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their judgments and decisions the German courts do not give the names of the parties.
It is difficult for an English or American lawyer to appreciate the simplicity of the rules of evidence in Germany, or rather the absence of those rules which are familiar to us, though we may not always know them, and which cause so many mistrials and appeals. Fearsay evidence is received. A witness may state his conclusions and may give his reasons for such conclusions. Documents of all kinds are admitted without proof. In certain cases where a witness may not be sworn, his unsworn testimony may be taken and considered. A useful provision seems to me to be that which requires the court, before administering an oath to the witness, to point out to him in a proper manner the importance of such oath. Each witness must be examined separately and in the absence of other witnesses thereafter to be examined. The theory of evidence is that the court is to ascertain the truth without regard to technical rules. The German parties may not call expert witnesses. The court determines whether the testimony or the opinion of experts is required and then appoints such experts. If a man has committed crimes other than the crime with which he is charged, that is deemed material. With us evidence of the other crimes is excluded.
Civil causes are not tried by juries. The jury, on the trial of a criminal case, consists of twelve members. Assistant jurymen may take the place of jurymen-in-chief who, after becoming members of the jury, are prevented from further service. If the verdict of the jury is unfavorable to the accused, it must state that it was found by more than seven votes; is the jury find there are no extenuating circumstances, the jury must state that this was found by more than six votes. In other respects, it must not be stated how the vote stood.
The law of inheritance makes no distinction between real property and personal property. The transfer of real property in Germany is as easy as that of personal property.
The courts and authorities in Germany provide greater legal aid than our courts. No citizen of Germany will hesitate to apply for legal aid. He does so as a matter of right. If he has a legal claim in any foreign land, he will apply to the foreign office, expecting to receive, and receiving, aid and advice. The German consulates throughout the world are largely engaged in giving such aid to their countrymen. The idea of legal aid as a charity is of German origin. We all know what a noble charity the Legal Aid Society in New York has become. It was formerly a German society designed to aid German poor only. Its example is being followed in other cities in the United States.
German law impresses the student as being more popular than the law of England or of the United States, because it is less technical and theoretical. The American lawyer may learn many lessons from a study of German law. To those of us who favor a codification of substantive law and believe it to be feasible and desirable for this country, what a great example it is! The German empire, comprising twenty-six states, with a population of fifty-six millions, has, within twenty-nine years from its birth, achieved a popular and scientific codification of its entire private law for all its citizens. Its administration of justice is speedy and successful, owing to the comparatively small bulk of its law, the numerous trained judges whom it employs, the absence of jury trials in civil causes, and the comparative simplicity of its law of procedure.Condensed from a paper read before the last convention of the New York State Bar Association by Rudolf Dulon, Esq., of New York city, and published in the American Law Review for July-August, 1902.
The Maryland Workmen's Compensation Act.—The General Assembly of Maryland during its recent session passed an act for the co-operative insurance of employees engaged in certain dangerous occupations against injuries resulting in death. While the law is confessedly tentative and narrowly restricted in its scope, it is noteworthy because it introduces a new principle into American labor legislation. In the United States attention has been given heretofore to modifying the common law rules as to negligence. The Maryland act goes further, and, following the lines marked out by foreign legislation, provides for the indemnification of all injuries resulting in death, irrespective of cause. It is recognized that the burden of the trade
risk should not fall primarily on the workman. At the same time, also, a practically compulsory system of insurance against such injuries is created.
The law hinges on the conditional abrogation of the “fellow servant rule.” It is provided that "any corporation, company, partnership, association, individual, or individuals engaged in the business of operating any cual or clay mine, quarry, steam or street railroad in the State of Maryland, and any incorporated town, city, or county engaged in the work of constructing any sewer, excavation, or other physical structure, or the contractors for any such town, city, or county shall be liable in law to any employee engaged in the above-named occupations, or, in case of death, to his wife
. . . for the damages flowing from an injury to said employee or from the death of such employee when such injury or death is caused by the negligence of the employer or by the negligence of any servant or employee of such employer." Heretofore, the negligence of a fellow-servant has not been ground for a damage suit in Maryland. The remainder of the act offers to employers a method by which they may escape this increased liability for damages. In order to be relieved from liability to their employees for damages, they must annually pay into the hands of the state insurance commissioner the following sums per employee: coal and clay mining, $1.80 ; steam railroads, $3.00; street railroads and trolleys, $0.60. The commissioner fixes the amount for municipal works. One-half of the amount paid by an employer may be deducted by him from the wages of the employee. If any employee insured under this act comes to his death in the course of his employment and by causes arising therein, the insurance commissioner shall pay one thousand dollars to the family of the deceased.
The number of workmen covered by the act is small, at the present time probably not exceeding 15,000. The insurance commissioner may exempt from the provisions of the act those employers who give satisfactory evidence that they are already, and will continue, “making better provisions for the workmen employed than they would be obliged to do under the provisions hereof." The commissioner is authorized to extend the insurance sections of the act to other trades; but be cannot change the liability of employers in such industries, and it cannot be expected that many employers will voluntarily insure their workmen.
The law is open to criticism in a number of directions. A workman insured under the law, and severely but not fatally injured, not only has no claim for compensation from the insurance fund, but will no longer have a right of action, even if his injury has been caused by the negligence of his employer. The system of assessment provided for gives no encouragement to employers to be careful that their workmen shall not be injured. All employers in an industry pay into the insurance fund at the same rate. The provisions for the maintenance of the insurance fund are ill-considered. The intent of the law seenis to be that the receipts and payments shall balance each year. A single accident in the coal-mining industry may involve the loss of the lives of many workmen, and a serious mishap of this character might deplete the fund for several years. But, despite these imperfections, the position of the workman, looked at from the standpoint of practical protection, is undoubtedly better than under the legislation formerly existing. — GEORGE E. BARSETT. “ The Maryland Workmen's Compensation Act," in Quarterly Journal of Economics for August, 1902.
Legislative Control over Municipal Corporations.— The question of the extent of legislative control over municipal corporations has occasioned a square conflict of opinion among the courts of this country. One line of cases, by decisions or dicta, has laid down the broad proposition that municipal corporations are the creatures of the legislature, and except for constitutional limitations, expressed or clearly implied, entirely subject to its control (Commonwealth z's. Voir, 199 Pa. St. 5,34). On the other hand, in many states the doctrine has been established that municipal corporations cannot be deprived of the right to local self-government; and this view is rested upon either one of two grounds: implied constitutional guarantee, or implied reservation to that effect (People z's. Hurlbut, 24 Mich. 44). The result reached in this second class of cases commends itself as being in accordance with the spirit of our institutions and prevailing views of political expediency, but it is doubtful whether it can be supported upon principle. The constitutionality of an act must be determined by reference to the constitution itself, and, while undoubtedly certain restrictions upon the power of the legislature may be implied from the language of that instrument, it is only where the implication is strong and clear that the courts are justified in asserting its existence.
Even those courts that have championed the right of the municipality to selfgovernment have confined that right to matters of purely local concern.
The principle upon which this distinction is based is that the municipality acts in a dual capacity: as the agent of the state with regard to certain matters, and as the agent of its own inhabitants with regard to others; and in respect to the former it is subject to the complete control of the state (People vs. Common Council of Detroit, 28 Mich. 228). While extremely difficult of application, the distinction is indispensable if the doctrine of local independence is accepted. The difficulty lies in drawing the line between matters of general and matters of local concern. In two recent cases it is held that the management of the municipal waterworks and fire department is a matter of purely municipal concern, and that a statute transfering their control to a state board is an unconstitutional interference with the right of municipal self-government (State vs. Barker, 89 N. W. Rep. 204 [Iowa] ; State vs. Fox, 63 N. E. Rep. 19 [Indiana, Supreme Court]). Although the weight of authority sustains these conclusions there are decisions contra (David vs. Portland Water Committee, 14 Oregon, 98).
A conflict of opinion must necessarily arise upon this question because of the nature of the problem to be solved. The courts are called upon to decide whether the empowering of a municipality to carry on a certain work is a delegation by the state of a matter of general concern, or merely the grant of power to do things in the doing of which the state as a whole has no particular interest. Inasmuch as whatever involves the health and prosperity of a large body of citizens is a matter of interest to the entire state, the administration of matters local in their nature is likely to become of state concern. Where this is true it can fairly be said that the municipality is acting as the agent of the state with respect to those matters and is subject to its control. Under this view the analogy of the decisions upon what constitutes a public use justifying the exercise of the power of eminent domain should be followed, and a wide legislative discretion should be recognized even by those courts that uphold the local independence of the municipality.- Harvard Law Review, June, 1902.
National Convention of Employer and Employed. -- According to the statement of the promoters, this national gathering, which will take place at Minneapolis, September 22–26, 1902, is designed to afford an opportunity for the free exchange of ideas on the present labor problem. It is an attempt to inaugurate a great educational movement, in which all sides are to participate and work in harmony for a common purpose, namely, a better understanding and a more satisfactory adjustment of the relation between employer and employee. Representative employers, some of the ablest champions of the cause of the workingmen, and well-known investigators of social and economic problems will meet to consider the situation, and to take such action as will make for harmony and tend to elevate the dealings between the employer and his employees to a higher and nobler plane. Among the speakers who will address the conference are: President Roosevelt; Cyrus Northrop, president of the University of Minnesota ; J. B. Clark, professor of political economy in Columbia University; Hon. Carroll D. Wright, United States commissioner of labor; James Kilbourne, president of the Kilbourne & Jacobs Manufacturing Co., Columbus, O.; Richard T. Ely, professor of political economy in the University of Wisconsin ; Frank L. McVey, professor of political economy in the University of Minnesota ; Miss Jane Addams, of Hull House, Chicago; Senator J. W. Bailey, of Texas; John Ireland, archbishop of St. Paul, Minn. The convention will be held under the auspices of the Eight Hour League and the citizens of Minneapolis. Cyrus Northrop, president of the University of Minnesota, is chairman of the executive committee that is making arrangements for the occasion.
In a struggle between races, as between individuals, it is not always easy for the disinterested observer to find the proper point of view from which to estimate the relative merits of the opposing claims advanced by the two contestants. With cool impartiality to place in their just relations the humanitarian impulses born of a natural sympathy with the weaker and those considerations of ulterior end forcing themselves upon the judicious mind, has ever been a difficult task. No nation at war with a neighbor, whatever the bone of contention, has enjoyed the moral support of an undivided public opinion in the world at large.
Great Britain in her campaign against the Boer republics is a case in point. An evident disposition among broad-minded people generally to view with favor the theory of her champions, that an extension of the English dominion in South Africa would mean a corresponding advancement of the best interests of civilization, was met by a strong undercurrent of skepticism, not wholly confined to quarters hereditarily hostile, as to whether even factories and schoolhouses, built up on the ruins of a nation's freedom, might not be bought too dearly. This lack of enthusiasm in applauding their aim, and their means of pursuing it, has undoubtedly been a source of surprise to those English
statesmen who fondly fancied that the ethical loftiness of their motives was beyond impeachment.
On the other hand, the bands of Boer farmers fighting to the last ditch for their existence as an independent people have had difficulty in understanding the apparent apathy with which their fate was being watched by the outside world. Panegyrics on their valor, as harangues against their foes, there have been enough and to spare ; substantial, whole-souled support there has been next to none. No voice of weight was ever raised, entreatingly, threateningly, in their behalf - even in countries where their sympathizers were in avowed majority and a determined, intelligently directed public opinion might have compelled the governments to act.
So hopelessly involved are often questions of right and wrong; so scrupulously slow, so languidly fair, is the average man in reaching a conviction; so discouragingly reluctant to stake anything on it when reached.
But even where the case seems clear beyond a shadow of doubt, and the injustice too palpable for argument, the moral forces of humanity move with measured gait. There is a supply of indignation ready at hand for such contingencies, which is generously drawn upon for immediate consumption; the columns of the press flow over with it; it is voiced by eloquent orators in meetings of protest; resolutions of sympathy are passed with acclamation; messages of good cheer are dispatched to the sufferers. But the channels of the public conscience are clogged with calculations; in the crucible of popular sentiment the reddest wrath soon pales into pink compassion. The wrongdoer, noting with equanimity the distant rumblings and the thunderbolts lost in the sand, emerges from his shelter when the storm has blown over; and pursues his path, serenely.
So timid at initiative is the collective man, so ever-ready to count the cost, so fearful lest his love for the loser lose him the good-will of the winner; so potent are yet considerations of expediency in twentieth-century international relations.
In the face of these facts, what hope of more than a patient hearing has the native of a small state, robbed and wronged,