Mr. Choate, in a recent meeting of the bar, describing the qualities of the late Chief-Justice Chase, placed common-sense as the first quality of a great lawyer, just as Baron Jomini declared that moral courage was the first quality of a great gen eral. He is credited with saying : " There is many a man at the bar bewailing his slow prog ress, because he, without knowing it, is too cun ning, or too learned, or too pushing, or too eloquent, or too glib, in proportion to his common-sense; while he who has common-sense enough to man age these qualities cannot have too much of them to be useful, nor, if he have also that honor which commands confidence, can he well fail of success." It might be added that there are judges who would go into conniption fits at the idea of substituting common-sense for some of the crooked, gnarled, and antiquated technicalities of the law.
Is there anything in the grave doctrine of cy pres of a heady nature, like champagne, that tends to produce friskiness in the court and bar? A cen tury ago Lord Hardwicke held a bequest made by Elias Paz, a Jew. for the education of youthful Israelites in the mysteries of the Talmud, to be void by the law of England, as supporting a religion not countenanced by that law; but as the bequest showed a charitable intent, the legacy was applied by cy pres to the support of the very religion the testator had aimed to subvert; and " his Majesty, by his sign manual, was graciously pleased to give the fund towards supporting a preacher, and to in struct the children in the foundling hospital in the Christian religion" — a pleasant surprise for Elias if he had known of it.
A recent case in a neighboring State has sus tained as valid a charitable bequest " to be used discretionary by the acting selectmen of B. for the special benefit of the worthy, deserving, poor, white, American, Protestant, Democratic widows and orphans residing in B." To aid interpretation, testator added : " I also will that not one of my connections shall have a dollar; also not one of my wife's connections shall have a dollar. No partiality among friends." The court wrestled manfully with the testator's adjectives, even " Dem ocratic widows and orphans " not staggering it. These it apparently held to have inherited the poli
tics of the lamented husbands and fathers, as it rather unkindly defines an "orphan" as one "ex tremely young, without character, religious belief, or political principles; " and a similar lack seems im plied, though not expressed, as to the widows.
In Marsh v. Means, 3 Jur. n. s. 790, where a fund had been given to support the " Voice of Humanity," a dumb-animal paper, which had be come mute for lack of needful (pecuniary) wind, the counsel for the next of kin, resisting the charity, gravely conclude : " At all events, if it is to be exe cuted cy pres, the intention being to benefit wornout horses, donkeys, etc., the nearest approach to a literal carrying out such an intention would be to give it to the testator's next of kin; " to whom accordingly it was given.
A singular case of mistaken identity occurred in respect of one of the victims of the Whitechapel fiend. The murdered woman was identified by a Mrs. Malcolm as her sister. Mrs. Malcolm said that both she and her husband had had dreams or visions of the death of the sister at the hour when the deceased was murdered. She testified to a remarkable series of coincidences between her sis ter and the deceased. " They were thus summed up by the coroner, at the inquest, October 23 : ' Both had been courted by policemen [this, how ever, is not a remarkable coincidence]; they both bore the same Christian name, and were of the same age; both lived with sailors; both at one time kept coffee-houses at Poplar; both were nicknamed Long Liz; both were said to have children in charge of their husband's friends; both were given to drink; both lived in East End common lodging-houses; both had been charged at the Thames Police Court; both had escaped punishment on the ground that they were subject to epileptic fits, although the friends of both were certain that this was a fraud; both had lost their front teeth; and both had been leading very questionable lives.' " Notwithstanding this re markable series of coincidences, notwithstanding the remarkable vision of Mrs. Malcolm and her hus band, and notwithstanding her positive testimony that the deceased was her sister, it was clearly shown by other evidence that such was not the fact.
