SURVIVORS AS WITNESSES FOR THEMSELVES.

WE

E have on more than one occasion criticised the policy of section 399 of the Code of Procedure, prohibiting survivors from testifying to personal transactions with the deceased. It has always seemed to us one of the last convulsive struggles of the law-making power in support of the theory that man is prone to perjury as the sparks to fly upward. This determined clinging to the obsolete theories is like the innocuous cud which a man sometimes chews upon when trying to break away from tobacco. The exception embodied in this section, and that which prohibits husband and wife from testifying for or against each other in actions for divorce on the ground of adultery, seem to be the only two posts of importance which have not been carried by the march of legal reform in respect to matters of evidence.

Doubtless we shall startle the majority of our profession in this State when we declare, as the result of years of careful thought, observation, examination, and writing upon this topic, that, in our opinion, no human being ought to be debarred from testifying in his own favor for any conceivable reason. Justice was never promoted by shutting anybody's mouth. For some years we have been inclined to hold this proposition except in regard to infamous persons, but on reflection we have been led to believe that even they have rights, which may be endangered by the prevailing rule. If one has expiated the offense of a felony, it is hard, indeed, if he shall be left at the mercy of bad or designing men, without the privilege of telling his own story. This subsequent and consequential penalty is practically, although not designedly, like the savage's mutilation of his unfortunate enemy's corpse. We do not claim that such persons should be restored to their forfeited political privileges. All we claim for them is that they should not be left "naked and defenseless to their enemies" by being deprived of the right of testifying, at least on their own behalf, in courts of justice.

As to husband and wife the exclusion is particularly ridiculous. In support of this is cited by many, not only the idea of perjury, but the idea that it conserves domestic harmony. This latter idea is one of those pleasant fictions invented to excuse and maintain men's tyranny over their wives, and the cant of which has long made sensible men impatient. If men do not need the privilege of testifying in such cases, women do, as the every day experience of our courts demonstrates. Take the recent actual case which occurred in our courts, where a husband and a confederate conspired to place the innocent wife in such circumstances that adultery must necessarily be implied, and failed only

through the confederate's incautious blabbing. Justice might have been defeated but for that accident, and all in the cause of "domestic harmony." Why should not husband or wife be suffered to deny adultery or condonation by their own oath?

But to revert to our text, which concerns survivors. The question may again be pressed: Why should one man lose his rights because another has died or gone mad? The only answer that can be invented is: Because the natural inducement to perjury under which mankind labors is increased by the disability of the other party, and an inequality is produced by that disability. This is merely theoretical. Practically, when both parties are capable of testifying, the law pays no regard to equality. One party may be so far superior in intelligence, position, wealth, and influence, as to leave the contest practically as unequal as if the weaker party were dead. The law hears the narrations of both, and judges between them, basing its decision upon the probabilities of the respective narrations, but have the circumstances above mentioned no weight in the scale? Suppose the president of the United States were sued by a drunken vagabond, if the case were tried during the plaintiff's lifetime, it is fair to suppose that the parties would not stand quite equal, and that the defendant's testimony would be believed. But if the plaintiff dies before the trial, then the president suddenly loses all his credit, because disqualified, and must perhaps suffer in his clear rights because the vagabond is dead. This of course is an extreme case, but it tests the sense of the theory, just as an ascent to a high mountain commands a view of all below. Under our practice of permitting living parties to testify, the exclusion of the survivor is inconsistent. If the danger of perjury is assigned as the reason, why then suffer the living to testify? It is only a question of degree. The danger is always present. The law ought not to undertake to measure the degree, and say exactly where it becomes so great as to justify the exclusion of the testimony. Certainly a man will commit perjury to save his own life, if ever, and yet, here the law admits his testimony. The law cannot tell where to draw the line. The danger may practically be as great in the case of both living as in the case of one dead. The law, to be consistent, must shut out all, or hear whatever there is, whether of one or both. Again, why should the exclusion be restricted to personal transactions? Why should it not extend to the entire transaction? To make things strictly equal, it ought. But as the law stands, the survivor is competent to prove all the surroundings, however vital, which do not involve transactions strictly personal.

That our idea is no vagary, is shown by the fact that for many years in Massachusetts the exclusion has been abolished, with excellent results. So we

by the Court of Errors (7 Hill, 583), and was affirmed by an equally divided court, the chancellor voting for affirmance. This was in December, 1844.

In May, 1845, precisely the same question as to a town collector came before the Supreme Court in Muzzy v. Shattuck, 1 Denio, 233, and that court, consisting of Bronson, C. J., and Judges Beardsley and Jewett, held that the collector was liable. The case of Dorr was mentioned by the court and not disapproved. If there had been any inclination to disapprove it, Judge Bronson certainly would have dissented. But the court, after a labored analysis of the statute concerning town collectors, conclude that "it imposes a definite liability on the collector and his sureties for the omission to collect and pay; and whether that omission is the result of misfeasance or neglect, unavoidable accident or felony committed by another, I do not think it furnishes any defense to the action." This case was unanimously affirmed by the Court of Errors in December, 1846, as appears from the reporter's note to the Dorr case in 7 Hill; but the decision is not reported.

The cases are probably distinguishable, and it is probable that the Court of Errors did not overrule the Dorr case any more than the Supreme Court did. We can see no warrant for the reporter's statement that "the law seems to have been since settled, and properly, it is believed, directly the other way," in the Muzzy case, and that "the latter decision appears to be utterly irreconcilable" with the Dorr case. The latter case was cited as authority by Judge Cowen in Browning v. Hanford, 5 Hill, 592, and the Muzzy case has several times been cited as authority, but never except in cases concerning town collectors. So far as we know, the Dorr case has never been overruled or questioned, and is authority to-day on the point.

That the Dorr case is still authoritative seems to be conceded in Perley v. County of Muskegon, 32 Mich. 132; 20 Am. Rep. 637, where the converse doctrine is held as to county treasurers.

This was

an action against a third person, to whom the county treasurer had lent the county moneys, and it was held that even if the treasurer had subsequently defaulted in office, the borrower was not liable to the county at law for money had and received, because the treasurer is the debtor, and not the bailee of the county.

If liable at all, it is only on the case or in equity. After perusing the careful review of the cases contained in the opinion in this case, it must be conceded that outside of this State the doctrine is pretty uniformly ruled contrary to the Dorr case. Our object has been not so much to discuss the merits of the question as to inquire what is the prevailing rule of our State on the liability of county treasurers under such circumstances.

MY DEAR SIR-As I have not seen any authoritative notice of the annual session of the "Institute of International Law," to commence at Zurich, on the 8th of September, I beg to avail myself of your valuable LAW JOURNAL to bring to the notice of American jurists and publicists what has been accomplished by that association, as well as the subjects proposed for discussion at the approaching meeting. This notification is the more desirable, as it not unfrequently happens that the Institute is confounded with a society of a more popular character, having especially in

view a codification of laws, which I observe is to meet at Antwerp on the 30th of the present month.

Your readers may possibly remember that this is not the first occasion on which the columns of the JOURNAL have been placed at my disposition for the purpose of making known the objects of the "Institute of International Law." The plan for its formation was given in your number of October 11, 1873 (vol. viii, p. 230), and a communication from me, under date of August 15, 1874, to M. Rolin Jaequemyns, discussing the matters that had then been presented to the consideration of the society, was inserted in volume xi, page 25.

The establishment of the Institute is in no small degree to be attributed to the Revue de Droit International, founded in 1869, and of which M. Rolin Jaequemyns was the editor in chief. The article under the title of "De l'étude de la legislation comparée et du droit international," by which it was initiated, gave full evidence of the Director's thorough acquaintance with the subjects, which it was his province to have investigated. Mr. Asser, the eminent advocate of Amsterdam, and Mr. Westlake, who is known to all American lawyers as the author of the best treatise on private international law, were his responsible associates.

All the original members of the Institute were known to the jurists and publicists of Europe and the United States by writings on subjects falling within its special domain.

At the first conference, which took place at Ghent in September, 1873, the object of the "Institute" was foreshadowed in its statutes. It proposed what was then unknown to our spécialité, the union of collective action, free from all governmental control, with the operations of diplomacy and of individual scientific studies. It was intended to act by the concurrence of men who had, by their investigations known to the world, already established some common principles and who might thus, as an association, facilitate the progress of public law, and, by becoming the organ of the juridical conscience of the civilized world, formulate rules derived from the general principles of the science.

Unlike the association which convened about the same period at Brussels, to which our associate, Mr. Field, gave his powerful countenance, the Institute was not prepared with any universal code to be offered without scientific scrutiny to the recognition of all States; but adopting the theory of Savigny, in preference to that of Thiebault, who, half a century ago, divided the jurists of Germany, it preferred gradual

and progressive reforms to the improvisation of an international code.

It was expected to obtain not only an assimilation of legislation as applied to individuals, thereby diminishing the conflict of laws, but also the recognition of the great principles of public law by means, in both cases, of treaties. This, indeed, so far as regards the relations of States toward one another, had been effected to a certain extent at the Congress of Paris of 1856, when rules of maritime law were adopted, which, besides the abolition of privateering, to which the United States, Spain and Mexico declined to accede, gave immunity to enemy's property in neutral vessels and protected neutral property in enemy's vessels as well as defined the law of blockade.

The following conclusions, relative to the civil procedure, were adopted at the Geneva session:

"It will be useful, to establish, by international treaties, uniform rules concerning

1st. The foundation and limits of the jurisdiction and competence of tribunals.

"2d. The forms of procedure in order: "(a) To determine with precision what is the law which goverus these forms in doubtful cases.

"(b) To establish with precision the principles of international law with regard to the means of proof. "(c) To regulate the forms of legal citations, and notices to persons domiciled or residing abroad. "(d) To regulate rogatory commissions.

"3d. The execution of foreign judgments by virtue of treaties, in which shall be stipulated the guarantees and conditions under which the paréatis shall be accorded."

And I may be here permitted to remark that, in the absence of treaties, no problem is more difficult of ex

Rejecting the idea that a foreign law could by comity be substituted by a judge to that which he was sworn to administer, one of the earliest results of the deliberations of the "Institute" was to recognize the evident utility and even the necessity of treaties by which civilized States should adopt with common accord obligatory and uniform rules of private international law, by which public authorities, and especially the tribunals of the contracting States, should decide questions concerning persons, property, acts, successions, modes of procedure, and foreign judgments. These treaties, it was suggested, should not impose a perpetual uniformity in the codes and laws of different countries which might oppose obstacles to the progress of civilization. Indeed, it may be here noted, that it was the absence of a due regard to the modification of laws required by the varying circumstances of different peoples that so much detracted from the value of the labors of Jeremy Bentham, whom our Wheaton denominated "the greatest judicial reformer of modern times." Having myself had, half a century ago, the good fortune to be initiated in his doctrines by the great philosopher himself, I can in some degree appreciate the extent to which the reforms in English jurisprudence may be traced to him, though ordinary minds, influenced by his proposition to make a universal code applicable alike to all States, without regard to their peculiar condition, were wont to treat as visionary his best reasoned suggestions.

At the session of Geneva, in 1874, the commission on the subject, through Mancini and Asser, presented reports, setting forth the general rules of private international law, which it was important to have recognized by international conventions. Quoting Guthrie, of Edinburgh, the translator of Savigny, it is remarked: "Though much has been said about comitas, it is an improper term; there is no such thing as a decision from complaisance. When judges determine by the law of another country, they do it ex justitia; they are bound to do it." Mancini adds, "without resorting to other authorities, all the members of the commission named by the Institute, viz., Bluntschli, Asser, Beach Lawrence, Massé, Westlake, have already had occasion to manifest in almost the same sense their opinions on the question."

We have effect to the judicial decrees of another. seen that, in rendering judgments, courts do not apply, through courtesy, foreign laws. It results from the very principle of territorial sovereignty that no judgment can be executed, except by the authority of the State in which it is carried into effect; but, while in England and the United States, despite of the distinction between their jurisprudence and that of the continent of Europe, a foreign judgment rendered in a case where the court had jurisdiction over the parties and subject-matter, and which does not contravene the policy of the country, is as a matter definitively disposed of by competent authority, conclusive, in France it is only the basis for a paréatis.

As an illustration of the refusal of a court to carry into effect the judgment of a foreign tribunal, founded on a local law at variance with its policy, the case of De Brimont v. Pennima, 10 Blatchf. C. C. R. 436, may be cited. This was a suit founded on a decree of a French court in favor of a son-in-law, whose wife was dead, leaving a child, against her parents for a provision for the support of himself and child. Code Napoleon, 203-211. A demurrer to the action was sustained by the court.

England applies to Scotch and colonial judgments the same rules as to those of foreign tribunals. The United States, in their constitution, anticipated the necessity of any treaty stipulations by providing that "full faith and credit should be given in each State to the public acts, records and judicial proceedings of every other." Such is likewise the rule under the present Swiss constitution, which declares that "definitive judgments rendered in any one canton are executory in all Switzerland," while the unification of the civil and criminal legislation of the German empire precludes the raising of the question among the German States.

More precise rules as to the competence of tribunals were perfected at the session in 1875, at the Hague. They include a provision as to the relation of the government to its own judiciary, in the case of the application of a foreign treaty intended to regulate their competence, to the effect that they shall decide according to the same rules which have been established with respect to their competence by the laws of the country. The rules of private international law, which enter into the laws of a country, by virtue of an international treaty, shall be applied by the tribunals,

without there being any international obligation, on the part of the government, to secure their application by administrative measures.

The Institute was established at the time when international arbitrations for the settlement of difficulties were greatly in vogue, in consequence of the then recent convention between the United States and Great Britain, with regard to the so-called Alabama claims.

That all the anticipations of my European colleagues, with respect to arbitration as an international panacea, were not shared by me will appear from the communication to the Secretary-General, M. Rolin Jaequemyns, published in your journal of the time. Not only had I reason not to be entirely satisfied from my own observation, as counsel before them, of the practical operation of such commissions, but I conceive that a great blow had already been struck at arbitration by the refusal of the congress of the United States to carry out the award made at Geneva, for the Alabama claims, in regard to the underwriters, whose claims were taken into account in the settlement of the indemnity, the amount of which still remains in the treasury.

We have, in the proceedings of the Institute, a complete projet for the settlement of questions which may be submitted to arbitration. It only requires the sanction of governments to form from it a system of regular adjudication.

The declaration of the congress of Brussels respecting the laws and usages of war was the subject, at the Hague in 1875, of protracted discussions, in which Bluntschli, now the president of the Institute, who was a member of the congress, took a leading part. The conclusions of the Institute, though they did not meet the approval of the English and American members, were favorable to the projet. My objections (besides those growing out of the peculiar position of the United States, relying, as they do, mainly on their citizen soldiery), which, as presented to the Institute, have appeared in the ALBANY LAW JOURNAL, would seem to have been justified by recent events. The impracticability of regulating by treaty the character of offensive weapons used in war, as more or less objectionable on the score of humanity-the principle on which the Emperor of Russia based his proposals, may be deemed to have been shown by the application of Russian torpedoes to Turkish vessels. Are not torpedoes in the same category as explosive balls? At the congress of Brussels, as well as in the discussions of the Institute, this question would seem to have been ignored; nor am I aware that it was ever referred to, except in my letter, in which it is remarked: "We do not find any mention of torpedoes in any work on international law. They possess all the qualities of the munitions of war interdicted by Hefter, whilst they furnish the best proofs of the wisdom of Hautefeuille's principles, as preventing by their very destructiveness all wars." We are reminded, in a recent well-reasoned appeal (28th of May, 1877) of the Institute to the belligerents, that both Russia and Turkey were represented at Brussels.

The treatment of private property in maritime war, together with the three rules of the treaty of Washington, were passed on by the Institute. As to the former it was declared that the principle of the inviolability of private property of enemies navigating under a neutral flag should be considered as having entered into the domain of the positive law of nations,

and that it was desirable that the principle of inviolability of private property of enemies navigating under an enemy's flag be universally accepted in the following terms, borrowed from the declarations of Prussia, Austria and Italy in 1866, and under the reserve therein expressed: "Merchant ships and their cargoes shall not be captured, unless they carry contraband of war, or attempt to violate an effective and duly declared blockade."

The reserve alluded to is: "It is understood that, according to the general principles which should regulate war on the sea as well as on the land, the preceding disposition shall not apply to merchant ships which directly or indirectly take part, or are destined to take part, in the hostilities."

It is to be noted that the entertaining of the proposition at all was opposed, as being a political question, by the English members, Bernard, Lorimer, Twiss and Westlake. The only American present, Mr. David Dudley Field, sustained the report.

In respect to the three rules of Washington, which had ceased to meet the approbation of either of the contracting parties, we expressed our views in the communication before referred to. They were substantially in accordance with those of Prof. Lorimer, of Edinburgh, who declared that "these rules, as well as the American and English foreign enlistment acts, passed under the influence of the same views, were bad in theory and inapplicable in practice." Modifications were adopted by the Institute which, it was supposed, would render them conformable to the law of nations. They have failed, however, even as altered, to attract the attention of either of the original contracting parties, or of any other State. They may be deemed to have passed wholly into the domain of history.

For a statement of the labors of the Institute, on matters which have received their full investigation and final action, I would refer not only to its official journal, the Revue de Droit International, but to the first volume of the Annuaire de l'Institut de Droit International, published by its authority, and which it is proposed to continue as a permanent periodical. It contains not only the papers in relation to the Institute, and a full account of its proceedings, but a chronological table of the most important facts relative to the history of legislation and of public law, national and international, for the preceding year, and the text of treaties and of the most important international acts, with a methodical repertoire of the principal works relative to private or public international law published within the period which it embraces. A copy of this work accompanies my communication.

Owing to the political condition of Europe and to other causes, the annual reunion, which was to have taken place last year at Zurich, was adjourned to the coming September. A cursory notice of the matters to be then discussed will show that the zeal of the members has suffered no abatement. From the circular before me, it appears that reports will be made from five several commissions.

The subject of the first commission is, "General rules which should be sanctioned by international treaties, with a view of securing the uniform decision of conflicts between different legislations, civil and criminal." So far as regards civil legislation, there will be a continuance of the discussions on the report of Mr. Mancini, Revue de Droit International, t. 7, 1875, p. 363, to which we have already referred, as well