Page images


pose, both the fact that complaint was mental condition may comprise intent, made and also its details are admissible. motive, design, feeling, etc. An intent But neither is admissible on this ground to do a certain act, or a motive for if the prosecutrix does not testify in the doing it, is relevant to prove that p:ob

ably it was done pursuant to such intent In conclusion, the true doctrine rela- or motive; and such intent or motive tive to the admissibility of this class of may be shown by contemporaneous declarations may be summed up as fol- declarations which manifest such inlows: If the declaration accompanies tent or motive, provided the declarathe act, and limits, characterizes or ex- tions are naturally made and free from plains it, the declaration forms part of suspicion. As said by Chief Justice the res geste and is admissible as orig- Field: "The fundamental proposition is inal evidence. If it is made soon after that intention in the mind of a person the commission of the crime, under such

can only be shown by some external a state of mental excitement as to pre- manifestation, which must be some look clude the element of premeditation, it or appearance of the face or body, or constitutes a spontaneous declaration,

some act or speech, and that proof of and is admissible in evidence as an ex- either or all of these for the sole purception to the rule against hearsay. If

pose of showing state of mind or intenit is made a sufficient time after the com

tion of the person is proof of a fact mission of the crime to afford opportu- from which the state of mind or intennity for reflection and deliberation, it

tion may be inferred.” 15

In this case constitutes a narrative of a past event,

the defendant, who was on trial for and is inadmissible in evidence, unless murder, set up that the deceased comthe purpose in introducing it is to cor

mitted suicide. In support of this plea roborate other evidence given by the

he offered in evidence, against objection, prosecutrix. But evidence of the fact

a declaration, made by the deceased to that the prosecutrix made complaint is

a trance medium the day before her admissible, provided the purpose in in

death, that she was pregnant and unless troducing it is to rebut the natural pre- she got rid of her trouble she would sumption which arises from silence on

drown herself. The trial court excludthis point, and which tends to impeached this declaration on the ground that her credibility.

it formed no part of the res geste. In And, lastly, the res gesta doctrine is reviewing the case, however, the Suerroneously invoked by some courts in

preme Court correctly held that the decdetermining the admissibility of declara

laration should have been admitted. In tions relating to the mental condition of

doing so, however, it expressly overruled the declarant. As said by Professor

a former decision 16 involving the same Wigmore, “It would be well if the in

point. The state of mind of the deceasvocation of the res geste doctrine in this

ed at the time she made the declaration connection could be wholly abandon

was relevant to the issue, and the declaA declaration which character

ration itself was admissible to show that izes an existing mental condition which

state of mind. is relevant to the issue is admissible in

On the other hand, as heretofore statevidence, whether the declaration forms part of the res geste or not. Such

10 Com. v. Trefetben, 157 Mass. 185, 31

N. E. 963. 14 Wigmore on Evid. vol. 3, 8 1726.

16 Com. v. Felch, 132 Mass. 22

ed.” 14

ed, some courts, in this class of cases, railway company for damages for neglierroneously invoke the res gesta doc- gently causing the death of the intestate, trine. Thus, in an Illinois case,17 a wid- and a material fact in issue was whether ow and her paramour were on trial for the deceased, at the time of the accident, the murder of the former's husband, and

sustained the relation of intended pasthey set up in their plea that the hus- senger or not. To show that she did, a band committed suicide. In support of declaration made by her at her home to this plea they offered in evidence, a neighbor, about an hour before she against objection, declarations of the de- started for the railway station, that she ceased, made shortly before his last ill- was going to Chicago that morning on ness, that he intended to commit suicide the nine o'clock train, was offered in eviby means of poison. The trial court er- dence against objection. It was erroneroneously held, however, that since the ously held by the Supreme Court, howdeclarations formed no part of the res ever, that the declaration was inadmissigesta they were inadmissible, and the ble because it was not part of the res Supreme Court sustained the ruling. In gesta. The intention of the deceased, at another case, an administrator sued a the time she made the declaration, was

surely a material evidentiary fact; and 17 Siebert et al. v. People, 143 Ill. 571, 32 the declaration itself was certainly comN. E. 431.

petent evidence from which that eviden18 C. & E. I. Ry. Co. v. Chanc or, 165 Ill. 438, 46 N. E. 269.

tiary fact might have been inferred.


An American Law Student of a Hundred Years Ago?


New York, October 6th, 1828. the law reasoning & doctrine of the arDear Sir:-Your very kindly & gument, & my admiration of the spirit, friendly letter of the 15th ult. was duly & eloquence which animate it. My atreceived, and also your argument in the tention was very much fixed on the perCase of Ivey vs. Pinson. I have read usal, & if there be any lawyer in this the Pamphlet with much interest & State who can write a better argument pleasure. It is composed with masterly in any point of view I have not the honor ability, of this there can be no doubt, & of his acquaintance. without presuming to give any opinion As to the rest of your letter concernon a great case, still Sub Judice, & only ing my life & studies, I hardly know argued before me on one side, I beg what to say, or to do. Your letter & leave to express my highest respect for argument, & character & name have im

1 A letter to a correspondent in Tennessee, printed in the Green Bag (Boston: Boston Book Co.), 1897, volume IX, pp. 206– 211, with the following note: “This letter was recently found in the old Capitol at Jackson, Miss. There is no record showing how it got there. The Thomas Washington to whom it was addressed was a lawyer of

some note who lived at Nashville, Tenn." Reprinted from Selected Essays in AngloAmerican Legal History.

2 1763-1847. Judge of the Supreme Court of New York, 1798; Chief Justice of the same court, 1804-1814; Chancellor of New York, 1814-1823. Further biographical and bibliographical data appear in the letter.

pressed me so favorably, that I feel every My fellow students who were more gay disposition to oblige you, if it be not too and gallant, thought me very odd and much at my own expense. My attain- dull in my taste, but out of five of them ments are of too ordinary a character, four died in middle life drunkards. I & far too limited, justly to provoke such was free from all dissipation, and chaste curiosity. I have had nothing more to as pure virgin snow. I had never dancaid me in all my life than plain method, ed, or played cards, or sported with a prudence, temperance & steady persever- gun, or drank anything but water. In ing diligence. My diligence was more 1782 I read Smollets history of England, remarkable for being steady & uniform, & procured at a farmers house where I than for the degree of it, which never boarded, Rapins History (a huge folio) was excessive, so as to impair my health and read it through; and I found duror eyes, or prevent all kinds of innocent ing the course of the last summer among & lively recreation. I would now ven- my papers, my M. S. abridgment on Rature to state briefly but very frankly & pins dissertation on the laws and cusat your special desire, somewhat of the toms of the Anglo Saxons. I abridged course & progress of my studious life Hales history of the common law, and I know you cannot but smile at times at the old books of practice, and read parts 'my simplicity, but I commit myself to of Blackstone again & again. The same your indulgence & honor.

year I procured Humes History and his I was educated at Yale College & profound reflections & admirable elograduated in 1781. I stood as well as quence struck most deeply on my youthany in my class, but the test of scholar- ful mind. I extracted the most admired ship at that day was contemptible. I parts and made several volumes of was only a very inferior classical scholar, M. S. S. I was admitted to the bar of & we were not required, & to this day the Supr. Court in January 1785, at the I have never looked into a Greek book age of 21, and then married without one but the New Testament. My favorite cent of property; for my education exstudies were Geography, History, Poet- hausted all my kind father's resources ry, bellesletter, &c. When the College and left me in debt $400.00, which took was broken up & dispersed in July 1779 me two or three years to discharge. by the British, I retired to a country vil- Why did I marry? I answer that. lage & finding Blackstone's com. I read At the farmers house where I boardthe 4th volume, parts of the work struck ed, one of his daughters, a little modest, my taste, & the work inspired me at the lovely girl of 14 generally caught my atage of 16 with awe, and I fondly deter- tention & insensibly stole upon my afmined to be a lawyer. In November fections, & I before I thought of love 1781 I was placed by my father with or knew what it was, I was most violentMr. (now called Judge) Benson, who ly affected. I was 21 and my wife 16 was then attorney general at Pough- when we married, & that charming lovekeepsie on the banks of the Hudson, & ly girl has been the idol & solace of my in my native County of Dutchess. life, & is now with me in my office, unThere I entered on law, & was the most conscious that I am writing this concernmodest, steady, industrious student that ing her. We have both had uniform such a place ever saw. I read the fol- health & the most perfect & unalloyed lowing winter Grotius & Puffendorf in domestic happiness, & are both as well huge folios, & made copious extracts. now & in as good spirits as when we

married. We have three adult children. completed the Greek Testament I took My son lives with me and is 26, & a up the Iliad, & I can hardly describe at lawyer, & of excellent sense, & discre- this day with which I progressively tion, & of the purest morals. My eldest read and studied in the original Livy & daughter is well married, & lives the the Iliad. It gave me inspiration, I purnext door to me, with the intimacy of chased a French Dictionary & grammar our family, my youngest daughter is & begun French & gave an hour to this now of age, she lives with me, & is my language daily. I appropriated the busilittle idol.

ness part of the day to law, & read Co. I went to housekeeping at Poughkeep- Litt, & made copious notes. · I devoted sie, 1786, in a small, snug cottage, & evening to English literature in company there I lived in charming simplicity for with my wife. From 1788 to 1798 I eight years. My practice was just about steadily divided the day into five porsufficient to redeem me from debt, & to tions, & alotted them to Greek, Latin, maintain my wife & establishment de- law and business, French & English. I cently, and supply me with books about

mastered the best of the Greek, Latin as fast as I could read them. I had neg- and French classics, & as well as the lected & almost entirely forgotten my best English & law books at hand & read scanty knowledge of the Greek & Ro

Machiavel & all collateral branches of man classics, & an accident turned my

English history, such as Libeletines H. attention to them very suddenly. At the

2nd Bacons H. 7th Lord Clarendon on June Circuit in 1786, I saw Ed. Living

the great Rebellion, &c. I even sent to stone (now the codifier for Louisiana)

England as early as 1790 for Warber& he had a pocket Horace & read some

tons divine legation Lusiad. passages to me at some office & pointed

My library which started from nothout their beauties, assuming that I well

ing grew with my growth, & it has now understood Horace. I said nothing, but

attained to upwards of 3,000 volumes & was stung with sham & mortification,

mortification, it is pretty well selected, for there is for I had forgotten even my Greek let

scarcely a work, authority or document ters. I purchased immediately Horace

referred to in the 3 volumes of my comand Virgil, a dictionary & grammar, and mentaries but what has a place in my a Greek Lexicon & grammar and the

own library, next to my wife, my library testament, & formed my resolution

has been the solace of my greatest pleaspromptly and decidedly to recover the

ure & devoted attachment. lost languages.

The year 1793 was another era in my I studied in my little cottage morn

life, I removed from Poughkeepsie to ings and devoted an hour to greek and

the city of New York, with which I had another to latin daily, I soon increased

become well acquainted, & I wanted to it to two for each tonge in the 21 hours,

get rid of the incumbrance of a dull law my acquaintance with the languages in

partner at P, but though I had been in creased rapidly. After I had read Hor

practice nine years, I had acquired very ace and Virgil I ventured upon Livy for

little property. My furniture & library the first time in my life, & after I had

were very scanty, & I had not $500 ex3 For the work of Edward Livingstone in tra in the world. But I owed nothing, American law, see Essay No. 15, Selected Essays in Anglo-American Legal History & came to the City with good character (Dillon: Bentham's Influence in the Reforms, etc.).

4 Words omitted in original.


& with a scolar's reputation. My news- hills, & woods & streams always enpaper writings, & speeches in the assem- chanted me, and do still. This is owing bly had given me some notoriety. I do in part to early associations, & it is one not believe any human being ever lived secret of my uniform health & chirfulwith more pure and perfect domestic repose & simplicity & happiness than I did In 1796 I began my career of official for those nine years.

life. It came upon me entirely unsoI was appointed professor of law in licited & unexpected. In Feby 1796 Columbia College late in 1793 & this Governor Jay wrote me a letter stating drove me to deeper legal researches. I that the office of Master in Chancery read that year in the original Bynker- was vacant, & wished to know confidensheek Quinctillion & Ciceros rhetorical tially whether I would accept. I wrote works, besides reports and digests, & be- a very respectful but very laconic angan the compilation of law lectures. I swer. It was “That I was content to acread a course in 1794 & 5 to about 40 cept of the office if appointed." The gentlemen of the first rank in the City. same day I received the appointment, & They were very well received, but I have was astonished to learn that there were long since discovered them to have been 16 professed applicants all disappointed. slight & trashy productions. I wanted This office gave me the monopoly of the Judicial labors to teach me precision. I business of that office, for there was but dropped the course after one term, & one other master in N. York. The office soon became considerably involved in kept me very busy in petty details and business, but was never fond of, nor outdoor concerns, but was profitable. In much distinguished in the contentions of March 1797 I was appointed Recorder the bar.

of N. York. This was done at Albany, I had commenced in 1786 to be a zeal- & without my knowledge that the office ous Federalist & read everything on pol- was even vacant or expected to be. The itics. I got the Federalist almost by first I heard of it was the appointed anheart, and became intimate with Hamil- nounced in the papers.

This was very ton. I entered with ardor into the fed- gratifying to me, because it was a jueral politics against France in 1793, & dicial office. I thought that it would remy hostility to the French democracy, & lieve me from the drudgery of practice to French power beat with strong pul- & gave me a way of displaying what i sation down to the battle of Waterloo, knew; & of being useful entirely to my now you know my politics.


taste. I pursued my studies with inI had excellent health owing to the creased appetite & enlarged my law lilove of simple diet, & to all kinds of brary very much. But I was encumbertemperance, & never read late nights.ed with office business, for the governor I rambled daily with my wife on foot allowed me to retain the other office alover the hills, we were never asunder. so, & with these joint duties & counsel In 1795 we made a voyage through the business in the Sup. Court, I made a lakes George & Champlain. In 1797 we great deal of money that year. In Feby run over the 4 New England States. As 1798 I was offered by Gov. Jay & acI was born and nourished in boyish days cepted the office of youngest Judge of among the highlands East of the Hud- the Supreme Court. This was the sumson, I have always loved rural & wild mit of my ambition. My object was to scenery, & the sight of mountains & return back to Poughkeepsie, & resume

« PreviousContinue »