upon the Untied States, and ae wral eee at to tii parrots to the several States, acco! e! y numbers of imhabitants as ascertained by the laet preceding census. Having been apportioned, pro- ‘Vision 1s mace for the imposition of the tax upon the subjects specified in the acts fixing its total sum, In 1798, when the first direct tax wus imposed, the total amount was fixed at $2,000,000 (wuthorities cited). In 1818 the amount of the second direct tax was fixed at $3,000,000, In 1815 the third at $6,000,000, and it was made an annual tax. In 1816 the provi- sion making the tax annual was repealed by the re- peal of the (rst section of the act of 1815, and the total amount was fixed for that year at $3,000,000, No other direct tax was imposed until 1861, when a direct tax of $20,000,000 was laid and made annual; but the provision making it annual was suspended, and no tax except that first made was ever apportioned. In each’ instance the total sum Was apportioned among the States by the constitu- Uonal Tule and was assessed at prescribed ratea on the subjects of the tax. The subdjecta in 179s, 1813, 1815 and 1816 were lands, improvementa, dwelling houses and slaves, and in 1861, land, improvements and dwelling houses only. Under ‘the act of 1708 slaves were assessed at fifty cents each; under the other acts according to valuation by assessors. ‘This review shows that personal property, contracts, occupations and thé like have never been ed by Congress as proper subjects of direct tax. It pas been supposed that slaves must be regarded an ex- ception to this observation. But the exception is rather apparent than AS persons, slaves were proper subjects of a capitation tax, which is de- scribed in the constitution a8 @ direct tax; as pro- perty they were, by the laws of soine, if not most of the States, classed as real property, descendible to heirs. Under we first view they would be subject to the tax of 1798 or & capitation tax; under the latter they would be subdject Lo the tax of the other years as @ realty. That the latter view was taken by the framers of the acta after 1708 becomes highly probabie, when it 1s con- sidered that in the States where the glaves were held much of the value which would otherwise at- tach to sand passe into the slaves, If, indeed, the land only had been valued without the slaves, the land would have been subject to much heavier pro- portional imposition in those States than in the States where there were no slaves; for the propor- tion of tax imposed on each State was determined by Panciation, without reference to the suojects on which it was to be assessed. The fact, tuen, that slaves were valued under the acts referred to, far trom showing, as some have supposed, that Congress regarded person.l property a3 @ proper object of direct taxation ander the constitution sbows only that Congress, after 1798, regarded slaves for the Purpose of taxation as realty. lt may be rightly affirmed, therefore, that in the practical construc- won of the constitution vy Congress direct taxes nave been limited to taxes on land and taxes on polls or capitation taxes. And thia construction is entitied to great consideration, especially in the absence of anything adverse to it in the discussions of the convention which framed and of the conven- ton whicb ratified the constitution, What does appear in those discussions, on the contrary, sup- ports the constroction, Mr. Madison says Mr, King asked what was the precise meaning of direct taxa- lion, and no one answered. On another day, whea the question of proportioning representation to taxation, and both to the white and three- Mths of the slave inhabitants, was under consideration, Mr, Ellsworth said:—‘‘In case of a poll tax there would be no difficuity,”’ and speaking, doubtiess, of direct taxation, he went on the ob- serve, “The sum allotted to a State may be levied without diMculty, according to the plan ased in the State for raising Its own supplies.” All this, douvt- less, shows uncertainty as to the true meaning of the term direct tax; but 1t indicates, aJeo, an under- standing that direct taxes were such as may be levied by capitation and on lands and ap- purtenances, or perhaps by valuation and assessment of personal property upon general lists, for these were subjects from which the States at that ume usually received tneir supplies. This view received the sanction of this court two years before the enactment of the first law imposing direct taxes €0 nomine, During the February term of 1796 the constitutionality of the acts of 1604, im- posing duty on carriages, came under con- sideration in the cage of Hutwon vs. The United States. Suit wae brought by the United States against David Hulton wo recover the penalty imposed by the act for not returning any paying duty on a number of carriages for the conveyance of persons, kept by the derenaant for his own use, Toe law did not provide for the apportionment of the taxes, and if it was a direct tax the law was confessedly un- watraated by the*constitution. The only question in the case, therefore, was whether or not the tax Was a direct tax. ‘lhe case was one of great expec- tavion, and a general interest was feit in ity determi- uation, [t Was argued in support of the law by Lee, Attorney General, and Hamilton, recently Secretary of the Treasury; im opposition to the tax, by Camo- bell, Attorney for the Virginia district, and Inger- soll, Attorney General of Pennsyivania. Of the Jus- tuces who filled this bench, Ellsworth, Patterson and Wilson bad been members, and conspicuous members of the constitutional convention, aad each oi the three had taken part in the discussions relating to direct taxation, Ellsworth, the Chief Justice, sworn into office that morning, not having heard phe whole argumeéaot, dechined taking part in the decision. Cushing, Senior Associate Justice, having been pre- vented by indisposition from attending vo the argu- ment, also refrainea from expressing an opinion. ‘The other Judges delivered their opinions in succes. sion, the youngest in commission delivering the frat and the oidest the last. They all held that tne tax On carriages was not a di tax within the mean. ing of the constitution. Justice Chase was tnciined to think that the direct taxes contemplated by the constitution are only two—a capitation, or poll tax, and 4 tax on Jand. He doubied whether 4 tax by a geueral assessment of personal property can be 1n- cluded within the term direct tax. Paterson, who had taken a leading part in the Constituuonal Convention, went more fully into the sense in which the words giving the power of taxation were used by that ody. In the course of this examination he said:— “Whether direct taxes, in the sense of the constitu- tion, comprehend any other tax than a capitation tax and tax on land is @ questionable point. If Uun- gress, for mstance, should tax in the aguregate, or mass, things that generally pervade all the States in the Union, then, perhaps, the rule of apportionment would be the iost proper, especially if an assess- ment was to intervene, Tnis appears from the prac- tice of some of the States to have been considered a direct tax. Whether it be #0 under the constitution of the United States 18 a matter of some diMouity, but as 1t is Bot before this court 1t would be unpro- ber to give any decisive opinion upon it. I never entertained @ doubt that the principal, 1 will not say the only ovject that the framers of the constitution conteinplated as failing within the rule of appor- tonment,@was 4 capitation tax and a tax on land.” Iredeil, aehvering nis opinion at Jength, concurred geueraily im the views of Justices Chase and Paterson. Wilson iad expressed his opinion to the same general effect when giving the decision upon the circuit, and did not now repeat them. Neither Chief Justice Ellsworth nor Jusiuce Cushing expressed any dissent, and It cannot be Supposed, 1 1n @ case 0 tmportant, their judgments had differed {rom those angounced that an opportu- nity Would not have been given them, by au order for rearguwnent, to participate im the decision. it may be safely assumed, therefore, a8 the unanimous judgment of the court that a tax on carriages is not @ direct tax; and it may further be taken as estab- lished apom tue testimony of Paterson, that the words direct taxes, as used In the constitution, com- prehends only capitation taxes and taxes on land, 4nd perhaps taxes on personal property by general Valuation and assessments of the various descrip- tons possessed within the everal States. It iollows, necessarily, that tie power to tax without appor- tionment extends to all other objects. Taxes on other objects are taciuded under the heads of taxes not direct, duties, imports and excises, and must be laid and collected by tue rule of uniformity, ‘The tax under consideration 1 @ tax of bank cir- culation, and may Weil be classed wnder the head of duties; certainly 1 18 not, in the seuse of the con- atitatiol @ direct tax. It may be said to come within the same cAteyory of taxes as the tax on incomes of insurance companies, which this court, in the cage of Touie vs. the lusurance Company, held Is jt, then, @ tax on @ fran- We donot it may be as tbe he to pass give laws throagh executive action, to ad- minister justice through the courts and to employ all necessary agencies for legitimate objects are nob proper subjects of the taxing power or Congress, Bat it cannot be admitted that franchises granted by & State are necessarily exempt from taxation, for franchises are property, often very vaiuable ‘and producuve property, and when not conterred for we purpose of giving ofte Stale Beer Co Le as properly objects of taxauon fect to some reserved powers of he as any other property. But in the case before as t! onjeek: of haxaben 15 not the franchise of the nen but property created or contents made and sage ri under the franchise or power to issue bank bills. oe Tallroad company, in the exercise of its corpornt franchises, Issues freight receipts, bills of “ og and passenger tickets, and it cannowbe doubted SRE the organization of railroads 18 gate as important to the State as the organization of banks; Dub I hardly be questioned that these contracts of Whe haa] pany are objects of taxation within the power | 4 and not exempted by any relation to the State whic! ranted the charter of the railroad, aud It pean Simeult to distinguish the taxation of pores ated for circulation from the taxation of these ral! re contracts. Both descriptions of contracts are means of profit to the corporation which issues Lyon = both, as we sain, ‘may proveriy be made contril troy to the public revenue. i i insisted, however, that the tax in the case before us is excessive, and so excessive as to Indl cate @ pil on the part of Congress to destroy the franchise of the bank, and is therefore, beyone the constitutional powers of Congress. The iirsi answer to this is that the judicial cannot presorive to the legislative department of the government Umitattons on the exercise of acknowledged power The power to tax may be exercised oppressively upon persons, but the responsibility of the Ledisi ture 18 not to the courts, but to the people by whom its members are elected; #0 that if par- ticular tax bears heavily upon a corpora~ tion or 8 class of corporations it cannot there- fore be pronounced con! to the constisution. But there is another a»swer which vindicates equally the wisdom and the power of Congress. It cannot be doubted that under the constitution the power to provide circulation of coin is given to Con- gress, aud it is settled by the uniform practice of the government and by repeated decisions that von- tia) may constitutionally authorize the emission of ils of erecit. Ib 18 not apenas here to decide whether the quality of legal tender im payment of debts can be constitutionally important va these bills, but it is enough to say thas there can ve 10 queation of the power of the government to emit them to make them receivabie in payment of debis Lo ituelf, to fit them for use by those who see ft to use them in all the transactions of commerce, to provide for their redemption tn coin or otherwia ‘and tius to make them a currency untform in value and description and convenient and useful for circulation. These powers, until recently, were only partially and occasionally exercised. Lately, however, they have been called into full activity, aud Congress has undertaken to supply a currency for the entire country. The methods adopted for the supply of this currency were briefly expiaineds in the first part of this opinion. It now consists of coin, of United States notes and of the notes oi the national banks. Both descriptions of notes are roperiy described as bills of credit, for botn are ‘uroished by the government, both are issued on the credit of the government and the government is responsible for the redemption of both, primarily a8 to the first description and alternately as wo the second. When these bills shall be made convertivie into coin at the will of the hoider this currency will perhaps satisfy as fully the wants of the community as any mixed ourrency that can be devised. Having thus, in the exercise of undisputed consti- tuuional power, undertaken to provide a currency for the whole country, it cannot be questioned that Congreas may constitutionally secure the benetit of to tue public by appropriate legisiation. To this end Congress has denied whe guality of legal tender to foreign coins, and Das provided by law against the imposition of counterfelt and base coin on the community. To the same end Congress may <is- courage by suitable enactments the circuiation as money of any notes not issued under its own au- thoritye Without this power, indeed, its attempt vo secure & sound and uniform currency for the coun- try must be futtie. Viewed in this light as well as in the other light of a duty on contracts or property, We cannot doubt the consututionality of the under consideration. The three questions certifie from the Circuit Court of the District of Maine must, therefore, be answered affirmatively. Mr. Justice Nelson dissented and read an opinion Which was coucurred in by Mr. Jusuce Davies, in Which, after noting the fact that there weie lour Stave banks in existence at the time of the adoption of the federal constitution, it 1s held that it 1s competent for the States to charter and es- tablish State banks, and asserted thas this view has been three times distincuy aiirmea by this court. It is then said that the bills or notes issued by State banks and put in circulation, instead of being the property of the banks isguing them, are, in fact, but their indebtedness, and as such they are hot liable to the tax impoued. ‘he general govern- ment cannot tax tue franchise nor the indebtedness of these insticutions, The view is taken that tis tax upon the issues of the banka 1p question 16 an ubjusliflavie attempt to crush shem out of existence. BROOKLYN CITY. THE COURTS, UNITED STATES COMMISSIONERS’ COURT. Arraigned for Passing a Counterfeit Biil. Before Commissioner Jones. The United States va. Henry Brooks and William Begg.—The defendant Brooks wag arrested on Saturday night, charged witn passing counterfeit twenty dollar bills on the New York Market Na- tlomal Bank. Berore being arrested Brooks had suc- ceeded in passing one of the bills at the store of James Reynolds, on Atlantic street, and whiie Ser- ant Hall, of the Fiftieth precinct, was bringi: im from the station house yesterday worning hi alleged confederate, William g, Was seen stand- ing on the steps of the City Hall. He was immedi- ately arrested, and both young men were taken be- fore United States Commissioner Jones, who held them to await examimation on Wednesday next, The bills are remarkably well executed, the eugray- img being quite equal to that of a genuine bill, but the green coloring matter is considerably darker than tat used in the Government Printing Uitice, KINGS COUNTY COURT OF SESSIONS. Important Decision Affecting the Case of Griffin, Under Sentence for the Dime Say- ings Bank Kobbery. Before Judge Troy. During the August term of the Kings County Court Of Sessions James Griffin was tried and convicted of grand larceny upon an indictment found against him implicating him in the robbery of atin box containing several documents of value, certificates, &c., which were stoien from the Dime Savings Bank in Brooklyn in the winter of 1867. It was shown on the trial that two men went into the bank on the da: upon which the robbery was committed, and thal while one engaged the attention of the clerk in con- versation in@ other spirited away the box, which was left.exposed to view in the vault. Subsequently Griffin was arrested in New York, with the papers formerly contained in the box in bis possession. He proved to be a notorious character, and was, it is alleged, connected with the Dan Noble gang of thieves. ‘The papers stolen were of no present value, and bis counsel contended that the Property stolen was not subject to larceay. Gnmn pleaded guilty to petit larceny, pending the decision of the Court, and sentenced to a fine of $100 and 1m- Prmonmens In the Penitentiary for one year. Judge yy has rendered an interesting decision in the case, reviewing the law of larceny, holding, in con- clusion, that as the verdict of the jury was for grani larceny, though the tin box was worth vut five dot lars, the petit larceny plea must be set aside and @ new trial ordered. MEETING OF THE BROOKLYN BOARD OF ALOCAMEN, The Common Council met yesterday afternoon, Alderman Bergen in the chair. It was resolved to Ax the limit or district of asseasment tor the opening of Bedford avenue and Herkimer street, and also widening Perry avenue, along the line of Bedford avenue from Flushing @venue to the city Ime, as Bedford avenue Is extentied by act of the Legislature Of 1890, and 100 feet in depth on each side of Her- kimer street, from New York avenue to Franklin, The Alderman of the Twelfth wardomfered @ resoly- tion to increase the salaries of eph McCann, Lease Clerk, and John McDermott, vk in the Tax Collector's oMce, to $1,800 per ansum. Alderman Whitney moved that the salaries of Patrick Hailin amd N. B. Alien, clerks, be increased from $1,00 to $1,500 per annum. Alderman Whéing moved that all clerks who would like to have their salaries increased make application im tle matter, The latter motion was regarded as a capital joke, and created considerable merriment among all those Wyo were not interested in the passage of the reso- lutiong for increasing tne salaries of the gentiemen named. The resolution was finaly laid on the table. The Board adjourned for one week. A STREET NUISANCE, Twe Men Narrowly Escape Being Crushed te Death. ‘The running of steam cars on main thoroughfares and the inexcusable carelessness of flagmen and other railroad empioyés in giving warning of ap- proaching trains came near causing the deatn of two men on Sunday evening last. at a quarter before six o'clock Mr. John Cornell, a driver in the employ of ihe American Express Compan: hile proceeding up Hadson street, anc when neat try atreet, found his way biocked by ihe congregation of icles usual at that hour and attempted to pass to the right of @ line of cars and between a second line atl further to the right, A train of care with dummy attached, was backing down tne space through which he was pas: } but without any Nights to indicate its Approach or Nagman to give warning of the danger. Upon the cars nearing him Mr. Cornell became aware offhis danger and made every effort to back his horses out, but one of the two becoming unmanageabie this was found impos sible, and aa the cars struck the wagon he leaped from it to save his life. His brotuer-in-iaw, Mr. Jones, who was in the wagon at the time, leaped frum the rear end at the same time. No lives were lost, fortunately, and the heavy express wagon was not much injured. The horses became detached from the wagon, but were recovered in time to pre- vent further damage, THE CASE OF JOHN REAL. The *Verdict for Murder in the First Degree Sustained on Appeal. Opinion of the General Term ‘of the Supreme Court by Judge Clerke, Judge Barnard Concurring. DISSENTING VIEWS OF JUDGE CARDOZO, It will be remembered that In February last, at the Court of Oyer and Terminer, Judge Barnard presid- ing, Jobn Real was tried and convicted for the mur- der of policeman Smedick in this city during the’ Summer of 1868, Rp verdict of i Jury way “guilty of murder in the flfat degiéé, 88 charged inthe in- dictment.” The evidence in the case was unusually direct and positive, fully sustaining the ver- dict. But the counsel for the prisover had taken numerous exceptions to the rulings of the court on questions of law as to the admissibility of evidence raed during the progress of the trial, and also to the final summing up and charge to the Jury by Judge Barnard, Another objection was raised to the jurisdiction of the Court uf Oyer and Termmer, based on # technical point. On these ex- ceptions, onjections and alleged errors a writ of error was sued out of the General Term of tue Supreme Ceurt, and the cause was argued before Judge T. W. Clerke, presiding justice, and Judges Cardozo and Barnard, associates—the latter or whom having also held the Court of Oyer and Ter- miner at which Real wag convicted. Yesterday the court rendered its decision on the alleged errors and also on the question of jurisdic. tion. The judgment of the court was pronounced by Judge Clerke in an elaborate statement of the Teasons which led the tribunal to sustain tue verdict of gutity and to decline to interfere with. the execu- tion of the sentence of death. Judge Barnard con- curred in this decision and opinion of Judge Clerke, while Judge Cardozo read his views at leugth, dis: senting from the majority opinion of the court and giving as his belief that the verdict should be set aside and a new trial granted. The several opinions containing the judgment of the court and the dis- senting views of Judge Cardozo, .are subjoined in full and will be found of interest. OPINION OF THE COURT BY THE PRESIDING JUSTICE, T. W. CLERKE, First.—The first point taken by the counsel of the plaintiff in error involves the question of jurisdic- tion. It appears irom the judgmens record that the indictment was presented in the Court of General Sessions on the first Monday of August, 1868; that on the 6th day of the same month the sald court ordered fthat tbe indictment be sent to the next Court of Oyer and ‘erminer, to be held in and for the city ana county of New York, there to be determined according to law; that the ist day of February, 1860, tne indict- Tent was accordingly sent to aud received by the Court of Oyer and Terminer, to be determined according to law, and that aiterwards, on the 10th of February, in the same year, at the sald court, before a jary for the purpose impanelled and returned, tge plainttt® in error was convicted of murder in the first degree, as in the indictment was alleged against him. The counsel for tue plaintiff in error states in his first point that It 18 not alleged that the session of the court when the prisoner was tried was the court next after the 6th of August, 1868, when the trans- ferring of it to the Court of Oyer-and Terminer was made, and he says it was conceded on the trial that the next Court of Oyer and Terminer sat in October, 1868. On referring to the Error Book I cannot find any such concession. No doubt Mr. Stuart, counsel for the prisoner, in stating his objection to the jurisdiction of the court, affirms that a Court of Oyer and Terminer had been held in the previous October, and he is not contradicted either by the Court or capens, counsel. We, how- ever, can alone be guided by the record, and from ali that there appears we cannot infer that @ Court of Oyer and Terminer was beid in Octover, 1868; but, on the contrary, it 18 to be inferred that the court next after the 6th of August, 1563, was held in February, 1869, when the prisoner was tried. But if 8 court had been held im October I do not think that it was indispensable that he should have been then tried. Undoubtedly the statute (3 Rev. St., 303, fifth ed.) directs im the sixth section that the Courts of Sessions shall send all indictments not triable thereim to the next Court of Oyer aud ‘ermi- her, there vo be determined according to law; and in the seventh section, the one applicable to the case before us, it saya that the sald courts may also, by an order to be entered in their minutes, send all indictments for offences triable before them which shail not have been heard and determined to the next Court of Oyer and ‘lerminer, there to be determined aceording to jaw. [oes this necessarily require that the prisoner suall be tried during the hext session of the court, and if not then tried that he shall not be tried at all? It appears to me that the language of the statute does nos per- emptorily require that the trial shall take Place at any particular term or sessio; It shal indeea be sent to the Court next alter the time when the order of transference had been made, but when it says ‘there lo be determined according to law” it does not mean then, at that particular time or session, It still, as on all occasions, leaves the control of the caiendar with the presiding judge, and he retams the power, which every juage neces- sarily possesses, of reserving the case or posiponin: the trial for another term or session, as the exi- encies of the Occasion or as justice may require. The counsel for the plaintiff in error yeters us to Quimbo Appo vs. the People (20.N. Y. Rep., 681), in which the judge who wrote one of the opinions in the Court of Appeals remarks taat “the Court of Oyer and Terminer is @ peruianent and continuons court,gexisting in its appointed and stated terms,’’ But the counsel, if he had read further, could have added the next sentence in the opinion, in which the judge says:—‘‘Its successive sessions are terms of (he saime, and not distinct tribunals,” and being 80, being one identical, continuous tri- banal, 1t has, undoubtediy, power, like any other tribunal, to reserve or postpone a case for trial at any one of its terms, whetber it originated there or ‘Was transferred to jt {rom any other co-ordinate or subordinate tribunal. ia and Thivd,—t1 think, therefore, this first point is not well taken; and the same reasoning aud concluston will apply to the second ana third points, which J consider, consequently, equally untenabie. Fourth—The counsel for the prisoner at the trial asked permission to inquire of Mee, & patrol man, and a witness cailedon behalf of the prosecution, What the prisoner said to him the day after he was arrested. Thts was overruled, and correctly over- roled. The mtended question applied to lauguage alleged to have been uttered by the prisoner at a totally different time and place when’ and where the offence was committed or when and where the first declarations of the prisoner were mede. The ianguage was, therefore, no patt of the res gest@ or of the declarations. If unsworn deciara- Uons of the perpetrator of acrime, aftor he had time to consider and concoct an excuse, were to be received in evidence, he would in all cases be able to manufacture an availavle defence for him- self, if they were to be regarded at all by the jury; and, if uacy were not to be regarded by the jury, it would be utter waste of time w receive them at al. The counsel for the plainug m error insisied on the argument thas the declarations were admissible, on the ground that this Witness had testified, in the direct examina- tion, that the prisoner had admitted, frst, to him alone on the arrest, and again at the station house to the Captain, in nis presence, that he had killed Smedick; and, having made these admissions, the counsel contended that the prisoner was en- titled to the benefit of any further declarations, made fn explanation of the admissions at a sub- Soquent pei ‘a8 some kind of counteractive for these admissions.” The counset, quoting the language of the counsel for the prisoner at the trial, ‘a8 follows:—Now [ ask permission that | may ask the Wituers what the prisoner said next day,” in- sists that the meaning of this was permission te ask what reason the prisoner assigned for hia act; “because it Was as fair, from officer Mee’s testimony, to presume that he’ said it on the might and at the time of his arrest, wheo he admitted the act itself, as that he said it nextday.” Kut no such presumption was involved, expressiy or impliedly, in the terms .o! the proposed question. This question sought ior the declarations of the next day, not for the explanations, If any, of the night of the arrest. If the counsel at the trial washed again to ask the witness if the priv soner, at the severai tines when he admitted Mis guilt, also mentioued the reason why he committed the offence, 1 suppose he would have been permitted to do #0; although the witness has expressly said he did not remember that the prisoner bad stated any reason at the time he made the admirsion. Yet, no doubt, he wouid have been permitted to refresh the memory of the Witness on this subject, If he was able to do a0, But, as | have said, the proposed question did not import anytiung of this kind; 1% Was confined, in expressy| terms, to what the prisoner had sald the day next alter the commission of the offence, "h il, a witness for the prisoner, was asked to state what the deceased had said to him About tue prisoner In the latter part of June, or ist of July, 1868, ‘This Was professediy offered “lor the purpose of showing, with other facta, whether, atthe ume of this occurrence, we prisoner was justified by the circumstances in apprehending danger from the officer.” Tht pre- supposes that the mere apprehension of danger justifies the killing of the person from whom it ia apprenended, [nave no doubt that such an appre- hension gives rise to many of those Atreet shootings which occur #0 frequently in lawless dlistricte; put T need scarcely say Laat tue Jaw has never sanctioned @ny such conduct; it emphatically condemns and brandg it av murder in the tirst degree, ‘he alleged threat of the deceased was made during the latter part of June or tl beginning of July; the deceased was killed on the 2/d of the latter month, The jaw justides womicide only when an actual , DECEMBER 14, 1869.—TRIPL& SHEET, attempt has been made to marder the person com- miviing it, or to commit any feloay upon bim, or upon or in any dwelling house, in which such person 18, Or in the lawful defence of stch person, or of his or her wife, husband, parent, child, master, mistress, or servant, when, at the time of the attempt, there 1s reasonable und to ap prehend a design to commit a felony, or to do some great personal injury and linminent danger of the accomplishment of such design. But appre- hension of a previous threat, followed by no overt act, surely does not feat homicide, Such @ homt- cide, 1 repeat, the law pronounces to be murder in the ‘first degree, while at the same time it affords an effectual remedy to the p rscn against whom the threat 18 made to protect him from dauger reason- ably apprehended. s ‘Sixth. —The same remarks and the same course of reasoning will apply to the sixth point ot the counsel of the plaintiff in error.. Previous bad treatment will not, any more than previous threata, justify homicide. ‘The law affords redress for the one as It aifords @ remedy for the other, and in neither case is the person injured or threated to be his own avenger. Seventh—The counsel for the prisoner at the trial asked the witness Kowe, ‘From what you saw of him that night (the night previous to the murder) what impression did his acts and words inake upon your mind; what impression as to the gtate of lis ming did bis words we and lepye waar Joma a fea, he, WE whole language and demeanor of the prisoner, his opinion relative to the general soundness or un- soundness of his mind. The object of it, . sup- pose, was to show that the prisoucr, at the time of the commission of the offence, was laboring under delirium tremens. ‘This the Court after- Wards expressly Wid his counsel he was at liberty to show, and the witness, previously to the put and rejection of the question, gave some evi deuce tending to show that the prisoner was in such a condition on the evening preceding the day of the murder. He said he thought the prisoner then had the horrors. foestonal person ia wt pee Of aatistaoterlly ni n answering such @ question as that — calli Tor his sptnion, as to the general soundness or unsoundness of the prisoner’s mind. ‘The case referred to by the counsel does not, in my opinion, sustain his proposition, (Clapp vs. Ful- lerton, 34N. Y., R. 190.) The Judge, who delivered the opinion in that case, undoubtedly went very far; there i# no reason, however, to infer from his guage that he meant to overrule the well establisned and long established and only safe rule, that the opinion of @ witness ts, im general, not evidence. ‘The witness must speak to facts. while on ques- tions of science or trade, or others of the same kind, ae of gkill may speak not only as to facts, but may be allowed also to give their opinions. In the case referred to the Judge says that to render the opinion of aa unprofessional witness admissible, even to the extent stated, it must be limited to his conclusions from the specific facts he discloses; and this the witness in the case before us did by saying that he thougnt the prisoner had the horrors on tbe night previous to the homicide, His opinion as to the general soundness or unsoundness of the prison- er’s mind was, | think, properiy rejected. Kighth—These observations apply with equal force to the counsel’s eighth point, Ninth—The counsel of the prisoner at the trial Offered to prove that the prisoner was addicied to hard drinking; that he sometimes drank to great excess, and continued on drunken sprees for days and weeks at a time, and had delirium tremens and insanity, The Court asked whether the counsel Proposed to show that, within two or three days Previous to the homicide, he bad one of those fits on him. The counsel replied that he did not propose that by the witness, but pro) to lay a founda. tion to prove it. The court ruled out the question, and afterwards told the counsel if ne could show that the prisoner had the delirium tremens at or about the time of the homicide, he could show it by this or another witness, ‘Tne counsel remarked that he proposed to show the drinking firat. The course arsine bythe Court renders the objection unten- ie. Tenth—The observations and reasoning which I have stated in relation to counsel’s fifth and sixth pont apply to the tenth point, Whether the alleged iceats were or were not communicated to the pris- oner, the homiciae Was nos justifiable, Kieventh—Henry Real, a witness, called on behalf of the prisoner, was asked, on the cross-examination by the counsel for the people, whether he bad ever been arrested in New York? He said he had. He was then asked whether he remembered what it was for? This was objected to by the counsel for the prisoner, and it was not answered. He was then asked if ne had ever been in the Penitentiary? This was also Objecied to by the counsel for the rigoner; the Court remarked to the witness that 8 need not answer if he did not think proper to doso. There seems to have been no exception by the counsel for the priso: t@ tue aduilssion of the question by the Court; and the witness pro- ceeded to answer, saying, ‘1 will tell the truth, I ‘Was in the Penitenitary.”” Then the counsel for tne Una asked bim, “How long there?” The ques- ion Was objected to by the prisoner’s counsel, Tue objection was overruled, and then the counsel duly excepted, This ia the oy Wao seis relating to the point which we are called upon to consider; no exception to the ruling of the Court having been taken to the preceding questions put to this witness in relation w his imprisonment in the Penitentiary. There is no point, appertaining ‘vo the rules of evidence, on whicn greater diversity of opinion exists than upon questions call for answers having a tendency to degrade the character of a witness, "1 shink, however, that now, the con- Micting authorities on this subject may de deeined reconciled, Where, a8 in Newcomb vs. Griswoid (24.N. Y. R., 293), the witness may be asked, on the cross examination, whether he had been convicted of petit jarceny; although the opposite purty alone and not the witness objected it was held that the parcy had a right to insist that the conviction be proved by the record, because that is the only a oe way of proving a conviction. But where, as in Great Western Turnpike Company vs. Loowis (32 N. ¥. K., 127), the question called for an auawer calculated to disparage the witness and not directly to prove @ conviction, it was held to be allowed or disallowed by the Court, in the exei- cise of 18 discretion, and that the ruung is not Bubject to review, Unless in cases of Manifest @buse or injustice. In the case before us, the wit- ness having answered that he had been in the Pen- i\centiary, although the Court informed him that he Was not bound to answer and the counsel for the prisoner having taken no exception, was then asked, “How long there?” This was not calling for Proof of his couviction, nor did it involve the question of his conviction, which could be proved only by the judgmext record; although his having been in the Peuitenuary presupposes a conviction. But baving admitted, without due exception on the part of the prisoner’a counsel, that hehad been there, an an- swer, showing the duration of the time of his im- prisonment, was, if i¢ was capable of producing any erfect, calculated mereiy to disparage him. The answer, which was in fact given, if believed at ail by the jury, must have been favorabie rather than Prejudicial to him, He answered, “four months;’’ and, he added, “imnocent of the crime.” Tweivti—The counse for the piainti tn error in his twelfth point maintains that the Court erred at the trialin refusing to charge the jury, as requested by the prigoner’s counsel, that, if tue proof falled to show Which wound it was that accually killed the deceased the case was not made out scoording to are The lndictinent charged, in Sub- e brigoner made an assauit, and, wilh a pistol, charged aud loaded with gunpowder and a leaden bullet, fred at the deceased, and, then and there, feloniously and of his malice aforethought did strike, penetrate and ‘wound the deceased with the jeaden bullet, caus- ing & mortal wound of which he died. This ine prosecution was bound to prove; but it mattered Not wiuch of the bullets or which of the wounds caused the death of the deceased. Whichever bullet caused bis death it was fired of by the prisoner out of @ platol, held and discharged by him, and inflicted a wound which caused the death of the deceased. This tweifth point, there- fore, like all the others, i hold to be untenable. have thas, patiently and carefully considered al! the numerous points, with the Introduction and volum- inous comments of the counsel of the plainuly in error. Ihave a strong conviction that the conclu- sions at which { have arrived in relation w these points are idcontrovertible. Bus 1 am convinced, if I have erred, aud if any of the rulings of the Court at the trial were er- roneous, that the error did not affect the substantial rights of the priaoner, If the rulings were the other way tt Is not within the range of legal possibility that the result could pave been different. ‘The per- petration of the frightful act itseif, the deliberation ‘with which tt was executed, the cruel vindictiveness which manifestly instigated and accompanied tt, the absence of mental alienation, except what was caused by the tumult of mali satisfactorily proved that, wi the Court made at the trial of the variot tions and requests of the prisoner's counsel, the Jury could not, without grave dereliction of duty, have rendered any other verdict thau that which they aid render, The doctrine that the Court shall disregard any error or defect in the plead- ings or proceedings which have not affected the suostantial rights of the adverse party, and that po judgment shal! be secured or aftected by reason of such error or defect, ta salutary and just, equally in criminal ain clvi cases. 11 will make the admin- istration of justice more easy and eilcent, the tri- umph of mere technicality almost impossibie, and the impunity of criminals, it may be reasonaviy hoped, of rare occurrence, The judgment of the Oyer and Terminer should be amirmed. 1. W. U, DVERSE OPINION OF JUDOM BARNARD. Bar» , J.—Alter a reiul examination of the rulings and exceptions made and taken on the trial of the prisoner thas no error has been commit- ted. ‘The charge was very Jair towards bim. Tue case was one that cleariy called for a conviction, A jury baving ® proper regara for their character and the evidence could have rendered no other verdict. ‘fhe judgment and seateuce of the court below should be afirmen, DISSENTING VIRWS OF JUDOR CARDOZO. There are two grounds upon which {think it 40 rte that the prisoner ts entitied toa new trial hat ahail not examine any of the other excep- tions On the trial the prisoner offered to show threets of violence, which bad come to his know- ledge, made by the deceased against bim, and aiso acts of violence committed upon him by the deceased after those threats. This evidence was exciuded, and the question arises whether upon the the case a8 disclosed upon the trial that ruling Wasright, It may be conceded that generally mere threats, or even acta of violence prior to the homicide, might not be aamissible; put that does not touch the point. ‘the question here i# whether such teat mony 19 admiasibie When there is proof from which the jury may say that the d ed assauited the prisoner when the fatal act was doi ‘There was evi- dence of nile between the parties before the fir- ing of the pistol, and the question is whether, in such @ case, when there is no testimony as to which began the coafict, evidenee of threats and ot previous vi0- Tenve by the deceased against ie prisoner if HOt ade mhenved tne aaca "aut as ara C4 produce a reasonable bellef of imminent danger in the mind of the slayer.’ hid WIT Le ier Judge Davies. In The id ‘Tae State, 29 Ala., 14.) nation of the cases oy Chief J People va, considered Lamb (2 Keys 1, 360), AD table that ve the pri soner, part, “apon the Dhineipie thatit Presumption of malice, or to show that Was im self-defence or under ad ie may, h more clear ts Ie when, ae n tute case, tere mue! Was evidence from the jury might “particular character” wo = re spects this prisoner—evidence of il-will toward him; evidence Of threats of attack, to the Know! @dge of the prisoner; evidence that Smedick had bruised and beat the prisoner to the peril of hie life on several occasions prior wo the siliing— should be received as bearing upon the circum Sey Sih vnaa sinedicn Was. Kile be ‘Was engaged in attempting to execute the ‘Which it waa sworn he bad declared be a “wo run’ the prisoner ‘to death.” The exception im this respect, which was taken by the counsel for the Brisouer, is well founded. The otuer excepuon which I aball allude Is to the evidence which was admitved under the objection of the the — Real te erties _ the ee - = 4 ja evidence prejudi: prisoner, reflection upon his witness, Canuot be doubted, end it 1g Clear, upon authority, that the prisoner was en- titled to insist upon his legal right to have the record itness \o anawer. Hi Reemiows eres enue Gi meest ‘the wi waive not waive the right of tne sccused. "That tue on ‘a supject ay ecroneons va parcels on the notil ‘Apveais in Newcomb vs. Griswold (34 N. where the precise pout was decided. posed, however, that the it of case oome by the the same Court in the jecisi Great Western ‘Turnpike Company va. Loomis (32, N. Y., De 127), But that is obviously a mistake. There 13 nO inconsistency between the two cases, and it is not pretended that the former case was intended to be overruied by, or waa red, oF even referred to, in the latter, In fact, the question decided by Newcomb and Griswold and that presented and decided by Loomis’ case are ehtirely distinct. ‘the jatier case simply holde that the question of the extent © which inquiry net relevant to the main issue suould be allow for the (abt ol degrading 4 witness, rests in the dis- cretion of the Circuit Judge, and will mot be re- viewed on appeal, unless in a plain cage of abuse of discretion, But it nowhere tuti:nates that the legal Tele which prevenis a ai ead proved by paroie Tests in the discretion of the Court, The extent w wuich inquiry into Irrelevant subjects, with a view to discredit a witness, shall be allowed, 1s dis- cretionary. It may allowed or it may be refused. But if allowed at all, to the extent to which it i3 permitted, the same rules of evidence apply which controi as to the competency of testimony addressed to the main isgue. [tis to be remarked aiso that in the case last cited the Court was asked to grant a new trial, because the Circuit Judge had not permitted the witness’ general character to be attacked to the extent that the party desired, The Court said thas subject rested im the discretion of the Judge below, ‘and might have been wholly excluded without fur- Dishing ground for excepliou; but it did not say, and I think no case can be found in which it ever had been said, that the admission of incompetent evidence, tending to discredit a witness, rested on the discretion of the Judge, and would not be cause for an exception in favour of the party prejudiced. I am not willing im a case involving life to aphe hairs as to whether an exception was noticed on the record with entire precision, when it ap) by the error book that the objection was actually taken, and when the District atvorney treats the exception claimed by the prisoner as being properly in and Presented by the case. On the argument the Dis- trict Attorney istinctly stated that the whole subject matter of this objection was before the Court, and he'so treats it in his printed points, I cannot doubt, therefore, that the exception should be considered as duly entered, and certainly, if any question exists upon that point, instead of refiniug away the prigoner’s life. wien we cannot say thatan error was not committed, we should call the District Attorney before us and have him say whether the exception noted was to apply to the question imme- alately preceding it or whether t¢ referred, as by bis concession on the argument it must have done, to the whole inquiry upon that subject to which objec- tion had been taken and noted. In a case involv! only money @ mere sip in sormally enterin; au exception after objection duly made woul be relieved against and corrected by the Court, and, so far as I am concerned, I shall not consent to be less considerate when life is involved. For both these errors | am of opinion thata new trial should be ordered. 1 am the more readily brought to this conclusion because, though no ex- ception was taken to that particuiar, I think the Jearned Judge committed an error in the chi which tended greatly to the prejudice of the pri soner, and for whici be wouid be entitled to a new trial under the statutes of 1465 and 1858, if the in- dictment had been tried in the Sessions instead of the Oyer and Terminer, The case was presented to the jury by the learned Judge upon the theory that the prisoner must be convicted either of mur- der or else of manslaughter in the fourth degree. In other words, the jury were told that they had no alternative between convicting him of the highest Crime or of an offence of a very jight degree. Had they been instructed that under the law and the facts they might convict of the serious crime of mansiaughter 1p the third degree, perhaps they might have taken that view of tie case and rendered a verdict less severe upon the prisoner than they did, and a charge which took away the opportunity for them to do go, operated unfavorably to the prisoner. ‘The charge took from the prisoner che benellt of hav ing the jury inquire whether his case did not come within the definition of mansiaughter In the Uuird de- gree. and as the evidence certainly would have war- ranted such @ verdict the prisouer was prejudiced by having that subject withdrawn from or not pre- Sented to the consideration of the jury; and as this is a subject on which life depends and in which a jury, upon a trial cond ucted certainly in not the most auspicious way for the prisoner, unanimously recommended the accused to mercy. So much doubt as to the measure of his guilt seems to exist that we snould not be astute to find grounds to up- hold the verdict, but should incline to a view by which the case should be again submnitted toa jury under proper Instructions, so that complete justice may be done to the prisouer a8 well as to the people, and 90 that Iife be taken through the instramentai- ity of the law and 1n vindication of iw supremacy, only when all its forms aud requirements have been Astle and accurately observed. I am fora new rial. SOCIAL SCIENCE, The Education of Children Discussed. At the meeting of this society last evening at Plimpton Hall, Mr. W. B. Scots in the chatr, after the transaction of some unimportant preliminary bast- ness, the question was taken up aa vo “Whether chil- dren should be educated at public expense?’ The af- firmative was supported by Dr. LAMBERT, Who setout | ‘with the advocacy of having all children educated, notens volens, at the expense of the State, He would not only undertake the education of children, but Would embrace mm the course the greatest width of subject. In a chart in which these subjects denomins- ted the bierarsny of the sctences were tabulated he pointed out wealth and its varions subdivi- sions or concomitant parts—namely, riches, labor, body, mind, nature and time. He endeavored to show that riches did not constitute wealth; thas education waa necessary to devolop nature; that training Was necessary to enable man to exercise hig mental and bodily powers, He then branched out into the region of the ologies, in which he as serted that theolegy gave the preacher, chemistry the architect, Diology—human, animal and vegetable, gives the doctor and the veterinary surgeon, and 80 on through sociology, . physiology, cosmology and pantology. As far a8 possible he would have ail ciuldren well intormed on these subjects, The tounders of the constitution intended that children should yo abroad into tae world as nearly equal as possible, but that the practioal working of our institutions § nullide@ their praiveworthy intentions. Owing vo the caprice of for- tune, some were born to wealth, others com- pietely penniiess. Those who had to make their own fortunes ought at least come vo the task of raising themselves to @ level with pis more favored fellow citizen, Now should the State educate all? History teiis us that education at public expense is the only means of securing everything that consutuces wealth. He could even find illustrative oxampies im this cliy, he school for giris in ‘Iweifth gireet ne heid to be the best in North Amorica, and he chal- lenged any one present to point out any private schoo) producing the same resuits, Mr. ORMSBY did) not believe In the theory of compulsory education. It should be left to the great and universal laws of self-interest. If the State was bound to educate every child, why not also compel the State to feed and clothe and dis- charge every other parental duty tn regard to chil dren. All eleemosyuary aids from the State he heid to be & public damage, except tn casea of sufiering or want, Wealth was not the object of education, but human happiness. The training 11 tho pablie schools was purely tutellectual, without religiofi and morais, Tate Grove toe Catholics out of the schools, The system even led to fraud and prose- lytistn, In the text books employed @ thousaad 1asults, specific or impiied, were atmed at Catholics ana Israelites, who paid Itke others for the sappors of these schools. ie veachers were appointed favor, not for their personal qualifications, Then society is to educate cuildren, ae John Stuart Mill showed, society will, as 1¢ does in Prussia, step tm aad tell each individdai bow many children hie ought to have. Professor Levisow, after twenty years’ considera~ ton of this question, bad no psoitive opimons. If, however, children are not educated in the pudiic achools they would be educated in the gutter and grow up loes to order and society. present, therefore, he Was not prepared to abandon the pre~ gent state of things. Corruption he veld wo de as natural and necessary to soctal institutions as gravi- tation to matier, The buik of the English people are in a state of degradation of which we have no idea, though the private system was very generally followed, Mr. Karle and Mr. Moran made several remarks, after waich the assembly adjourned,