Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-01-25

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tell Us, that was the law. That is, the family tie
7 suppanted all others The family existed befor
r society existed, and when one Of the members o
the family was killed, something OF the same sort o
, feeling existed towards the murderer that exist
} where man has struck your person-you want Il
strike back; and after society had become forme,
and taken upon itself the punishment of criminals
we find the old idea mixed up with the new. W,
find 1t, as the gentleman from the Eighteenth has
developed it, in the Bible, where it declares &c He
that sheddeth mans blood, by shall his blood
be she'd" declaring that society should take tina,
thing into its hands and do the work. In ether
places, however, find rules laid down for the
| avenger of blood Now, that was the law, and the
| origin OF it, and the growth of it.
Among the German tribes, Pike in his history
OF crime relates, murder considered offense,
but as something to be settled among themselves.
But as the power of the military chiefs increased
| they conceived the idea of compensation; that is,
for every who was killed, the family of the muir
| dered entitled to consideration in
| money, cattle. As civilization increased they
took it in money Before that it was in cattle and
sheep For this reason the doctrine of the survival
of the fitist always made it so that the man who
survived was the strongest man. and necessarily the
best fighter and therefore the most useful to the
chief; but the condition OF society changed and
| it became more civilized, and when human life be-
| came more sacred, and when it was deemed neces
| sary that it should be better protected why then
! they created the laws as we find then-like the
| common law OF Eng d. To prevent these yendet-
tas and .rrels which would result in generation
after generation being engaged in the quarrel and
the loss OF an unlimited number of lives, where
| it was considered that, for the purposes of
| society and civilization and the state
| life useful, that human life protected
| by the enforcing of such law. and hence the doc
| trine Of murder, as we find it laid down in
| books. But it is plain that society has outgrown
| that idea And here | want to say that reforms al
ways come from society. They never come from
| the law makers, and it is not the first time in the
history of law that reform has started in the jury
| box and in the Courts. 1t was once law of libel
that the truth of libeous publication could not be
| used to Justify libel and it existed up to the
| year 1900, in America, and it remained for
Alexander Hamilton the greatest among the learned
lawyers and learned counsel of our land to first de-
clare in the celebrated case of the People Cros
WELL that the truth might be given as justification
for libel, and although the Judge charged that that
not the law, the jury took it into their hands
and refused to find verdict of guilty The
reform started in the jury-box and with
the LAWYERS. 1t ended by act of the Legislature
| to conform to what then became evident public
sentiment, which declared that the truth mig ht be
given in evidence Nor is our own State free from
| examples OF that kind. mean judicial legislation
There have been Courts who have been bold enough
to take the law into their hands and 50 legis
| late, and our Supreme Court have done it in one
notable instance, creditable to both the heart and
head of the Judge. Now, sir, simply advert to this
| to show that am correct about it, The law prior
| to 1860 concerning guardianship read follows:
''The father of any child who is minor may, by his
last will and testament, appoint guardian guar
dams of such child whether born before afterthe
time of making such will and in of the death
of the father, the mother of such child mayin like
manner appoint guardian guardians, if such
| child shall not then have any legally appointed
| guardian. These and every testamentary guardian
| shall give bonds, and qualify, and shall have the
same powers and perform the same duties with
gard to the child the guardian appointed by the
Probate Court"
| Now, SIR | would like to know where there is a
| lawyer or man woman who reading that would
| say man could not make a testameDtary guardian
! who should have control of the ward regardless of
| the claims of the mother and everybody else Aud
still Judge Sanderson in the case of Lord VS.. Hough,
took the bit in his teeth, and in an opinion in its
sterling good well as by its length contain
ing something like thirteen pages he reasoned
| the proposition that although the Law said
might make testamentary guardian that would
take child away from it's mother, that he could not
do it. Ii was judicial legislation, and the next win
ter the Legislature declared by Act that to be Law
which the Court by judicial legislation had
decided.
Sir. we are going through that transformation
now, and although it may be mere theory, think
it results from idea existing in the community
that the population is getting too numerous that
there must be some means whereby it shall be dec
mated that the Malthusian theory of too dense
a population Is correct, and jurIes have indica-
ted that although the law says that
| man who commits murder shall be punished as de-
clared by law yet they have taken reform into their
own hands and declared that it shall not be so. The
reinements of the jury system tend to the same re-
suit Forsyth in his history of the jury tells US that
| in early times men selected for jurors who
| were best acquainted with all the facts concerning
the commission of crime and who knew all about it,
and who therefore were better qualified to decide.
| AS the reinements OF modern civllization grew
| up the present system has come Into use where
practically no who has ever heard of case with
sufficient common sense to form an opinion can sit
as juror. And it actually happened that on the
| Schroeder Jury was accepted juryman living
| within ten miles of Oakland surrounded with that
blaze of intelligence for which my county is noted
| who had never even heard cf the Schro
| der murder What boon to poor,
\ hat he he tri by
jury of such profound knowledge Of eur, cnt events
| as that There have existed such things fctions
| in law. Everybody knows that the action OF trover
is mere fiction. The Original action OF trover in COM
mon law set out that John Doe, party in the case
| lost his watch on the highway and Richard Roe
| came along and found it. | say this to illustrate
that fctions in law have arisen in this matter of
murder as well as in other cases. AS said common
| law in action of trover supposes that the plain
tiff has lost his article, and that another man came
along and found it, and this form of is still used
when in fact no such losing and finding takes place
| for example, when man came and absolutely took
it out of anothers possession. Now, then, this new
doctrine of emotional insanity is one OF those things
| that has arisen as sort OF fiction IN the law.
| Emotional insanity is, that man at the moment
| that he commits murder, was insane-perfecty sane
| the moment after. 1t has been invented for the
| purpose of excusng men for murder in cases
where public sentiment desires them to escape pun
shment. refer to all cases of that character, but
particularly advert to the one known as the Siekes
case where Siciles shot the paramour OF his wife in
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though at the very time the derellction Was going
on between Mrs. Sickies and her paramour, he him
| SELF it is said, was with woman in Ike derelction
at Baltimore That is the sort OF emotional insanity
| that was But that is q weilknown case, followed
| bv the celebrated Cole case, followed in our
State by the notorious Laura D. Fair case,
again the BY oase oo~ed
still Later and last by what is known as the
Schroeder case. Now, sir, wish to illustrate this
emotional insanity business. 1t is told that very
| ;Jotr had an1li ila
whom Abraham was about to offer up as a sacrifice
in the land OF Horiah, he WAS an only son, and his
| name was Isaac. He was one whose manly beauty
aud mental perfections, added to the education and
training which his mother had given him, made him
the apple of her eye and of course she watched his
conduct in every way. She finally discovered
what she thought was =. an a6erTsti9n ion
repaired to her spiritual adviser, and said Rabbi
| nv dear son Isaac is insane" ESQ great affiic
! ton, my daughter! How does be look, ana how
does he aetf" - Rabbi, only yesterday saw him
eat pork sausage like Christian" "oh that
NAV be private appetite, but not insanity-cer-
tainly not insanity "Ah f' said she, but that is
not all. have a handmaid-a servant Her name
! is Sarah, and she is beautiful girl. traced his
steps 10 the kitchen, and saw him kiss her and hug
her" "Ah % said he, 'that is not insanity 1t may
have been affection; il may have been lust but not
insanity. II he had eaten the girl and hugged the
| sausage then you might believe that there was an
alteration ri mind" Now, sir, you take that case
before modern jury, and with modern Court, and
the method IN WHICH Iuey III Gu
der cases OF which have spoken, they would have
| declared that man Isaac was insane.
Mr. Enos-An Alameda jury.
Mr. Nye-Now sir, / say that all this shows
that the tendency of public sentiment is against
strict adherence TO the rules for the punishment OF
murder as we find them laid down in our statutes.
say that in those and all other cases we must con
| suit public sentiment, and when we find statute
which is dead letter upon the statute book, wipe
] il out and let it conform to the improved SEN
I timent of society. Mr. President, on the 25th of
| last September there was Young man in this city
| bv the name of William G. Brown. He was en-
| Qneer on the Central Pacific Railroad. On that day
towards evening he drove his engine from this city
| to Oakland wharf. Behind him he drew a train
| OF cars loaded with hundreds of human
| lives It was dark when they reached the
wharf but the headlight revealed to him the fact of
! a misplaced switch. II gave him time to escape
| from danger, provided he sacrificed the lives of
his duty with his hand upon the lever reversing his
| enoiue he went over the wharf and to the bottom
! OF the bay. And every passenger was saved -Four
/ days later they brought what remained of that
Young man TO the city of Sacramento, and the peo-
/ ,le stood uncovered while he carried through
| their ranks to his last resting place. There
was g. nobler act OF heruism. There was never
nobler hero than this young man they called Billy
| Brown Long after you and have crumbled into
dust and the little good that may have done has
been forgotten, and the name that have written
In the sand has been washed away By the remorse-
less waves Of time, future generations Of young
and women will read from their books the honorable
record of this hero OF the overails and blouse. And
their hearts shall thrill with nober impulse 10 the
discharge Of the duties of life. II it not for
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