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beginning on the first day of October, eighteen hundred and seventy-two, on each dollar of real and personal property of this State subject to taxation, taxes for State purposes hereinafter mentioned, which taxes shall be assessed, levied and collected by the annual assessment and collection of taxes for that year, in the manner prescribed by law, and shall be paid by the several county treasurers into the treasury of this State, to be held by the treasurer for application to the purposes specified, that is to say, for the general fund and for the payment of those claims and demands which shall constitute a lawful charge upon that fund during the fiscal year, commencing October first, eighteen hundred and seventy-two, one mill and onefourth of one mill; for the free school fund, for the maintenance of common schools in this State, one mill and one-fourth of one mill, pursuant to chapter four hundred and six of the laws of eighteen hundred and sixty-seven; for the payment of the interest and redemption of the principal of the State debt of two and one-half million dollars, as provided in chapter two hundred and seventy-one, of the laws of eighteen hundred and fifty-nine, one-eighth of one mill; for the payment of the interest, and to provide for the redemption of the principal of the State bounty debt, pursuant to chapter three hundred and twenty-five of the laws of eighteen hundred and sixty-five two mills; for the purposes of the new capitol, one-half of one mill; and for the benefit of the academies and academical department of the union schools, pursuant to chapter five hundred and forty-one of the laws of eighteen hundred and seventy-two, one-sixteenth of one mill.

applying to the chancellor for the aforesaid examination shall receive an order to that effect, addressed to one of the boards of examiners, provided he shall adduce proofs satisfactory to the chancellor, that he or she has a competent knowledge of all the branches of learning taught in the common schools of this State, and of the Latin language, and that he has diligently studied medicine not less than three years, under the direction of one or more physicians duly qualified to practice medicine, or has himself been licensed, on examination, by some medical society or college legally empowered to issue licenses or degrees in medicine.

§ 6. The regents of the university, on receiving the aforesaid reports of the examiners, and on finding that not less than five members of a board have voted in favor of a candidate, shall issue to him or her a diploma, conferring the degree of doctor of medicine of the university of the State of New York, which degree shall be a license to practice physic and surgery. $7. The candidate, on receiving said diploma, shall pay to the university the further sum of not less than ten dollars.

§ 8. The moneys paid to the university, as aforesaid, shall be appropriated by the regents for the expenses of executing the provisions of this act.

$ 9. The regents may establish such rules and regulations, from time to time, as they may deem necessary to insure the faithful execution of the provisions of this act.

§ 10. This act shall take effect immediately.

CHAP. 746.

AN ACT relating to the examination of candidates for the degree of doctor of medicine.

PASSED May 16, 1872.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The regents of the university of the State of New York shall appoint one or more boards of examiners in medicine, each board to consist of not less than seven members, who shall have been licensed to practice physic and surgery in this State.

§ 2. Such examiners shall faithfully examine all candidates referred to them for that purpose by the chancellor of said university, and furnish him a detailed report in writing of all the questions and answers of each examination, together with a separate written opinion of each examiner as to the acquirements and merits of the candidates in each case.

§ 3. Such examinations shall be in anatomy, physiology, materia medica, pathology, histology, clinical medicine, chemistry, surgery, midwifery and in therapeutics, according to each of the systems of practice represented by the several medical societies of this State.

§ 4. The said reports of examinations, and the annexed opinions of the examiners, shall forever be a part of the public records of the said university, and the orders of the chancellor addressed to the examiners, together with the action of the regents, in each case shall accompany the same.

§ 5. Any person over twenty-one years of age, of good moral character and paying not less than thirtyfive dollars into the treasury of the university, and on

CHAP. 587.

AN ACT to authorize the appointment of assistant district attorneys in certain counties in this State.

PASSED May 7, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. It shall be lawful for the supervisors of any county in this State, having at its last census a population exceeding seventy thousand, to authorize the district attorney of such county to appoint a suitable person to be the assistant of such district attorney. Every such appointee must be a counselor at law, and a citizen and resident of the county in which he is appointed. Every such appointment shall be in writing, under the hand and seal of the district attorney, and shall be filed in the clerk's office of the county in which such appointment is made. Every such person before he enters upon the duties of his office shall take and subscribe the constitutional oath of office. Every such appointment may be revoked by the district attorney making the same, which revocation shall be in writing, and shall be filed in the said county clerk's office.

§ 2. It shall be lawful for every such assistant to attend all the criminal courts which may be held in his county, and to assist in conducting all prosecutions for crimes and offenses cognizable therein. It shall also be lawful for every such assistant to attend and appear before any grand jury in his said county, and to perform the same duties before such jury as are by law imposed upon or required by the district attorney.

$ 3. Every such assistant district attorney shall be compensated for his services at and after such annual rate as shall be determined by the board of supervisors of the county in and for which he shall be appointed.

§ 4. The provisions of this act shall not apply to any county where the appointment of an assistant district attorney is now authorized by law.

§ 5. This act shall take effect immediately.

CHAP. 747.

AN ACT for the suppression of the trade in and circulation of obscene literature, illustrations, advertisements and articles of indecent or immoral use, and obscene advertisements of patent medicines, and articles for producing abortion, and to repeal chapter four hundred and thirty of the laws of eighteen hundred and sixty-eight.

PASSED May 16, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. If any person shall sell, or offer to sell, or shall give away, or offer to give away, or have in his or her possession, with or without intent to sell or give away, any obscene and indecent book, pamphlet, paper, drawing, lithograph, engraving, daguerreotype, photograph, stereoscopic picture, model, cast, instrument or article of indecent or immoral use, or medicine for procuring abortion, or shall advertise the same for sale, or write or cause to be written, or print or cause to be printed any circular, handbill, card, book, pamphlet, advertisement or notice of any kind, or shall give information orally, stating when, how or of whom, or by what means any of the said indecent and obscene articles and things hereinbefore mentioned can be purchased or otherwise obtained, or shall manufacture, draw and expose, or draw with intent to sell, or to have sold, or print any such articles, every such person shall, on conviction thereof, be imprisoned in the county jail or State prison not more than six months, or be fined not less than one hundred nor more than one thousand dollars for each offense. One-half of said fine to be paid to the informer upon whose evidence the person so offending shall be convicted, and one-half to the school fund of the county in which the said conviction is obtained, except that in the city and county of New York, if the conviction is in said city and county, one-half shall go to the treasurer of the Homœopathic Dispensary, in said city and county, and in the county of Kings one-half shall go to the Brooklyn Homœopathic Hospital, when the conviction is in the county of Kings. And in every other county of the State, one-half of the said fine shall go to the treasurer of the orphan asylum of said county, if there be such an institution in the county.

§ 2. If any person shall deposit or cause to be deposited in any post-office within this State, or place in charge of any express company, or person connected therewith, or of any common carrier or other person, any of the obscene and indecent articles and things mentioned in the first section of this act, or any circular, hand-bill, card, advertisement, book, pamphlet, or notice of any kind, or shall give oral information stating where, how or of whom such indecent and obscene articles or things can be purchased or otherwise obtained in any manner, with the intent of having the same conveyed by mail or express, or in any other manner; or if any person shall knowingly or willfully receive the same with intent to carry or convey, or shall carry or convey the same by express, or in any other manner (except in the United States mail); every person so offending shall, on conviction thereof, be subject for each offense to the same fines and penalties

as are prescribed in the said first section of this act for the offenses therein set forth, and said fine shall be divided and paid in the same manner as therein provided.

§ 3. All magistrates are authorized, on complaint founded on information and belief, supported by oath or affirmation, to issue a warrant, directed to the sheriff of the county within which such complaint shall be made, or to any constable, marshal or police officer within said county (provided, nevertheless, that nothing in this act contained shall be construed to affect, alter, diminish or extend, or in anywise interfere with the powers and authority of the board of metropolitan police), directing him, them, or any of them, to search for, seize and take possession of such obscene and indecent books, papers, articles and things; and said magistrates shall transmit, inclosed and under seal, specimens thereof to the district attorney of his county, and shall deposit within the county jail of his county, or such other secure place as to him shall seem meet, inclosed and under seal, the remainder thereof, and shall, upon the conviction of the person or persons offending under any of the provisions of this act, forthwith destroy, or cause to be destroyed, the remainder thereof so seized as aforesaid, and shall cause to be entered upon the records of his court the fact of such destruction.

§ 4. It shall be the duty of the presiding judge of every court of sessions or oyer and terminer within this State, especially to charge the grand jury at each term of said court, to take notice of all offenses committed in violation of any of the provisions of this act; and it shall be the duty of all superintendents of the poor and commissioners of charities and corrections to prosecute and recover the penalties in this act.

§ 5. Chapter four hundred and thirty of the laws of eighteen hundred and sixty-eight is hereby repealed. § 6. This act shall take effect immediately.

CHAP. 721.

AN ACT to amend chapter three hundred and sixtysix of the laws of eighteen hundred and seventy, entitled "An act in regard to public libraries incorporated in the State of New York."

PASSED May 14, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Section one of chapter three hundred and sixty-six of the laws of eighteen hundred and seventy is hereby amended so as to read as follows:

$1. If any officer, clerk, agent or member of any public library, duly incorporated under the laws of the State of New York, or any other person whatever, shall thereafter willfully cut, mark,mutilate, or otherwise injure any book, volume, map, chart, magazine, newspaper, painting or engraving, belonging to or deposited in any public library so incorporated as aforesaid, or shall procure such injury to be done as herein stated, every such person shall be deemed to be guilty of a misdemeanor, and, upon conviction thereof by any court of competent jurisdiction, shall be liable for each offense to a fine of not more than one hundred dollars, at the discretion of the court; provided, however, that no prosecution shall be maintained under this act, unless the library prosecuting shall have at least two printed copies of this act conspicuously placed upon its premises.

§ 2. This act shall take effect immediately.

The index to volume five of the ALBANY LAW JOURNAL will be forwarded with an early number of this volume.

The Albany Law Journal.

ALBANY, JULY 13, 1872.


There are curious things to tell regarding juries, both as to their ancient and their modern history. Valuable as the institution is thought to be, we have little or no certain knowledge of its origin. Not only have the Normans, the Saxons, the Gauls, the Romans, and even the Trojans, in their turn, had inscribed to them the honor of being the inventors of the system, and in turn been dispossessed of it, but some writers, acting like those foolish old testators who make a point of leaving their money to persons already having more than they know what to do with, declare that to Alfred the Great, a sovereign already lauded as the inventor of half the noblest institutions of England, the entire credit of the whole matter is due.

Whoever was the inventor, or what the period of the birth of the system, it is quite certain that very few traces of it are to be found anterior to the reign of Henry II. Of course, men had from the earliest times in their legal squabbles among one and other to settle, and this was usually done after a peculiar fashion. Long before any invention of juries, we find that civil matters were decided by one of the parties swearing how the facts really stood, and finding eleven men, usually his near neighbors, who severally, on their oaths, declared that they believed his account to be true. Criminal offenses being considered of more importance, in them, by the laws of Ethelred, this ceremony was made only introductory to one of the more perilous, and at the same time more ridiculous, modes of trial, called respectively the fire and water ordeal. The practice of trying both causes and crimes by these two methods was common with our Saxon ancestors, and only began to be discontinued after the Norman invasion. Trial by ordeal appears to have been very repugnant to the warlike Normans, who, after continuing it for a considerable time, eventually almost entirely abandoned it, and in its stead founded the wager of battle.

It is highly probable that the dislike which the Normans felt toward the older institution was caused by some trickeries which they discovered in it to secure the convictions of their own countrymen when accused of a crime, and the acquittal of English under similar cicumstances; and, in proof of this, there is a document still in existence which narrates how William Rufus, having caused fifty English to be tried by the hot iron, they all escaped, while twenty Normans all suffered! Upon which the king said there was great noughtiness in the matter, and that he would try the seventy over again by the judgment

of his court, and would not abide by this pretended judgment of God, which could be made favorable or not at pleasure.

From the time of William, then, to that of Henry II, the mode of administering was very simple. In civil cases, a little hard swearing on one side or the other soon settled the matter; while as to criminals, by "fighting it out," a far more speedy result was, we doubt not, obtained, than is arrived at in our courts of justice at the present day. In Henry's reign, however, the simplicity of all judicial proceedings was much broken in upon by the passing of a famous statute usually called the grand assize. This statute ordained that in all cases in which the ownership of land, the right of advowson or the claims of vassalage, came in question, four knights of the county should be summoned, who, joining with them twelve men, neighbors of those whose rights were in dispute, should hear from them upon their oaths the truth of the matter in question. If these twelve could not ag ee in the tale they told the knights, the minority were dismissed and others chosen in their stead; and this was repeated until twelve men were found whose tale was uniform; and then according to it, judgment was given.

This singular mode of adjudicating appears to have ever since been held in great estimation; for, although other species of trial by jury soon after sprung up, the grand assize was not set aside, but continued to be put in practice now and then down to the year 1838, when, for the last time, four knights girt with their swords, and twelve recognitors, met in the court of common pleas at Westminster, and were addressed by the Lord Chief Justice Tindal, as "gentlemen of the grand inquest, and recognitors of the grand assize." The institution was shortly after abolished by act of parliament.

The grand assize had reference only to those civil matters which we have enumerated; but both before and after its advent, we find the method of trying criminals had, by the passing of certain statutes, become more and more complicated, until a very great necessity was felt for some well-defined law upon the subject. This came at last in the year 1176, being embodied in a statute called the statute of Northampton; in which we find, to our surprise, the trial by battle unmentioned, and the favorite old fire-andwater ordeal re-invested with all its ancient importance; careful provision being made against trickery, by the insertion of a clause which prevented the accused from going entirely free, even after having escaped the ordeal.

The words of the statute are curious enough. They declare that, "when any one charged before the king's justice with the crime of murder, theft, robbery, or the receipt of any who have so offended, by the oaths of twelve knights of the hundred, or if there are no knights, by the oaths of twelve free and lawful men, then any one so charged shall submit to the fire or


water ordeal, and if he fail, shall lose one foot and the being meanwhile supplied under the direction of the right hand, and also abjure the realm, and leave it within forty days; and if he be acquit by the ordeal, shall find pledges to answer for him, and then he may remain in the realm."

This barbarous statute, however, soon fell into disuse, and in the reign of Henry III was formally abandoned; trial by battle then again became popular, and indeed was not legally done away with in certain cases until the year 1819. During the time of Edward I the jury system was greatly improved, and to a great extent resembled that of the present day. Knights of the shire were summoned by the sheriffthe origin of the present grand jury-twelve of whom had to be unanimous in presenting the guilt of a prisoner to the petty jury who were to try him. The petty jury, indeed, differed from a modern one in one important particular; for those composing it, after being sworn to act truly, heard no evidence from others, but each separately delivered a verdict founded on his own knowledge of the matter, and was thus a witness as well as a juryman. If the twelve could not agree, the minority were, as in the grand assize, turned aside, and others chosen in place of them, and this was done till twelve presented a uniform verdict.

It may amuse the reader to know that the first civil matter tried by a jury, properly so called, of which any record has descended to us, was an action by the parson of Chipping-Norton against another parson for turning him out of his house on a Sunday.

It was not until the time of Henry VI that witnesses were allowed to be called, to inform the consciences of the jury respecting the matters in dispute, and not till so late as the reign of Anne that witnesses for a prisoner were heard upon oath.

The position of jurymen in "the good old times" must have been one of no ordinary severity. The fundamental rule was, that the twelve men must agree in order to form a legal verdict. Why twelve were chosen in preference to any other number does not appear, and the only explanation, if it may be called one, is that of Sir Edward Coke, who says that twelve "is a number in which the law delighteth." In order, then, to get these twelve men to agree, all kinds of manoeuvers were used; at first, the practice of adding fresh jurymen, and turning away those who would not agree with the majority, technically called "afforcing," was adopted; but this was attended with the expense of so much time and trouble as to be almost useless. Then it became the custom to heavily fine those who would not agree with the majority, and this shortened matters a good deal; subsequently the verdict of the majority was taken, the dissentients being fined or imprisoned; and then the practice was adopted of confining the sacred twelve alone, without meat, drink or fire, until the verdict was satisfactory.

Of late years, confinement for a longer or shorter period, at the discretion of the judge, has alone been resorted to to enforce unanimity; food and drink

In some of our old law books, we meet with very amusing accounts of unfortunate jurymen being detected in attempting to evade this very stringent measure, and their peccadiloes seeem always to have met with severe chastisement.


Thus, in Hilary term, 6 Henry VIII, we have a long account of a motion in the king's bench, to arrest a judgment obtained at the previous assizes, on the ground that the jurors had "improperly eaten and drank;" and, says the report, 'upon examination it was found that the jury had, after long consideration, agreed, and returning to the court-house to give in their verdict, they saw Kead, C. J., in the way running to see a fray and they followed, and all ate bread, and drank a horn of ale; and, for this, every one was fined forty shillings, but the plaintiff had its judgment stand upon their verdict." The report does not inform us what fine was inflicted upon the learned judge for leaving the judgment seat "to see a fray."

In another case of Mounson v. West, about the same period, the jury had been absent so long to consider their verdict, that "the court did suspect, and gave commandment that a trusty man should search them, which was done, when some had figs in their pouches, and some had pippins, and some did confess that they had eaten of figs, and some that they had pippins, but had not eaten thereof; whereupon, after great and solemn advice and consideration, they who had eaten of the figs were fined £5 each, and they who had pippins, of which they had not eaten, forty shillings each."

Shortly afterward, the court of queen's bench declared, "that for a juryman to have sweetmeats in his pocket was a high misdemeanor, punishable by fine or imprisonment, or both."

It was not, however, on the score of eating when he should have been fasting alone, that the juryman's life was a hard one; if the judge considered that their verdict was against evidence, they might be punished with loss of all their personal property, might be imprisoned for a year, and were ever afterward considered infamous; while the amount of bullying to which they were exposed, both from the judge and from the counsel, would scarcely be credited at the present day. They were threatened, laughed at and even taunted with being accessory to the prisoner's guilt, if they hesitated about giving the desired verdict. After enduring all this uncomplainingly for some hundred years, we find juries, about the middle of the sixteenth century, suddenly attempting to throw off the disgraceful shackles with which they had been for so long loaded. The first important case on record in which a jury boldly stood out against the judge is that of Sir Nicholas Throckmorton, tried at Guildhall in 1554.

Throckmorton was indicted for high treason, and, after a shamefully one-sided trial, the jury were almost

directed to find him guilty. After a long absence from court they returned and deliberately pronounced a verdict of "Not guilty." "Upon this," says the reporter, "the lord chief-justice remonstrated with them in threatening tones, saying: "Remember yourselves better. Have you considered substantially the whole evidence as it was declared and recited? The matter doth touch the queen's highness and yourselves also; take good heed what you do." When he had finished, Whetson, the foreman, said: "My lord, we have found him not guilty, agreeably to our consciences, and so say we all." But the jury suffered grievously for their honesty. The court committed all twelve to prison; four were soon discharged, on humbly admitting that they had done wrong; but of the remaining eight, the Star Chamber adjudged that three of them should be fined £2,000 each, and the other five £200 each. So much for impartiality in the sixteenth cen tury.

Throckmorton's jury had, however, "broken the ice," and others were not slow in following their example; and for more than one hundred years after, battles were being continually fought between judge and jury, with ever-varying results. In poor Mrs. Lisle's case, the judge (Jeffreys) gained the day; on William Penn's trial, the jury stood firm and triumphed; but the most glorious example of their success was shown upon the trial of the seven bishops in 1688, from which period we may date the decline of the arbitrary authority which the judges had before exercised.

The difficulties which the juries experienced some few hundred years ago, in making up their minds as to the proper verdict to be returned, seems to have been caused in a great measure by the manner in which counsel prevented by their speeches the clear facts of the case from being seen. That this was so, even as early as 1560, appears from a little work, published in that year, called A Guide to Jurymen, from which we select the following quaint anecdote:

"At a certain trial, after the state of the cause was set forth in the declaration, the counsel beginning to speak, the foreman of the jury calls to the judge, and tells him he had an humble suit to his lordship. 'Well,' says the judge, 'what is it?' 'My lord,' says he, 'it is, that now the state of the cause hath been set forth, we may proceed immediately to the examination of witnesses, so as to give our verdict whilst we remember what is material, and that we may spare the labour of these gentlemen, the counsel on both sides, who, I see, are prepared to speak largely; for, truly, my lord, if they shall fall to work as they use to do, our understanding will be so confounded by their long discourse and many niceties, as we shall not be able so rightly to judge thereof as now we shall.' This was his humble motion; but the judge, having formerly been a pleader, laughed at the honest man, and so did all the court, except some plain

people that had so little understanding as to think there was some reason in it."

A great deal is said now-a-days, and with truth, of the ignorance of juries, but the average jury man of the olden time was hardly better, if as good, and many anecdotes are recorded of their stupidity, of which we give a sample: A jury at Cardigan found a man guilty of arson, with £20 damages. Another set of "clod-hoppers," trying a man for murder, and being much confused by the judge telling them that upon the same indictment, if not satisfied as to the capital crime having been committed, they could find the prisoner guilty of manslaughter, just as they could on an indictment for child-murder find a woman guilty of concealing the birth, after deliberating for a long while, found the man guilty of concealing the birth of the deceased!

Another instance occurred in the western circuit, England: A man was indicted for burglary; the proofs were so clear against him, he having been caught in the fact, that it was presumed no defense would be attempted. His counsel, however, made a long, flaming speech, and protested that he believed the man to be innocent. The judge told the jury that it was unnecessary for him to sum up, as they could have but one opinion. After conferring a moment, they turned round and deliberately pronounced a verdict of "Not guilty," to the amazement of every one in court. Of course the prisoner was, without further question on the case, discharged. One of the counsel present met one of the jury afterward, and inquired the reasons which influenced them in giving so curious a verdict, and met with the following reply: "Well, sir, we be most of us P - men, and though the Lunnon judge said he thought the prisoner were guilty, our recorder (who was the man's counsel) said he thought he warn't, and we like to stick up for our recorder!"


It has been very thoroughly settled ever since the terse opinion of Lord Kenyon in Merryweather v. Nixon, 8 T. R. 186, that there could be no contribution between joint tortfeasors, but exceptions were suggested in the very same breath with the rule, for that learned judge said, "that this decision would not affect cases of indemnity, where one man employed another to do acts not unlawful in themselves, for the purpose of asserting a right."

And Best, C. J., in Adamson v. Jervis, 4 Bing. 72, said that from reason, justice and sound policy, the rule that wrong-doers cannot have contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act and that learned | judge adds, "auctioneers, brokers, factors and agents do not take regular indemnities. These would be indeed surprised, if, having sold goods for a man and

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