The his retreat at Cooperstown. A letter to one of his former associates some time after gave a pleasant description of his manner of life. Among other things, he said, that he had given up reading any thing but newspapers and light matter, showing that he had become conscious that his days of study and work had passed by, and that he might sit with folded hands waiting for the end which has come so soon. manner of his death was as peaceful as the progress of his later life. He had been for some months in good health and spirits, but on Monday last complained of having caught cold. This confined him to his room until Friday afternoon, when he came down stairs, joined in the evening meal, and spent some hours in his parlor. On Saturday he seemed as well as usual. While listening to the reading of a letter by Mrs. Nelson, he asked some question in regard to it and suddenly expired. BOOKS RECEIVED. The following publications have been received: Chicago Legal News, Vol. V. Myra Bradwell, Editor, Chicago. Taylor's Principles and Practice of Medical Jurisprudence. Second Edition. Philadelphia: Henry C. Lea. Campbell's Lives of the Chief Justices. In four volumes. Vol. I and II. New York: James Cockroft & Co., New York. Dillon's Municipal Corporations. Second Edition. Revised and Enlarged. Two volumes. James Cockroft & Co., New York. Digest of Fire Insurance Decisions. Third Edition. Revised and Enlarged by Clement Bates. Baker, Voorhies & Co. California Reports, Vol. 43. Charles A. Tuttle, Reporter. Alabama Reports, Vol. 47. Thomas G. Jones, Reporter. Wisconsin Reports, Vol. 31. Orn. Conover, Reporter. Callaghan & Co., Chicago. COURT OF APPEALS DECISIONS. The following decisions were announced in the Court of Appeals on Tuesday, the 16th inst.: Judgments affirmed with costs-Schepeler v. Preuss; Broistedt v. The South Side R. R. Co. of L. I.; McMaster v. The President, etc., of the Insurance Co. of North America; Price v. Price; Claflin v. Tishler; Merrill v. Green; Van Tuyl v. The Westchester Fire Insurance Co.; Silver v. Bowne; Roberts v. Roberts; Johnson v. Oppenheim; Mordoff v. James; Ackerman v. Lilliston. Judgment affirmed with costs of both parties to be paid out of the estate-Norton v. Norton. -Judgment reversed and new trial granted, costs to abide event - Maxon v. Scott. Order of General Term reversed, and order of Special Term denying the application modified by denying the motion without prejudice and without costs to either party - People ex rel. Dolan v. Lane. Order granting new trial reversed and judgment on report of referee affirmed with costs - Crane v. Baudouin. Orders of General Term reversed and judgment on report of referee affirmed with costs-The Atlantic National Bank v. Franklin; Thornton v. Antenreith. The United States Senate has confirmed the nomination of James H. Howe as United States District Judge for the Eastern District of Wisconsin, vice Andrew G. Miller resigned. Gen. Butler has introduced a bill in the house of representatives which requires marshals and clerks of the United States District and Circuit Courts to deposit in the treasury the surplus fees received by them. Nearly all the courts in New York city adjourned Friday, the 5th inst., as a testimonial of respect to the memory of the late Judge Rufus W. Peckham, of the Court of Appeals. Ex-Senator Willard Saulsbury has been appointed chancellor of Delaware by Governor Ponder, in place of Judge Bates, who resigned on account of impaired health. A Tribune Washington dispatch says Attorney-General Williams' case has been referred back to the judiciary committee, because fresh charges are preferred against him by Oregon parties, and he will not be confirmed before the holiday recess, if at all. It is announced that Gov. Dix will not appoint a successor to the late Judge Peckham for several days. Among the candidates urged for the position are William S. Kenyon, Gen. E. E. Bullard, J. H. Reynolds, Matthew Hale and William M. Evarts. In the copyright department of the Congressional library there have been 15,352 entries made during the year, and the librarian has paid into the treasury the sum of $13,404 as the receipts from copyright fees. This exceeds the entries of the year preceding by about ten per cent. At a meeting of the members of the bar of New York city, on the 15th inst., Wm. M. Evarts offered resolutions of regret and pronounced a brief eulogy on Judge Nelson. A committee of twenty-one, comprising some of the most prominent members of the bar, was appointed to attend the funeral of the deceased judge, which occurred on the 18th inst. President Grant has made the following nominations: Robert W. Hughes, to be District Judge for the Eastern District of Virginia; William H. Hunt, to be Marshal for the Southern District of Florida; Herman Silver, to be Marshal for Dakota; Thomas F. Purnell, to be Marshal for the Western District of Texas, and W. F. Wheeler, Marshal for Montana. The Supreme Court of Massachusetts has again declared that by the statutes of the State all wagers are void. The action was one for money had and received against the party winning the wager, which had, in good faith, been paid to him by the stakeholder. The presiding judge refused to admit evidence offered by the defendant tending to show that he had won the wager, which, singularly enough, was upon the position of certain graves in a cemetery. The Albany Albany Law ALBANY, DECEMBER 27, 1873. THE BANKRUPT LAW. As heretofore observed in these columns, the only persons who reap any benefit from the portions of the bankrupt act relating to involuntary bankruptcy are the various officials connected with the Federal courts. It is not surprising, therefore, that the agitation for its repeal has gained considerable strength; especially as one of the collateral effects of the law has been greatly to reduce the volume of litigation, and thereby to make enemies of our very influential profession. Nevertheless the act might fairly have been entitled "An act to introduce common honesty into the relations of debtors and creditors;" and the repeal of such an act cannot be regarded as an unmixed good. If honesty cannot be enforced without wasting the substance respecting which honesty is to be exercised, it may be wise to renounce the hope of enforcing honesty, but it is natural at least to shrug our shoulders while we do it; and equally natural to marvel whether indeed the objectionable incident is wholly inseparable from the fundamental principle. The act of 1867 is founded, in its leading features, on the latest English Bankrupt Act. There was every reason for pursuing that method of legislation; but now that experience shows the result to be impracticable, may we not inquire into the expediency of departing somewhat farther from the model, before finally renouncing the idea of the performance of the work? The framers of the English act were what were the politicians of our municipal rings, and the Christian statesmen of our Credit Mobilier combinations - what all the men have been who have landed our ship of State upon the quicksands of makeshift, inefficiency, and corruption, on which her timbers have been parting for years practical men. They had no idea of separating principle from detail, conception from execution. Hence their handiwork is a jumble of directions for clerks, instead of a guide for judges. It reads like the instructions of the head of a bureau to his subordinates, instead of an edict commanding what is right, and forbidding what is wrong. Instead of laying down in broad and distinct outlines the duty of a debtor in failing circumstances to his creditors, and the rights of the creditors of such a debtor, succeeded by a declaration of the benefits secured to a debtor who performs those duties, and the perils he encounters when tempted to violate them, it expends its main force in regulating the manner in which certain patronage shall be distributed and certain fees exacted. In this respect it has been copied by our legislators, for the simple reason that it has unconsciously controlled the minds of jurists. We have all taken for granted that a bankrupt law necessarily institutes a course of procedure not otherwise pursued, and either appoints special officials or imposes peculiar and distinct duties on existing ones. It has not occurred to us that a law which contained no provisions respecting procedure, and which left the administration of what it ordained respecting rights and wrongs to the existing tribunals by resort to existing methods, would be none the less a bankrupt law, if it defined the rights of debtors and creditors in cases of insolvency. act. Now, before retiring out of the pale of civilized nations with bankruptcy codes, why not make this experiment? Why not pass an act of Congress declaring simply the leading principles for the enforcement of which the present abortive measure was intended? A debtor whose assets are insufficient to pay his debts, may place his estate in the keeping of the court, for equal distribution among his creditors. He may not commit any other act of bankruptcy. What acts are acts of bankruptcy, is well specified in the present A debtor may be discharged from liability for his debts, if he has fairly co-operated in the administration of his property by the competent court for distribution among his creditors. An act of bankruptcy shall authorize any creditor to place the estate under judicial administration. The estate shall be divided proportionably to the amounts of the claims of creditors. These provisions, with a few others, would constitute a complete bankrupt law, binding upon all the courts of all the States, and capable of being administered in them, by forms of proceeding devised by practitioners in pursuance of the exigencies of the enactment, and accommodated to the forms of similar proceedings formerly in use in the respective States. Every court would be at liberty, by decisions and rules, to direct the development of the practice, and to counteract every abuse that made itself felt. The interests affected would be active in developing the practice, and influencing the action of the court in this direction. Formalities would be introduced no faster than the necessity for them presented itself; there would be no more machinery than required to perform the desired action, and accomplish the desired result. The question whether Congress has authority to impose duties on State courts would not arise, because the act of Congress would not claim to impose duties the duty of administering the law, constitutionally enacted, being necessarily inherent in the courts of general jurisdiction of every State, not by virtue of any act of Congress, but by virtue of the sovereignty of the State which erects them. The Federal courts would take jurisdiction only where the domiciles of the parties would give it. The proceedings, that is to say, the actions - for every proceeding in bankruptcy ought, because of its subject-matter, to be conducted in the same forms as any other suit in chancery-instituted in State courts would be subject to appeal to the State courts of last resort. They would rarely ascend higher, because the authority of the act of Congress would hardly be brought in question. Difficulties would no doubt present themselves, as they do at present; but we would be spared the humiliation of announcing to the world that we are compelled to give our debtors license to defraud their creditors, because we cannot find any custodians for the benefit of the creditors who will not commit greater robberies than they prevent. THE INSTITUTE OF INTERNATIONAL LAW Probably the same causes which for so many centuries doomed the Netherlands to be the theater of war have contributed to confer on them the proud distinction of being the cradle and the nursery of peace. Certain it is that the land of Grotius has never forgotten the traditions which cluster round his name; and equally certain that if Belgium has remembered more of the theology of the Jesuits than we as Protestants or her own liberals may believe to be for her good, she has remembered, alongside of it, the jurisprudence of Soto and Suarez of Grenada, in which that of Grotius originated. The only periodical of real importance in the branches of study which we cultivate here, issues from the press of one of her grand old provincial cities, and it was in that city that the first society of scientific jurists for the cultivation of international law was formed little more than two months ago. of historical evidence. Even of the mental sciences in the stricter sense, the same, with a difference, may be said. The soil may be more shifting, but the methods of cultivation have improved, and the tillage is left to skilled hands. Nobody approaches logic or metaphysics without, at any rate, affecting to inquire seriously into natural laws. It is not till we come to ethics that popular takes precedence to scientific action, that pursuit of natural law is confessedly— nay, professedly - abandoned, and that we hear of a "principle of utility," which means, not the discovery whether by observation of results or otherwise, of rights and duties, and of the means of their realization in special circumstances, but the enunciation of individual preferences and the gratification of ephemeral caprices. It is not till we come to politics, national or international, that we take leave of rational inquiry altogether, deny that there is even any thing rational to inquire after, and complacently pass over to the guidance of passion and chance. The function of exposition, which in other branches of knowledge follows after that of investigation, here occupies the whole field. Everybody discourses, and applauds, and ridicules, from some more or less gratuitous party assumption or sectarian dogma, but nobody inquires or works; and when the period for action comes, as come it must, we find ourselves pretty much in the same condition as if the subjects had never been mentioned at all. It is then that we call in despair on the science which we despised; that we invoke the guidance of its individual representatives whom we slighted. Diplomatists, arbitrators, practising barristers, party politicians, and newspaper editors, rush to the study of Heffter, and Wheaton, and Bluntschli, and Hautefeuille, and Ortolan, and Calvo, and the But, alas! the oracles are not agreed, and many of their responses are little better than historical records of practices still more conflicting. No acknowledged principles have been discovered; no fixed objects have been determined by the consent of the learned; and out of a chaos of contradictory opinions, most of them partially correct, but which can be made to tell in almost any direction, men to whom the whole subject is new have to pick out some sort of rule of present action. Can it be wondered at that in such circumstances we end in passing municipal enactments of international import, and framing international treaties gravely affecting domestic well rest. In our own country and elsewhere the investigation of the physical laws of nature is conducted, both separately and in conjunction, by experts whose lives are devoted to the pursuit. In that region of inquiry science traces the chart by which art and industry are to sail; theory is laid at the root of practice, and progress is manifest and indisputable. Popular sympathy, so far from being an impediment, is there an encouragement and a stimulus. However uninstructed may be the outside public which gathers round a meeting of the British Association; however wild may be the hypotheses which are started by enthusiasts with reference to the unexplored and possibly inexplorable border-land between mind and matter, no one disputes the existence of law, and within the region of physics proper, men are willing to be guided in the pursuit of law by those in whose hands scientific labor has placed the means of its actual dis-being, very much as the apparent interests or prevailcovery. In chemistry, in physiology within its true limits, above all in mathematics and its applications to mechanics, engineering, astronomy, there is no guess work, there are no "leaps in the dark." Within the last twenty years philology has made such marvelous strides by the same careful application of means to ends, as to bring pre-historical almost up to the level * Introductory Lecture delivered by Professor Lorimer to the Class of Public Law in the University of Edinburgh on the 4th of November. ing passions of the moment dictate? It is fortunate if we stop there, and do not tie ourselves down for the future to the observance of rules of impossible execution, the only merit of which is that for the time being they help us to a solution in circumstances in which any solution is better than none. It was this train of thought, coupled with the pressing necessity which recent events had revealed, which, in the spring of the present year, led M. Rolin Jacquemyns, the learned Redacteur-en-chef of the Revue de Droit International, to determine on carrying out a scheme which had suggested itself simultaneously to several of the most eminent of his coadjutors, for the organization of collective activity on the part of the most prominent individual cultivators of international jurisprudence. In March last he addressed a confidential communication to about twenty jurists, amongst whom he did me the honor to include me, suggesting "a private meeting of a limited group of men already known in the science of International Law by their writings or by their acts, and belonging as much as possible to different countries." "Hitherto," he continued, "the movement toward the regularization of international relations has manifested itself in two ways: "(a) By diplomatic action, that is to say, by the proceedings, the correspondence, the conventions, or the congresses of representatives officially accredited by certain nations. "(b) By individual scientific action, that is to say, by writings having for their object to express, in a precise, methodical and reasoned form, the whole or a part of the rules which their author considers as those which are followed, or which ought to be followed, in international relations. "Diplomatic action originally intervened only after the termination of wars, in order to discuss and to determine the conditions of peace. At present it tends, with a good will not always sterile, to meet requirements of a higher order. Thus we have seen it already more than once endeavor "1. To trace certain general rules dictated by a spirit of humanity and justice, and going beyond the political necessities of the moment. "2. To admit into the domain of positive International Law an increasing number of relations which till then were held to belong to national law. "3. To accomplish the arrangement of international differences by pacific arbitration. "Individual scientific action, in a manner equally progressive, has more and more recognized the obligation which lies upon it to give a reasoned direction to public opinion by formulating rules which, as far as possible, exhibit the characteristics of certitude and practical efficacy. Already some jurisconsults have adopted for their writings the form of veritable codes. It would seem, then, that for the science of International Law we are arrived at an epoch corresponding to that of the appearance in the history of the national law of several peoples of those collections (recueils) due to private sources, and which have served as a transition between simple customary tradition and homologous custom or written law. But these progressive aspirations of the two grand factors of International Law come in practice in collision with the gravest obstacles. Diplomacy is impeded by conflicts at least apparent between the political interests of the particular peoples who are the subjects of the law, and the collective interest of international society; individual scientific action is rendered impotent by the fact that isolated speculations or works, however great may be the merit or the reputation of the man whose name is attached to them, do not carry sufficient weight to dominate passions and triumph over prejudices. Hence the gaps which jurists and philosophers discover in International Law, and which may be thus summed up: 1st. The uncertainty or silence of the law itself on many essential points; 2d. The defect of means sufficient to prevent violations of law from exhibiting themselves in practice, or to satisfy the public conscience by condemning and punishing those which have been committed. The moment does not seem to have yet arrived for filling up these gaps in a complete manner. If we cannot say that International Law is entirely destitute of sanction, it certainly does not possess it in all cases, and perhaps it is condemned for a long future to possess it still very imperfectly. To those who look reality in the face, war continues to present itself as a frightful extremity, which we must apply ourselves to rendering as rare and limited in its effects as possible, but the occurrence of which it would be chimerical and puerile to pretend altogether to avoid. The remedy consisting in the establishment, without and above individual States, of a permanent tribunal or permanent legislature, armed with the authority necessary to execute its laws or its judgments, would be, supposing it possible, as great as the evil. For if such a tribunal, or such a legislature, were so powerful as to render it impossible even to attempt to resist its decisions, a power so immense over the whole civilized world would be a danger rather than a guarantee; and if, on the contrary, the efficacy of its decisions could be combated, their practical value for the maintenance of peace would be diminished in proportion. "Is there then nothing to be done? The object, on the contrary, which I have in view, is to call the attention of the eminent persons to whom this writing is communicated to the necessity, the possibility, and the opportuneness of giving body and life, alongside of diplomatic action and individual scientific action, to a new and third factor of International Law: to collective scientific action." With scarcely any exception, M. Rolin Jacquemyns' correspondents responded favorably to this appeal. The desirableness of collective action by personal intercourse, and, if possible, by verbal communication, between the small number of persons who, in each country, are seriously and continuously engaged in the study and definition of international relations, was admitted on all hands. But the actual bodily assemblage of such persons in one place, which, whereever it was fixed, must of necessity be distant from the homes of most of them, was felt from the first to be no easy matter. Imperative demands on their time in their respective countries, it was foreseen, would retain one class of persons whose presence would have been of the utmost importance — for ter said of it long ago, equally exceeds my powers of description. I must tell you what we did in the morning, not what we enjoyed in the evening. INSTITUTE OF INTERNATIONAL LAW. Statutes voted by the Conference of International Lawyers at Ghent, 10th October, 1873. though, for obvious reasons, diplomatists in active service were not invited, it was by no means intended to exclude those who had acted as diplomatists, or otherwise taken a practical share in international Well then: The original proposal that we should affairs. Others, it was known, would be deterred discuss certain open questions of International Law from a long and fatiguing journey by age and infirmity in the first instance, and then formulate the Statutes and other considerations. From the first cause, of a permanent Institute for the scientific cultivation mainly, none of the arbitrators at Geneva could be of International Law, was reversed; and though we present, though they express their sympathy with, sat six hours the first three days, and three hours the and interest in, the objects of the meeting. The fourth, we were only able to accomplish the first part burden of his fourscore years deprived us of the co- of our business. The result of our labors was the operation of the venerable Heffter. Blindness pre- formation of an Institute, of the specific objects and vented M. C. Lucas from sharing our deliberations. character of which I shall best convey to you a conThe health of M. de Parieu of the French Academy ception by reading to you, in translation, the statutes did not admit of his undertaking the journey; the which, after much discussion, were unanimously same cause compelled Mr. Westlake, the English editor adopted. They are not long; and in the original, at of the Revue, to absent himself; and Professor von any rate, they are expressed with that clearness and Holzendorf was detained by the sickness of a mem- precision which so happily distinguishes the language ber of his family, though the three latter gentlemen of our neighbors. had been amongst the original projectors of the Conference. But, notwithstanding all contingencies, when the day of meeting came, M. Rolin Jacquemyns had the satisfaction of seeing ten of his coadjutors gather around him-grave elderly gentlemen for the most part, but full of life and spirit, and eager for the work in which they were about to engage. There was Professor Bluntschli of Heidelberg, the celebrated author of the "Codified Treatise on International Law," and of many other works both on the Law of Nations and on Public Law; Signor Mancini, deputy of the Italian Parliament, former minister, now Professor of International Law at the University of Rome, and one of the founders of the National School of Italian Jurists, who was unanimously chosen president of the meeting; M. Carlos Calvo, formerly Minister of the Argentine Republic, and corresponding member of the Institute of France, author of a "Theoretical and Practical Treatise on International Law;" M. Besobrasoff, member of the Academy of St. Petersburg, author of various works on finance and social science; M. Moynier of Geneva, the wellknown founder of "La Croix Rouge;" M. Asser, Professor of Law at Amsterdam, the Dutch editor of the Revue; M. de Laveleye of the University of Liege, etc.; ultimately, Mr. David Dudley Field of New York joined us. I wish I could describe to you the picturesque locality and the social surroundings of a meeting which is not unlikely to be of historical interest - the noble old Hotel de Ville in which we assembled in the morning, the hospitable dinner-tables at which we spent our evenings, the flowers which adorned them, the wines which enriched them, the gaiety which enlivened them, and the graceful discours d'occasion, in which our hosts, I fear, surpassed those of my eminent colleagues whose fortune it was to respond to their expressions of sympathy and interest. But I must not linger now over even Flemish feasting, which, if it surpasses English powers of enjoyment, as Leices Article 1. The Institute of International Law is an exclusively scientific association, and with no official character. Its object is: (1.) To favor the progress of International Law by seeking to become the organ of the legal conscience of the civilized world. (2.) To formulate the general principles of the science, as well as the rules which result from it, and to spread the knowledge of it. (3.) To give its aid to any serious attempt at gradual and progressive codification. (4.) To endeavor to procure the official recognition of such principles as shall have been recognized as being in harmony with the requirements of modern society. (5.) To labor within its proper sphere, whether for the maintenance of peace or for the observance of the laws of war. (6.) To examine the difficulties which may arise in the interpretation or the application of the law; and to give, when required, legal opinions, with the grounds on which they rest, in doubtful or controverted cases. (7.) To contribute, by publications, by public teaching, and by all other means, to the triumph of the principles of justice and humanity which ought to regulate international relations. Art. 2. As a general rule, there shall be one session annually. Before the termination of each session the Institute shall determine the place and the time of its next meeting. Art. 3. The Institute shall be composed of effective members, of auxiliary members, and of honorary members. Every member of the Institute shall receive a diploma. |
