grew largely out of its real or supposed bearing upon the tariff legislation for Porto Rico. The part of the opinion which excited popular and political interest was really obiter. What was actually held was that when the petitioner was tried by a military tribunal in Porto Rico, such tribunal had jurisdiction to try, convict and sentence him, as the treaty which ceded the island to the United States, although signed, had not become effective as to private rights, because the exchange of ratifications was not completed until some time thereafter. The petitioner had been convicted for murder and was sentenced to death. tence was thereafter commuted by the president of the United States to imprisonment for life in the Minnesota State Prison, at Stillwater, Minn. The proceeding before Judge Lochren was upon writ of habeas corpus for his discharge, and it was held that the application for discharge must be denied, because, in any view, the military tribunal had jurisdiction.

Such sen

The reasoning of the opinion upon the constitutional question discussed is, however, cogent and worthy of serious attention. Judge Lochren took the ground that as to the newly acquired territory of the United States the Federal Constitution applies ex proprio vigore, and becomes the supreme law of the land. His discussion relates specially to the Bill of Rights of the Constitution. The purport of the reasoning is that congress may not legislate as to the government of new territory except within the limitations of such Bill of Rights. In all consideration of this question the famous Dred Scott case (19 How. 393) necessarily cuts a considerable figure. Whatever may be said in criticism of the form of the sweeping generalizations against the power of colonization contained in the opinion of Chief Justice Taney in that case, the following language from the opinion of Mr. Justice Curtis, who dissented from the majority on the status of the negro, is temperate in spirit and

scope:

"But it is also insisted that provisions of the Constitution respecting territory belonging to the United States do not apply to territory acquired by treaty from a foreign nation. This objection must rest upon the position that the Constitution did not authorize the Federal government to acquire foreign territory, and, consequently, has made no provisions for its government when acquired, or that, though the acquisition of foreign territory was contemplated by the Constitution, its provisions concerning the admission of new States, and the making of all needful rules and regulations respecting territory belonging to the United States, were not designed to be applicable to territory acquired from foreign nations. It is undoubtedly true that, at the date of the treaty of 1803 between the United States and France for the cession of Louisiana, it was made a question whether the

Constitution had conferred on the executive department of the United States power to acquire | foreign territory by treaty. There is evidence that very grave doubts were then entertained concerning the existence of this power. But that there was then a settled opinion in the executive and legislative branches of the government that this power did not exist cannot be admitted without at the same time imputing to those who negotiated and ratified the treaty, and passed the laws necessary to carry it into execution, a deliberate and known violation of their oaths to support the Constitution; and, whatever doubts may then have existed, the question must now be taken to have been settled. Four distinct acquisitions of foreign territory have been made in as many different administrations. Six States formed of such territory are now in the Union. Every branch of this government, during a period of fifty years, has participated in these transactions. To question their validity is now in vain. As said by Mr. Chief Justice Marshall in Insurance Co. v. Canter (1 Pet. 542, 7 L. Ed. 255): The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties. Consequently that government possesses power of acquiring territory, either by conquest or treaty (see Sere v. Pitot, 6 Cranch, 336, 3 L. Ed. 240).' And, I add, it also possesses the power of governing it, when acquired, not by resorting to supposititious powers nowhere found described in the Constitution, but expressly granted in the authority to make all needful rules and regulations respecting the territory of the United States. * * * I construe this clause, therefore, as if it had read, congress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the United States, which the United States have acquired, or may hereafter acquire, by cessions, as well of

the

jurisdiction as of the soil, so far as the soil may be the property of the party making the cession, at the time of making it. * * ** If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power? To this I answer that, in common with all the other legislative powers of congress, it finds limits in the express prohibitions on congress not to do certain things; that, in the exercise of the legislative power, congress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution."

The following cases, decided by the same tribunal, may be cited as in harmony with the principles therein laid down: Murphy v. Ramsey (114) U. S. 15, 44, 45, and cases cited); Ex parte Bollman (4 Cranch, 75); Reynolds v. United States (98 U. S. 145, 154); Callan v. Wilson (127 U. S. 540, 550); Thompson v. Utah (170 U. S. 343, 346); Spring

ville v. Thomas (166 U. S. 707); Capital Traction Co. v. Hof (174 U. S. 1, 5); and see Wong Wing v. United States (163 U. S. 228, 238).

It therefore appears that Judge Lochren in the present decision has at least attempted to follow authority, and certainly there is considerable authority in point. Whether or not the cited cases will be controlling, or they will ultimately be distinguished on account of different circumstances involved in the Porto Rico situation, it would be hazardous to predict. In a very able article on "The Porto Rico Tariffs of 1899-1900," in the Yale Law Journal for May, 1900, by Hon. Edward B. Whitney, ex-assistant attorney-general of the United States, the following language is used with regard to the application of the Bill of Rights contained in the first ten amendments of the Constitu

tion:

“Notwithstanding past authorities, however, it is contended by some that the question is still an open one. This contention is based upon the fact that every acquisition of territory prior to 1898 was accompanied by some treaty stipulation giving to the inhabitants of that territory the rights of United States citizens. It is contended that it has never been necessary for the decision of any case to consider whether newly acquired districts are protected by any self-operating provisions of the Constitution that in every case the Constitution has been expressly extended over the district by the treaty-making power, and that this fact was sufficient to sustain the judgment of the court. To this contention the answer given is, that the Constitution is superior, not inferior, to the treatymaking power; that a treaty is but a law, which can be repealed; that if the Constitution were introduced only by force of a treaty provision, it might be taken away again by a subsequent statute; that if the Constitution did not exist of its own force in any given district, a law (whether in the form of treaty or statute) declaring it to exist would amount to no more than a provision that its principles should govern until the legislative or treaty-making power should otherwise enact; and that such a law would be in so far repealed if any subsequent legislation should be in conflict with it. That a treaty provision is repealed by subsequent statute, is no longer a matter of doubt (Whitney v. Robertson, 124 U. S. 190; Chinese Exclusion case, 130 U. S. 58). If we promise a foreign power upon cession of territory that we will give to it, or to its citizens, or to the inhabitants of the territory, any specified right, privilege or immunity, we may break our promise, and as a general rule our courts cannot intervene. The breach of the promise would be a casus belli; but it would raise a political, not a judicial, question. To this answer the imperialists reply, however, that some treaty provisions are self-executing, and so vest rights which cannot be taken away by subse

quent legislation; that (as they claim) the provisions of our former annexation treaties are of this character; and that the judicial decisions upon the operation of the Constitution in districts thus ceded should be based upon this ground. It is undoubtedly true that a treaty, like a statute, may be so worded as to vest rights by its own inherent force, without the aid of any subsequent legislation or judicial proceedings. It may vest title to lands, so that they cannot be taken away afterwards without just compensation. It may operate as a general naturalization law, giving to the inhabitants of a ceded territory the full rights of American citizens. Whether the past judicial authorities upon the question of the application of the Bill of Rights in our territories will be absolutely controlling upon cases arising in Porto Rico, or whether each will have merely the weight due to a carefully considered judicial opinion upon a point not necessary to the decision of the case under consideration by the court, will depend upon the construction of certain treaty provisions."

Four of the cases cited above as in harmony with the views of Justice Curtis arose in territory ob tained by the Mexican treaty of 1848; and whether there are self-executing provisions in that treaty which have the effect of extending the constitutional provisions as to jury trials over the annexed territory is certainly a very doubtful question.

The case of Cross v. Harrison (16 How. 164) is strong authority for the proposition that the Constitution extends proprio vigore over newly acquired territory, even to the extent of bringing it within the uniformity clause of taxation. It has been argued that the "absolute prohibitions upon legislative action which are contained in the Bill of Rights might be held applicable to our new possessions, without its necessarily following that the clause in the original Constitution restricting the legislative power of taxation, is equally applicable, especially the clause requiring certain forms of taxation to be uniform throughout the United States." Difference of opinion might exist as to what constitutes the United States territorially, although the abstract privileges and prohibitions provided for in section 9 of article 1, and in the Bill of Rights, were thought certainly to control congressional action. Remembering that congress, and indeed all the departments, were called into being by the Constitution, the presumptive argument is certainly strong that administration cannot be carried on by the Federal government in defiance of organic limitations upon its power, contained in the instrument of its creation. - New York Law Journal.

Virginia has decided, by a majority of only 15.000 in a very light vote, to hold a constitutional convention.

THE

A VILLAGE PATRIOT.

THE footway from Hampton Wick through Bushy Park (a royal demesne) to Kingstonupon-Thames had been for many years shut up from the public. An honest shoemaker, Timothy Bennett, of the former place, "unwilling (it was his favorite expression) to leave the world worse than he found it," consulted an attorney upon the practicability of recovering this road for the public good, and the probable expense of a legal process for that purpose. "I do not mean to cobble the job," said Timothy, "for I have seven hundred pounds, and I should be willing to give up the awl, that great folks might not keep the upper leather wrongfully." The lawyer informed him that no such sum would be necessary to try the right; then said the worthy shoemaker, "As sure as soles are soles, I'll stick to them to the last," and Lord Halifax, the then ranger of Bushy Park, was immediately served with the regular notice of action; upon which his lordship sent for Timothy, and on his entering the lodge his lordship said, with some warmth: "And who are you that has the assurance to meddle with this affair?" My name, my lord, is Timothy Bennett, shoemaker of Hamptonwick. I remember, an't please your lordship, to have seen, when I was a young man sitting at work, the people cheerfully pass by my shop to Kingston market; but now, my lord, they are forced to go round about, through a hot, sandy road, ready to faint beneath their burdens, and I am unwilling to leave the world worse than I found it. This, my lord, I humbly represent is the reason why I have taken this work in hand." "Begone," replied his lordship; "you are an impertinent fellow." However, upon mature reflection, his lordship, convinced of the equity of the claim, began to compute the shame of a defeat by a shoemaker, desisted from his oposition notwithstanding the opinion of the crown lawyers, and reopened the road. Honest Timothy died about two years after, in the seventy-seventh year of his age, and was followed to the grave by all the populace of his native village. Percy Anecdotes, 1820. LEON NOEL.

A

"TWIXT DOCTOR AND HANGMAN.

HIGHWAYMAN named Bolland, confined in Newgate, sent for a solicitor to know how he could defer his trial, and was answered, "By getting an apothecary to make affidavit of his illness." This was accordingly done in the following manner: "The deponent verily believes that if the said James Bolland is obliged to take his trial at the ensuing sessions he will be in imminent danger of his life." To which the learned judge on the bench answered "that he verily believed so, too!" The trial was ordered to proceed immediately.

LEON NOEL.

LO, THE POOR INDIAN.

N the year 1785 an Indian murdered a Mr. Evans at Pittsburg. When, after a confinement of several months, his trial was to be brought on, the chiefs of his nation (the Delaware) were invited to be present, as well as to speak in behalf of the accused, if they chose. These chiefs, however, instead of going as wished for, sent to the civil officers of that place the following laconic answer: "Brethren! you inform us that N. N., who murdered one of your men at Pittsburg, is shortly to be tried by the laws of your country, at which trial you request that some of us may be present. Brethren! knowing N. N. to have been always a very bad man, we do not wish to see him. We therefore advise you to try him by your laws, and to hang him, so that he may never return to us again." LEON NOEL.

W

A TONSORIAL FINE.

HEN Lord Mansfield one day took his seat as lord chief justice of England, a man was brought into court to receive judgment for an

assault, of which he had been convicted. He wore remarkably large whiskers and was known to be very proud of them. His affidavit stated that he was unable to pay any pecuniary fine, and the court was unwilling to imprison him. On this being intimated to Mr. Dunning, the counsel for the prosecution, he instantly replied: "Then, if it please your lordship, we will consent to mulet him of his mustachoes, and humbly pray your lordship that he may be shaved." LEON NOEL.

Legal Notes.

Judge Charles T. Saxton, of the New York Court of Claims, has felt obliged on account of family affairs to decline the United States judgeship in Porto Rico, recently offered to him. Judge Saxton would have carried fine abilities and peculiar fitness to his task.

The president of the Illinois State Bar Association favors the judicial robe. "It is fitting," says he, "that those who administer justice for the people should surround their office with such attributes as may dignify it, such circumstances as may at all times call the attention of the beholder to the high calling in which they are engaged the highest known to man - that of doing equal and exact justice between man and man. From the days of Solomon the robe has been the vestment of the judge. As well may the army of this republic march without its banners as to deny to its courts the robe of office. The flag does not fight, the robe does not pronounce decisions, but both appeal, and in like manner, to the sentiment of the

people. The flag expresses the militant patriotism of the republic; the robe says to the observer: At this shrine justice is enthroned, and justice will be done though the heavens fall.'"

In recognition of the gift from Lord Salisbury, the English premier, of twenty-three volumes of the report of the English commission on the Venezuelan boundary dispute, the Law Association of Philadelphia has adopted the, following resolution: “Resolved, That the Law Association of Philadelphia, in accepting the very valuable gift by the Marquis of Salisbury of documents relating to the Venezuelan arbitration, desire to express their obligation therefor, and their high appreciation of the courtesy thus shown to the association and the bar of Philadelphia."

These reports were received through Francis Rawle, who was enabled to secure them by the efforts of Hon. Charles Russell, son of the lord chief justice of England, Lord Russell of Killowen.

note:

"The Marquis of Salisbury presents his compliments to Mr. Russell and has pleasure in forwarding to him for presentation to the Philadelphia Law Association copies of the British case, counter-case and argument in the recent arbitration between Great Britain and Venezuela, together with the appendices and maps and the records of the proceedings before the Tribunal of Arbitration at Paris.

"Foreign Office, January 3, 1900."

In Hicks v. British-American Assurance Co., New York Court of Appeals, April, 1900, an owner of property went to an agent of an insurance company for insurance on December 30, 1893, and after the usual negotiation the agent said: "You are insured from noon on December 30, 1893, to noon of December 30, 1894." Two days later, and before the policy was delivered, the buildings insured were burned, and the agent refused to deliver the policy, whereupon, without giving the company formal notice of the loss and making and serving due proofs of loss, the owner's wife, to whom he had assigned his claims, brought an action against the insurance company, not on the contract for the loss, but for a breach of contract for not delivering the policy, and she recovered. The judgment was affirmed in the Appellate Division, but the Court of Appeals reversed it. Parker, Ch. J., in the opinion said: Here there was a contract of insurance, the verbal terms were sufficient to create it, and both parties are bound by it. So the insured was obliged to follow the terms and conditions of the policy, which by statute is the standard policy. Notice of loss and proofs of loss are conditions precedent to recovery, and as they were not given here a recovery for the loss cannot be sustained. The possession of the policy was not

cil.

Among the new knights are Dr. Berry, speaker of the Cape legislative assembly; Mr. ration, and Mr. O'Dowd, for some years deputy Homewood Crawford, solicitor to the city corpo

judge advocate-general.

Sir Richard Webster, who has been raised to the peerage on his appointment as master of the rolls, will take the title of Lord Alverstone, of the Isle of Wight. In view of his abstemious habits, it is suggested that he should take the title of Lord Freshwater. Speaking at the London Lincolnshire Society dinner last night, Sir Richard remarked that perhaps his most appropriate title would be Lord Pump Court. He has occupied chambers in that court throughout his career.

The Netherlands government, says Reuter, has issued invitations for the third time to the meeting at The Hague of a conference for the codification of international law as affecting private individuals. The conference will be opened on the 29th inst. by an address from M. de Beaufort, the Netherlands minister for foreign affairs. All the European States except Great Britain, Turkey, Greece and Servia will be represented for the discussion of the various laws regulating marriage, divorce, conjugal property, the position of married persons and their children, guardianships, and the law of inheritance.

At Bloemfontein the law courts are confined to one small room, says the Law Times. The staff of judges consists of the chief justice, Melius de Villiers, who has been selected by England as arbitrator more than once, and two judges, Herzog and Stuart. The offices of barrister and solicitor are combined under the name of advocate. The state attorney, whose position bears no resemblance to our attorney-general, is the head of the

state legal department, and, until the outbreak of the war, was Mr. J. de Villiers, a distinguished student from the Inns of Court. The amount of business is extremely small. On circuit the judges travel in a very primitive way by a Cape cart or a spider.

A case tried recently at the Central Criminal Court was remarkable in more ways than one. A German girl, who resided in North London, was charged with murdering her newly-born child. Mr. Russell Beardmore, who, with Mr. Hay Morgan, defended her, practiced for many years as a doctor before he became a barrister, and utilized his medical knowledge in cross-examining the doctor called by the prosecution. The result of the cross-examination was an expression of doubt by the medical witness as to whether the child ever had a separate existence, and the case for the prosecution at once collapsed. At the time of her arrest the unfortunate girl was engaged to be married to a young German of the name of Schubert, and within a few days of her release a special license was obtained and the marriage ceremony took place. It was performed by Mr. Hay Morgan, who is a Baptist minister as well as a member of the bar; the bride was given away by her solicitor, and Mr. Russell Beardmore signed the register. Law Journal (London).

Legal Tanghs.

Carter's, the barber's shop in Fleet street opposite Chancery lane, is almost a legal institution, and has a becoming antiquity. The county council has resolved by one vote to preserve it. It will, therefore, be doubly associated with a close shave. - Pall Mall Gazette.

Recently in arguing a case before the Supreme Court of North Carolina counsel asked for an extension of the time allowed for argument, saying in a deprecatory manner that he did not know that he could add to what his associate had already said, but "your honor will remember that the cackling of geese once saved Rome." "You may try it, Mr. B.," blandly replied the chief justice.

(see Digest of Illinois Reports): 1. “Two revolvers in the trunk of a grocer who went into the country to buy butter. Held, that but one revolver was reasonably necessary." 2. A boy in La Harpe, Ill., was charged with cruelty to animals in tying a string to the leg of a turtle. His lawyer contended that the turtle was not an animal, but “a reptile of the snake species." The court agreed with him, and the defendant was discharged. Exchange.

The

New Books and New Editions.

Queen's Garden. By M. E. M. Davis. Houghton, Mifflin & Co., Boston, Mass. 1900. For purity and attractiveness of style this little work is one of the best we have read in many months. There is a peculiar charm about it which, though found upon every page, is difficult, if not impossible, to analyze. It is indeed idyllic, and so exquisitely told that the reader is sure to feel regret that there was not more of it.

Cases on Private International Law. By John W.

Dwyer, LL. M., Instructor in the Department of Law of the University of Michigan. Published by George Wahr. Ann Arbor, Mich., 1900.

This is a very excellent collection of cases on private international law made by Mr. Dwyer, covering a variety of subjects, and is intended especially for the use of students, though certain to prove interesting and valuable to all practition

ers.

The Law of Banks and Banking, Including Acceptance, Demand and Notice, with an Appendix containing the Federal Statutes Applicable to National Banks. By John M. Zane, of the Chicago Bar. Chicago: T. H. Flood & Co., 1900.

That a new work upon this subject was needed by the profession in view of the mutliplication of cases in the past ten years will hardly be disputed. This book shows the results of the adjudication in all the important decisions up to the present time. With a view of making the work of practical value not merely to lawyers, but to bankers as well, not only the law as to the right of banking, the method of carrying on a bank, the rights of stockholders, the liabilities and powers of officers, as well as the law as to deposits, collections, securities, savings banks and clearing houses, but also the law gov erning the duty of the holder of commercial paper as to demand for acceptance and notice of dishonor, has been included. The work is complete, comprehensive and admirably arranged, and the style remarkably terse and vigorous. No space has been wasted by quoting from opinions or by uselessly verbose discussions, but it will be found,