izations it is not recognized at all, but all private property then escheats to the lord, the tribe, "the public." In the most advanced civilizations the right of bequest is hedged with conditions which would be oppressive and tyrannous if it were recognized as a natural right, but are reasonable when it is regarded as the creature of legislation Every legacy and succession duty is a limitation upon the right of a man to do what he likes with his own after it passes by death out of his own possession. Men are permitted to transmit their property, or some part of it, as a matter of public policy, not as a matter of inherent right. If literary property be entitled to be put upon the same fcoting with any other, it is not entitled to be pu upon a better. It is just two centuries since the first English copyright law recognized literary property at all. There had been before an "ordinance prohibit ing the printing of any book without the writer's consent. In spite of this Dean Swift found himself powerless to prevent the sale under his own nose of what we should call a pirated edition of hi miscellanies. The "Thomas Teggs and other extraneous persons" had it all their own way. Our notions have advanced beyond that. But the notion that it is public policy and not natural righ that secures to the author a part of the profit from the sale of his books is still at the bottom of our legislation on the subject. Certainly it is distinctly expressed in the Constitution of the United States, from which congress gets its power to enact copyright laws. This is the power "to promote the progress of science and the useful arts by securing, for limited times, to authors and inventors, the exclusive right to their writings and discoveries." So that an American copyright, by its terms perpetual, would evidently be unconstitutional and void. since the former trial, like many other topics of We cannot imagine any very serious public grievance as arising from perpetual copyright. It would be in the author's power to annoy and baffle people who desired to buy his books. The While it is evident there is no underlying prinlate John Ruskin managed to do that by refusing ciple on which this limitation requiring privity to avail himself of the ordinary commercial ma- between the parties offering the evidence in the chinery for distributing books. Mr. Clemens pro- two cases may be supported, no fault can be found poses to guard against the possible perversity of with the decision, as it is probably as well for the authors by requiring the issue of a cheap edition as courts to adhere closely to precedent in decisions a condition of continued copyright. But evidently on the law of evidence. The established rule resuch a condition is an impairment of complete quiring privity between the parties, for this eviownership, and seems to give away the whole case dence to be admissible, is apparently based on the of "natural right." The mechanical inventor is same misconception as the doctrine that the adupon the same footing, ethical as well as legal, as missions of a grantor are evidence against his the literary inventor. The mere renewal, permitted grantee: namely, that the rule that the grantee's by law, of certain patents, has been opposed, and substantial rights may be cut down by the acts of upon plausible grounds. as a wrong to the public. the grantor before convevance has some applicaA perpetual patent might be an awful oppression tion to the evidence admissible in a suit to which Think what would happen if the heirs of James the grantee is a party. Undoubtedly, one should Watt were entitled to royalty upon every steam only get the interest his grantor had to give, but engine used in the world. or. much more, if they it is an altogether different matter to allow the should conclude not to allow any more steam en-acts of the grantor to affect in this way the evi dence admissible in a suit by the grantee (Paige v. Cagwin, 7 Hill, 361). The argument of the court in Morgan v. Nicholl (L. R. 2 C. P. 117), that for the evidence to be admissible against one it must be admissible against both, would seem without foundation. Of course the plaintiff here could justly object to its admission, because he had no opportunity to cross-examine the witness, but why should the defendant object who had? The cases of res judicata and estoppel, which are often cited as indicating the proper rule for this subject, rest on an entirely different principle. There has, indeed, in some jurisdictions, been a slight deviation from the general rule in criminal causes. In a civil trial for an assault, the evidence of a deceased witness given in a criminal trial for the same assault has been admitted (Kreuger v. Sylvester, 100 Ia. 647). And dicta are occasionally found that if the opposite party had the right of cross-examination it is sufficient. Undoubtedly this desirable result will eventually be reached. Harvard Law Review, April, 1900. TRANSVAAL FORFEITURES OR INCUM- 'T is announced from the Cape, and confirmed in has issued a proclamation to the effect that the British government will not recognize any forfeitures or incumbrances or the like declared or cre the de facto government of the territory during the war must in international law be recognized by Great Britain in the event of re-conquest, and this contention receives support from the opinion of the Court of Appeal in the Balmaceda Treasure case, The Republic of Chile v. The London and River Plate Bank ([1894] 10 T. L. R. 658), where the court held that a contract made by Balmaceda during his presidency could not be repudiated by his successors in the government of Chile, although certain of Balmaceda's acts with respect to the contract had been done after his resignation of the presidency. The distinction, however, in favor of the present proclamation is that the contractors had no notice of the resignation or of the recognition of the new de facto government in Balmaceda's stead; and the proclamation will at the least operate effectively against British subjects or Africanders who take concessions of property forfeited by the Boer governments during the - Law Journal (London). war. Tegal Notes. Circuit Judge Samuel W. Vance, of Port Huron, Mich., died very suddenly on the 3d instant. He had been troubled with a pain in one of his ears for several weeks, but not to such an extent as to prevent him from attending to his duties in the court-room. On the day of his death the pain suddenly increased, and it became evident that an abscess had formed on the brain. Judge Vance was an able and popular judge, and his death is a less to the whole State, as well as to the particular circuit which he served so faithfully. He was serving his second term as judge at the time of his death. The commission for statutory revision is to go. All of its bills are dead and the commission itself is to be abolished unless pending legislation fail in the hands of the governor. Failure is not expected, as the bill was advanced through the governor's efforts. This commission has done a great deal of mischief in altering statutes instead of codifying them. The laws have been in such a state of change that lawyers themselves were puzzled and ated by the Transvaal government on properties in the Transvaal since the outbreak of the war on October 10. The commercial importance of this declaration is obvious, for it means (1) that in the event of conquest the acts of the Transvaal government against persons who have incurred hostility as British subjects or by declining to be commandeered will be regarded as invalid; (2) that persons who seek to profit by these acts, to the detriment of persons subjected to confiscation, wil not profit by concessions made during the war. It is likely that the Transvaal will seek to enlist European interests on their side by granting to European concessionaires properties taken away from British subjects, and early warning of the informality of a title so acquired was, to say the least, desirable. But we do not doubt that diplo-litigation was rendered difficult. The money, over matic difficulties will arise in settling any cases where such concessions have been given. proclamation is also significant, as indicating that the British government take the view that the declaration of war by the Transvaal amounts to a forfeiture of its title to independent government of the State under the conventions of 1881 and 1884, and the reversion of the territory to its former condition of British territory. But it will be necessary to obtain the assent of foreign pow ers to this doctrine; and it is more than likely the they will contend that the obligations created by The $200,000, expended by the State in support of this commission and its work has been practically wasted. Mr. Lincoln, of the commission, will remain as counsel to the governor. It would appear that the movement for abolition did not refer to him. - Rochester Democrat and Chronicle. The New York legislature has passed and the governor signed an act amending sections 768, 1203 and 1214 of the Code of Civil Procedure. These sections relate to motions and applications for judgment, and provide that in a large number of instances they may be made before a justice of in consequence enabled to make phenomenal progress in his profession. A decision in respect of the great Douglas v. Hamilton case by the Edinburgh Court of Session was being appealed against the court out of court. The Constitution provides was there that in 1767 Edward Thurlow, afterwards that justices of the Appellate Division can transact lord chancellor, who has just been called to the no other business besides appellate business, ex-bar, by accident picked up his first brief, and was cept that which can be done by a justice of the Supreme Court out of court. This provision of the Constitution has caused a great deal of embarrassment to members of the bar wherever a justice of the Supreme Court has been placed in the Appel-in London, and young Thurlow, who was opposed late Division. It rendered them practically useless for all other purposes. These amendments make it possible to make applications for orders and judgments to justices out of court in a large class of cases that heretofore had to be made to the Special Term. Members of the bar will hereafter be able to make use of the justices of the Appellate Division in a large number of cases where heretofore they were prohibited from acting. English Notes. It is stated that the late General Joubert in early life was a law agent. This led to his election as the Volksraad member for Wakkerstroom in the early sixties. His vigorous use of the slender stock of legal knowledge he had acquired led eventually to his appointment as the attorney-general of the republic, his path to this position having been paved by his occupation of minor official posts. At last, says the St. James's Gazette, the award of the Berne Arbitration Court is to be made. Exactly ten years and nine months ago took place the illegal seizure of the Delagoa Bay Railway and the annulling of the concessions by the Portugese government. On the 5th of July, 1889, about a fortnight after that seizure, arbitration was agreed upon, and the first court sat a couple of years later. That ten years should have been taken in deciding the merits of even a complicated case such as this is, to say the least of it, surprising. The attention of the law officers of the crown has, says the Times, been called to a possible hardship that may arise in the case of a solicitor's articled clerk who has, in the present exceptional crisis, volunteered for service in South Africa or joined a militia regiment. It appears that before an articled clerk can be admitted as a solicitor a declaration has to be made by his employer that he has not been engaged in any other employment during the period of his clerkship; so that the service of an articled clerk in the auxiliary forces might be held to constitute a disability for his admission as a solicitor. A legal correspondent of the Daily Telegraph writes: In reference to the historic No. 17 Fleet street, which is to be preserved by the county council, it may be noted that in the last century it was Nando's famous coffee-house, which was frequented by many legal celebrities of the day. It to the Scotch pronouncement, argued learnedly against it in Nando's. He was overheard by the legal gentleman in charge of the appeal, and was at once briefed as junior in the case. Eventually the decision of the Court of Sessions was reversed. Legal Laughs. Sir M. S. Grant Duff, in his recently published Notes from a Diary," 1886-1888, says that during his stay in Edinburgh in November, 1888, conversation turned at dinner to the suit in which Alexander Russel, the editor of the Scotsman, had been cast in damages for a libel on Mr. Duncan Maclaren. Amongst other amenities it appeared that he described that gentleman as a 66 wee snake." Some time after Russel avenged himself for losing his suit in an article upon some statistics which his old enemy had put together, by remarking that Mr. Duncan Maclaren was a 'great adder." Another anecdote recorded was the saying of Chief Justice Erle to some one who had offended him: "You don't know the strength of the expression which I am not using."-Solicitors' Journal. New Books and New Editions. Democracy and Empire. With Studies of Their Psychological, Economic and Moral Foundations. By Franklin Henry Giddings, M. A., Ph. D. New York: The Macmillan Com pany, 1900. 66 Prof. Giddings is a well-known student and teacher of sociology in Columbia University. He has given to the problems of "Democracy" and 'Empire" careful, painstaking study, and has viewed what he well terms the "democratic tendencies of the nineteenth century" from the standpoints of industry, of politics and of education, in order to understand and explain how it is that 'democracy and empire, paradoxical as such a relationship seems, are really only correlative aspects of the evolution of mankind." The volume is, in form, a collection of essays, but it is, as the author truly says in his preface, much more, for all the papers included may properly be regarded as logically related parts of a whole. Among other topics discussed are these: The Democratic Em pire; The Ethical Motive; The Mind of the Many; The Costs of Progress; The Trusts and the Public; The Railroads and the State; Public Revenue and Civic Virtue; Some Results of the Freedom of Women; The Nature and Conduct of Political Majorities; The Relation of Social Democracy to the Higher Education; The Popular Instruction Most Necessary in a Democracy; The Shadow and the Substance of Republican Government; The Consent of the Governed; Imperialism; The Survivals of Civil Liberty; The Ideals of Nations; The Gospel of Non-Resistance. All these subjects are discussed with candor, ability and eminent fairness, and in a way that cannot fail to prove helpful to the student of the great problems of to-day. Prof. Giddings is entitled to thanks for thus giving to the public a series of addresses which, though most of them were intended only for the classroom, are so enlightening as to be worthy of far larger and more general circulation. The Golden Horseshoe. Edited by Stephen Bonsal. New York: The Macmillan Company. 1900. This volume of some 315 pages consists of alleged extracts from the letters of Capt. H. L. Herndon, of the Twenty-first United States In fantry, on duty in the Philippine Islands, and Lieut. Lawrence Gill, A. D. C. to the military governor of Puerto Rico, with a postscript by J. Sherman, private Co. D, Twenty-first Infantry. Of course, the gentlemen above named (save the editor, Mr. Bonsal) are fictitious, and the fiction was invented so as to enable Mr. Bonsal to say what he wished to say about the late war with Spain without direct responsibility therefor. As may be imagined, some of the comments are highly spiced. The book makes quite interesting reading, and is not without value as a contribution to the history of the late unpleasantness with Spain. Literary Cotes The opening article in The Living Age for April 7 is an affectionate yet discriminating consider ation of Mr. Ruskin on his personal side by Julia Wedgwood, who knew him well. The Puerto Rican tariff question is editorially discussed in the Review of Reviews for April, and in the same magazine there is an able exposition of the relations of the United States Constitution to the territories, by Prof. Harry Pratt Judson, of the University of Chicago. The Baron de Coubertin has just completed his book on "France Since 1814," which The Macmillan Company will publish at once. The work attempts to set clearly before the world unvarnished account of the political changes in the France of this century about which so many unfounded beliefs obtain in the rest of Europe. an In view of the phenomenal vogue of the popular novel it is amusing to be reminded by Prof. Francis H. Stoddard, in his book on "The Evolution of the English Novel" (Macmillan), that the novel as a literary form has fought its way against prejudice and that it is but a few years since apologies for putting this or that study of life into the form of a novel have disappeared from the prefaces. It is difficult to conceive how a magazine could be more happily or more helpfully adjusted to the more important interests of the present moment than is the April number of the North American Review. Not only does this number afford American readers the most effective opportunity availble to them for mastering topics of living concern, but it contains several contributions whose literary excellence will entitle them to attention for many years to come. The complete novel in the New Lippincott for April is entitled "The Heart of the Ancient Wood," by Charles G. D. Roberts. The few but large-souled human characters in it live in the woods of the north, close to Nature's heart, with he beasts of the forest for their friends. Yet even here the old, old story is very present; the wild urroundings cannot entirely efface the coquetry atural to woman, and there is rivalry of a unique kind to bring this out. In sureness and variety of attraction, it would be hard to surpass McClure's Magazine for April. The account of the interior of China, especially with reference to its rich promises as a market for America, written by Mr. W. B. Parsons, chief engineer of the American China Development Company, from observations made on his own journeys, and illustrated very fully from photo graphs taken by him; the account of Prof. Huxley's life in London between his twenty-sixth and thirtieth year, when he was having a terrific struggle to maintain himself by purely scientific work, with its self-revealing passages from his unpublished correspondence and its new portrait of him; and the account of the Russian ship Ermack,” the marvelous new ice-breaker that gives promise of being able to cut a passage for herself to the Pole, these are all, in their several ways, articles of the strongest interest and the highest value. The April issue of the International Journal of Ethics is one of the best issued in many months. The leading article is a thoughtful discussion of The Nature and Significance of Monopolies and Trusts," by Prof. Richard T. Ely, of the University of Wisconsin. The problem is a pressing one, and Prof. Ely has given it years of thought and study. Other articles are: "The Ethics of Expansion," by H. H. Powers, of Cornell University and "The Ethics of Our Philippine Policy." h Herbert Welsh, Philadelphia. It will thus be seen that the Journal is keeping right abreast of the movements and thought of the times. The Albany Law Journal. A Weekly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest are solicited from members of the bar and those interested in legal proceedings. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] Subscription price, Five Dollars per annum in advance. Single number Twenty-Five Cents. WE ALBANY, APRIL 21, 1900. Current Topics. WE are pleased to observe that the Hon. Jonathan P. Dolliver, representative in Congress from the State of Iowa, agrees with us in his unqualified condemnation of the National Bankruptcy Law, and that he has introduced a bill in Congress to wipe it off the statute book. Mr. Dolliver seems to coincide with the ALBANY LAW JOURNAL in the view that the act is an unmitigated fraud. "It is one thing," he declares, to wipe an old slate; it is another to put American business for all time to come on the basis that nobody need pay what he owes unless he wants to. It presents a standing invitation to the young men of the United State now free from debt, and about to embark in business, to plunge into whatever speculation they please, with the assurance that their country stands ready to wipe out all their obligations if, at the end of their exploits, they have enough money left to file an application in bankruptcy. Transactions have been going on for nearly two years (in the United States), possible only in prosperous times, which, unless checked by conservative commercial influences, will prepare the way for a universal collapse of private credit." This does not seem to us at all an extreme statement of the case, but rather a moderate attempt to describe the rascalities that are flourishing under the operation and sanction VOL. 61-No. 16. of this most ill-advised and dangerous law. That it fosters fraud and keeps a convenient way open for the operations of financial harpies who fatten upon legitimate commerce, there can be no doubt whatever. Since the act went into force, it is said, fully $70,000,000 of debts have been wiped out in New York city alone, and we have no less reliable authority than that of Judge Brown of the United States District Court for Southern New York, for the statement that a large part of this vast sum was sworn off by fraud which the court was powerless to prevent. Judge Brown freely concedes that the present Bankruptcy Act "is distinctly a law for the debtor, not for the creditor." We believe the act will soon be repealed, and propose to lend our efforts in seconding the plans of Representative Dolliver in that direction. Despite the popular and professional prejudice existing against what has come to be known as "expert evidence," we venture to give what a murderer on the scaffold and just about to die, had to say about capital punishment. Albert Michod was about to expiate his brutal crime of killing his divorced wife in cold blood in the city of Tacoma, Wash. The noose was about the condemned man's neck and he was asked whether he had anything to say before the sentence of the law was executed. He replied: Gentlemen: I am here to die. I am face to face with death. I have committed many errors during my life, for which I am sorry. You see my hair is very gray, but there is good reason for it. I want to say more, but do not feel like it. But this I want to say want to say-the best medicine against murder is capital punishment. Good bye; that's all." Here we have a confessed and condemned man, about to forfeit his worse than useless life, giving his unsolicited testimony to the effect that the death penalty should be retained as "the best medicine against murder." Of course, it will be said that the fear that capital punishment would be executed upon him did not deter this man from killing his former wife in cold blood – which is evident enough - but what he meant, we take it, is that the grewsome scene - |