bear his own burthen. The statute which exempts debtors from the operation of this principle, did not take away from them the right to waive the privilege thus conferred whenever their consciences or their recessities prompted the waiver.” 10 These are the words of a man impressed with the sense of personal obligation and duty. The spirit in which the opinion is conceived is admirable in the individual, but perhaps not sufficiently broad for the formulation of a rule which should bind all debtors. The exemption laws were conceived from a regard for the weakest of the citizens of a state to prevent their reduction to a condition of complete want, and to prevent their becoming charges upon the public. Their necessities at a time when entering into a contract might, and often undoubtedly do, lead them into offering extravagant inducements to a creditor or into submitting to the imposition of ruinous terms. If excessive interest is contracted for, under such circumstances, the law does not hesitate to strike down the excess, and thus brush aside the contract of the parties, and in effect limit their capacity for contracting. Why should not the exemption laws be enforced in the same manner as the laws against usury? Reasons of public policy are the basis of each, and not even the necessities of debtors should be permitted to validate contracts that render the provisions of such laws nugatory. Indeed, it is against the consequences of their necessities that the law chiefly aims to protect debtors. A man cannot contract away his liberty. He should not be permitted to bargain away the last dollar's worth of property wherewith he might have procured food and raiment for himself and family. When a man, or one of his family who have the right to make the claim for him, omits to claim exemption when execution is levied against him, it is safe to assume that they can afford the waiver. Unless the statute is framed in such wise as to be self-operative, by the absolute denial of the right to levy exccution against exempted property, its bene 1 See similar reasoning of Judge Thompson in Smiley v. Bowman, 3 Gr. (Pa) 132 (1861), and Bowman v Smiley 31 Pa 225 (1858) and of Judge Strong in Line's app. 2 Gr (Pa) 197 (1858). ficent provisions can be enjoyed when execution is levied only by claiming their benefit. A waiver of the claim at such time is an omission against which the law cannot guard, and is obviously a totally different thing from an executory contract of waiver, which can be enforced against the will of the debtor when the levy is made only by the intervention or with the sanction of the law. The reckless indifference with which a debtor will sign a waiver upon assuming an obligation, his heedlessness of consequences at such a tíme, and over-confident assurance of ability to meet his obligations at maturity, place him at the mercy of an exacting creditor. When the contractual exactions of a creditor in other respects contravene the policy of the law, they are unenforceable. There is no reason why the law should be less effective in avoiding contracts which contravene its policy as declared in the exemption laws. Outside of Pennsylvania these views have received general expression. There are abundant decisions of the courts of nearly all the states in which the invalidity of executory waivers is demonstrated. One of the ablest may well be quoted at length. In Kneetle v. Newcomb, 22 N. Y. 249 (1860), Judge Denio says: "The statutes which allow a debtor... to retain, as against the legal remedies of his creditors, certain articles of prime necessity, to a limited amount, are based upon views of policy and humanity, which would be frustrated if an agreement like that contained in these notes, entered into in connection with the principal contract, could be sustained. A few words contained in any note or obligation would operate to change the law between those parties, and so far disappoint the intentions of the legislature. If effect shall be given to such provisions, it is likely that they will be generally inserted in obligations for small demands, and in that way the policy of the law will be completely overthrown. Every honest man who contracts a debt expects to pay it, and believes he will be able to do so without having his property sold on execution. No one worthy to be trusted would, therefore, be apt to object to a clause subjecting all his property to levy on execution in case of non-payment. It was against the consequences of this over-confidence, and the readiness of men to make contracts which may deprive them and their families of articles indispensable to their comfort, that the legislature has undertaken to interpose. "When a man's last cow is taken on an execution on a judgment rendered upon one of these notes, it is no sufficient answer to say that it was done pursuant to his consent, freely given, when he contracted the debt. The law was designed to protect him against his own improvidence in giving such consent. The statutes contain many examples of legislation based upon the same motives. The laws against usury, those which forbid imprisonment for debt, and those which allow a redemption after the sale of land on execution are of this class. In these cases the law seeks to mitigate the consequences of men's thoughtlessness and improvidence, and it does not, I think, allow its policy to be evaded by any language which may be inserted in the contract. It is not always equally careful to shield persons from those acts, which, instead of being promissory in their character and prospective in their operation, take effect immediately. One may turn out his last cow on execution, or may release an equity of redemption, and he will be bound by the act. In thus discriminating the law takes notice of the readiness with which sanguine and incautious men will make improvident contracts which look to the future for their consummation, when, if the results were to be presently realized, they would not enter into them at all.. "The maxim modus et conventio vincunt legem is not of universal application. It applies only to agreements in themselves legal. Where no rule of law or principle of public policy is concerned, the parties may by contract make a law for themselves. One object of the municipal law is to promote the general welfare of society. The exemption laws seek to accomplish by taking from the head of the family the power to deprive it of certain property by contracting debts which shall enable the creditors to take such property on execution. The parties to this contract sought to set aside those laws, so far as this debt was concerned. This they could not do." 11 That the validity of executory waivers of exemption is still upheld in Pennsylvania attests to the force of the principle of Stare decisis. The courts of that state have long since expressed regret that broader views of the question were not taken when it first came up for decision. In O'Nail v. Craig, 56 Pa. 161 (1867), Judge Strong said: "Had it been determined, immediately after the passage of the Act of April 9th, 1849, that a debtor could not deprive himself of that exemption from execution of a portion of his property allowed by the statute, by any agreement made at the time the debt was created, the object of the legislation would doubtless have been better secured." " The construction of the exemption laws which admits of their waiver by executory agreement ignores the principles of public policy which alone justify those laws. In effect, 11 For other expressions of opinion in accord with that of Judge Denio, sce Miles v. Bennett, 94 Tenn. 651 (1895); Carter v. Carter, 20 Fla. 558 (1884): Maxley v. Ragan, 10 Bush (Ky.) 158 (1874); and Recht v. Kelly. 163 I. 646 (1896). 12 See also Shelly's app.. 36 Pa. 373 (1860); Firmstone v. Mack, 49 Pa 393 (1865); and Garretson v. Felix. 6 Kulp 211 (1892). this narrow construction is as vicious as is the extreme liberality of the statutes in other states. In the latter case the creditors, in the former case the community itself, may suffer. In either case the debtor is subjected to strong temptations leading to fraud. Where exemptions are too liberal, their effect on debtors has been noted. Where the construction of the law is narrow, it drives the debtor, who seeks to escape the impoverishment the law admits of, to resort to all the familiar devices intended to withdraw his property from the reach of creditors. Concealment of assets and the inevitable property claim by third persons are the consequences of the narrow construction of exemption laws, which sanctions their waiver by executory agreement. The extent and the construction of the exemption laws should be determined by the purposes those laws were intended to accomplish. For the benefit of creditors, and after a long evolution, the whole of a man's estate and his person, as well, were subjected to various writs of execution. The exemption laws were a reaction against such drastic remedies, designed for the protection both of the state and of the individual debtor and his family, and were not intended to restrict the creditor's rights any further than was necessary to maintain the independence and freedom of a debtor and preserve his ability to support himself and his family. Their benevolent purposes should neither be abused by outrageously liberal statutory enactments, nor frustrated by narrow judicial construction. Stanley Fols. INTERNATIONAL LAW. PART II. From the Siberian seaport of Vladivostok the Russian cruiser squadron frequently sallied during the earlier part of the war, and did considerable damage to the shipping of Japan and of neutral nations as well. Thus, between February and May, 1904, were sunk the Nakonoura Maru, Gozo Maru and Kinshiu Maru. The first two vessels were Japanese merchantmen, the last an army transport." Problems of merely, The question at once presents itself as to the right of the Russians to dispense with the adjudication of a Prize Court as to the character of the cargoes carried by the captured ships, and to sink them out of hand. Wheaton says: “If the vessel belong to the enemy, and the captor has no means of retaining possession of her, or of bringing her into port, he is then justified in destroying her, but it is his duty to preserve her papers and as much of her cargo as he can secure."" And a little later the following interesting passage occurs anent the same subject: "During the Russo-Turkish war of 1877 the former power (Russia) was alleged to have made a practice of sending out fast steamers from Odessa, which, while they avoided the Turkish cruisers, captured Turkish merchantmen, burnt them on the spot, and then set the crews adrift in boats. If this was true, it was an undeniable violation of international law." " One naturally wonders whether Russia has been pursuing tactics of this kind in the present war? It seems established, however, that the ships in question were sunk off the coast "The Annual Register, 1904. page 376; War and Neutrality in The Far East, by T. J. Lawrence, M.A., L.L.D., page 40. Wheaton, (4th English ed.) page 506. "Wheaton, page 507, where the following references are cited for the statements made; Parl. Papers, Turkey (No. 1), 1878, page 313; and The Times, 15 Dec., 1877. |