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grew largely out of its real or supposed bearing Constitution had conferred on the executive deupon the tariff legislation for Porto Rico. The partment of the United States power to acquire part of the opinion which excited popular and po- foreign territory by treaty. There is evidence that litical interest was really obiter. What was actually very grave doubts were then entertained concernheld was that when the petitioner was tried by a ing the existence of this power.

But that there military tribunal in Porto Rico, such tribunal had was then a settled opinion in the executive and jurisdiction to try, convict and sentence him, as legislative branches of the government that this the treaty which ceded the island to the United power did not exist cannot be admitted without at States, although signed, had not become effective the same time imputing to those who negotiated as to private rights, because the exchange of rati- and ratified the treaty, and passed the laws necesfications was not completed until some time there- sary to carry it into execution, a deliberate and after. The petitioner had been convicted for known violation of their oaths to support the Conmurder and was sentenced to death. Such sen- stitution; and, whatever doubts may then have tence was thereafter commuted by the president of existed, the question must now be taken to have the United States to imprisonment for life in the been settled. Four distinct acquisitions of foreign Minnesota State Prison, at Stillwater, Minn. The territory have been made in as many different adproceeding before Judge Lochren was upon writ of ministrations. Six States formed of such territory habeas corpus for his discharge, and it was held are now in the Union. Every branch oí this goythat the application for discharge must be denied, ernment, during a period of fifty years, has parbecause, in any view, the military tribunal had ticipated in these transactions. To question their jurisdiction.

validity is now in vain. As said by Mr. Chief The reasoning of the opinion upon the constitu-Justice Marshall in Insurance Co. v. Canter (1 Pet. tional question discussed is, however, cogent and 542, 7 L. Ed. 255): The Constitution coníers worthy of serious attention. Judge Lochren took absolutely on the government of the Union the the ground that as to the newly acquired territory powers of making war and of making treaties. of the United States the Federal Constitution ap- Consequently that government

possesses the plies ex proprio vigore, and becomes the supreme power of acquiring territory, either by conquest or law of the land. His discussion relates specially to treaty (see Sere v. Pitot, 6 Cranch, 336, 3 L. Ed. the Bill of Rights of the Constitution. The pur-1240).' And, I add, it also possesses the power of port of the reasoning is that congress may not governing it, when acquired, not by resorting to legislate as to the government of new territory stipposititious powers nowhere found described in except within the limitations of such Bill of Rights the Constitution, but expressly granted in the

In all consideration of this question the famous authority to make all needful rules and regulations Dred Scott case (19 How. 393) necessarily cuts a

respecting the territory of the United States. considerable figure. Whatever may be said in

I construe this clause, therefore, as if it criticism of the form of the sweeping generaliza- | had read, congress shall have power to make all

neediul rules and regulations respecting those tions against the power of colonization contained in the opinion of Chief Justice Taney in that case,

tracts of country, out of the limits of the United the following language from the opinion of Mr. States, which the United States have acquired, or Justice Curtis, who dissented from the majority on

may hereafter acquire, by cessions, as well of the status of the negro, is temperate in spirit and jurisdiction as of the soil, so far as the soil may

be the property of the party making the cession, at scope:

the time of making it. * * If, then, this “ But it is also insisted that provisions of the

clause does contain a power to legislate respecting Constitution respecting territory belonging to the

the territory, what are the limits of that power? United States do not apply to territory acquired by

To this I answer that, in common with all the treaty from a foreign nation. This objection must

other legislative powers of congress, it finds limits rest upon the position that the Constitution did not

in the express prohibitions on congress not to do authorize the Federal government to acquire for

certain things; that, in the exercise of the legiseign territory, and, consequently, has made no

lative power, congress cannot pass an ex post facto provisions for its government when acquired, or

law or bill of attainder; and so in respect to each that, though the acquisition of foreign territory

of the other prohibitions contained in the Constiwas contemplated by the Constitution, its pro

tution." visions concerning the admission of new States, and the making of all needful rules and regulations

The following cases, decided by the same trirespecting territory belonging to the United States, bunal, may be cited as in harmony with the prinwere not designed to be applicable to territory ciples therein laid down: Murphy v. Ramsey (114 acquired from foreign nations. It is undoubtedly U. S. 15, 44, 45, and cases cited); Ex parte Bollman true that, at the date of the treaty of 1803 between

(4 Cranch, 75); Reynolds v. United States (98 U. the United States and France for the cession of S. 145, 154); Callan v. Wilson (127 U. S. 540, 550); Louisiana, it was made a question whether the Thompson v. Utah (170 U. S. 343, 346); Spring

*

*

ville v. Thomas (166 U. S. 707); Capital Traction quent legislation; that (as they claim) the proCo. v. Hof (174 U. S. 1, 5); and see Wong Wing v. visions of our former annexation treaties are of this United States (163 U. S. 228, 238).

character; and that the judicial decisions upon the It therefore appears that Judge Lochren in the operation of the Constitution in districts thus present decision has at least attempted to follow ceded should be based upon this ground. It is authority, and certainly there is considerable au- undoubtedly true that a treaty, like a statute, may thority in point. Whether or not the cited cases

be so worded as to vest rights by its own inherent will be controlling, or they will ultimately be dis

iorce, without the aid of any subsequent legislatinguished on account of different circumstances tion or judicial proceedings. It may vest title to involved in the Porto Rico situation, it would be lands, so that they cannot be taken away afterhazardous to predict. In a very able article on

wards without just compensation. It may operate • The Porto Rico Tariffs of 1899-1900," in the Yale as a general naturalization law, giving to the inhabLaw Journal for May, 1900, by Hon. Edward B. itants of a ceded territory the full rights of AmeriWhitney, ex-assistant attorney-general of the can citizens. Whether the past judicial authorities United States, the following language is used with upon the question of the application of the Bill of regard to the application of the Bill of Rights con- Rights in our territories will be absolutely contained in the first ten amendments of the Constitu- trolling upon cases arising in Porto Rico, or tion:

whether each will have merely the weight due to a “ Notwithstanding past authorities, however, it carefully considered judicial opinion upon a point is contended by some that the question is still an

not necessary to the decision of the case under

consideration by the court, will depend upon the open one. This contention is based upon the fact that every acquisition of territory prior to 1898 was

construction of certain treaty provisions.” accompanied by some treaty stipulation giving to

Four of the cases cited above as in harmony with the inhabitants of that territory the rights of the views of Justice Curtis arose in territory ob. United States citizens. It is contended that it has tained by the Mexican treaty of 1848; and whether never been necessary for the decision of any case

there are self-executing provisions in that treaty to consider whether newly acquired districts are which have the effect of extending the constituprotected by any self-operating provisions of the tional provisions as to jury trials over the annexed Constitution — that in every case the Constitution territory is certainly a very doubtful question. has been expressly extended over the district by The case of Cross v. Harrison (16 How. 164) is the treaty-making power, and that this fact was strong authority for the proposition that the Consufficient to sustain the judgment of the court. To stitution extends proprio vigore over newly acquired this contention the answer given is, that the Con- territory, even to the extent of bringing it within stitution is superior, not inferior, to the treaty- the “uniformity clause of taxation. It has been making power; that a treaty is but a law, which argued that the absolute prohibitions upon legiscan be repealed; that if the Constitution were in- lative action which are contained in the Bill of troduced only by force of a treaty provision, it Rights might be held applicable to our new possesmight be taken away again by a subsequent statute; sions, without its necessarily following that the that if the Constitution did not exist of its own clause in the original Constitution restricting the force in any given district, a law (whether in the legislative power of taxation, is equally applicable, iorm of treaty or statute) declaring it to exist especially the clause requiring certain forms of would amount to no more than a provision that its taxation to be uniform throughout the United principles should govern until the legislative or States.” Difference of opinion might exist as to treaty-making power should otherwise enact; and what constitutes the United States territorially, that such a law would be in so far repealed if any although the abstract privileges and prohibitions subsequent legislation should be in conflict with provided for in section 9 of article 1, and in the it. That a treaty provision is repealed by subse- Bill of Rights, were thought certainly to control quent statute, is no longer a matter of doubt congressional action. Remembering that con(Whitney v. Robertson, 124 U. S. 190; Chinese gress, and indeed all the departments, were called Exclusion case, 130 U. S. 58). If we promise a into being by the Constitution, the presumptive foreign power upon cession of territory that we argument is certainly strong that administration will give to it, or to its citizens, or to the inhabit cannot be carried on by the Federal government in ants of the territory, any specified right, privilege defiance of organic limitations upon its power, or immunity, we may break our promise, and as a contained in the instrument of its creation. - New general rule our courts cannot intervene. The York Law Journal. 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

Virginia has decided, by a majority of only some treaty provisions are self-executing, and so 15.000 in a very light vote, to hold a constitutional vest rights which cannot be taken away by subse-l convention.

99

A VILLAGE PATRIOT.

LO, THE POOR INDIAN.

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IPHE footway from Hampton Wick through N the year 1785 an Indian murdered a Mr. Evans

Bushy Park (a royal demesne) to Kingston- at Pittsburg. When, aiter a confinement of upon-Thames had been for many years shut up several months, his trial was to be brought on, from the public. An honest shoemaker, Timothy the chiefs of his nation (the Delaware) were inBennett, of the former place, unwilling (it was vited to be present, as well as to speak in behali of his favorite expression) to leave the world worse the accused, if they chose. These chiefs, however, than he found it," consulted an attorney upon the instead of going as wished for, sent to the civil practicability of recovering this road for the public officers of that place the following laconic answer: good, and the probable expense of a legal process “ Brethren! you inform us that N. N., who murfor that purpose. "I do not mean to cobble the dered one of your men at Pittsburg, is shortly to job,” said Timothy, "for I have seven hundred be tried by the laws of your country, at which trial pounds, and I should be willing to give up the you request that some of us may be present awl, that great folks might not keep the upper Brethren! knowing N. N. to have been always a leather wrongfully.” The lawyer informed him very bad man, we do not wish to see him. We that no such sum would be necessary to try the therefore advise you to try him by your laws, and right; then said the worthy shoemaker, “As sure to hang him, so that he may never return to us as soles are soles, I'll stick to them to the last," again."

LEON NOEL. and Lord Halifax, the then ranger of Bushy Park, was immediately served with the regular notice of

A TONSORIAL FINE. action; upon which his lordship sent for Timothy, and on his entering the lodge his lordship said,

HEN Lord Mansfield one day took his seat with some warmth: " And who are you that has

as lord chief justice of England, a man was the assurance to meddle with this affair?" "My name, my iord, is Timothy Bennett, shoemaker of brought into court to receive judgment for an Hamptonwick I remember, an't please your

assault, of which he had been convicted. He wore lordship, to have seen, when I was a young man

remarkably large whiskers and was known to be sitting at work, the people cheerfully pass by my

very proud of them. His affidavit stated that he shop to Kingston market; but now, my lord, they

was unable to pay any pecuniary fine, and the are forced to go round about, through a hot, sandy court was unwilling to imprison him. On this road, ready to faint beneath their burdens, and í being intimated to Mr. Dunning, the counsel for am unwilling to leave the world worse than I

the prosecution, he instantly replied: Then, if it found it. This, my lord, I humbly represent is the please your lordship, we will consent to mulet him

of his mustachoes, and humbly pray your lordship reason why I have taken this work in hand." “ Begone,” replied his lordship; " you are an im

that he may be shaved."

LEON NOEL. pertinent fellow.” However, upon mature reflection, his lordship, convinced of the equity of the claim, began to compute the shame of a defeat by

Legal Notes. a shoemaker, desisted from his oposition notwithstanding the opinion of the crown lawyers, and re- Judge Charles T. Saxton, of the New York opened the road. Honest Timothy died about two

Court of Claims, has felt obliged on account of years after, in the seventy-seventh year of his age, family affairs to decline the United States judgeand was followed to the grave by all the populace ship in Porto Rico, recently offered to him. of his native village. Percy Anecdotes, 1820. Judge Saxton would have carried fine abilities and

LEON NOEL. peculiar fitness to his task.

The president of the Illinois State Bar Associa'TWIXT DOCTOR AND HANGMAN.

tion favors the judicial robe. “It is fitting,” says he,

that those who administer justice for the

A "

Newgate, sent for a solicitor to know how he butes as may dignify it, such circumstances as may could defer his trial, and was answered, “By get- at all times call the attention of the beholder to the ting an apothecary to make affidavit of his illness." high calling in which they are engaged — the highThis was accordingly done in the following man- est known to man - - that of doing equal and exact ner: “ The deponent verily believes that if the said justice between man and man. From the days of James Bolland is obliged to take his trial at the Solomon the robe has been the vestment of the ensuing sessions he will be in imminent danger of judge. As well may the army of this republic his life.” To which the learned judge on the march without its banners as to deny to its courts bench answered "that he verily believed so, too!” the robe of office. The flag does not fight, the The trial was ordered to proceed immediately. robe does not pronounce decisions, but both ap

LEON NOEL peal, and in like manner, to the sentiment of the

In any

people. The flag expresses the militant patriotism essential to the bringing of the action. of the republic; the robe says to the observer: event the insured is bound by the terms of the At this shrine justice is enthroned, and justice policy. will be done though the heavens fall.'” In recognition of the gift from Lord Salisbury,

English Notes. the English premier, of twenty-three volumes of the report of the English commission on the Vene

It is noticeable, says the St. James's Gazette, zuelan boundary dispute, the Law Association of that by the promotion of Sir Richard Webster five Philadelphia has adopted the following resolution:

out of the six ordinary members of the Court of " Resolved, That the Law Association of Phila

Appeal are Cambridge men, the exception being delphia, in accepting the very valuable gift by the

Lord Justice Williams, who was at Christ Church, Marquis of Salisbury of documents relating to the

Oxford. Cambridge has now a decided predomiVenezuelan arbitration, desire to express their ob

nance on the bench, whereas six or seven years ligation therefor, and their high appreciation of

ago Balliol alone claimed (including Lord Hobthe courtesy thus shown to the association and the

house) seven of its sons as members of the judicial bar of Philadelphia.”

bench. These reports were received through Francis Rawle, who was enabled to secure them by the

The list of birthday honors includes peerages of efforts of Hon. Charles Russell, son of the lord

the United Kingdom for Lord Morris, the master chief justice of England, Lord Russell of Kil

of the rolls, and the Lord chief justice of Ireland.

Sir Frederick Milner, M. P., and Lord Justice lowen. The reports were accompanied by the following

FitzGibbon are added to the Privy Council. The

latter is already a member of the Irish Privy Counnote:

cil. “The Marquis of Salisbury presents his com

Among the new knights are Dr. Berry, pliments to Mr. Russell and has pleasure in for

speaker of the Cape legislative assembly; Mr.

Homewood Crawford, solicitor to the city corpowarding to him for presentation to the Philadelphia Law Association copies of the British case, coun

ration, and Mr. O'Dowd, for some years deputy

judge advocate-general. ter-case and argument in the recent arbitration between Great Britain and Venezuela, together

Sir Richard Webster, who has been raised to the with the appendices and maps and the records of peerage on his appointment as master of the rolls, the proceedings before the Tribunal of Arbitration

will take the title of Lord Alverstone, of the Isle at Paris.

of Wight. In view of his abstemious habits, it is “ Foreign Office, January 3, 1900.”

suggested that he should take the title of Lord

Freshwater. Speaking at the London Lincolnshire In Hicks v. British-American Assurance Co., New York Court of Appeals, April, 1900, an owner

Society dinner last night, Sir Richard remarked

that perhaps his most appropriate title would be of property went to an agent of an insurance com

Lord Pump Court. He has occupied chambers in pany for insurance on December 30, 1893, and

that court throughout his career. alter the usual negotiation the agent said: “ You are insured from noon on December 30, 1893, to

The Netherlands government, says Reuter, has noon of December 30, 1894.” Two days later, and issued invitations for the third time to the meeting before the policy was delivered, the buildings in

at The Hague of a conference for the codification sured were burned, and the agent refused to de

of international law as affecting private individuals. liver the policy, whereupon, without giving the The conference will be opened on the 29th inst. by company formal notice of the loss and making and

an address from M. de Beaufort, the Netherlands serving due proofs of loss, the owner's wife, to

minister for foreign affairs. All the European whom he had assigned his claims, brought an ac

States except Great Britain, Turkey, Greece and tion against the insurance company, not on the

Servia will be represented for the discussion of the contract for the loss, but for a breach of contract

various laws regulating marriage, divorce, conjugal for not delivering the policy, and she recovered.

property, the position of married persons and The judgment was affirmed in the Appellate Divi

their children, guardianships, and the law of inhersion, but the Court of Appeals reversed it. Parker,

itance. Ch. J., in the opinion said: Here there was a con- At Bloemfontein the law courts are confined to tract of insurance, the verbal terms were sufficient one small room, says the Law Times. The staff to create it, and both parties are bound by it. So of judges consists of the chief justice, Melius de the insured was obliged to follow the terms and Villiers, who has been selected by England as conditions of the policy, which by statute is the arbitrator more than once, and two judges, Herzog standard policy. Notice of loss and proofs of loss and Stuart. The offices of barrister and solicitor are conditions precedent to recovery, and as they are combined under the name of advocate. The were not given here a recovery for the loss cannot state attorney, whose position bears no be sustained. The possession of the policy was not I blance to our attorney-general, is the head of the

resem

state legal department, and, until the outbreak of (see Digest of Illinois Reports): 1. “Two revolvers the war, was Mr. J. de Villiers, a distinguished in the trunk of a grocer who went into the country student from the Inns of Court. The amount of to buy butter. Held, that but one revolver was business is extremely small. On circuit the judges reasonably necessary.” 2. A boy in La Harpe, Ill., travel in a very primitive way by a Cape cart or a was charged with cruelty to animals in tying a spider.

string to the leg of a turtle. His lawyer contended A case tried recently at the Central Criminal that the turtle was not an animal, but a reptile of Court was remarkable in more ways than one. A the snake species.” The court agreed with him, German girl, who resided in North London, was

and the defendant was discharged. Exchange. charged with murdering her newly-born child. Mr. Russell Beardmore, who, with Mr. Hay Morgan, defended her, practiced for many years as a New Books and New Editions. doctor before he became a barrister, and utilized his medical knowledge in cross-examining the The Queen's Garden. By M. E. M. Davis. doctor called by the prosecution. The result of the Houghton, Mifflin & Co., Boston, Mass. 1900. cross-examination was an expression of doubt by For purity and attractiveness of style this little the medical witness as to whether the child ever work is one of the best we have read in many had a separate existence, and the case for the months. There is a peculiar charm about it which, prosecution at once collapsed. At the time of her though found upon every page, is difficult, is not arrest the unfortunate girl was engaged to be mar- impossible, to analyze. It is indeed idyllic, and so ried to a young German of the name of Schubert, exquisitely told that the reader is sure to feel reand within a few days of her release a specialgret that there was not more of it. license was obtained and the marriage ceremony took place. It was performed by Mr. Hay Mor- Cases on Private International Law. By John W. gan, who is a Baptist minister as well as a member Dwyer, LL. M., Instructor in the Department of the bar; the bride was given away by her solici- of Law of the University of Michigan. Pubtor, and Mr. Russell Beardmore signed the regis- lished by George Wahr. Ann Arbor, Mich., ter. - Law Journal (London).

1900. This is a very excellent collection of cases on

private international law made by Mr. Dwyer, Legal Langhs.

covering a variety of subjects, and is intended

especially for the use of students, though certain Carter's, the barber's shop in Fleet street oppo- to prove interesting and valuable to all practitionsite 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, The Law of Banks and Banking, Including Actherefore, be doubly associated with a close shave. ceptance, Demand and Notice, with an Ap- Pall Mall Gazette.

pendix containing the Federal Statutes Recently in arguing a case before the Supreme

Applicable to National Banks. By John M. Court of North Carolina counsel asked for an ex

Zane, of the Chicago Bar. Chicago: T. H.

Flood & Co., 1900. tension of the time allowed for argument, saying in a deprecatory manner that he did not know That a new work upon this subject was needed that he could add to what his associate had already by the profession in view of the mutliplication of said, but “your honor will remember that the cases in the past ten years will hardly be disputed. cackling of geese once saved Rome."

This book shows the results of the adjudication in try it, Mr. B.,” blandly replied the chief justice.

all the important decisions up to the present time.

With a view of making the work of practical value On one occasion counsel in a certain drainage

not merely to lawyers, but to bankers as well, not case submitted that the plaintiffs, the Sewage only the law as to the right of banking, the method Localization Company, had “no locus standi in

of carrying on a bank, the rights of stockholders, this court.” “Heaven forbid!" was the fervent

the liabilities and powers of officers, as well as the ejaculations of the learned judge. Something akin

law as to deposits, collections, securities, savings to this was the answer of the judge when com

banks and clearing houses, but also the law govplaint was made that a luckless process server had erning the duty of the holder of commercial paper been compelled to swallow the writ he had en

as to demand for acceptance and notice of disdeavored to serve. “I hope,” said the judge, honor, has been included. The work is complete, gravely, that the writ was not made returnable comprehensive and admirably arranged. and the in this court."

style remarkably terse and vigorous. No space Two refreshing examples of Illinois law as con- has been wasted by quoting from opinions or by strued — or confounded — by the Illinois bench uselessly verbose discussions, but it will be found,

ers.

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