Imágenes de páginas

through the confederate's incautious blabbing. JusSURVIVORS AS WITNESSES FOR THEM

tice might have been defeated but for that accident, SELVES.

and all in the cause of “domestic harmony." Why WE have on more than one occasion criticised the should not husband or wife be suffered to deny

" policy of section 399 of the Code of Proced- adultery or condonation by their own oath? ure, prohibiting survivors from testifying to personal But to revert to our text, which concerns surtransactions with the deceased. It has always vivors. The question may again be pressed: Why seemed to us one of the last convulsive struggles of should one man lose his rights because another has the law-making power in support of the theory that died or gone mad? The only answer that can be man is prone to perjury as the sparks to fly upward. invented is: Because the natural inducement to perThis determined clinging to the obsolete theories is jury under which mankind labors is increased by like the innocuous cud which a man sometimes the disability of the other party, and an inequality chews upon when trying to break away from tobacco. is produced by that disability. This is merely theoThc exception embodied in this section, and that retical. Practically, when both parties are capable which prohibits husband and wife from testifying of testifying, the law pays no regard to equality. for or against each other in actions for divorce on One party may be so far superior in intelligence, the ground of adultery, seem to be the only two position, wealth, and influence, as to leave the conposts of importance which have not been carried test practically as unequal as if the weaker party by the march of legal reform in respect to matters were dead. The law hears the narrations of both, of evidence.

and judges between them, basing its decision upon Doubtless we shall startle the majority of our the probabilities of the respective narrations, but profession in this State when we declare, as the re have the circumstances above mentioned no weight sult of years of careful thought, observation, exami in the scale? Suppose the president of the United nation, and writing upon this topic, that, in our States were sued by a drunken vagabond, if the opinion, no human being ought to be debarred from tes- case were tried during the plaintiff's lifetime, it is tifying in his own favor for any conceivable reason. fair to suppose that the parties would not stand Justice was never promoted by shutting anybody's quite equal, and that the defendant's testimony mouth. For some years we have been inclined to would be believed. But if the plaintiff dies before hold this proposition except in regard to infamous the trial, then the president suddenly loses all his persons, but on reflection we have been led to be credit, because disqualified, and must perhaps suflieve that even they have rights, which may be en fer in his clear rights because the vagabond is dead. dangered by the prevailing rule. If one has expi This of course is an extreme case, but it tests the ated the offense of a felony, it is hard, indeed, if he sense of the theory, just as an ascent to a high shall be left at the mercy of bad or designing men, mountain commands a view of all below. Under without the privilege of telling his own story. our practice of permitting living parties to testify, This subsequent and consequential penalty is prac- the exclusion of the survivor is inconsistent. If tically, although not designedly, like the savage's the danger of perjury is assigned as the reason, why mutilation of his unfortunate enemy's corpse. We then suffer the living to testify? It is only a quesdo not claim that such persons should be restored tion of degree. The danger is always present. The to their forfeited political privileges. All we claim law ought not to undertake to measure the degree, for them is that they should not be left “naked and and say exactly where it becomes so great as to defenseless to their enemies" by being deprived of justify the exclusion of the testimony. Certainly a the right of testifying, at least on their own behalf, man will commit perjury to save his own life, if in courts of justice.

ever, and yet, here the law admits his testimony. As to husband and wife the exclusion is par The law cannot tell where to draw the line. The ticularly ridiculous. In support of this is cited by danger may practically be as great in the case of many, not only the idea of perjury, but the idea both living as in the case of one dead. The law, that it conserves domestic harmony. This latter to be consistent, must shut out all, or hear whatidea is one of those pleasant fictions invented to ex- ever there is, whether of one or both. Again, why cuse and maintain men's tyranny over their wives, should the exclusion be restricted to personal transand the cant of which has long made sensible men actions? Why should it not extend to the entire impatient. If men do not need the privilege of transaction? To make things strictly equal, it ought. testifying in such cases, women do, as the every day But as the law stands, the survivor is competent to experience of our courts demonstrates. Take the prove all the surroundings, however vital, which recent actual case which occurred in our courts, do not involve transactions strictly personal. where a husband and a confederate conspired to That our idea is no vagary, is shown by the fact place the innocent wife in such circumstances that that for many years in Massachusetts the exclusion adultery must necessarily be implied, and failed only has been abolished, with excellent results. So we have the authority of the most highly intelligent far as we have urged. In Mr. Throop's note on community on the globe, after an ample experience this section we find some powerful arguments in and actual trial, in support of our views.

opposition to his exclusion of the wives of survivors, We have been led to revive this subject by the and indeed to his exclusion of the survivors themfact that in the revision of the Code, which is soon selves. For instance, he says: “It seems now to to take effect, not only are the provisions of section be the settled theory in regard to the competency 399 preserved, but to them is added the exclusion of witnesses that the court or jury should have all of the wife of the disqualified party. This we re- the light thrown upon the facts which it is possible gard at all events as a clear case of falling from to procure, leaving the tribunal itself to judge what grace, backsliding and retrogression. The reviser degree of credence to give to the evidence offered.” is as much behind the times as was the French poet And again: “Now that interested persons, parties, Malherbe, who spent a year on an ode designed to or their wives or husbands, and even persons console the president of Verdun on the death of his charged with crime, are competent witnesses, conwife, but which reached its destination after the sistency seems to demand that the only remaining bereaved man had consoled himself with a second disability should be swept away." But what claim wife. The new provision continues the doubtful has the reviser to "consistency” when in the next policy of the old provision — the absurd and hate | preceding section he adds to the old exclusion of ful idea of imputed perjury. Mr. Throop cannot survivors the exclusion of their wives? In regard make this world over again. He must take it just to the latter we may claim, as he says of persons as he finds it, and endeavor to deal with the mate-once convicted, that “there is no more reason to rials at his hand so as to produce the greatest ap- apprehend that persons who have been convicted of proximation to justice. Now, if he believes that felony will, as a class, be guilty of willful perjury, all men are liars, he is welcome to his belief. It is | especially in a matter in which they have no interest, a belief that has been shared, and still is shared, by than there is to apprehend the same consequences a great many very wise and good men. But we from an admission of many other classes of persons protest against the idea that all men's wives are who are now competent witnesses.” When we necessarily liars also. Besides, is not Mr. Throop compare the decisive step forward indicated by the unconsciously a little inconsistent about this domes- latter section, with the reactionary spirit of the sectic relation? In one section he tells us that women tion which excludes the wives of survivors, we are are so weak, and so under the control of their hus- reminded of the frog in the well which crept up bands, that they will probably perjure themselves to two feet every day, and fell back one foot every please those husbands; while in another section he night. Convinced that truth does not lie at the tells us that women are so independent, vindictive bottom of this well, we implore Mr. Throop to get and hostile to their husbands, that they are not safely to be intrusted with the privilege of testifying against them in certain cases. If we go upon

LIABILITY OF PUBLIC TREASURERS. theory, upon which theory will Mr. Throop place HETHER county treasurers, town collectors himself? Or will he perform the great intellectual and the like are liable as bailees or as debtors feat of riding double? What reason does the re | for the moneys intrusted to them, is a question conviser give for this new provision? His note on the siderably mooted, and, so far as this State is consection is as follows: “New; prepared in order to cerned, apparently not distinctly settled, so far at supply an omission supposed to have resulted from least as county treasurers are concerned. an oversight. Some cases have actually occurred In Supervisors of Albany County v. Dorp it was where a man has presented a doubtful claim against held that a county treasurer was not responsible for the estate of a deceased person, and supported it moneys stolen from his office, without negligence solely by the testimony of his wife.” Well, why on his part, the moneys in question being the idennot? If the claim was so "doubtful” as to need tical moneys received by him and stolen before he the wife's testimony, why should not such testimony was called on to pay the same out. The court lay be received? And if that testimony removed the down the principle that “in order to subject the doubt, was not justice attained? But if it was still officer, it is necessary to prove misconduct or negleft “doubtful,” and yet established by such testi- lect in the execution of his duties.” The bond of mony, that surely was not the fault of the admission the treasurer was for the faithful execution of the of such testimony, but of the tribunal appointed to duties of the office, and for the payment, according determine its credibility and weight. But the to law, of all moneys which should come to his greatest inconsistency in the revision on the subjects hands as treasurer. This doctrine was pronounced in question is in the section which renders persons by the Supreme Court, composed of Judges Nelson, competent witnesses in spite of a conviction of Bronson and Cowen, certainly three of the most crime or misdemeanors. Here Mr. Throop goes as eminent of our judiciary. The case was reviewed

by the Court of Errors (7 Hill, 583), and was af

THE INSTITUTE OF INTERNATIONAL LAW. firmed by an equally divided court, the chancellor voting for affirmance. This was in December, 1844.

LETTER FROM THE HON. WM. BEACH LAWRENCE. In May, 1845, precisely the same question as to a town collector came before the Supreme Court in


August 10, 1877. Muzzy v. Shattuck, 1 Denio, 233, and that court,

MY DEAR SIR — As I have not seen any authoritaconsisting of Bronson, C. Jo, and Judges Beardsley | tive notice of the annual session of the Institute of and Jewett, held that the collector was liable. The International Law," to commence at Zurich, on the case of Dorr was mentioned by the court and not | 8th of September, I beg to avail myself of your valudisapproved. If there had been any inclination to

able LAW JOURNAL to bring to the notice of Ameridisapprove it, Judge Bronson certainly would have

can jurists and publicists what has been accomplished

by that association, as well as the subjects proposed dissented. But the court, after a labored analysis

for discussion at the approaching meeting. This notiof the statute concerning town collectors, conclude fication is the more desirable, as it not unfrequently that "it imposes a definite liability on the collector happens that the Institute is confounded with a soand his sureties for the omission to collect and pay; ciety of a more popular character, having especially in and whether that omission is the result of misfeas

view a codification of laws, which I observe is to meet

at Antwerp on the 30th of the present month. ance or neglect, unavoidable accident or felony

Your readers may possibly remember that this is not committed by another, I do not think It furnishes

the first occasion on which the columns of the JOURany defense to the action.” This case was unani NAL have been placed at my disposition for the purmously affirmed by the Court of Errors in Decem pose of making known the objects of the “ Instiber, 1846, as appears from the reporter's note to the

tute of International Law.” The plan for its forDorr case in 7 Hill; but the decision is not re

mation was given in your number of October 11,

1873 (vol. viii, p. 230), and a communication from me, ported.

under date of August 15, 1874, to M. Rolin JaequeThe cases are probably distinguishable, and it is

myns, discussing the matters that had then been preprobable that the Court of Errors did not overrule sented to the consideration of the society, was inthe Dorr case any more than the Supreme Court did. serted in volume xi, page 25. We can see no warrant for the reporter's statement

The establishment of the Institute is in po small that “the law seems to have been since settled, and

degree to be attributed to the Revue de Droit Interna

tional, founded in 1869, and of which M. Rolin Jaequeproperly, it is believed, directly the other way," in

myns was the editor in chief. The article under the the Muzzy case, and that “the latter decision ap title of De l'étude de la legislation comparée et du pears to be utterly irreconcilable" with the Dorr droit international," by which it was initiated, gave case. The latter case was cited as authority by full evidence of the Director's thorough acquaintance Judge Cowen in Browning v. Hanford, 5 Hill, 592,

with the subjects, which it was his province to have in

vestigated. Mr. Asser, the eminent advocate of Amand the Muzzy case has several times been cited as

sterdam, and Mr. Westlake, who is known to all Ameriauthority, but never except in cases concerning

can lawyers as the author of the best treatise on pritown collectors. So far as we know, the Dorr case vate international law, were his responsible assohas never been overruled or questioned, and is au ciates. thority to-day on the point.

All the original members of the Institute were That the Dorr case is still authoritative seems to

known to the jurists and publicists of Europe and the

United States by writings on subjects falling within be conceded in Perley V. County of Muskegon, 32

its special domain. Mich. 132; 20 Am. Rep. 637, where the converse At the first conference, which took place at Ghent doctrine is held as to county treasurers. This was in September, 1873, the object of the “ Institute" was an action against a third person, to whom the foreshadowed in its statutes. It proposed what was county treasurer had lent the county moneys, and

then unknown to our spécialité, the union of collective

action, free from all governmental control, with the it was held that even if the treasurer had subse

operations of diplomacy and of individual scientific quently defaulted in office, the borrower was not

studies. It was intended to act by the concurrence of liable to the county at law for money had and re

men who had, by their investigations kuown to the ceived, because the treasurer is the debtor, and not world, already established some common principles and the bailee of the county. If liable at all, it is only who might thus, as au association, facilitate the proon the case or in equity. After perusing the care

gress of public law, and, by becoming the organ of the

juridical conscience of the civilized world, formulate ful review of the cases contained in the opinion in

rules derived from the general principles of the science, this case, it must be conceded that outside of this

Unlike the association which convened about the State the doctrine is pretty uniformly ruled con same period at Brussels, to which our associate, Mr. trary to the Dorr case. Our object has been not so Field, gave his powerful countenance, the Institute much to discuss the merits of the question as to in was not prepared with any universal code to be offered quire what is the prevailing rule of our State on the

without scientific scrutiny to the recognition of all

States; but adopting the theory of Savigny, in preferliability of county treasurers under such circum

ence to that of Thiebault, who, half a century ago, stances.

divided the jurists of Germany, it preferred gradual and progressive reforms to the improvisation of an The following conclusions, relative to the civil prointernational code.

cedure, were adopted at the Geneva session: It was expected to obtain not only an assimilation “It will be useful, to establish, by international of legislation as applied to individuals, thereby dimin- treaties, uniform rules concerning ishing the conflict of laws, but also the recognition of "18t. The foundation and limits of the jurisdiction the great principles of public law by means, in both and competence of tribunals. cases, of treaties. This, indeed, so far as regards the “2d. The forms of procedure in order: relations of States toward one another, had been ef " (a) To determine with precision what is the law fected to a certain extent at the Congress of Paris of which governs these forms in doubtful cases. 1856, when rules of maritime law were adopted, which, (b) To establish with precision the principles of besides the abolition of privateering, to which the international law with regard to the means of proof. United States, Spain and Mexico declined to accede, "(c) To regulate the forms of legal citations, and gave immunity to enemy's property in neutral vessels notices to persons domiciled or residing abroad. and protected neutral property in enemy's vessels as “(d) To regulate rogatory commissions. well as defined the law of blockade.

"3d. The execution of foreign judgments by virtue In the case also of private international law numer- of treaties, in which shall be stipulated the guarantees ous recent treaties have recognized in one country the

and conditions under which the paréatis shall be acanonymous institutions (societés anonymes) of another, corded." and not only have they assured to foreigners the right And I may be here permitted to remark that, in the to demand redress in the courts as suitors, but have absence of treaties, no problem is more difficult of exgiven between the contracting States to private judg planation than the principle on which one nation gives ments, rendered by one another's tribunals, previously

effect to the judicial decrees of another. We have of doubtful and varying effect, the force of conven seen that, in rendering judgments, courts do not aptional obligations.

ply, through courtesy, foreign laws. It results from Rejecting the idea that a foreign law could by comity the very principle of territorial sovereignty that no be substituted by a judge to that which he was sworn judgmeut can be executed, except by the authority of to administer, one of the earliest results of the de the State in which it is carried into effect; but, while liberations of the “ Institute" was to recognize the

in England and the United States, despite of the disevident utility and even the necessity of treaties by

tinction between their jurisprudence and that of the which civilized States should adopt with common ac continent of Europe, a foreigu judgment rendered in cord obligatory and uniform rules of private interna a oase where the court had jurisdiction over the partional law, by which public authorities, and especially ties and subject-matter, and which does not contrathe tribunals of the contracting States, should decide vene the policy of the country, is as a matter definiquestious concerning persons, property, acts, succes tively disposed of by competent authority, conclusive, sions, modes of procedure, and foreign judgments. in France it is only the basis for a paréatis. These treaties, it was suggested, should not impose a As an illustration of the refusal of a court to carry perpetual uniformity in the codes and laws of differ into effect the judgment of a foreign tribunal, founded ent countries which might oppose obstacles to the

on a local law at variance with its policy, the case of progress of civilization. Indeed, it may be here noted,

De Brimont v. Pennima, 10 Blatchf. C. C. R. 436, may that it was the absence of a due regard to the modifi

be cited. This was a suit founded on a decree of a cation of laws required by the varying circumstances

French court in favor of a sou-iu-law, whose wife was of different peoples that so much detracted from the dead, leaving a child, against her parents for a provisvalue of the labors of Jeremy Bentham, whom our ion for the support of himself and child. Code NapoWheaton denominated “the greatest judicial reformer

leon, 203-211. A demurrer to the action was sustained of modern times.” Having myself had, half a cen by the court. tury ago, the good fortune to be initiated in his doc England applies to Scotch and colonial judgtrines by the great philosopher himself, I cau in some ments the same rules as to those of foreign tribudegree appreciate the extent to which the reforms in

nals. The United States, in their constitution, anEnglish jurisprudence may be traced to him, though ticipated the necessity of any treaty stipulations by ordinary minds, influenced by his proposition to make providing that “full faith and credit should be given å universal code applicable alike to all States, with in each State to the public acts, records and judicial out regard to their peculiar condition, were wont to proceedings of every other.” Such is likewise the rule treat as visionary his best reasoned suggestions.

under the present Swiss constitution, which declares At the session of Geneva, in 1874, the commission on that “definitive judgments rendered in any one canthe subject, through Mancini and Asser, presented ton are executory in all Switzerland," while the unifireports, setting forth the general rules of private cation of the civil and criminal legislation of the international law, which it was important to have German empire precludes the raising of the question recognized by international conventions. Quoting among the German States. Guthrie, of Ediuburgh, the translator of Savigny, More precise rules as to the competence of tribunals it is remarked: “Though much has been said about were perfected at the session in 1875, at the Hague. comitas, it is an improper term; there is no such thing They include a provision as to the relation of the govas a decision from complaisance. When judges deter ernment to its own judiciary, in the case of the applimine by the law of another country, they do it ex jus cation of a foreign treaty intended to regulate their titia; they are bound to do it." Mancini adds, “with competence, to the effect that they shall decide acout resorting to other authorities, all the members of cording to the same rules which have been established the commission named by the Institute, viz., Blunt with respect to their competence by the laws of the schli, Asser, Beach Lawrence, Massé, Westlake, have country. The rules of private international law, which already had occasion to manifest in almost the same enter into the laws of a country, by virtue of an insense their opinions on the question."

ternational treaty, shall be applied by the tribunals, without there being any international obligation, on and that it was desirable that the principle of inviolathe part of the government, to secure their applica- bility of private property of enemies navigating under tion by administrative measures.

an enemy's flag be universally accepted in the followThe Institute was established at the time when in- ing terms, borrowed from the declarations of Prussia, ternational arbitrations for the settlement of difficul Austria and Italy in 1866, and under the reserve ties were greatly in vogue, in consequence of the then therein expressed: “Merchant ships and their cargoes recent conventiou between the United States and shall not be captured, unless they carry contraband of Great Britain, with regard to the so-called Alabama war, or attempt to violate an effective and duly declaims.

clared blockade." That all the anticipations of my European colleagues, The reserve alluded to is: “It is understood that, with respect to arbitration as an international panacea, according to the general principles which should were not shared by me will appear from the commu regulate war on the sea as well as on the land, the prenication to the Secretary-General, M. Rolin Jaeque ceding disposition shall not apply to merchant ships myos, published in your journal of the time. Not which directly or indirectly take part, or are destined only had I reason not to be entirely satisfied from my to take part, in the hostilities." own observation, as counsel before them, of the prac It is to be noted that the en ertaining of the propotical operation of such commissions, but I conceivesition at all was opposed, as being a political question, that a great blow had already been struck at arbitra by the English members, Bernard, Lorimer, Twiss and tion by the refusal of the congress of the United States Westlake. The only American present, Mr. David to carry out the award made at Geneva, for the Ala Dudley Field, sustained the report, bama claims, in regard to the underwriters, whose In respect to the three rules of Washington, which olaims were taken into account in the settlement of had ceased to meet the approbation of either of the the indemnity, the amount of which still remains in contracting parties, we expressed our views in the the treasury.

communication before referred to. They were subWe have, in the proceedings of the Institute, a

stantially in accordance with those of Prof. Lorimer, oomplete projet for the settlement of questions which of Edinburgh, who declared that “these rules, as well may be submitted to arbitration. It only requires as the American and English foreign enlistment acts, the sanction of governments to form from it a system passed under the influence of the same views, were of regular adjudication.

bad in theory and inapplicable in practice." ModifiThe declaration of the congress of Brussels respecting cations were adopted by the Institute which, it was the laws and usages of war was the subject, at the Hague supposed, would render them conformable to the law in 1875, of protracted discussions, in which Bluntschli, of nations. They have failed, however, even as altered, now the president of the Institute, who was a member to attract the attention of either of the original conof the congress, took a leading part. The conclusions tracting parties, or of any other State. They may be of the Institute, though they did not meet the ap deemed to have passed wholly into the domain of proval of the English and American members, were history. favorable to the projet. My objections (besides those For a statement of the labors of the Institute, on growing out of the peculiar position of the United matters which have received their full investigation States, relying, as they do, mainly on their citizen sol and final action, I would refer not only to its official diery), which, as presented to the Institute, have ap journal, the Revue de Droit International, but to the peared in the ALBANY LAW JOURNAL, would seem to first volume of the Annuaire de l'Institut de Droit Inhave been justified by recent events. The impracti ternational, published by its authority, and which it is oability of regulating by treaty the character of offen proposed to continue as a permanent periodical. It sive weapons used in war, as more or less objectionable contains not only the papers in relation to the Instion the score of humanity - the principle on which the tute, and a full account of its proceedings, but a chroEmperor of Russia based his proposals, may be deemed nological table of the most important facts relative to to have been shown by the application of Russian tor the history of legislation and of public law, national pedoes to Turkish vessels. Are not torpedoes in the and international, for the preceding year, and the text same category as explosive balls ? At the congress of of treaties and of the most important international Brussels, as well as in the discussions of the Institute, aots, with a methodical repertoire of the principal this question would seem to have been ignored; nor works relative to private or public interuational law am I aware that it was ever referred to, except in my | published within the period which it embraces. A copy letter, in which it is remarked: “We do not find any of this work accompanies my communication. mention of torpedoes in any work on international Owing to the political condition of Europe and to law. They possess all the qualities of the munitions of other causes, the annual reunion, which was to have war interdicted by Hefter, whilst they furnish the taken place last year at Zurich, was adjourned to the best proofs of the wisdom of Hautefeuille's principles, coming September. A cursory notice of the matters as preventing by their very destructiveness all wars.'' to be then discussed will show that the zeal of the We are reminded, in a recent well-reasoned appeal members has suffered no abatement. From the circu(28th of May, 1877) of the Institute to the belligerents, lar before me, it appears that reports will be made that both Russia and Turkey were represented at from five several co Brussels.

The subject of the first commission is, “General The treatment of private property in maritime war, rules which should be sanctioned by international together with the three rules of the treaty of Wash treaties, with a view of securing the uniform decision ington, were passed on by the Institute. As to the of conflicts between different legislations, civil and former it was declared that the principle of the invio- criminal.” So far as regards civil legislation, there lability of private property of enemies navigating will be a continuance of the discussions on the report under a neutral flag should be considered as having of Mr. Mancini, Revue de Droit International, t. 7, entered into the domain of the positive law of nations, ' 1875, p. 363, to which we have already referred, as well

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