The Albany Law Journal. ALBANY, AUGUST 3, 1872. REFUSING TO RECEIVE GUESTS AT A HOTEL. The recent ejection of Mrs. Woodhull and Miss Claflin from a New York hotel on the ground that they were disreputable characters; and the still later refusal of the proprietor of the Grand Union, at Saratoga, to receive as a guest Miss Josephine Mansfield, a witness in the impeachment trial call attention to the rights and obligations of a hotel or innkeeper in regard to receiving guests. It is a very old and very well-settled rule of the common law, that an innkeeper is not, if he has suitable rooms, at liberty to refuse to receive a guest who is ready and able to pay for accommodations. There are said to be exceptions to all rules, and we have turned over the cases to discover if there is an exception to this, allowing a hotel keeper to reject a guest of doubtful character. So venerable an authority as Rolle's Abridgment lays down this rule: "Si un hosteler refuse un guest sur pretence que son mese est pleine de guests, si ceo soit faux, action sur le case gift." (1 Roll. Abr., 3 F.;) and Lord Bacon says, "If one who keeps a common inn refuse either to receive a traveler as a guest into his house, or to find him victuals and lodging, upon his tendering him a reasonable price for the same, he is not only liable to render damages for the injury in an action on the case at the suit of the party grieved, but also may be indicted and fined at the suit of the king." Bac. Abr., Inns and Innkeepers. is rejected, the fact that he had not tendered the price So far there appears to be nothing in the cases indicating a right in a publican to exclude persons on any ground save disorderly conduct and, undoubtedly, drunkenness. But some of the American cases go farther and intimate a right to exclude persons of bad habits or character. In Jencks v. Coleman, 2 Sumn. 221, which was an action for refusing to take plaintiff on board defendant's steamboat, the ground of the refusal was that plaintiff was agent of a rival line, and had been in the habit of going aboard defendant's steamboat to solicit passengers for his line. Story, J., charged the jury that the defendant had the right to refuse to admit on board, persons "who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct, or who make disturbances on board, or whose characters are doubtful, or dissolute, or suspicious; and a fortiori whose characters are unequivocally bad.” The analogy between the rights and duties of common carriers and innkeepers is very close, so that this decision of Judge Story has a strong bearing on the rights of innkeepers to refuse guests. But in Markham v. Brown, 8 N. H. 523, we have some remarks directly in point: Parker, J., after speaking of the duty of an innkeeper to receive guests, said: "But he is not obliged to make his house a common receptacle for all comers, whatever may be their character or condition. * * *He is indictable if he usually harbor thieves, and he is answerable for the safe-keeping of the goods of his guests, and is not bound to admit one whose notorious character as a thie furnishes good reasons to suppose But the guest is not entitled to be received and enthat he will purloin the goods of his guests or his tertained unless he tender the innkeeper a fair remunSo he may prohibit the entry of eration for his accommodation; for the latter is not one whose misconduct in other particulars, or whose obliged to give credit. Bro., Action Sur Case, 76; Bro., filthy condition would subject his guests to annoyContracts, 43; 9 Co. 87, b. When, however, a guest ance." See Pinkerton v. Woodward, 33 Cal. 557. In White's Case, Dyer, 158, "It was argued per curiam, that if a guest come to a common innkeeper to harbor there, and he say that his house is full of guests, and do not admit him, etc., and the party say he will make shift among the other guests, and be there robbed of his goods, the innkeeper shall not be charged because he refused the guest. And if the cause of refusal be false, the guest may have his action on the case for his refusal." And Lord Kenyon, in Kirkman v. Shawcross, 6 T. R. 17, says, arguendo: "Innkeepers are bound by law to receive guests who come to their inns; and are also bound to protect the property of those guests. They have no option, either to receive or reject guests, and as they cannot refuse to receive guests, so neither can they impose unreasonable terms upon them." See, also, Bennett v. Mellor, 5 T. R. 274; Thompson v. Lacy, 3 B. & Ald. 285; Newton v. Trigg, 1 Shower, 270; Hawthorne v. Hammond, 1 C. & K. 404. own. * * * We have been able to discover no other American cases having a bearing on the subject, and even the two cases above quoted did not involve the question, and the remarks were obiter. But we have little doubt that the courts would sustain an exception to the general rule, sufficiently broad to permit hotel keepers to exclude persons of undoubtedly disreputable character. THE WHIPPING POST. The place of whipping in the punitory economy of nations was freely and seriously discussed during the international prison congress at London. The tone of the discussion would indicate that even in the latter half of the nineteenth century it is considered expedient to investigate the subject of corporeal punishment in an argumentative manner and upon general principles, and there were not wanting in the debate those who deemed it worth their while to consider the utility of the cat-o-nine tails on moral and social grounds. The undisputed tendency of the age is toward the abolition of corporeal punishment; and this disposition to revise and reconsider the causes which have led to the transformation is not a little singular. The fact that crime does not materially diminish, but, on the other hand, perceptibly increases in some localities and among some classes may have led to this reconsideration of the verdict of the common consciousness of civilized peoples. And just when this verdict had passed into a judgment which was fast being carried out-when England and a few of the continental countries of Europe, Australia and Delaware alone among civilized States remained in possession of the whipping post as a part of their punitory system, a bona fide, solemn and deliberate investigation of the desirableness of this instrument of punishment is entered into by the accredited and selfstyled pioneers of punitory reform. That crime will always exist so long as humanity is progressive is universally admitted; and the fact that there has been little decrease, or that, in some instances, there has been a positive increase in crime, would not necessarily warrant the law givers, philanthropists and punitory economists of our time to look into the punitory sytem itself for an explanation of the causes of this criminal phenomenon. There might be a number of causes outside of the punitory system which would be adequate to account for the criminal condition of the world at large, or of special sections and countries. For instance, the amount of crime always increases in time of war in the localities immediately visited by the contending armies; and the moral condition in which war leaves the people is highly favorable for the development of crime for years afterward; and this fluctuation in the amount of crime would have no reference to the punitory system within the jurisdiction of which it should be committed. Again, social conditions, climatic conditions, psychical con In modifying as well as in initiating a punitory system much broader considerations must be attended to than the mere temporary fluctuations of crime, which may be the periodic evolutions of it; or the lack of diminution of crime, which may be a necessity in the present state of humanity. The character of the age, the psychical condition of humanity, the state of civilization, the social status of the people, must all be taken into the account. Nor must the consideration of these elements be confined to the present; there must be a comparative observation of the humanity and civilization of the present with what it has been in the past and with what it may rationally be expected to be in the future. The punitory system of an age and country will be necessarily the expression of the common mind as to what is demanded, both as a deterrent and as a corrective principle of punishment. A gross and barbarous people will have for the punishment of the violators of its law, gross and corporeal, cruel and sensational modes of punishment. The physical will always predominate over the psychical in their modes of treatment of criminals, just as the physical predominates over the psychical in the character and lives of the people. As a people advance in intellectual, moral and emotional development, and in that indefinable mental condition which is called culture, its punitory system will be correspondingly modified; the physical element decreases, the psychical element increases, the modes of punishment cease to be gross, sensuous and needlessly cruel; and corporal punishment gradually becomes unpopular, because it is in bad taste and unadapted even to that depraved species of humanity which is unfortunate enough or bad-intentioned enough to habitually disobey law. The defect in the logical consideration of a system of treatment for criminals lies in not giving sufficient weight to the moral effects which are to be accomplished. If punishment were simply deterrent, every crime might be punishable with death at the stake, in which case, any one dare say, that the decrease of crime would be perfectly unprecedented. The hypothesis is, of course, impossible of realization, but it only illustrates the position, that the most deterrent mode of punishment is not the best adapted to the general condition of mankind. The difficulty is in combining the corrective with the deterrent element in such proportions that crime may be sufficiently checked - reduced to a minimum — and that the con dition, both of the criminal classes and of society, may be sufficiently regarded- elevated to the maximum. by the lowest specimens of humanity to whose motives an appeal by psychical means would be worse than useless. In the present state of the juridical con critical punitory system is practically impossible, hence punitory regulations and enactments must be now made with reference to the average criminal. For the average criminal a system of punishment in which the moral or psychical element predominates must be the most salutary, effectual and desirable; and while whipping in public may do some people good; yet we cannot now legislate for that very small class. As the law regulating whipping as a punishment for crime now stands it is applied to that class of offenders to whom it presents the least terror, to whom it acts the least as a deterrent and whom it does the least good correctively. In whatever aspect this mode of punishment is viewed, there seems to be no good reason for its retention, much less of its re-adoption where it has been abolished. The existence of cruel and peremptory modes of punishment, while it might reduce crime to the mini-sciousness of civilized humanity, such a complex and mum, would leave untouched the moral and intellectual condition of the criminal, and would cut off from society, by a bloody process, its offending members, thus leaving the remaining portion shocked by the spectacle, and only deterred from like criminal hazards by pure fear the lowest of all deterrents. Milder modes of punishment, which have reference largely to the mental and moral condition of erring humanity, while they act as a deterrent from the commission of crime, also give opportunity for the physical improvement of the criminal himself, and foster in society the germs of self-sustenance and self-corrective moral agencies. But whatever may be said of any punitory system as a whole (and taking it for granted that the sentiment and tendency of the age toward a system of punishment for crime, in which the moral or psychical element predominates over the physical, is a correct one) the difficulty of knowing or of finding out exactly what are the punitory demands of any country or class is very evident. The very general substitution of solitary confinement for severe corporeal punishment is but an expression of the common consciousness of mankind, of appreciation for its kind and of respect for its members. But while the walls of a prison, and the social ostracism and disgrace consequent thereto, is a terrible punishment to the average enlightened human being, and acts both as a sufficient deterrent and salutary corrective to such, there is a small and exceptional class of human beings, having a name to live among enlightened people, who are really barbarian in their instincts, and to whom confinement in prison acts neither as a deterrent nor as a corrective. But it is a well-known fact that all laws are made ostensibly with a view to adaptability to the wants and protection of the largest number. A punitory system then, as well as other systems, will have its defects in the present state of civilization. Theoretically, it would be the proper thing to regulate the punishment of offenders according to their character, sensibilities, antecedents and general physical and psychical condition, but this would entail the adoption of a code of punitory laws so complex and multiform as to be burdensome, and, indeed, highly impracticable at the present day. When the juridical mind of the nations has arrived at that state of development, complexity, power and refinement in which it can take complete cognizance of the physical and psychical conditions of crime, and can produce from its critical observations a complex punitory system, adequate to the suppression of crime and the reformation of criminals of all classes, then there may be good reason for reconsidering and re-adopting some of the nearly obsolete corporeal modes of punishment in a few special cases-in cases of crime committed TRIAL BY JUDGE AND TRIAL BY JURY. (CONTINUED.) Not the least valuable among the acquirements of a judicial lawyer, in his training at the bar, is the knowledge how to estimate, at its due worth, the rhetoric of the advocate. The eloquence which counts for so much in addressing the passions of a jury would be thrown away in arguing with the reason of a judge; indeed, there can be little doubt it would receive the severe rebuke which would speedily teach the man of mere words that his occupation was gone. "There is no side box here, Brother -," would be, as it has elsewhere been, the only reward for the mellifluous or energetic common places which but tend to confuse and distract attention from the real point at issue. The sole reliable guide in judicial or other investigations must be an accurate comparison and weighing of reasons, on the one side and on the other; however serviceable ridicule, pathos, invective may be as the supports and allies of this, they must be like the military power in a State kept in constant subordination to the civil; they must only be allowed to work their effect when it has been ascertained that they are employed in aid of justice and reason; nor can this process be reversed without risk of ultimately discovering that our warm-hearted enthusiasm has been unhappily misdirected, and resulted in effects precisely the reverse of those anticipated. Most of all is this true of judicial inquiries where the aim is mainly in theory it is entirely to apply to actual cases the law, the expediency or justice of which it rests with another body to determine. But the attorney who prepares to take a case before a jury, seeks to retain the services, not of the counselor who can most perfectly stand the test of reason and logic, but the man who can play most skillfully on the feelings, can impressively deliver a good speech, enlist the prejudices or sympathies of his twelve hearers, where they ought above all to cas: those sympathies or prejudices aside. The very fact is a blot on the jury system. As it is a gross insult to offer a judge a bribe for a judgment that ought to be in no way influenced by cupidity, so is it an insult to proffer groundless flattery or rhetoric for a verdict that ought to be carried solely by reason. A tribunal which can without injustice be so insulted is therein eminently inferior to judges who, experienced in the manufacture and management of the forensic machinery, rate the stage effects at their true worth, and who would reward such attempts to juggle with the bench with merited contempt. has come to feel that idiosyncracies are not to be viewed askance and with suspicion merely because they are idiosyncracies-still less that they demand to be sternly frowned down and suppressed whenever they take an outward embodiment in action - this man will be so much the better qualified to enter on the examination of a judicial question apart from that bias which many will entertain against unusual conduct or unpopular classes. Perhaps in a higher degree than he enjoys freedom from prejudice he will entertain a suspicion of prejudice; he will be scrupulous about yielding to the bias of which he may be unable to divest himself, and will strive to hold the balance of justice fairly in the center, and As we have alluded to the superiority of the Greek restrain his own hand when it would involuntarily tribunals as instruments of popular training, and to tilt the scale. The absence of prejudice is what the their honorable freedom from corruption, we may most candid cannot secure; but he will remember, observe that they had also in an exaggerated degree and make allowance for its existence; just as the the deficiencies of which we complain. Before them political economist, who arrives at his general theories the power of oratory, the artifices of the rhetorician, by considering only the more permanent and univerthe voices of relatives of the accused, falling on their sal of the agencies at work, must, if he would apply knees, and, with clasped hands and streaming tears, his results to any advantage, take up again into interceding on behalf of a husband or a father, account the modifying circumstances which, though drowned and stifled the dictates of pure reason. All omitted, can never be safely forgotten. To be conthat could move the sympathies or appeal to the prej-scious of a prejudice and omit it from consideration udices of the dikasts, all that could distract atten- is to surpass the folly of Don Quixote himself; for tion to irrelevant topics, all the "slander, pity and even he would not go out to fight with a pasteboard indignation" which Aristotle justly repudiated as helmet of which he doubted the strength, but perforeign to the subject, were diligently pressed into sisted in first making trial of it and hewed in two in the service of the litigants. The rhetoricians, who the process. composed addresses to be delivered by parties in their own support, needed not to trouble themselves with arguments that would bear the test of calm consideration, but filled up their discourse with such topics as most powerfully enlisted the feelings of the tribunal for the moment. The same object was aimed at in Rome, when the friends of a prisoner, or it may be persons hired for the purpose, donned mourning apparel and went disconsolately about the city to elicit compassion for their unhappy acquaintance. Athens, where the dikasts were judges of law as well as of fact, the law also was urged on every ground that could win a ready decision, not as regards what it was, but what it should be; and utterly disregarding precedent and adjudicating every case on its own merits, they, thus, as Mr. Maine has pointed out, rendered it impossible that Greece should ever supplement her other bequests to posterity with a well-constructed system of law. In In nothing probably is the influence of education more beneficially displayed than in the degree in which it elevates the mind above popular prejudice. The man whose training has made him aware of the slight grounds which many generally received opinions have for their support; who by mixing with educated men and informing his mind | with standard literature has become accustomed to see opposite views long and ably maintained, each with its own appropriate and powerful arguments, and An example of the mode in which prejudice is suffered to sway the decisions of the box is afforded by the treatment which railway companies receive at the hands of jurors. In any action against such a body, the defendants have to bear up against a strong bias, due partly to the greater ease with which sympathy is excited for the loss of a husband or the destruction of an individual's property than for the pocket of a commercial body, partly to the feeling that a few hundred dollars is little for a company to pay, and a considerable sum for a poor man to receive, partly, it may be, to a real or supposed neglect by the companies of popular interests, whence springs a wish to retaliate without regard to the merits of the case in hand-the company's necessity being the public's opportunity. On a recent occasion, when a counsel, arguing that certain evidence against a railway company should have been submitted to the jury, remarked, that he was sure not a jury could be called in England but what would assign it great weight, one of the bench intimated that not a jury could be called in England but would take every opportunity of finding a verdict against such a company. Again, in districts where religious animosities run to a height, an upright judge would seek to close his mind entirely to the dictates of sectarianism, where a jury yields to them, probably, with self-approval. We are told that in Ireland, when a jury is summoned to try a viola tion of the Party Processions Act, or any offense involving the passions of Romanists and Protestants, the issue can in general be predicted as soon as it is known of whom the tribunal is composed. Romanist will acquit Romanist and condemn Protestant; Protestant will treat Romanist with equal justice. If the jury be divided in religion, they will also be divided in their judgment, and the disciples of parson and of priest can unite in no verdict. Mr. Taylor, in his standard treatise on evidence, commenting on the frequent utility of producing in court the instruments or other objects to be identified, observes that such evidence must be used with caution. "The minds of jurymen," he proceeds, "especially in the remote provinces, are grievously open to prejudices; and the production of a bloody knife, a bludgeon, or a burnt piece of rag, may sometimes, by exciting the passions or enlisting the sympathies of the jury, lead them to overlook the necessity of proving in what manner these articles are connected with the criminal or the crime, and they, consequently, run no slight risks of arriving at conclusions which, for want of some link in the evidence, are by no means warranted by the facts proved." - more than the gold does, and with a likelihood, to which the gold is not exposed, of decaying by neglect; but rather to sow knowledge as seed destined to bring forth its fruit, according to the character and fertility of the soil that receives it; to impart not only thoughts but thought the power to originate, discard or amend thought; the power to distinguish between a subtle sophism and a cogent argument, and to correct the crude generalizations which men are at all times so hasty to form, by confronting them with individual phenomena and deducing their remoter consequences. Surely these are habits, to none more indispensable than to him who is called on to administer justice and decide on the weight to be attached to evidence. Compared with these we should say, with Ferrier, that common sense means simply common nonsense. But it may be retorted, that these considerations do not go to the root of the matter; that the complaint is not of the unsuitability of men educated on an ideal and perfect, but on an actual and imperfect, system; and that the ordinary culture of a judge is so far from realizing the conditions already referred to that it is practically inferior to the less instructed wisdom of the twelve. If this be, indeed, the import of the objection, it is difficult to see what facts can be alleged in its proof. For the legal education, as we have already remarked, is not that of a recluse or a bookworm, but unites with knowledge of the law, experience in the practice of daily life; and were the comparative merits of judges and jurymen to be estimated solely with reference to the opportunities they have had of drawing wisdom from the source of their own experience, the decision would still be in favor of the judges. The evil of incompetency and prejudice does not end with the injustice of a single case decided on wrong principles. Whatever diminishes the efficiency and accessibility of the tribunals, whatever renders it Just as Chatterton's fellow-townsmen considered that he had crushed Johnson's skepticism as to the antiquity of the Rowley poems by triumphantly pointing to the chest in the tower of St. Mary Redcliffe, where they were said to have been discovered. There are some who maintain the strange opinion that education is an actual impediment in dealing with questions of daily life - an obstacle to rendering a decision in accordance with the dictates of "common sense." Men of education sometimes participate in the notion that to pursue a regular course of study tends to warp the mind and induce the habit of regarding every subject through professional spectacles. The learned man, they say, has lost that freshness and orginality, that power of coming down with a trenchant blow, cutting through the fine cobwebs of soph-less probable that justice will be dealt out equally to istry, and roughly but readily, and in the main justly, severing right from wrong—which is the prerogative of unsophisticated mother wit. Just as the savage who, before he can eat his day's meal. must resort to a hundred expedients, to ensnare some wild bird or track a subtle beast, and so is fertile in devices for extricating himself from dilemmas where a civilized man would stand utterly bewildered, and is alive to discover his enemy by slight tokens that would escape the ablest detective, so the business of daily life (it is maintained) cultivates to a high pitch the observation and practical sagacity which, in those "bewildered in the maze of schools," are first hidden and then choked up by the luxuriant artificial growth around them. To this, we would reply that it presupposes the education imparted to be a very erroneous, or at the least, a very partial one. The ideal purpose of mental training is not to bury knowledge in the mind as treasure may be buried in the earth, to fructify no all, is, to that extent, a discouragement to those who would seek from the law a redress of their wrongs. Such as are familiar with the common-law courts know that a sound case may easily fail to find favor in the eyes of a jury, and that to take a dispute before a jury in reliance on its absolute merits, as discussed by the light of strict reason and law, is to subject it to a cloud of disturbing influences, the result of which it is often impossible to predict. Hence, many who are well acquainted with the defects of such a system are led to prefer a compromise to so uncertain an encounter. "So much the better," it will be replied, "there will be a check on litigation." A check on litigation!—the constant palliative for all that makes the remedies offered by law either costly or tardy or uncertain. What is litigation, under just laws, but the most rational and constitutional course of securing obedience to those laws? Its alternatives, wherever a serious wrong has been inflicted, are either the strong hand that is at once accuser, judge and |