Page:The Green Bag (1889–1914), Volume 18.pdf/358

MR. JUSTICE BROWN the facts found by the state court. Under tion of the fact that the law is a progressive the Territorial Practice Act of 1874, the court science which must keep in touch with the considers questions of law and not of fact, progress of the world. In Holden v. Hardy but that law does not apply to appeals from (p. 385) he says: the Supreme Court of the Philippine Islands. "An examination of the cases under the Owing to the community property sys Fourteenth Amendment will demonstrate tem in vogue in the Philippines conjugal that in passing upon legislation under that property in case of divorce is divided, and Amendment, this court has not failed to in this case the Court of First Instance de recognize the fact that law is, to a certain extent, a progressive science; that in some creed _ the wife a divorce and awarded as of the states, methods of procedure, which her share of the conjugal property an amount at the time the Constitution was adopted exceeding 825,000. The Supreme Court of were deemed essential to the protection and the Islands reversed the decree and she safety of the people, or to the liberty of the brought the case to the Supreme Court of citizen, have been found to be no longer that restrictions which had form the United States. It was impossible for necessary; erly been laid upon the conduct of individu that court to determine whether the judg als, or of classes of individuals, has proved ment should be affirmed or reversed and the detrimental to their interests; while, upon wife given, or deprived of, her share of the the other hand, certain other classes of conjugal property without full considera persons, particularly those engaged in dan tion of all the facts, and, therefore, it was gerous or unhealthful employments, have been found to be in need of additional pro necessary for the court, for the first time in tection." its existence, to examine the evidence in a Nor does he believe that this progress is divorce case. It met the situation bravely and found likely to stop, for he says (p. 387): that the wife was entitled to the decree and "Of course it is impossible to forecast the the award. The only question as to in character or extent of these changes, but fidelity of the husband was whether his in view of the fact that from the day Magna conduct had or had not been scandalous. Charta was signed to the present moment, In the Philippine Islands it appears, mere amendments to the structure of the law have been made with increasing frequency, infidelity of the husband did not as it then it is impossible to suppose that they will existed entitle the wife to a divorce but only not continue, and the law be forced to in case it is accompanied by public scandal. adapt itself to new conditions of society, The fact that the husband had since his and, particularly, to the new relations be marriage, lived with three separate mis tween employers and employe's, as they arise." tresses each of whom had borne him children, Mr. Justice Brown also delivered the seemed to Justice Brown to amount to a public scandal within the meaning of the opinions in a number of extradition and statute. A letter on which the Supreme removal cases, notably Tucker v. AlexanCourt of the Islands based its reversal, on droff, 183 U. S. 424; Benson v. Henkel, 198 the ground that it was a confession by the U. S. i, and Grin v. Shine, 187 U. S. 181. wife of her own guilt as charged by the hus This very imperfect review of a few of his band, is included in the opinion and was opinions may help to show their scope and held not to be susceptible of that construc the breadth of mind which has inspired his tion. The wife was granted her divorce utterances therein. There are many other and the judgment giving her her share of of his opinions which are worthy of special the conjugal property was reinstated. mention, but space will not permit. All of Justice Brown's opinions bear evi In social life Justice Brown has always dence of broadmindedness and a recogni been a favorite both in Detroit and Wash