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in the body, it would be straining a point to accord to the title the predominant part that is now urged for it. The title being disposed of, there is nothing in the act itself to in any way disturb us. It did not undertake to undo what had been done by the treaty. At most it merely neglected to take such steps as would have brought the statute law into complete conformity with its provisions. But the treaty was not dependent upon this. It went into effect of its own force some six months before. And it is not to be set aside in any such indirect and inconclusive manner after that. It is also further to be observed that, even if the Act of 1903 is held to have superseded or abrogated the treaty, the treaty having gone into effect in this way meantime, the patent in suit and others similarly situated were thereby freed from their dependency upon corresponding foreign patents, and they could not be put back by the act into their former position, which would offend against the principle of nonretroactivity contended for, even more seriously than anything which is now complained of.

Taking treaty and acts of Congress together, therefore, the case stands this way By section 4887, Rev. St., a domestic patent for the same invention previously patented abroad was made dependent on the term of such foreign patent, by which it was limited. The Act of March 3, 1897, removed this restriction, but provided (section 8) that it should not apply to patents granted prior to January 1, 1898, nor te applications filed before that on which patents were subsequently granted. This prevented the patent in suit, for the time, from having the benefit of this legislation, having been applied for December 29, 1897, two days within the period fixed by the proviso. Then the additional act of Brussels of 1900 was ratified, by which, according to article 4 bis, there was a complete unfettering of foreign and domestic patents for the same invention; and this by express terms was made to apply to existing patents. Such was the state of the law, and such the position of the patent in suit, when the Act of March 3, 1903, came into existence. As just stated, this could not undo what had already been done, nor put back the patent into its former dependent condition. Having become entitled to the full term of seventeen years accorded to patents generally, it could not thereafter be again restricted. Nor did the Act of 1903 indeed, undertake to do so. It simply re-enacted section 4887, as amended by the Act of 1897, leaving out the limitation which time and treaty had doubly disposed of, and introducing certain provisions in conformity with the treaty. It is only by reading into this record that which is not to be found there, and has

no rightful place in it that the treaty was not retroactive, and was not self-executing, contrary to the plain effect of it that the patent can be cut down or made dependent again upon the terms of the French patent.

For both reasons, therefore, which were discussed at the argument, the plea interposed in the court below, in my judgment, was bad, and should have been overruled; and the decree sustaining it must be reversed in consequence.

IN RE MITCHELL

District Court for the Southern District of New York, June 30, 1909 171 Federal Reporter, 289

On Application for Admission to Bail Pending Extradition Proceedings.

HAND, District Judge: In this case the petitioner applies for bail under special circumstances. He has been arrested on extradition papers which have been issued from Canada and under which he is charged with what, in the State of New York, would be larceny. A warrant has been issued by Commissioner Alexander, and he is at present in the Tombs prison awaiting the final determination upon his extradition. The warrant was issued against him Thursday, June 24th, which was just upon the eve of a trial in the Supreme Court of the State of New York, in this county, in which he is the plaintiff and the moving parties in the extradition proceedings are the defendants. The trial commenced on the 25th, and I then issued a habeas corpus ad testificandum, upon which he appeared in court on the 25th and testified. The suit involves a very large sum of money; indeed, from the papers, I understand that it involves all the fortune of the prisoner. The application is made to enlarge him upon bail for the reason that at present he is entirely unable to consult with his counsel and prepare for the remainder of the trial, which will consume, probably, the 28th, 29th, and 30th days of June. The application is opposed by the Canadian agent with much vigor, who contends that I have not the power to grant bail in such cases. My understanding of Wright v. Henkel, 190 U. S. 40, 23 Sup. Ct. 781, 47 L. Ed. 948, is that the existence of the power was distinctly affirmed by the Supreme Court. The court at the same time clearly indicates its

1 [AMERICAN JOURNAL OF INTERNATIONAL LAW, vol. 1, p. 202.]

judgment that the power should be exercised only in the most pressing circumstances, and when the requirements of justice are absolutely peremptory; but still I can not read that opinion without recognizing that the court understood the power to exist.

The petitioner also relies upon Pettit v. Walshe, 194 U. S. 205, 24 Sup. Ct. 657, 48 L. Ed. 938, which construed the proviso of the sundry civil act of 1894 (Act Aug. 18, 1894, c. 301, 28 Stat. 416 [U. S. Comp. St. 1901, p. 717]) as applying to extradition cases. I do not, however, interpret that proviso or the opinion as indicating that the Supreme Court in any sense meant to do more than say that section 5270 of the Revised Statutes (U. S. Comp. St. 1901, p. 3591) was modified pro tanto by the sundry civil act, and only to the extent of providing that the extradited person must be brought before the nearest commissioner. We should not interpret that opinion as independently recognizing the right to take bail, but that right must depend entirely upon Wright v. Henkel, supra. In several cases in this district commissioners and judges. have issued bail under similar circumstances, and while I quite agree with the learned counsel for His Majesty's government that the right is a dangerous one, and ought to be exercised with great circumspection, it seems to me that the hardship here upon the imprisoned person is so great as to make peremptory some kind of enlargement at the present time, for the purpose only of free consultation in the conduct of the civil suit upon which his whole fortune depends. Those special circumstances alone move me to allow him to bail, and his enlargement is to be limited strictly to the period of that suit. As soon as that is terminated he must be returned to the Tombs prison to await the determination of the commissioner upon the extradition proceedings. Until, however, that suit is terminated, I will order him released upon bail in the sum of $3,000. I am also moved to this disposition from the fact that he has long known of these proposed proceedings and has made no effort to avoid them or

to escape.

Let an order be entered to that effect.

BOOK REVIEWS1

L'Avenir De L'Arbitrage International. Par J. M. van Stipriaan Luïscius, Docteur en Droit, Avocat a La Haye. Published at Brussels and Paris, 1907.

This is a work of 105 pages, the first 46 of which are devoted to advocating a convention to complete the pacific regulation of international conflicts.

The proposed convention is then submitted in 166 articles, mainly very brief and clearly expressed, and, while bold and simple in their provisions, in some respects highly novel.

The work closes with some 19 pages, mainly an earnest and sometimes impassioned appeal for publicity and discussion as to this proposal, in order that its merit may become known, its adoption by the nations of the earth assured, and the great good of substituting arbitration and peaceful negotiation and adjustment for war in international disputes be accomplished.

The author is most hopeful as to these results and as to the merits of his scheme.

The proposition, while leaving the utmost freedom to arbitration, in the first instance, provides for a court of appeal in matters of international arbitration in which each signatory power designates a member. This court is divided into two chambers, one for questions of public and the other of private international law.

The court is to be permanent and to assemble on days fixed annually in advance.

Its procedure and pleadings are provided for.

The members of the court choose a president and a vice-president annually.

The language used before and by the court shall be French, English or German, and any state using any other must have it translated into one of them and the president and vice-president must speak, understand and write these three languages.

It is curious to compare this requirement with William Penn's scheme. for a European Diet. He provided that in the session of his sovereign estates the language spoken must be either Latin or French, saying "the

1 The JOURNAL assumes no responsibility for the views expressed in signed Book Reviews. J. B. S.

first would be very well for civilians, but the latter more easy for men of quality."

The conventions we are considering provide that the court shall sit at The Hague and its members reside there.

Judgments shall be given in all three languages mentioned above. The court having twice given the same decision can not in twenty years give a different decision in like case.

At the age of 70 the judges shall retire with pensions equal to their salaries, which are 50,000 francs per year and for the vice-president 65,000 and the president 100,000 francs.

The court may act as a court of first instance if parties so agree. The court and its entire entourage is declared neutral and "Le signe de la neutralité *** est une balance blanche sur un fond bleu."

The president shall have the title of ambassador, the vice-president of envoy extraordinary and minister plenipotentiary and the members of the court that of minister resident and they may not accept decorations. They must abstain from all other salaried functions.

The "jurisprudence" of this court is based on international law found in treaties and expounded by the writers.

The judges must at first compose digests or pandects of such law.

The court may function as a court of law, after an international inquiry, to apply the results to the difference according to the law of

nations.

It may function as a contriving (projetante) court to devise treaties to end differences.

And still further as a contriving court of appeal, if necessary.

There is some slight suggestion of the Bureaux de Conciliation in the project of the Abbe St. Pierre in this and it recalls Sir Edmund Hornby's proposition by which the Tribunal of Arbitration could arrange a modus vivendi between the disputants pending a decision. The author advocates such powers on the theory that many disputes arise from conflict of interest and not from conflict of rights.

This difficulty was discussed by the writer of this review before the International Law Association of London in 1907 and its solution through expropriation by arbitration was considered. (See Harvard Law Review, Vol. 21, page 23.)

The proposed tribunal may function as a court of complaints to hear complaints of injustice between nations and determine whether or not there has been such and, again, may act as a court of appeal as to such complaints.

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