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UNIVERSAL CONGRESS OF
“LAWYERS AND JURISTS, /
OFFICIAL REPORT

OF THE

Universal Congress of Lawyers
and Iurists

HELD AT ST. LOUIS, MISSOURI, U.S. A.
SEPTEMBER 28, 29, AND 30, 1904

UNDER THE AUSPICES OF 9»

THE UNIVERSAL EXPOSITION

AND

THE AMERICAN BAR ASSOCIATION

 

EDITED BY THE SECRETARY OF THE CONGRESS

 

ST. LOUIS
Published by the Executive Committee
1905
La.
PREFACE

The Universal Congress of Lawyers and Jurists was
held in St. Louis, September 28, 29 and 30, 1904, under
the auspices of the Universal Exposition and the Ameri-
can Bar Association. The development of the plan and
scope of the Congress, its constituent elements and the
details of its organization were in the hands of a com-
mittee, composed of representatives from the larger com-
mittees that were appointed by the Universal Exposition,
the American Bar Association and the Bar Association
of St. Louis. The composition of these committees and
a report of their labors will be found herein under the
heading of ‘‘History of the Organization of the Congress.”
(See Appendix A.)

The members of the Congress, nearly a thousand in
number, were named by the various Governments, to
whom invitations had been extended through the Ameri-
can State Department, by bar associations, orders of advo-
cates and kindred organizations in different countries of
the world, by the law faculties of universities and schools
of law, and from the profession at large by the commit-
tee itself. The American members, naturally greatest in
number, included one hundred and twenty-five Delegates
named by President RoosEVELT in behalf of the United
States Government, those judges of the Federal courts and
State appellate courts of last resort who accepted the invi-
tations sent to them to become members of the Congress;
one hundred Delegates appointed by the American Bar
Association, Delegates from each State or Territorial
bar association, or appointed by the judges of the highest

v
vi PREFACE

 

court in any State or Territory not having such an asso-
ciation; Delegates from the law faculty of each State uni-
versity or school of law belonging to the Association of
American Law Schools, and lastly, certain Delegates-at-
large, specially appointed, the number of which was
about one hundred.

The expressed objects of the Congress were the con-
sideration of the history and efficacy of the various sys-
tems of jurisprudence and the discussion of those ques-
tions of international, municipal and maritime law which
concern the welfare of all civilized nations; the hope of
contributing to greater harmony in the principles and
the forms of procedure upon which the law of civilized
nations should be based; the bringing of lawyers and
jurists from all parts of the world into contact for the pur-
pose of exchanging views on the principles and methods
of the correct administration of justice, and the estab-
lishing of closer relations and associations between mem-
bers of the profession upon which the administration of
justice depends.

Nearly five hundred Delegates, slightly over half the
number of those accredited, and representing nineteen
different countries, were present at the Congress, an admir-
able showing when it is borne in mind that many of the
appointments were of an honorary character, given largely
as a mark of recognition of high standing in the profes-
sion, and not always with the expectation that the appoin-
tees could undertake the long journey to St. Louis. From
many of those who could not come were received letters
warmly indorsing the plan of the Congress, bespeaking it
every success, and expressing deep regret that they could
not be present. It is a source of gratification to all the
participants in the Congress that it did bring together so
PREFACE vil

 

large a number of members of the profession, both active
and emeritus, not only because of the resulting valuable
exchange of ideas on methods of administering justice
and strengthening of agencies for securing, ultimately, an
effective tribunal for the peaceful solution of international
difficulties, but also because of the rare opportunity
afforded for lawyers of different countries to become
acquainted with one another.

A satisfactory feature of the Congress, composed as it
was of a preponderance of English-speaking Delegates,
was that nearly all the speakers were able to discourse in
the English language. The editor of this report has en-
deavored to present the papers and speeches just as de-
livered, making few if any changes in construction, and
only a few changes of words. It was thought that the
foreign use of the English medium added a piquancy to
the discussion which more than compensated for any inac-
curacy of English idiom.

The Congress, following the recommendation of its
Committee of Nations, to which under the rules were
referred all proposed resolutions, has expressed its views
on several subjects of international importance and of
professional interest. On some subjects which, because
they were in nature political or economic, were not
deemed germane to the purposes of the Congress, it de-
clined to give an opinion. Other subjects which, on ac-
count of the limited time at the disposal of the Congress,
could not receive adequate consideration, it has referred
to the American Bar Association to be presented to some
future congress.

THE EDITOR.
TABLE OF CONTENTS

ORGANIZATION OF THE CONGRESS.........--.--- vill
OFFICERS OF THE CONGRESS .............--.------- xv
RULES OF ORGANIZATION AND PROCEDURE...... xvii

PROCEEDINGS OF THE CONGRESS, SEPTEMBER 28
REMARKS OF Mr. F. W. LEHMANN, OPENING THE CONGRESS i
ADDRESS BY Hon. D. R. FRANCIS, PRESIDENT OF THE EXPO-

SILION <2 3a4ny shedhe se diate de oe Ae oaes 2
INAUGURAL REemMarRKS OF Hon. Davin J. BREWER. PRESI-

DENT OF THE CONGRESS.........----------------- 4
ELECTION OF VICE-PRESIDENTS ........-..------++--+- 8
Paper By Hon. JOHN W. FOSTER .......---.-------- 9

Subject: “The Promotion of the Settlement of Interna-
tional Controversies by Resort to The Hague Tri-
bunal or Reference to Special Commissions.”

DISCUSSION OF THE PAPER BY

Sefior Emilio Velasco of Mexico.............-.-.- 45
Mr. Jackson H. Ralston of Washington, D.C. ...... 52
APPOINTMENT OF COMMITTEE OF NATIONS ........----- 60
MOTIONS 03 2isG.cicuse con eoine ape'c A Re Se ee dee see we 61

MORNING SESSION, SEPTEMBER 29.

Paper By Herr Gustar E. FAHLCRANTZ OF SWEDEN.... 65
Subject: ‘The Preferable Method of Regulating the
Trial of Civil Actions with Respect to Pleading and

Evidence.”

DISCUSSION OF THE PAPER BY

Dr. Adolf Hartmann of Germany ..........-------- gi

Professor Alfred Nerincx of Belgium............--- 95
RepLy oF HERR FAHLCRANTZ....-..------------+++--- 100
Discussion CONTINUED BY

Judge John F. Dillon of New York .......--------- 103

Mer, C.- Cs Cole: Of Towa) e..2ic dics cee eid'eeice he ee ote 108
x CONTENTS

 

MORNING SESSION, SEPTEMBER 29 (continued)

Judge Somerville P. Tuck of Egypt .......---------
Mr. Theodore Sutro of New York ..........-..----
Dr. Adolf Hartmann of Germany .........--.------
Mr. E. Fabre Surveyer of Canada ........-.----.--

AFTERNOON SESSION, SEPTEMBER 29.

NeEw MEMBER OF THE COMMITTEE OF NATIONS ....-...--
Discussion oF THE MORNING CONTINUED BY
Cuow Tszcut of China..................--------
Paper BY PRoFeEssor D. J. JITTA OF THE NETHERLANDS. .
Paper BY PRoressor F. MEILI OF SWITZERLAND........
Subject of both papers: “A Review of the Four Hague
Conferences on Private International Law, the
Objects of the Conferences, and Probable Results.”
DISCUSSION OF THE PAPERS BY
Judge Simeon E. Baldwin of Connecticut ........-..
Presidént- Brewer 2.2.00: cese casi dcediaoecue ss
REPORT OF THE COMMITTEE OF NATIONS ........-.-.---
PASSAGE OF RESOLUTION FAvorING A SECOND HAGUE
CONFERENCE 2ac re semen toe 6 eee es pe eee

MORNING SESSION, SEPTEMBER 30.

ELECTION OF A VICE-PRESIDENT FROM BRAZIL..........-
PAPER BY Sir WILLIAM R. KENNEDY OF ENGLAND ......
Subject: “To What Extent Should Judicial Action by
Courts of a Foreign Nation be Recognized ?”
DIscUSSION OF THE PAPER BY
Sig. Angelo Pavia of Italy .......22....2-2-2..2---..
Hon. Wallace Nesbitt of Canada.........2...222.-.
Mr. Edward Q. Keashey of New Jersey ............
Judge Joseph A. Breaux of Louisiana -.............
Judge Robert M. Douglas of North Carolina ........
RESOLUTION OFFERED BY SENOR DE AZPIROZ ..........

PAGE

115
117

135

172
177
178

179
182

185
185
 

CONTENTS xl
PAGE
MORNING SESSION, SEPTEMBER 30 (continued)
PASSAGE OF RESOLUTION FavorING UNIFORM PATENT
TGAWS: cone deus sowee Sewlggee cel oan seu phaen Shee 233
PassaGE OF RESOLUTION FAVORING INTERNATIONAL Ex-
CHANGE OF Law PUBLICATIONS ......-.----------- 234
THE QUESTION OF FORMING AN INTERNATIONAL BAR ASSO-
CIATION, DISCUSSION BY
The Chairman of the Committee of Nations .......-- 234
Sir William R. Kennedy ............2.-2--------5- 236
AFTERNOON SESSION, SEPTEMBER 30.
Paper By Hon. G. A. FINKELNBURG OF MIssouRI....--- 237
Subject: “‘The Protection which Should be Accorded to
Private Property on the High Seas in Time of War.”
DISCUSSION OF THE PAPER BY
Chevalier A. von Stibral of Austria .............--- 245
Mr. Everett P. Wheeler of New York .............-- 247
Mr. Moorfield Storey of Massachusetts..........---- 251
Mr. George S. Robertson of England ............-- 253
THE PROPOSED INTERNATIONAL BAR ASSOCIATION, Fur-
THER DISCUSSED BY
Mr. James Hagerman of Missouri ...............-- 256
Mr. Walter S. Logan of New York...............-- 258
Mr. Everett P. Wheeler of New York .....-.-.--.-- 261
Mr. F. M. Huffaker of Nevada ...........--------- 262
Mr. J. O. Crossby of Iowa .........-------------- 262
Mr. John Dryden of Nebraska .........--..------- 263
REPORT OF THE COMMITTEE OF NATIONS .......------- 264
RESOLUTIONS: «ssccccceon oS rnc eis ahs ee ane see es eee eae se 264
CLOSING REMARKS OF THE PRESIDENT......----------- 268
List oF DELEGATES ACCREDITED TO THE CONGRESS... . 270

GENERAL NUMERICAL SUMMARY ......--------+--+----
xii CONTENTS

 

APPENDIX

(A) HISTORY OF THE ORGANIZATION OF THE
CONGRESS... .osccinccvedoieed cea amews ace suede

(B) THE HAGUE CONFERENCES ON PRIVATE IN-
TERNATIONAL LAW.

TEXT OF THE VARIOUS CONVENTIONS AND CONVENTION

Projects. (Appendix to Professor Meili’s Paper.) . -

BIBLIOGRAPHY OF THE CONFERENCES ON PRIVATE IN-

TERNATIONAL Law. (Appendix to Judge Baldwin’s

Remarks.) 244. incest ee ged ead ob oe Sek ae Ges

(C) FOREIGN DECREES OF DIVORCE.....-......--.
ENGLISH TRANSLATION OF SIG. PAviA’s REMARKS.

(D) EXTRADITION TREATIES ......----...-----..---
OBSERVATIONS SUBMITTED BY AMBASSADOR DE ASPIROZ
IN SUPPORT OF HIS RESOLUTION ON THE SUBJECT.

(E) JOINT STOCK COMPANIES .................--2--

A PLEA FOR AN INTERNATIONAL FoRM OF ARTICLES OF

AssocrATION. A Paper BY M. Loicg DE LOBEL oF
FRANCE.

(F) NOTES ON CHINESE LEGISLATIVE PROCED-
TRIES tase shee oe ahd ore ah ete veee he a Secon Aa tga eatery
A Paper BY Mr. C. M. Lacey SITES oF SHANGHAI.

PAGE

332

375
379

384

391
ORGANIZATION OF THE CONGRESS

President of the Universal Exposition, 1904,
DAVID R. FRANCIS.

President of the American Bar Association,
JAMES HAGERMAN.

Chairman Exposition Committee on Congresses,
FREDERICK W. LEHMANN.

Director of Congresses,
HOWARD J. ROGERS.

Committee on Plan and Scope,
FREDERICK W. LEHMANN, Cuairman.
AMOS M. THAYER, JAMES HAGERMAN,
JACOB KLEIN, EDWARD S. ROBERT.
CHARLES CLAFLIN ALLEN.

Secretary of the Organization Committees,
V. MOTT PORTER.

xiii
OFFICERS OF THE CONGRESS

PRESIDENT

HON. DAVID J. BREWER
U.S. Supreme Court, Washington.

VICE-PRESIDENTS
Argentine Republic.

DR. JOSE V. FERNANDEZ
Argentine Consulate General, New York.
Austria.

ADALBERT RITTER VON STIBRAL
1 Postgasse 8, Vienna.

Belgium.

PROF. ALFRED NERINCX
Louvain University, Brussels.
Brazil.

DR. L. GONCALVES
Manaos-Amazonas.

British Empire.

HON. SIR WILLIAM R. KENNEDY
Royal Courts of Justice, London.
China.

CHOW TSZCHI
Chinese Legation, Washington.
France.

PROF. FERDINAND LARNAUDE
Faculty of Law, Paris.
Germany.

DR. ADOLF HARTMANN
K6nigliches Land-Gericht, Berlin.
xv
xvi OFFICERS OF THE CONGRESS

 

VICE-PRESIDENTS (continued)

Tialy.
SIG. AVV. ANGELO PAVIA

National Parliament, Rome.

Mexico.

His Excettency SENOR DON MANUEL DE AZPIROZ
Mexican Embassy, Washington.

Netherlands.
DR. D. JOSEPHUS JITTA

University of Amsterdam.

Sweden.

HERR GUSTAF E. FAHLCRANTZ
65 Odengatan, Stockholm.

Switzerland.
DR. F. MEILI

University of Zurich.

United States.
HON. SIMEON E. BALDWIN

Supreme Court of Connecticut New Haven.

SECRETARY

V.MOTT PORTER
220 N. Fourth Street, St. Louis.

' The list of Delegates to the Congress and of the sources of their
appointment will be found at the end of this report.
RULES OF ORGANIZATION AND
PROCEDURE

I.— MEMBERSHIP

The Louisiana Purchase Exposition Committee of the American
Bar Association will prepare and furnish to the President of the
Congress an official roll of all accredited to the Congress.

TI.— OFFICERS

In order to facilitate the prompt organization of the Congress,
the Delegates appointed in behalf of the United States have appointed
as its President the Honorable Davip J. BREWER, Associate Justice
of the Supreme Court of the United States, and as its Secretary, Mr.
V. Mott Porter, of the St. Louis bar.

At the opening of the first session, the President will call for the
nomination of one Vice-President and one member from each of the
Nations represented to form a Committee of Nations.

III.— Business

All matters calling for a formal vote of the Congress will be pro-
posed by the Committee of Nations, either on their own initiative
or by way of report on propositions or motions referred to them.
All matters proposed from the floor shall be referred to the Com-
mittee without debate. The Committee will choose its chairman,
who will make all propositions in its behalf. It may appoint sub-
committees consisting of any members of the Congress to aid it in
the discharge of its functions.

IV.—PaPERS AND DISCUSSIONS

At each session of the Congress an address or paper will be pre-
sented, and followed by a discussion of its subject.

Not over an hour will be occupied in delivering such address or
reading such paper, but it will be printed in full subsequently in the
Proceedings of the Congress.

xvii
Xviii ORGANIZATION AND PROCEDURE

 

The author of each paper will furnish to the President of the
American Bar Association, at St. Louis, Mo., as early as he may
find it convenient before the opening of the Congress a brief state-
ment of the positions taken and points made, for the information of
those who may be appointed to take part in its discussion.

No one will occupy over fifteen minutes in discussion, but any-
thing omitted for lack of time will be printed in full subsequently in
the Proceedings of the Congress.

Papers and discussions may be presented in any language, but
translations into English of all not written in that language will be
made before the opening of the Congress for distribution at the time
of the presentation of such paper or discussion.

V.—VOoTES

At the request of the representatives of any Nation, the vote of
the Congress on any question will be taken by Nations, each Nation
casting one vote.

No vote can have the effect of binding or prejudicing the action
or position of any Nation in reference to any subject. - While votes
may be taken by Nations, they will express simply the private opin-
ions of individuals, who have no authority to speak officially in such
matters for their respective Governments.

VI.—SuBJECTS TO BE CONSIDERED

The following subjects, among others, will be considered by the
Congress, and papers will be presented as a foundation for the dis-
cussion of some or all of them.

First: ‘The promotion of the settlement of international con-
troversies by resort to The Hague Tribunal, or reference to special
commissions.”

SECOND: “The preferable method of regulating the trial of civil
actions with respect to pleading and evidence.”

THirD: “A review of the Four Hague Conferences on private
international law, the object of the conferences and probable
results.”

FourtH: “To what extent should judicial action by courts of
a foreign nation be recognized?’ (Considered with special refer-
ORGANIZATION AND PROCEDURE xix

 

ence to the status of individuals as affected by divorce or other decrees,
and the right to represent the person or property of another.)

Firra: “The protection which should be accorded to private
property on the high seas in time of war.”

VII.—RicuHT To THE FLooR

Any member of the Congress desiring to propose any matter for
consideration may do so by presenting a written motion over his
signature. This will be presented without explanation and referred
without debate to the Committee of Nations.

The President of the Congress, whenever there is occasion and
opportunity for general and extemporaneous discussion upon any sub-
ject, will announce that there is such opportunity; and any member
then desiring to speak will send his card, stating that fact, to the
President. No one will be recognized as entitled to the floor who
has not thus previously communicated his desire to the President.
No one thus speaking will occupy over ten minutes.

VIII.—PuBLicaTIONs

A copy of the official record of the proceedings, in a printed
volume, will be furnished as soon as practicable, after the adjourn-
ment of the Congress, by the representatives of the United States
without charge, to each member, and to the Government of each
Nation represented.
PROCEEDINGS

OF THE

UNIVERSAL CONGRESS OF LAWYERS
AND JURISTS

HELD AT

FESTIVAL HALL, UNIVERSAL EXPOSITION
ST. LOUIS, MISSOURI, U. S. A.

FIRST DAY—WEDNEsDAY, SEPTEMBER 28, 1904

The Universal Congress of Lawyers and Jurists was
called to order at 2 Pp. m. by FREDERICK W. LEHMANN,
Chairman of the Universal Exposition’s Committee on
International Congresses and Chairman of the Committee
on Plan and Scope of the Universal Congress of Lawyers
and Jurists.

Mr. LEHMANN spoke as follows:

Gentlemen: We welcome the coming as we speed the going
guest. The American Bar Association has adjourned. The
Universal Congress of Lawyers and Jurists will come to order.

There is nothing more fitting in the proceedings of this Expo-
sition than this great gathering of lawyers, for in the event which
it is designed to commemorate lawyers were the chief actors.
By the deed of cession which constitutes the Louisiana Purchase,
France gave a territory four times as large as that which it retained
and the United States got a domain as large as that which it
already possessed. This expansion of empire was not accom-
plished without serious misgivings on the part of many of our
people. While Mr. JEFFERSON believed that the extension of the
federative principle of government over so large an area was a
distinct accession to the sum of human happiness, FisHER AMES
saw in the result a country too big for union, too sordid for

I
2 CONGRESS OF LAWYERS AND JURISTS

 

patriotism, and too democratic for liberty. A hundred years
have come and gone, and our institutions of law and liberty
have been established here and have had their course of devel-
opment untrammeled by old traditions and unhindered by old
abuses. Whether the lawyer statesmen of the young Republic
wrought for good or for evil, whether we have realized the fears
of the faint-hearted or the hopes of the most sanguine of the
fathers, attest this Exposition, which displays, in comparison
with the rest of the world, the arts, the science, the industry,
and the culture of the Louisiana Territory.

At the beginning of this enterprise, the people upon whom
the burden rested turned, without dissent, to one man as being
capable of its leadership and direction. It is my duty, as it is
my pleasure, to introduce to you the President of the Louisiana
Purchase Exposition Company, Davip R. Francis. [Applause.]

The Honorable Davip R. Francis, President of the
Exposition Company, welcomed the members and guests
as follows:

Mr. Chairman, Ladies and Gentlemen: The Louisiana Pur-
chase Exposition Company greets the Universal Congress of
Lawyers and Jurists. When this Exposition shall have ended,
when its material phases shall have ceased to exist, there will
remain in the minds and hearts of the people who visited it many
pleasant recollections, and the memory of this Exposition will
forever abide with those connected with its organization and
its operation. Speaking for the latter, I may say that no feature
of this Exposition is a source of greater pride to them, nor the
cause of more sincere gratification, than the meeting of these
congresses that are called together for the purpose of promoting
the education of the people throughout the United States, for
the edification of all who attend the Exposition, and for the
fostering of brotherly feeling throughout all the countries that
participate in this World’s Fair. It is very proper, and a good
sequence, that an interparliamentary union for the promotion
of arbitration, participated in, as it was, by advocates of peace
OPENING OF THE CONGRESS 3

 

from the legislative bodies of all civilized countries, should be
followed by an international congress of arts and science, a
brotherhood of those who would make the first effort to establish
the unification of all knowledge and define the relations between
the branches of science. It is eminently proper that two such
congresses should be followed by a universal congress of those
who frame the laws and construe them.

The development of international law has been followed with
the greatest interest by statesmen and jurists throughout the
world. The great fundamental principles that underlie the
relations of one country to another, although not formulated
into statutes or enacted into laws, are observed by all civilized
countries, and every convocation of the leaders of thought and
of the advocates of law in civilized countries throughout the
globe constitutes another decided step towards a definite code
of international law.

The Exposition Management cherishes the hope that this
Universal Congress of Lawyers and Jurists may be a very material
aid towards accomplishing that greatly desired object. I believe
it was Lord Bacon who, in comprehensive and beautiful lan-
guage, said that laws, when just, wise, and moderate, give to
Gop, to Ca#sar, and to their subjects the things that appertain
unto each of them. [Applause.]

Any assemblage of lawyers in the United States deserves and
commands the respect of all right-thinking people. When an
assemblage such as this is brought about, participated in, as it
is, by distinguished jurists in the United States and by eminent
advocates and jurists from other civilized countries, the Expo-
sition Management is proud of its work. [Applause.] When
some express the opinion that from a commercial standpoint
these congresses are not wise, we certainly are surprised and
chagrined. Such expressions indicate a complete misunderstand-
ing of the motive that prompted the congresses. The Manage-
ment of this Exposition never for a moment had in mind any
commercial return when it invited the International Parliament,
when it invited the International Congress of Arts and Science,
4 CONGRESS OF LAWYERS AND JURISTS

 

nor when it asked the lawyers and jurists of the world to honor
us by their presence. [Applause.} There will be no regret
because of the failure of these features to show commensurate
financial returns. We feel that your assembling here is honor
enough for us; that the work you will accomplish will be com-
pensation sufficient not only for the cost of your assemblage here,
but for the expense of this entire Exposition. [Applause.] I am
sure, therefore, that I but give utterance to the sentiment not
only of the Exposition Management, but to the sentiment of the
people of the Louisiana Territory, to the sentiment of all the
states and territories and possessions of the American Union
co-operating in this Exposition, when I say that we extend you a
hearty welcome, and we feel honored by your presence here.
[Applause.]

This memorable assemblage will be presided over by a dis-
tinguished jurist of the United States whose fame is not con-
fined to the limits of our own country, and whom the Louisiana
Territory claims as one of her sons. [Applause.] Coming
within the limits of this Purchase in his early manhood, he grew
up in our midst, and when he was called by the President of
the United States to the highest judicial tribunal in this country,
and to one which has no superior on the globe, we recognized
the good judgment of the appointing power, but we were only
reconciled to our loss by remembering that it was the nation’s
gain.

I have the honor of presenting to you the President of
the Universal Congress of Lawyers and Jurists, Mr. Justice
Brewer. [Prolonged applause.]

The Honorable Davin J. BREweEr, President of the
Congress, spoke as follows:

Members of the Universal Congress of Lawyers and Jurists:
Generally speaking, a presiding officer should, in my opinion,
be like a little child, seen and not heard, and yet I trust you will
pardon a few introductory words. First, let me say that I am
deeply sensible of the honor conferred in being called upon to
OPENING OF THE CONGRESS 5

 

preside over such a gathering of distinguished lawyers and
jurists; second, you have doubtless seen the programme and
rules of procedure, and you will, I trust, pardon me if I enforce
those rules, especially in regard to the matter of time.

A century ago a territory, imperial in extent, now also im-
perial in population and resources, was transferred from one na-
tion to another. This took place not as the result of conquest,
nor at the end of a war, but by voluntary contract and purchase.
Not a gun was fired, not a single life sacrificed. The lawyer
and not the soldier made the transfer. It stands out unique,
in peaceful beauty, solitary amid the awful grandeur of bloody
centuries of war and conquest. It is well that the chief city
within the limits of that territory should now celebrate the
centennial of the transfer, and it is fitting that here should
gather this international assembly of lawyers and jurists. The
glory of that transfer is one of the laurels of our profession.

On these exposition grounds is seen the material splendor
of our civilization; the world in miniature is before us; its work
is done in our presence. You see the instruments of war, the
machinery of death, the iron-clad, the far-reaching cannon,
and the tented field. You hear the blare of the bugle and the
tramp of the soldier. The battle rages as you listen. Turn
your eyes, and the peaceful achievements of science and industry
arrest your attention; the life-savers push their boats into the
stormy waters; the fire-fighters mount the burning buildings;
the doctor and surgeon display their medicines and delicate
instruments, while they heal the sick and bind the broken bone.
The school, the college, and the university are all doing their
work of education, while the blind learn to see, the deaf to hear,
and the dumb to talk. Mighty machinery brings up from the
depths of the earth its treasures of ores and mineral, digs tun-
nels, drives the long commodious train and the palaces of the
ocean, manufactures innumerable things which go to make the
comforts and luxuries of our homes and our civilization. Agri-
culture displays its infinite variety of products for the sustenance
of life, while horticulture brings back the glories of Eden. The
6 CONGRESS OF LAWYERS AND JURISTS

 

artist charms our eyes with the matchless beauty of painting
and statue. We see and feel the gorgeous glamour of our
twentieth-century civilization, and we rejoice and glory in it.

But we do not see the work of the lawyer. On Monday
morning, when the American Bar Association was in session
in this hall, a lady came to one of the entrances and asked the
guide, “‘What is in there?” The reply was, “The American
Bar Association is in session.” ‘‘Is there anything to see?”
“Not a thing,” was the reply. Evidently the guide forgot my
friend Mr. HAGERMAN, and the other distinguished gentlemen
who were on exhibition on this platform. The incident, though
amusing, suggests a thought worth considering. The work of
the lawyer is not visible. We see all the mighty things that
WESTINGHOUSE and BELL and other discoverers and inventors
have placed before us, and which are so useful in our lives, but
we do not see the thought of the lawyer which fashioned into
shape the legislation that secured to them compensation for their
contributions to our twentieth-century civilization. At this
Exposition you can see twenty acres of Philippine life, but you
do not see a square rod of the Constitution. And yet in the
presence of this marvelous appeal of material things I affirm
that the work of the lawyer and jurist, invisible as it may be to
the physical eye, is of far greater value to humanity, for of what
avail would be all the achievements of science if life, liberty,
and property were not made sacred by the just administration
of law? The fabric of our civilization is indeed a thing of
beauty, but it is made strong and enduring only by the golden
thread of equal, exact, and universal justice.

The work of the hand will crumble and fade, but the thought
which enters into the world’s history endures. Time has swept
with destroying hand over all the material splendor and the
mighty cities of ancient civilization. As we uncover the ruins
we catch a faint glimpse of what that civilization was, but we
have learned more of its character from the code of Hammurabi,
recently unearthed on the banks of the Euphrates. GIBBON
wrote with pathetic eloquence of the decline and fall of Rome,
OPENING OF THE CONGRESS 7

 

yet the Institutes of Justinian are still the law of many nations.
The fame of NaPoteon, the military hero, will grow dim as the
ages pass, but the Code Napoleon will bear his name with
increasing honor to the end of time. All the material splendor
of this Exposition, beautiful as it is to the eye, will soon pass
away, but the work done in the various congresses here gathered
will make an enduring impression upon our advancing social life.
May we in this Congress realize the full importance of that we
have gathered to do. We meet not as dreamers or theorists,
but as practical men to counsel together of those things which
will bring enduring peace and greater strength of social order.
We wish to incarnate justice into human life. While not in
name a peace congress, it will tend to hasten the peace of the
world. While not a legislative body, it means better law.
While not a court, it means a higher order of judicial admin-
istration. We would lift up the profession in all its work and
relations to a loftier place in the world’s life. Let us ever remem-
ber that the material splendor here visible is not the end of
life, but that all things, from the lowest to the highest, all organi-
zations, from the smallest to the government itself, are but
means designed to enable every citizen to round out his life to
the full horizon of its capacity; and that this result is possible
only as law and justice become synonymous terms and of
universal dominion. Let us not be turned away from our high
purpose by any glitter of gold or temptations of luxurious life,
but ever remember that justice is one thing beneath the eternal
blue which changes not from age to age, and quoting the lan-
guage of England’s recent poet,

“Lord God of Hosts, be with us yet,
Lest we forget; lest we forget.” [Applause.]

The next thing on the order of exercises is the calling of
the roll, but it is deemed that that is a needless proceeding and
it will be omitted. The roster of Delegates is already made
up. I now call for nominations for Vice-Presidents from the
several nations.
8 CONGRESS OF LAWYERS AND JURISTS

Mr. Francis RAWLE of Pennsylvania, a Delegate of
the United States Government:

Mr. President: I nominate, for honorary Vice-Presidents,
the thirteen gentlemen representing the thirteen nations whose
names appear on this list, which, with your permission, I will
ask the Secretary to read. .

The SECRETARY:
The nominations are as follows:

ARGENTINE, Dr. Jost V. FERNANDEZ.
AUSTRIA, CHEVALIER ADALBERT VON STIBRAL.
BELGIuM, ProFessor A. NERINCX.

BritisH Emprre, Hon. Sir Wirtiam R. KENNEDY.
CHINA, Mr. Cuow Tszcut.

FRANCE, Proressor A. LARNAUDE.
GERMANY, Dr. A. HARTMANN.

ITALY, SicNor ANGELO Pavia.

Mexico, SENorR Don MANUEL DE AzPIROZz.
NETHERLANDS, Dr. D. JosEPHus Jitta.
SWEDEN, VicE-JUDGE G. E. FAHLCRANTZ.

SWITZERLAND, Dr. F. Mem.
UNITED STATES, JUDGE SimEon E. BALDWwIn, of Connecticut.

The nominations being duly seconded and there being
no further nominations the President put the motion that
the above-named gentlemen be made Vice-Presidents of
the Congress, which motion was unanimously carried.
The President declared them duly elected. The Vice-
Presidents, thereupon, at the invitation of the President,
came forward and took their places on the platform.

[At this point a large photograph was taken of the officers and members
of the Congress and others present in Festival Hall.]

President BREWER:

We will now have the pleasure of listening to a paper on
“The Promotion of the Settlement of International Contro-
MR. FOSTER’S PAPER 9

 

versies by Resort to The Hague Tribunal or Reference to Special
Commissions,” to be read by the Honorable Joun W. Foster,
former Secretary of State of the United States.

THE PROMOTION OF THE SETTLEMENT OF INTERNA-
TIONAL CONTROVERSIES BY RESORT TO THE HAGUE
TRIBUNAL OR REFERENCE TO SPECIAL COMMISSIONS,

A PAPER BY

The Honorable Jon W. Foster, LL.D., of Wash-
ington, D. C., a Delegate of the United States Govern-
ment:

The subject which I have been invited to discuss involves a
consideration of the adjustment of international controversies
by arbitration or commissions, and the merits of The Hague
Tribunal as the instrument of such adjustment.

At the outset a seeming embarrassment presents itself in
the fact that, while this Congress is considering the subject,
two powerful nations are engaged in a sanguinary and wasteful
conflict which threatens to disturb the peaceful relations of
other of the Great Powers, and that the ruler of one of the com-
batants was the prime mover in the establishment of The Hague
Arbitration Tribunal. I trust that notwithstanding this appar-
ently inconsistent and contradictory situation, we shall find in
the present state of the affairs of the world good foundation of
encouragement for the cause of arbitration and for the settle-
ment of international controversies by peaceful means, and that
The Hague Tribunal has the promise of a wide field of useful-
ness opening up to it in the relations of the nations with each
other.

In an assembly composed of lawyers and jurists I seem
called upon to enter more in detail than would be required in
the discussion of the subject before a less professional audience
upon a consideration of the influences leading up to the creation
of The Hague Tribunal, the circumstances under which the
to CONGRESS OF LAWYERS AND JURISTS

 

Conference was called which framed the rules by which the
Tribunal is governed, the composition and spirit of the Con-
ference, the provisions of the convention establishing the
Tribunal, and the amendment, if any, required of its present
constitution or rules.

The sentiment calling for the settlement of international
controversies by peaceful methods rather than by the unreasoning
and bloody arbitrament of war is not entirely of modern origin.
At the different periods in the past when nations have emerged
from barbarism into a more civilized state, there has arisen
among men of good will a desire for peace on earth. In the
earliest records of history there are found isolated instances
where great political and international questions have been
submitted to some arbitrating power. But the earliest attempt
at international control for the preservation of peace is found
in the Amphictyonic Council of the Greek States. The pre-
vailing sentiment of that era among men of enlightenment and
humane views was expressed in the memorable statement of
THUCYDIDES, that “it is wicked to proceed against him as a
wrongdoer who is ready to refer the question to an arbitrator.”

It must be confessed, however, that the prevailing spirit of the
ancients was warlike, but even the triumph of the great warriors
and of the conquering nations was not without benefit to man-
kind. Under the universal sway of the Roman legions there
came times when the doors of the Temple of Janus were closed,
and peace was enforced throughout the wide-spread dominion
of the Empire.

As the nations began to emerge from the Dark Ages, the
spirit of peace made feeble efforts to assert itself. During that
long night of war and devastation the Pope was the only restrain-
ing influence. The earliest advocates for another spirit to
control the relations of nations with each other were found among
the scholars and writers on internationallaw. GRrottus, whose
treatise on the Law of War and Peace has exerted the most
profound influence upon modern nations, in quoting the state-
ment of THUCYDIDES, just cited, declared that “especially are
MR. FOSTER’S PAPER II

 

Christian kings and states bound to try this way of avoiding
war,” and he proceeded to develop the idea which has had its
partial realization in The Hague Conference. He wrote:

“Both for this reason and for others it would be useful, and
indeed it is almost necessary, that congresses of Christian Powers
should be held, in which controversies which arise among some of
them may be decided by others who are not interested, and in
which measures may be taken to compel the parties to accept peace
on equitable terms.”

The plan of Henry IV of France for a Council or Congress
of European powers to maintain peace among the nations was
doubtless inspired by high motives, but it had the defect of an
enforced combination to bring about the Congress. Later
Wit11aM PENN published a scheme “for the Establishment of an
European Dyet, Parliament, or Estates.”” Likewise the Abbé
SAINT PIERRE of France, BENTHAM, Kant, and others in the
seventeenth and eighteenth centuries devised and advocated
plans for the creation of a congress or tribunal to secure uni-
versal and perpetual peace.

One of the most important events tending to support the
project of such a congress and tribunal was the adoption by the
American Colonies of the Constitution of the United States and
the creation of a Supreme Court, before which the States, inde-
pendent in all that related to their domestic government, agreed
to bring or to submit all the controversies which might arise be-
tween them. A congress or union such as was formed by this
Constitution was not one suitable for the civilized nations,
seeking for a combination to preserve universal peace, but the
example set by the successful operation of its Supreme Court
was the cause of much encouragement to the advocates of an
international tribunal, before which the nations might submit
their controversies for peaceful settlement.

The nineteenth century was more fruitful than any similar
era in the submission of the adjudication of special arbitration
tribunals of the differences of nations insolvable by diplomatic
methods. The most notable of these, and that which exerted
12 CONGRESS OF LAWYERS AND JURISTS

 

the greatest influence upon the nations, was the arbitration of the
bitter controversy between Great Britain and the United States,
growing out of the American Civil War, and the irritating
-questions existing with Canada, which were peacefully settled
by the Treaty of Washington of 1871. Of this the British states-
man and writer JOHN MorRLEy says:

“The Treaty of Washington and the Geneva Arbitration stand
out as the most notable victory in the nineteenth century of the
noble art of preventive diplomacy and the most signal exhibition in

their history of self-command in two of the three chief democratic
powers of the western world.”

As between these two kindred nations it came to be the settled
policy to adjust their differences which did not yield to diplomatic
methods by a reference of them to special tribunals created for
the purpose. In 1890 the Congress of the United States took
a long step in advance by the adoption of a resolution “that the
President be requested to invite from time to time, as fit occasion
may arise, negotiations with any government with which the
United States has or may have diplomatic relations, to the end
that any differences or disputes arising between the two govern-
ments which cannot be adjusted by diplomatic agency may be
referred to arbitration, and be peaceably adjusted by such
means.” And in 1893 the British House of Commons adopted
a resolution approving of this action of the Congress and ex-
pressing ‘‘the hope that her Majesty’s Government will lend
their ready co-operation to the Government of the United States
for the accomplishment of the object had in view.” By this
action these two great nations had placed themselves on record
officially as favoring the most complete submissions of unsettled
international differences to the peaceful method of arbitration.

At this period a somewhat different state of affairs existed
in the relations of the different powers of Continental Europe.
The warlike policy of Bismarck, which led to the humiliation
of France and the consolidation of Germany, had converted the
Continent into a military camp. The nations were vying with
each other in building up their armies and navies. The enor-
MR. FOSTER’S PAPER 13

 

mous expenditure to maintain these establishments was becom-
ing an intolerable burden, and the countries confronted each
other in a state of armed peace, which might be broken by an
untoward event.

In the last decade of the nineteenth century, when this state
of affairs was realizing its highest development, BISMARCK was
retired to private life, and a new Emperor ascended the Russian
throne. It is very doubtful whether the Rescript of the Emperor
NICHOLAS inviting the assembly of The Hague Conference would
have been issued if the Prince of Blood and Iron had still
remained in control of governmental affairs in Germany. His
retirement was followed by a relaxation of the term of service,
and his death, in 1898, deprived the military party of its greatest
champion. The year following was signalized by the issuance
of the invitation of the Autocrat of All the Russias to the govern-
ments of the world to send delegates to a conference to consider
some means of relieving the nations of the heavy burden of
armament which was oppressing them, and devising a method
for preserving peace or of restraining war.

Europe had previously witnessed many international con-
gresses or conferences, but all of them had been of a very different
character. Mr. Hotts, the historian of The Hague Conference,!
in noting this fact, writes:

“The vital distinction between these gatherings and the Peace
Conference at The Hague is that all of the former were held at the
end of a period of warfare, and their first important object was to
restore peace between actual belligerents; whereas the Peace Con-
ference was the first diplomatic gathering called to discuss guaran-

tees of peace without reference to any particular war—past, present,
or prospective.”

The call for the Conference was followed by a hearty approval
in the United States and much commendation in Great Britain,
but the press of Europe was generally skeptical as to any prac-

1 The Peace Conference at The Hague and its bearing on Internctional
Law and Policy, by FREDERICK W. Hotts, a member of the Conference. New
York and London: Macmillan & Co. 1900. A general reference is cited
of this work, and acknowledgment made of the use of its material in much of
the discussion in this paper.
14 CONGRESS OF LAWYERS AND JURISTS

 

tical results to flow from it. Even in Russia, whose ruler had
initiated the Conference, little sympathy was manifested with
it. Since the days of PETER THE GREAT, the Russians had been
led to believe that the army was the glory and bulwark of the
empire, and the public mind was hardly prepared to admit
that its maintenance was an unwise expenditure of public funds,
or that it was an unnecessary burden upon the country. A
feeling existed in France that the Conference might be made
an obstacle to the realization of the hope of its people for the
recovery of its lost provinces on the Rhine. Many journals in
Germany combatted the controlling idea in the call of a diminu-
tion or limitation of disarmament, and maintained that the
military establishment was not impoverishing the state, as the
money was expended and redistributed in the country. Mr.
PIERCE, the American representative at St. Petersburg, reported
to his government that ‘“‘the general consensus of opinion among
the members of the Diplomatic Corps now present appears to
be that the proposition is visionary and utopian, if not partaking
of quixotism. Little of value is expected to result from the
Conference, and indeed every diplomatic officer with whom
I have talked seems to regard the proposition with that
technical skepticism which great measures of reform usually
encounter.”

The composition of the Conference was a subject of some
complexity. Were the South African republics to be invited
while a war was imminent between them and Great Britain,
involving in part the suzerain rights of the latter? Was the
Pope of Rome to be recognized in his claim as a temporal
prince? Other embarrassing questions in this connection
might be suggested. The Czar avoided these questions by
confining the invitations to the countries having diplomatic
representatives at St. Petersburg. Unfortunately this omitted
all the governments on the American hemisphere except the
United States and Mexico. While these were thus deprived
of the privilege of participating in the Conference and assisting
in shaping its action, they have taken steps to secure their
MR. FOSTER’S PAPER 15

 

adhesion to the conventions framed by it. At the second con-
gress of the American republics held in the City of Mexico in
1902, a resolution was unanimously passed approving of the
conventions, and soliciting the good offices of the United States
and Mexico, signatories of The Hague Conference, to secure
their admission as signatory powers.

While it is highly desirable that these nations should be
admitted to full participation in the conventions adopted by
the Conference, there does not seem to be any disposition to
deprive them of the most material benefits resulting from these
instruments. As evidence of this, Venezuela was allowed, in
1903, to bring her cause against certain of the European powers
before The Hague Tribunal, and that republic, as well as the
other governments concerned, have accepted the award of
that Tribunal.

The Rescript of the Emperor of Russia, which constituted
the invitation to the Conference, was issued August 24, 1898.
From it the following extracts, indicating its scope, are made:

“The maintenance of general peace, and a possible reduction of
excessive armaments, which weigh upon all nations, present them-
selves in the existing conditions of the world as the ideals toward
which the endeavors of all governments should be directed.

“Filled with this idea, his Majesty has been pleased to order me
to propose to all the governments whose representatives are accredited
to the Imperial Court, the meeting of a Conference which would have
to occupy itself with this grave problem.

“This Conference should be, by the help of God, a happy presage
for the century which is about to open. It would converge in one
powerful focus the efforts of all States which are sincerely seeking to

make the great idea of universal peace triumph over the elements of
trouble and discord.”

The invitation of the Emperor was promptly accepted by
the United States. The British Government likewise gave
early notice of its intention to “willingly accept,” and after
some delay, made necessary by the calling of a meeting of the
Cabinet, the Prime Minister wrote: ‘‘His Majesty’s Government
gladly accept the invitation for a conference to discuss the best
methods of attaining the two objects specified, namely, the
16 CONGRESS OF LAWYERS AND JURISTS

 

diminution of armament by land and sea, and the prevention of
armed conflicts by pacific, diplomatic procedure.”

Notwithstanding the apparent skeptical sentiment in Con-
tinental Europe, all the governments invited, with more or less
delay, accepted, and the meeting of the Conference was fixed
for May 18, 1899, at The Hague. The reason for the selection
of the capital of the Netherlands was stated by the Russian
Minister of Foreign Affairs to be that ‘His Imperial Majesty
considers it advisable that the Conference should not sit in the
capital of one of the Great Powers, where so many political
interests are centered, which might, perhaps, impede the progress
of a work in which all the countries are equally interested.”
And M. bE Staat, the Russian Ambassador, in opening the
Conference, said:

“In the quiet surroundings of The Hague, . . . . upon the his-
toric grounds of the Netherlands, the greatest problems of the polit-
ical life of states have been discussed; it is here, as we may say, that
the cradle of the science of international law has stood; for centuries
the important negotiations between European powers have taken
place, and it is here that the remarkable treaty was signed which im-
posed a truce during the bloody contest between states. We find
ourselves surrounded by great historic traditions.”

The edifice also in which the sessions of the Conference
were held had special appropriateness for the objects to be
attained. It assembled in the Oranje Zaal of the famous house
in the wood (Huis den Bosch), decorated by some of the best
known of the Dutch artists. In welcoming the members to
this hall, the Netherlands Minister of Foreign Affairs said:

‘Among the greatest of the allegorical figures which you will ad-
mire here, there is one relating to the Peace of Westphalia, which
especially merits your attention. It is the one where you see Peace
entering this room for the purpose of closing the Temple of Janus.
I hope, gentlemen, that this beautiful allegory will be a good omen
for your labors, and that, after they have been terminated, you will
be able to say that Peace, which here is shown to enter this room,
has gone out for the purpose of scattering its blessings over all hu-
manity.”

Under such inspiring local surroundings the members of
the Conference entered upon their labors. They were neither
MR. FOSTER’S PAPER 17

 

dreamers nor theorists, but men of eminently practical experience
in government, diplomacy, and war.

The respective nations sent as their representatives their
first diplomatists, most erudite jurists, prominent men of
affairs, and skillful soldiers. The delegation of the United
States comprised Ambassador ANDREW D. Waiter, SETH Low,
Mayor of New York, Minister NEWELL, General Crozier of
the army, Captain Maan of the navy, and F. W. Ho ts of the
New York bar; and the delegations from the other countries em-
braced equally able and experienced men. An examination of
the proceedings will show that throughout the deliberations of
the Conference they were animated by a sincere desire to
accomplish its objects, as far as they deemed them practical of
attainment.

Its assemblage was in marked contrast with the congresses
or conferences of the preceding centuries, in the complete
absence of display or spirit of rivalry. In the congresses of
Westphalia, Ryswick and Utrecht, for instances, there was an
ostentatious array of “coaches and six,” a numerous retinue,
and a constant struggle for precedence in processions and the
council chambers. Here there was a quiet meeting of gentlemen
without display, a recognition of the perfect equality of the
smallest independent state, and a seating in the assembly hall
in the order of the alphabetical names of the nations they
represented.

Its members, too, were impressed with the importance of
the event. In calling the Conference to order, at its first session,
the Dutch Minister said: “The day of the meeting of this
Conference will, beyond doubt, be one of the days which will
mark the history of the century which is about to close.” In
his opening address, the President, M. DE STaat, asserted that it
‘marks a great date in the history of humanity.” Its historian
styled it ‘‘the first great Parliament of Man.”

With such elevated ideas the Conference entered upon its
labors. But at the outset it met with discouragement and
failure.
18 CONGRESS OF LAWYERS AND JURISTS

 

In the circular letter of the Russian Minister of Foreign
Affairs of January 11, 1899, following the Rescript convok-
ing the Conference, the subjects to be submitted for con-
sideration were set forth in detail, and the first of these was
as follows:

“‘r, An understanding not to increase, for a fixed period, the present
effective of the armed military and naval forces, and at the same time
not to increase the budgets pertaining thereto; and a preliminary
examination of the means by which reduction might even be effected
in future in the forces and the budgets above mentioned.”

The evil effects of the vast armaments oppressing the nations
of the earth were most strikingly set forth in the Rescript of
the Czar. I quote from that paper:

“In the course of the last twenty years the longings for a general
appeasement have been especially pronounced in the consciences of

civilized nations. .... National culture, economic progress, and
the production of wealth are either paralyzed or checked in their de-
velopment. .... The economic crises and the continual danger

which lies in the massing of war material are transforming the armed
peace of our days into a crushing burden, which the peoples
have more and more difficulty in bearing, .... and will in-
evitably lead to the very cataclysm which it is desired to avert,
and the horrors of which make every thinking man shudder in
advance.”

In a conference with the British Ambassador following the
Rescript, the Russian Minister of Foreign Affairs said that the
Emperor, although deeply impressed with the desirability of a
general disarmament, did not look for an immediate realization
of the aims he had so much at heart, but he desired to initiate
an effort, the effects of which could only be gradual.

But when the Conference came to consider the question,
while there was much sympathy felt with the noble ideas enter-
tained in the Czar’s Rescript, it was found that the subject
was of a very complex character, and that it would be difficult,
if not impossible, to reach any agreement which would meet the
Czar’s desires. The long discussion which ensued is of much
interest, but I can indicate something of its spirit by extracts
only from the speeches of the representatives of Germany and
MR. FOSTER’S PAPER 19

 

France. General von ScHWARZHOFF, in the course of a dis-
course of some length, said:

“T can hardly believe that among my honored colleagues there is
a single one ready to state that his sovereign, his government, is en-
gaged in working for the inevitable ruin, the slow but sure annihila-
tion, of his country..... The German people is not crushed
under the weight of charges and taxes, it is not hanging on the brink
of an abyss, it is not approaching exhaustion and ruin. Quite the
contrary, public and private wealth is increasing, the general welfare
and standard of life is being raised from one year to another. So
far as compulsory military service is concerned, which is so closely
connected with these questions, the German does not regard this as a
heavy burden, but as a sacred and patriotic duty, to which he owes
his country’s existence, its prosperity, and its future.”

He then proceeded to maintain that the proposition to limit
armament and the military establishment was surrounded with
insurmountable obstacles, which could not be overcome by an
international convention. M. Bourcrots, the head of the
French delegation, said:

“T listened with great care at the last session to the remarkable
speech of General von ScHwaRzHoFF. He presented with the greatest
possible force the technical objections which, according to his view,
prevented the committee from adopting the propositions (Russian)
of Colonel Gitrnsxy. It did not, however, seem to me that he, at
the same time, recognized the general ideas in pursuance of which
we are here united. He showed us that Germany is easily support-
ing the expense of its military organization, and he reminded us that
notwithstanding this, his country was enjoying a very great measure
of commercial prosperity. I belong to a country which also supports
readily all personal and financial obligations imposed by national
defense upon its citizens, and we have not been hindered in the in-
crease of our financial prosperity. But General von SCHWARZHOFF
will surely recognize with me that if in his country, as well as in mine,
the great resources which are now devoted to military organization
would, at least in part, be put to the service of peaceful and produc-
tive activity, the grand total of the prosperity of each country would
not cease to increase at an even more rapid rate. ....

‘Gentlemen, the object of civilization seems to us to be to abolish
more and more the struggle for life between men, and to put in its
stead an accord between them for the struggle against the unrelenting’
forces of matter. This is the same thought which, upon the initia-
tion of the Emperor of Russia, it is proposed that we should promote
by international agreement. If sad necessity obliges us to renounce
20 CONGRESS OF LAWYERS AND JURISTS

 

for the moment an immediate and positive engagement to carry out
this idea, . . . . we shall not have labored in vain if, in a formula
of general terms, we at least indicate the goal to be approached, as
we all hope and wish, by all civilized nations.”

Notwithstanding the support given to the Russian proposi-
tion by France, one of the most martial of the nations, the objec-
tions voiced by the German delegate were too serious to be
overcome. The sentiment of the members was that the Con-
ference should avoid forming majority and minority parties,
and hence nothing should be put forth as its action which could
not command a practically unanimous support. The most
that could be accomplished, therefore, was a general expression
of sentiment on the subject in the following declarations, which
were unanimously adopted:

“The Conference is of opinion that the restriction of military
charges, which are at present a heavy burden on the world, is ex-
tremely desirable for the increase of the material and moral welfare
of mankind.

“The Conference expresses the wish that the governments, taking
into consideration the proposals made at the Conference, may ex-

amine the possibility of an agreement as to the limitation of armed
forces by land and by sea, and of our budgets.”

While there was much regret felt at the failure to adopt some
initiative for the limitation of armament, it was something
gained that a public declaration, by such a body, was made
that the present military establishments are a heavy burden on
the world, which it is extremely desirable, in the interest of the
material and moral welfare of mankind, should be restricted,
and that it was the duty of the governments of the earth to seek
to reach an agreement to that end.

It must be recognized that the restriction or reduction of
armament is a most difficult political problem. The system
has grown up in recent years of vast armies and formidable
navies on the ground of self-defense. Never has the ancient
proverb, Sz vis pacem, para bellum, had greater force than
to-day. Under its practice, for instance, France, which has
had practically unbroken peace for more than a generation,
MR. FOSTER’S PAPER 21

 

and is to-day on amicable relations with all the world, supports
a much greater military establishment than when NAPOLEON
was at war with almost all the nations of Europe.

As my auditors are largely Americans, I may be pardoned a
reference to the situation in this country. I rejoice that in the
past we have been a peaceful, not a military, people. Our na-
tional pride has been mainly in their achievements in the peace-
ful pursuits of mankind. It has been a source of regret to many
of us that the fruits of war have made necessary recently a con-
siderable increase in our standing army. It has been our boast
that a visitor to our shores from the military countries of Europe
could traverse our continent from ocean to ocean without
meeting a soldier. Law and order have been enforced by the
civil officials. We want no change in that condition.

Our growing navy has justly become the pride of the country,
but the burden of its construction and maintenance is awakening
public attention. At the last session of Congress a prominent
and conservative member of the ruling party sounded a note
of warning that our naval expenditures had reached one hundred
millions of dollars annually, and would amount to two hundred
millions annually when the present plans adopted for enlarge-
ment were realized. It has been reported in the public press
that the Secretary of the Navy has announced himself in favor
of a navy equal to that of the greatest naval power in the world.
I trust he has been incorrectly reported.

I cannot believe that such is the sentiment of our people.
We neither wish nor need to enter into competition with the
military nations, either respecting our army or our navy. We
should maintain ourselves in the position we have held in the
past as advocates of peace and peaceful methods of settling
international controversies, and our government should hold
itself ready to respond to the call of The Hague Conference, in
seeking an agreement to restrict armaments. We should bear
in mind the sentiments uttered by WASHINGTON:

“My first wish is to see this plague to mankind (war) banished
from the earth, and the sons and daughters of this world employed
22 CONGRESS OF LAWYERS AND JURISTS

 

in more pleasing and innocent amusements than in preparing
implements and exercising them for the destruction of mankind.”

It is somewhat foreign to the subject under consideration to
examine in detail other results of the Conference not relating
to arbitration, and it may suffice to state that it agreed upon and
executed two conventions for the regulation of war on land and
at sea, which embodied the wisest and most humane principles
of military conduct resulting from a study and discussion of these
matters during the past half-century, and which had their first
codification in the “Instructions for the Guidance of the Armies
of the United States,” issued at the beginning of the Civil War.
Had the Conference accomplished nothing more than these two
conventions and the accompanying declarations, it would have
been entitled to the claim of one of the most useful international
assemblies in history.

But we come now to consider the most important and the
crowning work of The Hague Conference—the Convention for
the Peaceful Adjustment of International Differences. It was
reached, not without much difficulty and discussion, and it was
necessary, in order to secure unanimity of action, to compromise
many conflicting views, and for the friends of arbitration to
yield some points regarded by them as of much importance.

The preamble to the convention, in which all the govern-
ments represented in the Conference joined, contains a very
important declaration of principles, which shows that in senti-
ment at least the nations of the earth have reached a high
standard of international justice and humanity. It is as follows:

“Animated by a strong desire to concert for the maintenance of
the general peace:

“Resolved to second, by their best efforts, the friendly settlement
of international disputes;

“Recognizing the solidarity which unites the members of the soci-
ety of civilized nations;

“Desirous of extending the empire of law, and of strengthening the
appreciation of international justice;

“Convinced that the permanent institution of a Court of Arbitra-

tion, accessible to all, in the midst of the independent powers, will
contribute effectively to this result;
MR. FOSTER’S PAPER 23

 

“Having regard to the advantages attending the general and regu-
lar organization of arbitral procedure;

“Sharing the opinion of the august initiator of the International
Peace Conference that it is expedient to solemnly establish, by an
international agreement, the principles of equity and right on which
repose the security of states and the welfare of peoples, etc.’’

The convention or treaty is divided into four titles or general
provisions. The first consists of one brief paragraph, and is
merely declaratory, but it is important because it solemnly
commits by distinct agreement the powers joining in the con-
vention ‘‘to use their best efforts to insure the pacific settlement
of international differences.”

The two following titles contain provisions having in view
the carrying into effect of the foregoing declaratory agreement
by means—1. Of a Resort to Good Offices and Mediation; and
2. Of International Commissions of Inquiry. Thirteen articles
of the convention relate to these two measures; but as the topic
assigned me has reference especially to The Permanent Court
of Arbitration, I pass to the fourth title, which, in forty-seven
articles, creates the Court, defines its jurisdiction, and the prin-
ciples which are to guide it, specifies the manner in which its
members are chosen, the rules governing its procedure, its
awards, and other necessary details. I must presume upon
the acquaintance of the members of the Congress with these
provisions, and address myself to some of their salient features or
those which have given rise to discussion or criticism.

The first distinctive feature of the arbitration convention is
that it has no compulsory stipulation. It declares specifically
in favor of ‘‘a pacific settlement of international controversies,”
and provides methods of their settlement by means of (1) media-
tion, (2) good offices, (3) commissions of inquiry, and (4) a court
of arbitration; but no nation is pledged to resort to any of these
methods, and especially is none compelled to submit its cause
to The Hague Permanent Court. This feature is regarded by
the most earnest advocates of arbitration as a serious defect of
the treaty, but it was early made apparent in the Conference that
there could be no agreement for compulsory stipulations, and
24 CONGRESS OF LAWYERS AND JURISTS

 

it was even found difficult to bring about a concurrence on the
convention as it stands.

The French delegates, who throughout the Conference were
the zealous friends of arbitration, sought to secure the adoption
of a provision investing the bureau created at The Hague to
act as the chancellery or clerk’s office of the Permanent Court,
with an international mandate, in case there should develop
between two or more of the signatory states one of the differences
recognized as being a proper subject for arbitration, to remind
the disputing parties of the provisions of the convention for
arbitration. But even this apparently harmless provision met
with the opposition of one of the Great Powers, and had to be
omitted.

The sentiment, however, in favor of compulsory arbitration
was so strong that an article was inserted in the convention re-
serving the right to any of the signatory powers to conclude gen-
eral or special agreements, extending the obligation to submit
controversies to arbitration in all cases which they considered
suitable for such submission. It is a happy augury for the
eventual recognition of the duty to submit all international
disputes to arbitration to note that treaties of the character
indicated have been already entered into between a number of
the leading powers of Europe.

France has the honor of taking the initiative in this new and
advanced movement. In October of last year its government
entered into a treaty with that of Great Britain stipulating for
a period of five years to submit a certain specified class of cases
to The Hague Tribunal; similar conventions have been made
by each of them separately with other European powers; and
other of these powers have united in identical conventions. It
is gratifying to know that as a step in the same direction the
American Secretary of State, Mr. Hay, has consulted the
Senate, as the co-ordinate branch of the treaty-making power,
on the subject, and it is confidently expected that at the next
session of the Senate the President of the United States will
submit to that body for approval arbitration treaties with a
MR. FOSTER’S PAPER 25

 

number of nations with provisions similar to those entered into
between the European governments.

The Hague Convention recognizes two classes of controversies
as suitable for submission to The Hague Court, to-wit, questions
of a judicial character and those regarding the interpretations
or application of international treaties. The article of the
arbitration treaty between France and Great Britain and the
other European powers just alluded to is as follows:

“Difference of a judicial order, or relative to the interpretation of
existing treaties between the two contracting parties which may arise,
and which it may not have been possible to settle by diplomacy, shall
be submitted to the Permanent Court of Arbitration established by
the Convention of July 29, 1899,at The Hague, on condition, however,
that neither the vital interests, nor the independence or honor of

the two contracting states, nor the interest of any state other than the
two contracting states, are involved.”

While this stipulation is a step in advance of The Hague
Convention, in that it makes arbitration compulsory, it is a
qualification or limitation of that treaty, in that it excepts from
the stipulation such of the two classes of cases as, in the judg-
ment of the contracting parties, involve the vital interests, the
independence, or the honor of either state. This reservation
raises the important, broad, and difficult question of what
questions are proper for submission to international arbitration.
Questions involving the independence of a sovereign state may
not be difficult of determination, but the “vital interests” of
a state, or its ‘national honor,” may become very vague or
elastic, and dependent in great measure upon the temperament
or condition of the authority having the right to determine or
allege them.

In the interest of the peace of the nations, it is of the utmost
importance that the exceptions to arbitral submission be as
few and restricted as possible. It is the aim of the interested
friends of the cause that the nations may ultimately reach the
position where they will agree to submit all international con-
troversies, without exception, to a peaceful method of adjust-
ment. There have been some recent notable declarations ema-
26 CONGRESS OF LAWYERS AND JURISTS

 

nating from important bodies to that effect. The First Confer-
ence of the American States, embracing all the independent
countries of the hemisphere, which assembled in Washington
in 1890, framed and recommended the adoption of an arbitration
treaty, which contained the stipulation that ‘the sole question
which any nation is at liberty to refuse to arbitrate is a question
which may imperil its independence.” In closing the delibera-
tions of that Conference, its President, James G. BLAINE, who
by some has been charged with aggressive statesmanship,
referring to this arbitration treaty, said:

“We hold up this new Magna Charta which abolishes war, and
substitute arbitration between the American republics as the first
and great fruit of the International American Conference.”

The Washington Conference on International Arbitration,
held January last, was a distinguished and representative body
of men in public life, in the professions, the industries, and
commerce. Its Committee on Resolutions was composed of two
of the American members of The Hague Court, five ex-ambassa-
dors and ministers, three of the first lawyers in the country, and
other able men. The subject of the reservations or exceptions
proper to be made in arbitration treaties were fully considered,
and they reported through their chairman, Judge GEORGE GRay,
that it was the duty of the United States to enter into treaties
with Great Britain and other powers for the submission to The
Hague Permanent Court or some special tribunal of “al
differences which they may fail to adjust by diplomatic negotia-
tion.”

The national honor is a matter which our first impulse of
patriotism would decide was beyond the province of arbitration,
but a more dispassionate consideration will lead us to see that it
is not always so. In the heat of the dispute over what are
known as the “Alabama claims,” involving important questions
of international law and high state policy, when the American
Minister in London proposed arbitration, Lord RussEtt replied:

“It appears to her Majesty’s Government that neither of these
questions could be put to a foreign government with any regard to
MR. FOSTER’S PAPER 27

 

the dignity and character of the British crown and the British nation.
Her Majesty’s Government are the sole guardians of their own honor

. and must therefore decline either to make reparation and
compensation . . . . or to refer the question to any foreign state.”

But when the passions of the hour had passed, the British
Government saw how unwise it was to allow an attitude so sensi-
tive and unsubstantial as the so-styled ‘national honor” to
obstruct a peaceful settlement of its controversies with a kin-
dred nation, and the Treaty of Washington of 1871 brought
forth the Geneva Arbitration, so beneficent in its results for both
nations and the world. A century and less ago public social
sentiment in England and America demanded that a personal
affront, supposed or real, should be atoned for by the blood of
the aggressor, but the real gentleman of English and American
society of to-day leaves the vindication of his honor to the courts
of justice or public opinion. There is no reason why the same
course should not be pursued by nations. Mr. JaAmMEs BRYCE,
in discussing the article of the Anglo-French treaty cited by
me, says:

“The exception of ‘honor,’ made in the treaty just quoted,
is of very doubtful merit, because questions of so-called national
honor are often just the questions which most need to be referred to
arbitration, inasmuch as they are those which a nation finds it hard-
est to recede from when it has once taken up a position, so that the
friendly intervention of a third party is especially valuable... . .

“The value of arbitration, or of conciliation, by a third party, lies
not merely in its providing a means of determining a difficult issue of

law or fact, but in its making it easy for the contracting parties to
abate their respective pretentions without any loss of dignity.”

It is asserted that many political questions are not suitable
subjects for submission to arbitration. The questions which
brought on the Russo-Japanese war are cited among those
which are not arbitrable, and likewise the Monroe Doctrine.
None of the leading nations are prepared to-day to enter into a
treaty of unconditional arbitration, but the oftener they submit
their differences to arbitration, the nearer they approach that
goal. Great Britain and the United States have since the War
of 1812 submitted all their many matters of dispute to a peaceful
28 CONGRESS OF LAWYERS AND JURISTS

 

method of adjustment. An examination of the numerous
arbitration treaties, embracing a great variety of subjects, will
show that no question can in the future arise between them
which will more seriously involve their territory, the honor of the
countries, their vital interests, or their independence, than those
which have already been submitted to arbitration.

Hence, so far as Great Britain is concerned, it may be safely
asserted that the Washington Conference committed no error
in recommending that the United States enter with that power
into a treaty of unconditional arbitration. If after nearly a
century of peaceful settlement of their disputes, these two
countries can make such a convention, they should hardly be
styled dreamers or enthusiasts who look forward to the time
when all nations of the earth, through peaceful intercourse and
forbearance, will find a better method of adjusting their differ-
ences than by the arbitrament of war.

In The Hague Conference the question arose as to what
stipulation should be inserted in the treaty guaranteeing the
enforcement of the award of a court of arbitration. In this
instance, as when the subject of compulsory arbitration was
under discussion, it was found that if constraint was to be applied
to a recalcitrant power, it would have to be through some kind
of international military force, and the delegates were in no
frame of mind to consider such an alternative. Besides, it was
cited that during the many arbitration cases of the past century,
a sense of equity and the force of public opinion had been suffi-
cient to secure acceptance of the award; and the conference
regarded it as sufficiently effective to insert an article declaring
that “the agreement of arbitration implies the obligation to
submit in good faith to the decision of the arbitral tribunal.”

One of the most important questions discussed by the Con-
ference in connection with the arbitration convention was
whether its provisions should be carried out through provisional
or special tribunals, or whether a permanent court should be
created for that purpose. The United States was from the
beginning in favor of the creation of a permanent court. In
MR. FOSTER’S PAPER 29

 

1896 the New York State Bar Association had laid before the
President a memorial setting forth this as the essential feature
of any general scheme of arbitration, and the delegates of the
United States to the Conference had been instructed to make
this a cardinal point in their propositions. But the honor fell
to the Chairman of the British Delegation; Lord PAUNCEFOTE,
to become its special champion in the deliberations. It was
antagonized by Germany, but the sentiment was so strongly in
its favor, that the German delegates were induced to withdraw
their objection, and provision was made in the convention for a
Permanent International Court. This action was a source of
much gratification to the advocates of international arbitration,
who had for centuries looked forward with hope to the estab-
lishment by the nations of the earth of some form of congress
or court which should have a continuous existence and be clothed
with functions for the preservation of peace.

The provisions of the convention are that each of the sig-
natory powers shall appoint for a term of six years as members
of the Permanent Court not more than four persons, ‘“‘of recog-
nized competence in questions of international law, enjoying
the highest moral reputation.” These persons constitute a
permanent Court of arbitration, accessible at all times, and
acting in accordance with the prescribed rules of procedure.

The members of the Court thus constituted do not sit, how-
ever, as a collective body, but when two or more nations have a
case to submit to arbitration they select by mutual agreement
one, three, or five members, as may be stipulated, from the
persons constituting the Court, who will act as the Tribunal to try
the case. So that it may happen that some members of the Court
may never be called upon to discharge the functions of a judge.

But it was thought wise not to restrict the liberty of action
of the arbitrating nations, and they have been left free to select
the judges from the permanent panel, so to speak, of the Court.
Likewise, though The Hague is designated as the place where
the Court shall hold its sessions, another place may be designated
by agreement of parties litigant. Also, while detailed rules of
30 CONGRESS OF LAWYERS AND JURISTS

 

procedure are provided in the convention, these may be varied
by special agreement of the parties.

The convention contains a provision (Article 52) that the
award of the Tribunal shall be accompanied by a statement
of the reasons upon which it is based, but this article was not
adopted without serious objection in the Conference. It was
recognized that much advantage would be derived from the
opinions of judges of such high authority in the creation of a
body of international jurisprudence, but it was urged that the
opinions might contain criticism of the litigating parties, or
other powers, harmful and unnecessary. This surmise became
a reality when during this year the President of the Court in
the Venezuela Arbitration, who was a Russian, made some
utterances which were seriously resented by the Japanese.

The question of the finality of the award was much debated
in the Conference. It was contended that a rehearing of a
case once decided would diminish the moral authority of the
Tribunal and the weight otherwise given to its first decision.
The American proposition was that a hearing should be granted
“upon presentation of evidence that the judgment contained
a substantial error of fact or of law.” The practice in the
United States sustained such a provision, and its government
had had experience which showed that some provision for
rehearing was desirable. For instance, in the Mexican claims
commission, the umpire, Sir E>pwarp THorRNTON, had decided
that when his decision was once rendered his relation to the
case was canceled, and that even if fraud was shown to have
been practiced upon the commission the award could not be
reopened, but relief would have to be sought by a direct appeal
to the government concerned. The Conference finally agreed
upon a provision that a rehearing should be had “‘only on the
discovery of new facts, of such a character as to exercise a
decisive influence upon the judgment, and which at the time of
the judgment were unknown to the Tribunal itself and to the
parties demanding the rehearing.”

The convention contains a stipulation that the proceedings
MR. FOSTER’S PAPER 31

 

in a case should embrace oral argument of counsel before the
Tribunal. The prevailing practice in arbitration during the
last century was to accompany the documentary evidence in
the case with a printed or written argument only. The Geneva
Arbitration of 1872 gave the right to the Tribunal to call for oral
argument on any specific question, and a brief oral discussion
was accordingly had. In the Fur Seal Arbitration at Paris, in
1893, the treaty stipulated for general oral argument, and
several weeks were occupied by counsel; and a similar practice
was observed in the Venezuela Boundary Arbitration at Paris
in 1899. The Hague Convention recognizes this as the proper
practice. Its effect is to considerably prolong the sessions of
the Tribunal, but it affords the litigating parties a more satisfac-
tory elucidation of the questions at issue.

Having reviewed the more important provisions of The
Hague Arbitration Convention, I pass to a consideration of the
practical working of the Permanent Court organized under it.

When The Hague Conference adjourned there was a wide-
spread belief that it had accomplished little towards the preven-
tion of war. It had failed to agree upon either the restriction
or diminution of the vast armaments which were oppressing
the nations and threatening the peace of the world. The Arbi-
tration Convention, which left it purely optional with the nations
to observe its provisions, did not impress the general public
as of much practical value; and there was a skeptical feeling
that no powerful nation would ever invoke the services of the
Permanent Court to save it from an armed conflict with another
state.

However, when the convention was submitted to the govern-
ments to ratify the action of their delegates, no one of them
cared to reject it. The friends of arbitration were reassured
when the intelligence flashed across the Atlantic that the Senate
of the United States had unanimously approved it, and that the
President had promptly proclaimed it to the world. The other
signatory nations took similar action. The convention thus
becoming a completed instrument, the respective governments
32 CONGRESS OF LAWYERS AND JURISTS

 

appointed from their most distinguished public men and able
jurists the members of the Permanent Court. But the world’s
query was: What nations will now come forward to submit to
the Court a controversy insolvable by diplomacy?

It is a matter of pride for this continent that the two greatest
republics of America should be the first to invoke the services
of The Hague Tribunal. The Supreme Court of the United
States, which is the nearest approach to that Tribunal, had to
wait a longer time after its creation before it heard its first case.
The Pious Fund claim was one which had vexed the governments
of the United States and Mexico for nearly half a century, and
had baffled the efforts of well-disposed diplomacy. Having
faith in the efficacy of the Tribunal, and obedient to the spirit
of the Arbitration Convention of which they were signatory
parties, they entered into an agreement to submit the claim to
that Tribunal. The case was heard under satisfactory condi-
tions, a decision rendered which has been accepted by both
parties, and that source of difference between the neighboring
republics has been forever removed.

But, said the skeptics, the case of Mexico was one involving
merely a money claim; the test will come when nations heated
to the point of war are called upon to yield their pretentions
to the decision of The Hague Court. But such a case was not
long delayed. Three of the most powerful nations of Europe
were soon engaged in flagrant hostilities against a weak Amer-
ican state. Venezuela, though not a party to The Hague Con-
vention, appealed to it for the determination of the question at
issue. The Allied Powers, Great Britain, Germany, and Italy,
in disregard of that convention, turned to the President of the
United States and asked him to become the sole arbiter of the
controversy. It was a high mark of confidence in the American
chief magistrate, and very flattering to him personally, but his
sense of duty to the world was greater than his pride of person,
and he pointed to The Hague Tribunal and declined the offer.
In that act President RoosEvELT rendered a greater service to the
cause of peace and international arbitration than any other man
MR. FOSTER’S PAPER 33

 

of his generation. The motive which animated his conduct is
well stated in his annual message of 1903 to the Congress of
the United States:

“It seemed to me to offer an admirable opportunity to advance the
practice of the peaceful settlement of disputes between nations, and
to secure for The Hague Tribunal a memorable increase of its prac-
tical importance. The nations interested in the controversy were
so numerous, and in many instances so powerful, as to make it
evident that beneficent results would follow from their appear-
ance at the same time before the bar of that august tribunal of
peace.”

The action of President RoosEVELT led to the appearance at
The Hague of a distinguished array of nations. Russia and
Austria were represented in the Court, while Venezuela, Great
Britain, Germany, Italy, France, Spain, Belgium, the Nether-
lands, Sweden and Norway, the United States, and Mexico
appeared as interested parties.

The decision of the Court conceding preferential treatment
to the Allied Powers who sought to enforce by war their claims
against Venezuela has been severely criticised, but the general
results are recognized as of great value. Mr. MacVeEacH, of
the American counsel, while questioning the soundness of the
decision, has said:

“There can, however, be no manner of doubt that the arbitrators
acted according to the best light they had, nor can there be any
doubt that the presence, for the first time, of so many great nations at

the bar of the Tribunal outweighs in usefulness any adverse result
of the decision itself.”

It appears the Court based their decision upon the finding
that Venezuela promised the allies that if they would cease
their hostile operations, they should have a priority of claim
upon the customs receipts, and it did not pass upon the ethical
question urged by the interested peaceful powers. Hon. J. M.
DicKk1nson, whose views are of special value because of his
experience as senior counsel at London before the Alaskan
Boundary Commission and his active practice in the highest
courts of the United States, in discussing this matter, has said:
34 CONGRESS OF LAWYERS AND JURISTS

 

“But if the decision were wrong, this furnishes no just ground for
saying that the future usefulness of the Court is impaired. No one
ever expected infallibility from any human court, and we do not
think of abolishing our courts because they err, as all of them at
times do.

“Under the corrective influence of international jurists, unsound
doctrine will be repudiated. This is more easy of accomplishment
by The Hague Court than by any other. The same members are
rarely chosen to sit again. There will be a constant change in judges.
As new cases arise, not having any pride of opinion in the decision
of others, they will the more promptly expound as the law that which
the enlightenment of the time shall demand, for international law
will always develop and stand as the exponent of such international
justice and morality as the consensus of nations shall approve.”

The importance of the Venezuela case at The Hague can
scarcely be exaggerated. The thirteen nations there repre-
sented, embracing a population of more than four hundred and
fifty millions, the most enlightened as well as the most powerful
of the world in military establishment, are a striking object
lesson of the wisdom and efficacy of arbitration. President
RoosEVELT has anticipated those results in such happy language
that I quote again from his message to Congress:

“Such an imposing concourse of nations presenting their argu-
ments to, and invoking the decision of, that high court of interna-
tional justice and international peace, can hardly fail to secure a like
submission of many future controversies. The nations appearing
there will find it far easier to appear there a second time, while no
nation can imagine its just pride will be lessened by following the
example now presented. This triumph of the principle of interna-
tional arbitration is a subject of warm congratulation, and offers a
happy augury for the peace of the world.”

The President’s anticipation is being realized, as three of
the powers represented in the Venezuela Arbitration—Great
Britain, France, and Germany—have united in an agreement
with Japan, a signatory party to The Hague Convention, to
submit to the Permanent Arbitration Court a controversy
between them which has not yielded to diplomatic negotiation;
and the case is now in process of submission. : Other nations
will, with greater frequency, carry their differences to The
Hague; and the Temple, for the construction of which the
MR. FOSTER’S PAPER 35

 

generous American citizen Mr. CARNEGIE has provided the
means, bids fair to be thronged with suitors appealing to reason
and international justice for the protection of their national
rights.

The only dark cloud which obscures the otherwise brilliant
prospect is the gigantic and terrible conflict now going on
between Russia and Japan, and the sad fact that although they
were both signatories of The Hague Convention, that agreement
was not efficacious for the preservation of peace. The conven-
tion contains an article which makes it the duty of the signatory
powers, “‘in case a serious dispute threatens to break out between
two or more of them, to remind these latter that the Permanent
Court of Arbitration is open to them,” and that “the advice
given to them, in the highest interest of peace, to have recourse
to the Permanent Court, can only be considered as an exercise
of good offices, ” and not as an offensive act. Although France
and England, two of the most influential powers in the creation
of The Hague Court, were connected with the belligerents by
more than friendly ties, yet neither of them, nor any other of the
powers so deeply interested in the peace of the Orient, dis-
charged their duty under Article 27 of the convention and
reminded them that The Hague Court was open for the settle-
ment of their controversy.

This is a discouraging fact, but only emphasizes the position
to which I have already referred, that there are some questions
of policy and high politics which, in the present temper of the
nations, cannot be adjusted by peaceful methods. Let us hope
that even yet the contending nations, which are sacrificing tens
of thousands of lives and squandering their resources in the
unreasoning conflict of arms, may awake to their duty under
The Hague Convention, and leave to the Permanent Arbitration
Court the final adjustment of their differences.

The practical working of the provisions of The Hague
Convention, as shown in the two cases which have been already
dispatched by the Court, have given rise to various suggestions
for some modification of or addition to these provisions. Hon.
36 CONGRESS OF LAWYERS AND JURISTS

W. L. PENFIELD, Solicitor of the United States Department of
State, who was of counsel for the United States in the hearing
of both the Pious Fund and Venezuela cases, has made some
valuable suggestions in that direction, as well as other experi-
enced jurists. I have space to notice these only very briefly.

The convention provided that the conditions under which
powers not represented in the Conference might become ad-
herents to it should be determined hereafter by the powers
which had already signed it. No action has yet been taken in
that direction. For this reason all the American republics,
except the United States and Mexico, have no representation in
The Hague Court, and the result is that it is practically a Euro-
pean Tribunal. When these two last mentioned nations came
to select the judges to try the Pious Fund case, they were forced
either to select judges from among their own citizens or to choose
from European or Oriental nationalities. It is a serious defect
in the organization of that Court that these numerous American
republics should be excluded from furnishing their quota for
the permanent panel. The Conference contemplated the desir-
ability of calling another similar conference at no distant day.
Should such further conference be held, it would doubtless
heal this defect in the existing convention.

There is nothing in the convention which prevents one of
the litigants from selecting as a judge to hear his case one of the
members named by it for the permanent panel. It has been
a much disputed question whether an interested party should
be represented on the Court by a judge of its own nationality.
In the two cases thus far heard by the Court the judges were
taken from non-interested countries, and the weight of opinion
seems to be in that direction.

The propriety of a member of the permanent panel of the
Court appearing as counsel for a litigating party has been
seriously questioned. ‘Two of its members appeared as opposing
counsel in the Pious Fund case, and other members appeared
in like capacity in the Venezuela case. In the latter instance
protests against the practice were filed in the Court by both
MR. FOSTER’S PAPER 37

 

Venezuela and Great Britain. This subject was fully discussed
in the Conference, and an effort was made to place in the con-
vention a prohibition against the practice; but while the general
sentiment was against the assumption of the functions of counsel
by a member of the Court, it was deemed best to take no definite
action, trusting that the good sense and propriety of the mem-
bers of the Court would finally evolve a rule which would safe-
guard the reputation of the bench. The experience in the
two cases heard seems to call for a prohibitive rule on the subject.

Attention has been directed to the fact that the organization
of the Court is a loose one. The persons are named by the
respective governments and they are enrolled as members of the
Court, but as has been seen, they may never be called upon to
serve as judges, and yet their acceptance of the appointment
implies a readiness to serve whenever chosen; but no provision
is made for compensation except when the judges are actually
called to duty. As the members are expected to serve whenever
invited, without regard to the importance of the case, it has
been suggested that some arrangement should be made to pay
them a reasonable retainer. When this matter was before the
Conference, it was considered the province of each government
to determine the subject with its own appointees.

An argument used against a resort to The Hague Court is the
matter of expense. In the Pious Fund case the five judges
were paid five thousand dollars each. To this expense was
added that for counsel, a staff of clerks, French and English
stenographers, and printing the evidence and arguments. The
objection might not be weighty with the great nations, but the
expense would press heavily against the smaller states with
limited resources. It is a matter which should commend itself
to the consideration of the great powers.

The language to be used in the proceedings and records of
the Court has been wisely left by the convention to be fixed by
the parties resorting to the Tribunal. The experience of the
Court has shown that it is of much importance that in the
special agreement of arbitration in each case the language to
38 CONGRESS OF LAWYERS AND JURISTS

 

be used should be explicitly fixed. French is the prevailing
tongue used in the international assemblies in Europe and in
diplomacy, but its compulsory use. would, in many cases, work
inconvenience, and sometimes serious hardship. Its enforce-
ment in The Hague Court would debar the great majority of
American lawyers, and would discourage the resort by American
states to the Tribunal.

In the Pious Fund case the minutes of the proceeding and
the award were in French, the oral language of the Court was
English, and both French and English were used in the oral
arguments; the Parisian stenographer, however, confessed his
inability to accurately report some of the arguments spoken in
French with a Spanish accent. In the Venezuela case it was
agreed that the English language should be used in the pro-
ceedings, but that the arguments might be made in any other
language. No stipulation was made that the judges should be
familiar with the English language, as it seemed unnecessary,
in view of the provision as to the language of the proceedings;
but it resulted that some of the members of the Court were not
able to speak English fluently, and out of consideration for them
it was agreed that the language used orally by the Court should
be the French.

Notwithstanding the defects which have been developed in
the condition and practice of The Hague Court, some of which
I have briefly noted, it is gratifying to see that it has proved
so well adapted to the exalted purpose for which it was created,
and that its imperfections, which are not serious, may be easily
cured.

The topic assigned me is not limited to a consideration of
the settlement of international controversies by The Hague
Tribunal, but it contemplates another alternative method of
settlement by special commissions. The method suggested
may be either by the creation of a special international arbitra-
tion tribunal, composed of an uneven number of judges, or,
as in some cases in the past, by a joint commission composed
of an equal number of citizens or subjects of the interested
MR. FOSTER’S PAPER 39

 

parties. The special arbitration tribunal would involve ques-
tions so similar to those already discussed as to The Hague Court,
that I deem it unnecessary to give further attention to it. I
therefore invite a consideration of joint commissions of the
interested nations.

It has been seen that there are a class of controversies
which in the present state of public sentiment it does not seem
possible to submit to arbitration. The Hague Convention
recognizes only two classes of cases as within its purview—
questions of a judicial character and regarding the interpreta-
tion of treaties; and the Anglo-French and other recent con-
ventions, in seeking to make arbitration compulsory in these
two classes, have still further limited its scope by exempting
such of those questions as affect the vital interests, the indepen-
dence, and the honor of the state. Hence, until the intelligence
and conscience of mankind is awakened to demand a high stan-
dard of international justice, there are a large number of ques-
tions, especially of a political character, which remain outside
of the pale of arbitration.

Is it not possible to control controversies belonging to these
classes in such a way as to bring about an adjustment in
aggravated cases by some other method than the arbitrament
of war? The Washington Conference, while it recommended
unconditional arbitration, recognized the existence of the sen-
timent alluded to; and it further recommended that:

“Governments should agree not to resort, in any case, to hostile
measures of any description till an effort had been made to settle any
matter in dispute by submitting the same either to the Permanent
Court at The Hague or to a commission, composed of an equal num-
ber of persons from each country, of recognized competence in ques-
tions of international law.”

Ex-President Harrison, in his argument before the Venezuela
Tribunal at Paris in 1899, referred to the work of The Hague
Conference, then in session, in the following forcible language:

“Mr. President: It has been to me a matter of special interest that
the President of this Tribunal (Professor F. DE MarteEss), after his
 

40 CONGRESS OF LAWYERS AND JURISTS

designation by these two contending nations for that high place,
which assigned to him the duty of participating in practical arbitra-
tion between nations, was called by his great sovereign to take part
in a conference which, I believe, will be counted to be one of the great-
est assemblies of the nations that the world has yet seen, not only in
the personnel of those who are gathered together, but in the wide
and widening effect which its resolutions are to have upon the inter-
course between nations in the centuries to come. There was nothing,
Mr. President, in your proceedings at The Hague that so much
attracted my attention and interest as the proposition to constitute
a permanent court of arbitration. It seems to me that if this pro-
cess of settling international differences is to commend itself to the
nations, it can only hope to set up for the trial of such questions an
absolutely impartial judicial tribunal. If conventions, if accommo-
dations, and if the rule of ‘give and take’ are to be used, then let the
diplomatists settle the question; but when they have failed in their
work, and the question between two great nations is submitted for
judgment, it seems to me necessarily to imply the introduction of a
judicial element into the controversy.”’

President HARRISON was addressing his remarks to a tribunal
which he was seeking to impress with the judicial character of
the question before it, but which failed to take that view of
it in their decision, and did just what he said a judicial tribunal
should not do—compromise the conflicting territorial claims of
the litigants. The case he had in hand illustrates the fact that
arbitration tribunals often have to reach a mean course between
the contending claims submitted to them. But with the instincts
of a highly trained judicial mind, with the ardent devotion which
many who hear me know he had for his profession, the American
lawyer in Paris pleaded with good reason for a high ideal for
the Tribunal about to be created at The Hague. It may not
always be realized there, but it is possible in such commissions
as seem to be contemplated by the Washington resolution just
quoted.

Disputes often arise between nations which they are not
willing to hazard by the award of foreign judges, and about
which, with the most friendly intentions, they cannot agree.
The controversy may involve questions of law, or mixed ques-
tions of law and fact. It is often quite possible to reach a solu-
tion by reference to a commission of impartial jurists composed
MR. FOSTER’S PAPER 41

 

of an equal number from both countries. The Alaskan boundary
dispute is a happy illustration of this.

The Alaskan boundary had become an irritating controversy
which threatened the peace of the two countries. Great Britain
was willing to submit the question to arbitration, but in view
of the fact that the United States had had uninterrupted pos-
session of the territory in dispute for many years, the public
sentiment of the country would not permit its rulers to accept
the British proposition. After much discussion it was agreed
that the questions involved should be submitted to a commission
of six jurists, three citizens or subjects each from the two
countries. The commission met in London to examine the
evidence and hear argument of counsel. It was conceded
that all questions turned upon the interpretation of a treaty, a
duty eminently suited to the determination of jurists. A decis-
ion on all the questions was made, and in accordance with
that decision the two governments have directed their survey
officials to lay off and mark the boundary. A dispute which
could not go to arbitration was thus adjusted by a judicial com-
mission. Such a procedure will commend itself especially to
lawyers, whose province it is to aid in the settlement of contro-
versies by law and reason, and not by force.

Special commissions for the consideration of matters which
cannot secure a reference to arbitration may serve other useful
purposes. The finding of a body of jurists, who look dispas-
sionately and judicially at the question unembarrassed by policy
or politics, may so elucidate the law and the facts as to enable
the disputing governments to reach a basis of settlement which
had not been possible through diplomacy.

They also serve the important purpose of securing delay at
a time when the passions of both the disputant nations are
wrought up to a high pitch of excitement and patriotism. Most
wars may be avoided, if time is afforded to treat the subject of
dispute with calmness and sober reason. It should be the aim
of the advocates of arbitration to secure an amendment or
addition to the compulsory treaties recently made between
42 CONGRESS OF LAWYERS AND JURISTS

 

various of the European powers, similar to the provision recom-
mended by the Washington Conference, pledging the contracting
parties, where arbitration is unattainable, not to resort in any
case to hostilities till an effort had been made to settle the
matter in dispute by a commission of jurists of the nationalities
of the parties. Such a stipulation will go far to preserve the
peace of the world.

Some of the friends of universal peace, while commending
the spirit of The Hague Conference, assert that its Permanent
Court is hopelessly inadequate, that arbitration treaties between
nations such as that between France and England will not
prevent war, and that the effective remedy is a world’s parlia-
ment of nations, clothed with a mandate to preserve peace and
to compel disputing nations to submit their grievances and
claims to arbitration or the judgment of the parliament.

Are the promises held out by The Hague Court illusory?
Is it destined to receive the condemnation of the nations or to
die of neglect and non-use? I hope not. I think not. The
delegates to that great assembly were practical men. They
did not even condemn war as wholly unrighteous. They did
not attempt the impossible. They recognized their work as
imperfect, but it was the best then attainable. I have pointed
out some of the defects of the Arbitration Convention, and have
‘suggested amendments which are possible of attainment at no
distant day. I think it should be the policy of the friends of
universal peace to labor to perfect that instrument and to make
The Hague Court popular with the nations as an effective means
of adjusting international differences. :

A permanent world’s parliament of states is a long way off,
and while it is a worthy ideal, its advocates should not decry
The Hague Court, or do anything to lessen the confidence of
the nations in its utility. The Conference, as has already been
noted, contemplated a similar assembly in the near future to
amend the arbitration convention and to consider the exemption
of private property on the high sea in time of war, a measure
urged upon that body by the delegates from the United States.
MR. FOSTER’S FAPER 43

 

Other matters of international moment are pressing for settle-
ment. The Interparliamentary Union at its recent session in
this city passed a resolution asking the President of the United
States to call a second conference at The Hague. This resolu-
tion was presented to the President a few days ago, and it is
very gratifying to note that he has announced his intention to
issue, at an early day, an invitation to the nations to join in
such a conference. It is to be anticipated that a favorable
response will be made, and when that event takes place it
behooves the friends of arbitration to influence their respective
governments throughout the world to make still more effective
The Hague Court.

It is the comment of those who have studied the delibera-
tions of the last Conference, and the action of the nations on the
subject of arbitration, that the governments have been in
advance of the public sentiment on the subject. The unthink-
ing mass of mankind are fond of military display, and take a
deep interest in the conflict of armies. The patriotic spirit
rejoices in the achievement of the military heroes and the
triumphs of its country in the field of arms. Said a Senator of
the United States, an accomplished statesman and an able law-
yer, to me recently, “There is no popular demand in this country
for these arbitration treaties; the sentiment on the subject is
mainly manufactured.”

I will not detain you, at the stage when my address should
close, to refute his assertion. But it challenges the friends of
peace among the nations to manifest their devotion to the
cause. No class of society can do more to bring about a sound
public sentiment in favor of international arbitration than the
lawyers. In this connection let me again cite the action of
the New York State Bar Association. After full discussion of
the subject, and its careful study by a committee of its most
prominent members, a plan for a permanent international
arbitration court was drawn up, and a committee of that body
made the journey to Washington to lay it before the President
and ask for it the careful attention of the government. That
44 CONGRESS OF LAWYERS AND JURISTS

 

plan became the basis of the instructions of the American
delegates to The Hague Conference, and the essential features
of the Permanent Court now in existence at The Hague are in
accordance with that plan.

Notwithstanding the fierce conflict that is raging in the
Far East, there is a cheerful outlook for international arbitration.
Neither should the august initiator of The Hague Conference
be too severely censured for inconsistency. Unconditional
arbitration was not contemplated by him, and many a humane
ruler before his day has been unwillingly involved in hostilities.
Instances of the avoidance of war are increasing in our time.
The normal condition of the world now is peace, and for that
the rulers of the nations constantly strive. The recent treaty
between Great Britain and France, adjusting all outstanding
matters of differences between these two ancient and once
inveterate enemies, is a hopeful augury for the future conduct
of states. A notable example of the spirit of this latter day is
the action of the two most southern republics of this hemisphere,
in uniting in a treaty of peace and unconditional arbitration,
whereby their armies are disbanded, and their navies reduced by
the sale of a number of their battleships and the transformation of
cruisers into vessels of commerce. To crown this noble work
Argentina and Chile have done well to erect on the highest peak
of the Andes, which marks their international boundary, long a
subject of angry controversy, a statue of the Christ, the Prince
of Peace.

A fresh propaganda for arbitration has opened in Europe,
in which the statesmen and jurists of France take the lead.
King Epwarp VII is exerting his mighty influence among the
Great Powers in the same direction. The President of the
United States on all proper occasions raises his voice and shapes
the conduct of his government in favor of international arbitra-
tion. We know too sadly by the daily intelligence from the
East that universal peace has not yet come, but we may fondly
hope that the era of ALEXANDER, C@sar, and NapoLeon has
passed, never to return; that the ambition of rulers and the
SENOR VELASCO 45

 

rivalry of nations may henceforth lie in the paths of education,
industry and commerce; and that The Hague Court will long
stand as a beacon light in the tempestuous sea of international
politics, and its influence and efficiency grow with the advancing
years. [Applause.]

The PRESIDENT:

We are now to listen to a discussion of this paper by Sefior
Don Emitio VELASCO of Mexico.

Sefior Don Emirio VELASCO, a Delegate of the Mexican
Government, spoke as follows:

Mr. President and Gentlemen of the Congress of Lawyers
and Jurists: Not many days ago the Peace Congress advocated,
among its aspirations, the negotiation of treaties of arbitration.
To-day this Congress meets, and one of the points of its pro-
gramme is international arbitration. And this is not the
result of isolated opinions and voices; the question of arbitra-
tion between nations to adjust their controversies is a question
in which all civilized peoples take an interest, and which pre-
occupies publicists and statesmen; it is a problem which pre-
sents itself to governments, and for which they are seeking a
solution.

International arbitration, with its present characteristics,
is a social phenomenon, a product of the progressive movement
of humanity. History, in its several epochs, presents us exam-
ples of arbitration; but in none up to this time has arbitration
assumed the nature of a system directed to putting an end to
international wars, substituting armed contests with pacific
discussions, and the rule of force with the reign of law.

The idea of international arbitration is not the creation of
one man nor of any set of men, however eminent they may be;
it, like all other forms of right, corresponds to a certain moral
state in civil societies; when there is among these a sentiment,
aspirations, which they cannot define, then there appear men
of science who give a form to these aspirations and to that
46 CONGRESS OF LAWYERS AND JURISTS

 

sentiment; and in this way that sentiment, which before beat
in the heart of the societies, has its external manifestations and
produces powerful currents of opinion. This has come about
in respect to international arbitration.

Before the bloody spectacle of war, humanity recoils shud-
dering with horror, and has asked if there be not some means of
averting these frightful catastrophes. Science has responded,
presenting arbitration as a practical means of settling inter-
national difficulties.

Material interests have united together to lend their sup-
port to the proposed solution; these interests, which with their
innumerable ramifications have created a material solidarity
between all civilized peoples, and which so greatly feel the conse-
quences of great wars, tend to favor the solution of international
questions by pacific means.

In proportion that the masses of each country possess them-
selves with the political power and make their influence felt in
the councils of the government, the possibility of armed con-
flicts is more remote. A war affects all social classes, and is a
menace to the fortunes of all; in countries where the masses
of the people exercise the political power through their repre-
sentatives, it will be difficult to bring about a war which should
not have a national interest and a national object, a war whose
sacrifices should not be equal to the importance of the interests
involved. Insuch countries, therefore, arbitration offers itself as
a means of ending difficulties which may arise with other nations.

For governments, whether weak or strong, international
arbitration is a great recourse. For the weak governments,
arbitration saves them from a terrible dilemma, from humiliation
and from ruin; from the humiliation of submitting to demands
which they consider as an abuse of power, and from a war which
for them would be a disaster, if they are not willing to submit
to that humiliation. Arbitration, although the final result may
be unfavorable to the weak governments, will have saved the
moral interests which they represent, the national self-respect
and decorum.
SENOR VELASCO 47

 

For the strong governments, when modern war, with the
powerful elements at its disposal, causes destruction which may
bring a nation to the very brink of an abyss, and which in any
event affects in its consequences coming generations, it is an
immense responsibility to plunge the nations which they govern
into a war, when there is no sufficient cause to explain and
justify the war.

Thus, the moral interests of humanity—interests represented
by the men of science and by the great associations which aspire
to put an end to armed conflicts—the material interests of the
civilized nations, the political power in those peoples who
through their representatives influence the direction of public
affairs, and the interests of the governments, are the elements
under which has developed and waxed in vigor a system which
tends to put an end to international controversies by means of
arbitration; they are the elements which in the future will
develop that system until it reaches perfection, so far as per-
fection is possible to human works.

International arbitration has at the present time three forms:
(1) arbitration in its nature transitory and for determined mat-
ters; (2) compromissorial clauses inserted in treaties to decide
the questions which the interpretation and execution of the
treaty may give rise to; (3) permanent and obligatory arbitra-
tion.

Treaties of arbitration, in these three forms, have increased
in number progressively, very especially in the first two forms.
This increase is a fact of great importance, for it indicates that
the idea and the practice of arbitration have been acclimating
themselves in modern societies and are entering as a normal
fact into international relations.

The last form, that of permanent and obligatory arbitration,
is that which offers most resistance, and various of the attempts
which have been made to establish it have proven failures.
While the arbitration is accepted in principle, and with the
purpose to apply it to the differences which may arise, a senti-
ment of mistrust and the fear of contracting obligations which
48 CONGRESS OF LAWYERS AND JURISTS

restrict the liberty of action, restrain the governments from
accepting arbitration as an obligatory rule to which they must
conform themselves in the international differences which may
arise; they fear that to accept a general obligation for the
future, instead of limiting themselves to concrete cases when
they have arisen, is to accept the unknown, is to submit them-
selves to a situation in which the national interests may be
endangered.

The questions which may be the subject-matter of arbitra-
tion have also offered difficulties, several of which have not been
solved. The practice of the generality of the nations leads us to
believe that questions involving material interests offer no
objections to being submitted to arbitration; and in reality,
international arbitration for that kind of questions has acquired,
and continues to acquire, considerable development. In this
way disputes about boundaries, indemnities, fisheries, and
others analogous, have been decided by international arbitra-
tion; and to-day it seems strange that in questions involving
only material interests recourse should be had to force to decide
them, instead of asking their decision by an arbitral tribunal.
The idea which occurs in such cases is, that behind the material
interest is hidden some other class of desires and of aspirations.

But besides these questions there are others in which material
interests are not involved, but interests of a moral order, inter-
ests which in the generality of cases are not susceptible of being
judged by juridical rules; and in which, although treating of
questions to which one of those rules might be applied, the
juridical character does not predominate, but a character emi-
nently political. These questions are comprised in the category
of questions relative to independence and national honor;
and among these are the conflicts between nations originating
out of their tendencies to extend the sphere of their influence
and of their action. In respect to these questions, even the
governments which accept the principle of permanent arbitra-
tion exclude them from arbitration, and few instances can be
cited of treaties concluded between the Hispano-American
SENOR VELASCO 49

 

nations in which arbitration is accepted without any restric-
tions. This class of questions, in the present state of society,
it seems should be rather the object of the good offices and of
the mediation of other powers than of arbitration.

There are two difficulties, therefore, which beset arbitration
in these present times; the resistance on the part of some
governments to permanent arbitration, and the difficulty of
giving juridical form to questions of a political nature. Arbi-
tration has won for itself, in science, a place as a system of
solving international disputes, and in practice, it has also a
place as a means of deciding conflicts in which material interests
are involved; but neither is that system accepted by all nations,
nor are those conflicts the only ones which divide them.

Is there hope that these difficulties can be overcome? We
must trust so; the practice of arbitration will little by little
dispel the want of confidence, and will prepare the minds of the
governments which to-day resist permanent arbitration, per-
suading them that there is nothing in it which should inspire
fear, and that, on the contrary, it originates a normal situation
in which dangers to the nations, however powerful they are
supposed to be, are averted.

The second point is more difficult to resolve; to seek a
juridical formula for questions which are eminently political
seems an insoluble problem. It certainly is so at the present
time; but arbitration, under the impulse of the immense moral
forces which support it and put it into action, has made gigantic
strides; and to-day that is a reality which in other times was
an illusion. Perhaps that which to-day is an impossibility and
the dream of elevated spirits shall be a truth with the passing of
time; perhaps the great moral, material, and political interests
which have raised arbitration to the place which it to-day
occupies, will raise it higher yet, to the point where all inter-
national conflicts will be settled by it.

In this progressive movement of humanity, which leads on
to the realization of the ideal of peace, a signal place is held by
the Tribunal constituted at The Hague. The establishment
50 CONGRESS OF LAWYERS AND JURISTS

 

of this Tribunal marks an epoch in the history of international
law. Nations separated by rivalries, by interests, by historical
antecedents, sent their representatives to the Conference of
The Hague that they might discuss the means adequate to the
effect of mitigating the rigors of war, and to seek pacific solu-
tions for international conflicts. Of this Conference was born
the Arbitration Treaty.

This treaty is a timid step in which are revealed the dis-
trusts and the resistances which were to be accommodated;
but that step is of transcendent importance, because it was not
the result of the isolated action of some governments, but
of the concert of the most powerful nations of the world;
it indicates that throughout all of the civilized world is felt the
necessity of seeking in the law the solution of questions which
has been intrusted to the hazards of war.

It is a first step which opens up the way for other steps, and
gives us to hope for the future greater developments in the
practice of arbitration. The Tribunal of The Hague, created
by the collective action of the nations, with its character of
permanency and with rules of procedure previously defined,
has in its support a great moral force, and presents all the advan-
tages and all the facilities which constituted tribunals offer. It
is a Tribunal open to all who ask its judgment; its examples
and its practices will be an inducement to all the nations to
intrust to it their differences.

But the action of the governments is the most efficacious
means for the development of international arbitration; the
conscience of the civilized world on this question is known to
all; what is sought to do is to carry into practice, with all the
development of which they may be susceptible, the ideas which
have been elaborating in the thought of a great part of humanity.
This only can be attained through the co-operation of the gov-
ernments.

The First Conference of The Hague foreshadowed the possi-
bility of a Second Conference. The moment perhaps does not
seem to have arrived for the holding of this Second Conference;
SENOR VELASCO 51

 

the Tribunal of The Hague has not yet been in operation
enough for it to have acquired all the authority to which its
elevated functions call it, and which should stimulate the ampli-
fication of its faculties. Moreover, the moment does not seem
fit for the discussion of the manner of limiting wars when a
great war is devastating a part of the civilized world.

When this war shall have terminated, when the vestiges of
destruction and of blood which it shall leave behind it shall be
a lesson not only for those who have combatted, but for all the
other nations, when the Tribunal of The Hague shall have
acquired a greater authority, then will be the moment for the
reunion of a second conference.

The Peace Congress approved a resolution inviting the
President of the United States to call for a second conference
at The Hague. None so well, indeed, as the Government of the
United States may be fitted to extend the invitation to this
second conference; a stranger to the generality of the questions
which divide the minds of other nations, its actions will be
more efficacious; the echo of the opinion of a great people, its
voice will be the voice of a great part of humanity.

These considerations have persuaded me to present the
following motion:

“The Universal Congress of Lawyers and Jurists, met in
St. Louis, Missouri, has the honor to address the Honorable
President of the United States, to request him that when, in
his judgment, it may be convenient, he will extend an invitation
to a Second Conference at The Hague, for the discussion of the
questions relative to arbitration and such other questions of
international law as it may be deemed proper to propose.”

It will be a great honor for this Congress to second an idea
which in the future may lead to greater amplifications in the
practices of international arbitration. Met together in the
midst of the splendors of an Exposition which is a marvel of the
modern world, all of us who have the honor to take part in it
must feel the aspirations for permanent peace, giving to inter-
national arbitration the greatest amplitude. In this Exposition
s2 CONGRESS OF LAWYERS AND JURISTS

 

its most insignificant stone is an invitation to peace, and alto-
gether it is the most solemn altar which humanity has been
able to erect to peace and its manifestations. This Congress,
wheresoever it may turn its view, will find an inspiration to
move it to put forth every endeavor in order to realize in its
full plenitude international arbitration. [Applause.]

The PRESIDENT:

We will now listen to a further discussion of the paper by
Hon. J. H. Ratston of Washington, D. C.

Mr. Jackson H. Ratston, a Delegate from the Bar
Association of the District of Columbia, spoke as follows:

Mr. President and Ladies and Gentlemen: Before entering
into such a discussion, so far as it is in the prepared shape in
which I shall desire to present it to you, I want to say a word
in regard to the second branch of the question before us, that is,
international commissions generally, aside from The Hague
Commission. In the past one hundred years the United States
has taken part in some seventy arbitrations, and the point to
which I shall invite your attention for the moment is practically
one as to the manner in which these commissions have been
appointed, and, as I think, should be appointed. In almost
every case the commission has consisted of three members, one
representing directly each of the parties litigant, and the third
being of a different nationality. This method of selecting com-
missions is, I think, fairly the subject of criticism. In my
judgment a commission should be entirely independent of the
parties presenting the matters before it. [Applause.] Under
the preceding practice all the important questions were virtually
left to the judgment of a single man as patriotic and natural
conditions of education have led each party to color their judg-
ment, sensibly or insensibly, with their nationality. We have
had thus a series of commissions which were virtually one-man
commissions, the parties dividing or the nations dividing on
either hand, and leaving the arbitration practically in the hands
MR. RALSTON 53

 

of the umpire. This is a mistake, as I shall contend, because it
submits the parties at interest to the idiosyncrasies, peculiarities,
and mental tendencies of one man without the opportunity of
comparing his ideas and adjusting his views by intercourse with
others similarly and impartially situated; furthermore, that
one man is not permitted to arrive at his conclusions entirely
apart from his associates. We may refer to what must have
been necessarily the condition of affairs even in that greatest of
arbitration, the Alabama Arbitration, when both the United
States and England were represented on the commission, and
the disinterested commissioners, in all their negotiations, were
compelled to compare their ideas virtually in the presence of
the interested parties. The only wonder is, Mr. President,
that the results of the arbitrations, the seventy arbitrations
referred to, have been as excellent as they have, and have been
acquiesced in so universally by the nations litigant.

When it came to select members from the Permanent Court
of Arbitration to try the Pious Fund case, to which reference has
been made, the United States and Mexico entered upon a new
method, and agreed that the nationalities of the parties in interest
should have no place whatsoever upon the court to which the
controversy was submitted, and the same course was followed,
as has been stated to you, in the recent Venezuelan preferential
question, and, all things considered, with excellent results. We
may, therefore, hope that the two precedents thus set will
harden into a practice which will have a tendency to insure the
absolutely impartial and unbiased judgment of the arbitrators
to whom causes may hereafter be submitted, either in The
Hague Court, or in other independent tribunals.

In approaching the discussion of The Hague and other inter-
national tribunals, we may felicitate ourselves, those of us who
are Americans, upon the happy history of the United States
with relation to international arbitration. From the earliest
period of our history, the United States has with remarkable
freedom made use of courts of this nature. The reason for
this line of conduct is in part to be found in the pacific temper
54 CONGRESS OF LAWYERS AND JURISTS

 

of the people, who have always recognized that peace had her
victories no less renowned than war. In a larger degree, it
may be ascribed to the happy situation of this country, in that
it is free from foreign entanglements, independent in its geo-
graphical situation, inviting no foreign attack, because none
could hope for success, and feeling no necessity for possessing
itself of the lands of others. The United States has been strong
enough to be magnanimous, and has had no ambition incon-
sistent with the demands of justice. Whenever it felt that other
nations were properly obligated to it, America has been careful
in its demands, not exceeding the bounds of justice, and there-
fore never fearing the results of arbitration. And thus it has
happened that the positions taken by the United States have,
for the most part, met with the approval of commissions and
courts to which they have been submitted.

In addition, we may feel a patriotic pride in the high sense
of justice displayed by the United States in its arbitral dealings
with foreign nations; for the moment contenting ourselves
with reference to but two instances. When it became known
that the awards of the American and Mexican Mixed Claim
Commission of 1869 in the Weil and La Abra cases were based
upon fictitious testimony, the United States did not hesitate to
reimburse Mexico about a half-million dollars originally paid
by that country, although a large portion so paid had passed
into the hands of the wrongful claimants or their representatives
in such manner that recovery by our government was hopeless.

Again, when it appeared that the Venezuelan-American
Arbitration of 1865 had been controlled, to the prejudice of
Venezuela, by an unworthy American and a recreant Venezuelan,
the United States, the facts once being established, provided
for a review commission, consisting of two Americans of un-
doubted probity and eminent distinction, and a Venezuelan of
recognized learning, this commission reducing materially the
aggregate amount paid by Venezuela.

Consequent upon this history, the United States could have
been expected, and was ready, to take part in all the good work
MR. RALSTON 55

 

of The Hague Convention of 1899, and its history and example,
as well as the faithful work of its representatives, powerfully
contributed to the notable results there obtained.

Often it is complained that despite the existence of a com-
petent tribunal, provided expressly for the settlement of inter-
national difficulties, wars, international and internal, have not
yet ceased, and appeals to this court, in cases where the propriety
of the exercise of jurisdiction would be undoubted, have not
always been made. But, if we view the subject dispassionately
and philosophically, it would seem that there is greater ground
for congratulation than for mourning or regret.

The mere existence of a court cannot insure a reign of
justice. As we well know, tyranny may be practiced under the
most liberal institutions, and we witness liberty written into
law generations and centuries before it is written in the minds
and hearts of the people. Even the Emancipation Proclama-
tion has not yet done its perfect work. Nevertheless, we must
not refrain from constitutional declarations favoring freedom
because delay is likely to ensue in its full appreciation and
enjoyment.

And so with The Hague Court; we would be thoughtless
were we to expect that the great declaration in favor of peace,
made through its institution by the civilized nations of the
earth, should bring about by the act itself the extinction of mili-
tant tendencies yet so common among nations which consider
themselves Christianized and believe themselves polite. We
have simply set the goal most worthy of our attainment, and
which, after years of endeavor, we may hope to reach.

For the first three years following its creation, a Hague
Court was not called into active operation, and men wondered
if The Hague Convention offered more, after all, than the dream
of the idealist, while some declared that so adverse to it were
many of the leading nations that the permanent court of arbitra-
tion would be suffered to fall into desuetude. These feelings,
bearing in mind the warlike history of mankind, were only
natural, but on taking a closer view are subject to dissipation.
56 CONGRESS OF LAWYERS AND JURISTS

 

The Hague Court is composed of some seventy gentlemen of
high intellectual rank and distinguished honor, but who must
share the aspirations, ambitions, and tendencies of their imme-
diate environments, and who, it might be feared, would have
been influenced by these things even when called upon to
display the cold impartiality of the righteous judge. Knowing all
this, nations may well have hesitated, and doubtless do hesitate,
for the moment, although without sufficient cause, to submit
their differences to settlement by them. We can better under-
stand the possible position of some European nations with
regard to the court by referring briefly to an actual dispute
submitted it, and another question which may sooner or later
come before The Hague.

After a three years’ delay, the Hague Court was for the first
time called into play by the submission to it of the dispute
between the United States and Mexico relating to the Pious
Fund of the Californias. Briefly it may be stated that after
the cession of Upper California to the United States, the Roman
Catholic bishops of California claimed a share of the interest
upon the Pious Fund, its foundation consisting of properties
belonging to a church charity, which had been taken by Mexico
prior to the cession, and upon which she pledged herself to pay
six per cent interest per annum. Before the Mexican and
American Mixed Commission of 1869, the bishops of California
set up their claim and were awarded twenty-one years’ interest
upon the estimated value of one-half the fund. For the instal-
ments believed to have accrued from that time until 1902, the
United States presented its demand, which was referred to a
Tribunal of The Hague Court for decision. America largely
rested her contentions upon the doctrine of res judicata,
while Mexico denied her obligation under this doctrine to pay
anything and maintained the insufficient foundation of the claim
in fact and in law. The Hague Court decided in favor of the
United States upon the theory of res judicata, declining there-
fore to consider the other questions urged by Mexico, and pro-
nouncing a great judgment supporting the sanctity of arbitral
MR. RALSTON 57

 

awards. Suppose, however, that the situation had been such
that The Hague Tribunal had been required to examine into the
origin of the claim, would its judgment have been similar?
As Americans, familiar with the absolute separation of church
and state, regarding, as we do, the church as a corporation
capable of receiving and being deprived of property, and when
so deprived, entitled to payment therefor precisely as an indi-
vidual, we may feel that the original contentions of the United
States, as presented to the commission of 1869, should have
been sustained, but would Europeans, accustomed to regarding
the church as a branch of the state, and to considering that
property taken from the church by the state was simply trans-
lated, as it were, from one branch of government to the other,
have arrived at the same conclusion? This question is at least
open to grave doubt.

Passing now to another possible question which might in
some phase go to The Hague for settlement, let us consider the
responsibility of a state for the acts of unsuccessful revolution-
ists. This was presented before the larger number of the
umpires and commissioners lately sitting at Caracas. The
Venezuelans, and the three American umpires, with the Amer-
ican commissioner, held uniformly that a state could not be
regarded as responsible for the acts of revolutionists of this
description save such responsibility were created in express’
treaty terms. The Continental umpires and commissioners
were disposed to hold Venezuela liable, one umpire going so far
as to condemn her to pay bonds issued by a revolution engaged
in an abortive attempt to destroy the parent state. While the
Americans considered Venezuela, fully admitted to the family
of nations, was internationally upon the same footing as the
United States or the best established European governments,
the Europeans held that because of her frequent revolutions a
rule should be applied to Venezuela which would not be effective
when invoked against more powerful and longer established
governments. Let us then suppose a conflict involving this
principle to arise between a South American republic and a
58 CONGRESS OF LAWYERS AND JURISTS

European nation. Might not one or the other party to the
dispute hesitate to have it referred to a court a considerable
majority of whose members would presumably be predisposed
against the view it would be inclined to regard as the correct
one?

The observations are submitted as indicative in some degree
of a possible reason why The Hague Court has not been resorted
to in larger measure. May not any nation be excused for
hesitating to place itself under the jurisdiction of a court com-
posed of nationalities whose disposition, for any of the reasons
above indicated, and possibly for others growing out of the
education, environment, and mental tendencies of a great
majority of its members, might be regarded as adverse to it or
its institutions ?

But with the tremendous tendency among modern nations,
fostered by freedom and celerity of travel, and otherwise and
consequent liberal exchange of thought, towards uniformity
of view in international questions, should these considerations
be given great weight? Because even particular national ideas
seem antagonized by those of a majority of the other nations,
should one hesitate to have them tested in an international
forum of some description lest an adverse judgment should
result? National views of international law are not immutable,
even American Secretaries of State under the pressure of differ-
ent circumstances having advocated differing views of interna-
tional law, while with the efflux of time the more permanent
policy of nations has undergone a reversal, as, for instance,
giving a minor illustration, that shown by the attitude of England
upon questions of naturalization. Furthermore, it is only
through a comparison of ideas that just conclusions may be
reached. Again, it is a positive gain to civilization to have a
question submitted to The Hague Court, even though one party
or the other may feel assured that such submission will be
attended by want of success.

Repeated references to The Hague Court and other like
tribunals will serve to render fixed and certain the now some-
MR. RALSTON 59

 

what nebulous science known as international law. At present
nations clash upon their varying views of the duties of states
towards each other, and even resort to arms to sustain them.
When the law has, therefore, itself become fixed, and its limita-
tions and boundaries defined in the most authoritative manner,
through frequent resort to The Hague Court, we may expect
international disputes to lessen in number and in severity, and
nations finally learn that even in so-called questions of national
honor they are not themselves the proper judges.

In discussing The Hague Court one must not lose sight of
the essential fact that the very existence of a Court has an
important effect upon the relations of nations. Neutral powers
may always remind those whose passions are rising that the
Court is open, while nations disposed to resort to war are com-
mencing to feel that a case justifying appeal to arms before an
attempt to obtain a judicial settlement must be very strong,
and even if cannon are made the arbiters the moral sense of
mankind must be satisfied, and want of resort to The Hague
excused, something rapidly growing impossible.

I have so far spoken of the effect in an international sense
of the formation, growth, and strength of The Hague Tribunal,
but its internal effects should not be overlooked. External
war means internal taxation, and whatever contributes to
increase the severity and extend the scope of taxation is likely
as an ultimate result to create internal disturbance. He was a
wise writer who observed that the great battles of liberty were
fought upon the question of taxation, and borrowing from the
novelist expression of his idea as found in the Cloister and the
Hearth, where the hero of the defense of the city, a hosier, was
brought before the commander of the governmental forces, we
learn that on being questioned as to the reason for his action,
he stutteringly said, ‘“Tuta—tuta—too much taxes.”

We are informed that the national government of a nation
as enlightened and developed as the United States expends
much the larger share of its income in meeting the expenses
incident to past and in preparing for future wars, instead of
60 CONGRESS OF LAWYERS AND JURISTS

 

contributing this portion of its yearly receipts to the increase of
the prosperity and happiness of its citizens. While this and
corresponding burdens in other states may be borne for a time,
at any rate by nations wealthy as our own, it is gravely evident
that the weight of war must create, sooner or later, and in
larger or smaller areas, internal revolt. In a reflex manner,
therefore, will The Hague Court diminish in time internal bur-
dens, and consequently internecine difficulties.

More than three centuries ago, PASCAL said, ‘‘When it is a
question of judging if one should make war and kill so many men,
condemn to death so many Spaniards, a single man is the judge,
and he interested; there ought to be an indifferent third.”

We have now, after the passage of centuries, supplied that
indifferent third. In every manner we should seek to increase
the powers and extend the functions of this disinterested Tri-
bunal. Even if we believe such Tribunal, for reasons of educa-
tion and environment, to which I have before alluded, is feared
or known to be prejudiced against us, is it not better to submit
to its judgment and thereby strengthen its powers than to engage
in a quarrel as to the merits of which the judgment of impartial
history may after all be contrary to our ideas? [Applause.]

The PRESIDENT:

One matter has been omitted that should have been attended
to earlier in the day, and that is the appointment of members
of the Committee of Nations.

The Honorable Amos M. Tuaver, a Delegate of the
United States Judiciary:

Mr. President: I move you that the persons whose names
appear upon this list which I hold in my hand be selected to
serve as a Committee of Nations. I will ask that the Secretary
read them.

The Secretary [reading]:

ARGENTINE, Dr. José V. FERNANDEZ.
AUSTRIA, Chevalier A. von STRIBAL.
THE COMMITTEE OF NATIONS 61

 

BELcIum, M. VALENTIN BRIFAUT.

BritisH Empire, Mr. Justice Nessitt of Canada.
Curna, Mr. Sun Sze YEE.

FRANCE, Professor GEORGES BLONDEL.
GERMANY, Herr Paut DoERTENBACH.

ITaAty, Professor F. FERRARIS.

MExIco, Sefior Don EMETERIO DE LA GARZA.
NETHERLANDS, Dr. D. J. Jrrta.

SWEDEN, Vice-Judge G. E. FAHLCRANTZ.
SWITZERLAND, Dr. F. MEIn1.

UNITED StTaTEs oF America, Mr. J. M. Dickinson of Chicago.

The motion being duly seconded and carried unani-
mously, the nominees were declared chosen as members
of the Committee of Nations.

The PRESIDENT:

I give notice that the Committee of Nations is requested to
meet immediately after the adjournment of this session, right
here on the platform, and organize.

I call your attention to two other matters: one is, that any
member of the Congress desiring to propose any matter for
consideration may do so by presenting a written motion over
his signature; secondly, that whenever there is opportunity for
general discussion, any member who desires to engage in that
general discussion must send up his card stating that fact, other-
wise he will not gain recognition.

The SECRETARY:

A motion presented by Sefior VELASCO, a Delegate from
the Mexican Government, has already been read by him in the
course of his paper.

A DELEGATE:
It was not heard.

The SECRETARY:
Do you call for the reading of it?
62 CONGRESS OF LAWYERS AND JURISTS

 

A DELEGATE:
I do.

The SECRETARY [reading]:

“The Universal Congress of Lawyers and Jurists, met in
St. Louis, Missouri, has the honor to address the Hon. President
of the United States, to request him that when in his judgment
it may be convenient he will extend an invitation to a Second
Conference at The Hague, for the discussion of the questions
relative to arbitration and such other questions of international
law as it may be deemed proper to propose.”

The Secretary stated that he had received:

A motion from Mr. Everett P. WHEELER of New York,
a Delegate of the United States Government, requesting the
committee to make arrangements for the holding of subsequent
meetings in the Hall of Congresses, owing to the difficulty of
hearing in Festival Hall.

Also, a motion offered by Dr. Jost V. FERNANDEz of the
Argentine Republic, a Delegate-at-large, that the Congress
approve certain declarations that he has formulated in regard
to trusts, socialism, liberty in the making of wills, rights and
duties between parents and children, and divorces.

Also, a motion by the Honorable G. A. FINKELNBURG of
Missouri, a Delegate of the United States Government, that the
Congress express itself in favor of the proposed modification of
the laws of maritime warfare as submitted to the late Peace
Conference at The Hague.

Also, a motion by Mr. FERDINAND SHack, a Delegate from
the United States Government, that the Congress express its
deep gratification at the steps recently taken by the Interparlia-
mentary Union towards the settlement of controversies between
nations in the same manner as disputes between individuals,
and satisfaction at the announcement by the President of the
United States of his intention to comply with the request made
to him by said Union that he invite the nations to a conference.
ANNOUNCEMENTS 63

 

The President announced that all these motions
would go to the Committee of Nations, which would
report on them the following day.

Mr. RAWLE, a Delegate from the United States Govern-
ment, on behalf of the banquet committee, made an
announcement in regard to the banquet to be held on the
evening of this day at the ‘‘Tyrolean Alps,” stating the
particulars in regard to the admission to the grounds and
to the banquet-room.

The Secretary stated that he had just received a
proposed resolution in regard to the desirability of an
international exchange of law publications, which the
President announced would also be sent to the Com-
mittee.

At this point the Universal Congress adjourned until
10 A.M., September 29, 1904.

[On the evening of Wednesday, September 28, a banquet was
given by the Exposition Company to the members of the Congress
and the American Bar Association in the banquet-hall of the ‘“Tyro-
lean Alps.” Six hundred and fifteen guests were seated at the
tables. Mr. Francis, President of the Exposition, acted as toast-
master. In his opening speech, he proposed a health to the President
of the United States. The guests stood while the toast was drunk,
and the band struck up “America,” which the whole company joined
in singing. The toast-master then proposed a health to the ruler of
each country represented at the banquet. The proposal was received
with cheers, and the toast drunk standing, the band again playing the
national anthem. Speeches were made by Mr. Justice BREWER,
President of the Congress; Mr. Justice KENNEDY of England; Dr.
HARTMANN of Germany; Professor BLONDEL of France; Chevalier von
STRIBAL of Austria; M. FRANCOTTE, Secretary of State of Belgium;
Signor Pavia of Italy; Mr. Cow of China; His Excellency Sefior
Azrrroz, Ambassador from Mexico; Judge Tuck of Egypt; Mr.
James HAGERMAN, retiring president of the American Bar Associa-
tion; Mr. Henry St. GEorGE TUCKER, newly elected president of
the Association; former Senator MANDERSON of Nebraska; and Mr.
F. W. LEHMANN of St. Louis. During the evening excellent music
was furnished by the Symphony Orchestra of the Exposition.]
64 CONGRESS OF LAWYERS AND JURISTS

 

SECOND DAY
THURSDAY, SEPTEMBER 29, 1904
MORNING SESSION

The Congress was called to order by President BREWER
at ten o’clock in the forenoon.

The PRESIDENT:

If there is no objection we will dispense with the reading of
the minutes. They will all be published for your benefit here-
after. The roll-call, of course, will be omitted. There is an
announcement that the Secretary would like to make before
the reading of papers.

The SECRETARY:

At the conclusion of the morning session to-day, and likewise
to-morrow, a luncheon for the Delegates and guests will be
served on the stage in this hall. An invitation has been received
from the Board of Lady Managers of the Exposition to all of the
Delegates and the ladies in their party for a reception in their
honor at the rooms of the Board on Friday evening.

Mr. F. H. BusBee of North Carolina, a Delegate-at-
large:

I desire, by universal consent, to introduce a resolution in
regard to the illness of that distinguished American, GEORGE F.
Hoak, and it may take such course as the rules prescribe.

The PRESIDENT:

It will be referred to the Committee of Nations.

The next business is the reading of the paper by Judge
GustaF Epw. FAHLcRANTZ of Stockholm, Sweden, on “The
Preferable Method of Regulating the Trial of Civil Actions with
Respect to Pleading and Evidence.”
PAPER OF HERR FAHLCRANTZ 65

 

Vice-Judge GustaF Epw. FAHtcrantz of Stockholm,
Sweden, a Delegate-at-large:

Mr. President, Ladies and Gentlemen: I cannot enter on
the subject for which I am standing here without expressing my
sorrow for the deplorable loss of Judge Sevmour D. THompson,
who had signed the very telegram which called me here, and
whose friendship I had been so happy to enjoy for many years.
I had heartily hoped to see him now, but, alas, I have had only
to bring with me a wreath and lay it on his grave. I have no
right to speak for somebody else, but when I say that I had
written upon the one ribbon with the Swedish colors, “Thanks
for noble friendship,” I know that many of those who are
assembled here will join me in similar thanks. And in the
words written on the other ribbon, ‘Peace of God over him,”
all of you will most certainly join with me very heartily.

THE PREFERABLE METHOD OF REGULATING THE TRIAL
oF Crvit ACTIONS WITH RESPECT TO PLEADING AND
EVIDENCE,

A PAPER BY

Vice-Judge GustaF Epw. FAHLCRANTz, Advocate of
Stockholm, Sweden:

About twenty years ago, when at different periods I was a
daily visitor of the English courts, Lord Linpiry (then Lord
Justice LinDLEy) said to me: ‘‘The Germans, you see, have
much more of science in their administration of justice; we
take it more as a practical thing.” I have very often had
those words before my mind, especially later, during the year I
spent in Germany in continuation of my comparing inquiries
on the field of “civil procedure”; and I think I have found a
very good correlative to that expression when I am quoting
some words once said to me by his Excellency von DRENKMANN,
the president of the old ‘‘Kammergericht,” the Supreme
Court of Prussia: ‘‘We have, here in Germany,” he said, “three
66 CONGRESS OF LAWYERS AND JURISTS

 

orders (instances) of courts; but above them all a fourth, the
science.” On each side a man speaking who certainly knows
his system and his people.

But even if the said high authorities had not in such an excel-
lent and striking way expressed what is characteristic for the
one and the other of both systems, anybody will easily come
upon the idea that there are two different ways for arriving at
an answer to the question raised, or that the method must
depend upon the view we take of the administration of justice
itself as either a practical thing or a matter of science.

When I am speaking of administration of justice as a prac-
tical thing, I am looking upon it mainly as means of help, a
means of assisting those who are suffering wrong; it is here the
need of the individual case which excites the beneficial work
of the judge, and the leading principle is: The facts make the
law; or, as I have seen it written on a copy of an old Swedish
law code, ‘No law is better to follow than the truth.”

Administration of justice again as @ science looks upon
matters more from a generalizing point of view, under which
each case is put in a certain class with respect to some certain
great features or certain signs. The individuality of the case
is not so closely considered.

But these features are fixed in such a way that commonly the
result will be right, if you are taking advice from them. The
peculiar cases, which have a character of their own, may in this
way be in great danger to go astray, but—and though it is
especially the cases having an aspect of their own that come
before the courts—that misfortune for the interested private
parties is supposed to be balanced by the benefit for the courts
of not being bound to spend their work upon all the trivial
particulars, but to be entitled to keep themselves above a good
deal of the low reality and in the lofty skies of logical ideas.
The science has thus made binding forms of its own and con-
structed its system.

I have not the slightest doubt that the right purpose of
justice is the one first alluded to. But if so, the first thing for
PAPER OF HERR FAHLCRANTZ 67

 

it must always be to have facts duly stated, and, I mean, the
paramount question in the English system is also the question
of the truth in the individual case.

In the German system the question of the facts has since
long been a very much formal one, and still in this moment,
even with the admirable progress of the new civil code of
Germany, the relative abstractness of the idea of the truth or
of the question of fact is conspicuous.

At the side of the English system we have to place the old
Roman one, many leading ideas of which it has brought to the
highest degree of accomplishment. And, of course, the Amer-
ican system, the alter ego, or the daughter of the English one,
belongs here, even if it has lost some traces of its mother. We
have to give attention here, too, to our old Swedish system,
which, as many of the ancient ones, so exclusively looked upon
the need of the individual case, that it had constructed special
modes of trial, so to say, for every little class of facts.

At the side of the German system, again, we must place the
French one, perhaps the most prominent feature of which is a
decided diffidence in the truth as deposited in the minds of men.
It has, with French clearness and sagacity, constructed different
modes of trial for different cases, but wanting the most effective
expedient, I mean that of taking the truth without any considera-
tions from the parties themselves, the said modes have got in
great part a certain schematic character, to which “la souve-
raineté du juge’’ can scarcely give a proper counter-weight of
individualism. Our present Swedish system belongs to the
same side, it being marked with a decided pessimism regarding
the very possibility for judges of finding out the real truth in
individual cases. As a substitute thereto it has accepted certain
mere formal and technical views of the matters, and its char-
acter is expressed thereby that in the name of “unity of proce-
dure” it requests one and only one ordinary way of trying all
different cases—from claims of debts to divorce, or the most
entangled questions of administration, as well as from the most
insignificant offences to questions of murder.
68 CONGRESS OF LAWYERS AND JURISTS

 

And as a general rule the present systems of the European
Continental states do not essentially differ from the German or
ut ita dicam, a Franco-German type.

The Norwegian and the Danish systems keep, however, still
so many of the old practical ideas, common formerly for the
Scandinavian kingdoms, and have been developed in a way so
decidedly corresponding to notions of English equity, that they
may be said to take a place between both the principal groups,
if we must not unconditionally place them in the first one.

But I should not describe or compare all different ancient
or actual systems. What is preferable?

There is no doubt that to a great extent a legislator has to
build with the materials given by the historical development of
the state and of the public life as a whole, and especially to
reckon with the moral and intellectual notions prevailing in
the society as well as with geographical and other conditions
of many kinds. But we may suppose that in a certain state
where we are going to introduce our system, no peculiar hin-
drance is in our way. We take it that the administration of
justice exists there more as a practical thing and to help parties
get their rights, with respect to any and all circumstances in
each case. These circumstances must at first be known—and
how should a court get that knowledge? Of course, by taking
it where it is to be found or from anybody who can give it—and
that should be, I think, the very first and the main rule of evi-
dence. The practical importance of that rule will appear
when it is observed that in the great bulk of cases the parties
themselves know best of all what is true, and when it is observed,
also, what a peculiar privilege a great many think the parties
ought to enjoy regarding that knowledge of theirs. Very often
no one but the parties knows more than a vain shadow of the
material facts. Would it then be necessary to give some scien-
tific proofs for the propriety of taking effectually the truth from
the parties? Let me say at first simply this: If two men would
apply to me for my opinion of what may be right in some
intricate case between them, and if I should find that they
PAPER OF HERR FAHLCRANTZ 69

 

begin to keep back documents or deceive me with false stories,
I think I should be amply justified to let them in some very
expressive way understand that I cannot have anything to do
with their controversy. And it is not too much to say, that the
state, when letting people go to its courts for getting justice,
must be entitled to claim from the parties what most naturally
any arbitrator expects from them. American and English
jurists will see every plea for such a claim as that as being quite
uncalled for, because for them the duty corresponding to that
claim is quite obvious; but the question stands quite different
on the Continent of Europe.

Truth-speaking before the court, it is said there, may be a
moral duty for parties; to lie positively might in certain cir-
cumstances be punished, but a general duty for parties to tell
the juil truth exists on the whole not among other than the
English-speaking nations.

“The state has, as regards civil actions, no direct interest
to hinder parties from procuring rights by lies or clear themselves
of their duties by lies.” By these words the very president of
our Swedish great Law Reform Commission has stated his
opinion, and the reigning quasi-scientific opinion on the question.

The same words express, however, the zpotovgyudec and
that ¢yvde¢ is a thesis of a new philosophy with us, because our
old laws and legislators were all filled with the same idea which
was expressed by our great Gustavus ADOLPHUs when he said,
that through the administration of justice “all wrong and
falsehood should be crushed and abolished.” It is also quite
evident that with such a new philosophy the truth has lost its
mightiest support, because if it is considered to be of no direct
interest for the state to keep up the truth, it cannot reasonably
be requested from a party to tell the truth when, as a matter of
fact, he can gain what he wishes by a lie; and that it is not
simply a secondary interest, but a direct and vital public interest,
that all functions of the state should be built upon reality, truth,
and honesty, is so evident, that I scarcely think that anybody
here objects that I state that thesis as an axiom.
70 CONGRESS OF LAWYERS AND JURISTS

And from the point of view of the parties it cannot be the
question here of only a moral duty. Speaking generally about
the truth, I am not going so far as to say that it is in every
situation of men’s life a duty to tell the truth—in all events not
to say the full truth. Most of us are, of course, in the habit of
lying a great deal every day; for lack of time, from mental
lassitude, for covering logical errors, from courtesy or gallantry,
from kindness or benevolence, but we do not lie for gaining a
benefit on the account of somebody else. If a man cross that
limit, he acts against any normal conscience and immorally, he
deceives that other man and he should as a rule come under
the law. But if a man is standing before a court and lies there
in order to gain a benefit on the account of some other man, he
is deceiving also the court, he is disturbing and hindering the
state in the exercise of its most holy power, and it seems simply
natural to consider that as a crime—it is, in all events, much
more than a simple contempt of court.

Therefore, an oath sworn by a party cannot be considered
as a condition for making the court entitled to punish him, if
he lies. It seems necessary only to let the parties get beforehand
a strong remembrance of their duty by a solemn warning or an
admonition to them to speak the truth, the full truth, and
nothing but the truth. To let them swear an oath, reasonably
formulated, is, however, most proper with respect to the moral
bond the oath lays upon men.

An unlimited duty on the parties with respect to editio docu-
mentorum, production of documents, is only an integrant part
or a direct consequence of the general duty on the parties,
spoken of above, to reveal the truth. And as the state must
not be made unable to fulfil its first purpose, or as a second
consequence of the main rule of evidence, the state should be
entitled to claim the unrestricted truth in any case, also from
all other men, if the parties themselves cannot reveal all the
necessary truth.

The result of what we have said is this: As well as the
parties should be witnesses, every other person who knows
PAPER OF HERR FAHLCRANTZ 71

 

anything about the case, even if he had some interest therein,
should be bound to give evidence, or to give true information
about the case at any time of the proceedings; and as a general
principle, no incompetency in consequence of relationship to
some party or of some other reason should be admitted. It is for
the judge to consider the trustworthiness of the witness and to
give in that respect the wanted warning to laymen if such ones
have to give a verdict in the case. All that may be contained
in duces tecum, an unlimited duty for third persons to produce
documents being under their power, follows as a matter of
course.

An exception from that general duty for everybody to reveal
the truth in lawsuits is from our point of departure to be allowed
only when the interest of the state itself might claim it. If for
a personal interest, for avoiding a pecuniary loss, shame, or
criminal prosecution, somebody wishes not to be heard as a
witness, he should at least be prepared to pay the loss of the
party suffering by such a reticence.

But if it is, as we have supposed, the first thing for the
justice to help the one suffering wrong in such a way as his
individual case may require, it must be a part of the purpose of
justice to do so also when that cannot be effected by examining
the parties and other persons knowing something about the
matter in question. That is the case when a J/ites aestimatio is
wanted, or in the innumerable lot of cases, where a certain
value—for example, damages—should be assessed. I will not
speak much about fixing such a value by oath of the party
injured. That is evidently a rather inequitable and dangerous
way, which can reasonably be had recourse to only if no other
way stands open, and especially if the injuring party has fraudu-
lently set the plaintiff out of means to prove his loss otherwise.

In ordinary circumstances it is not quite impossible to
obtain evidence here by examining witnesses in the regular way;
but it is easy to understand, and an observer will see it daily in
our Swedish courts, that this method works very badly in such
cases. If witnesses are to be used they should also in questions
72, CONGRESS OF LAWYERS AND JURISTS

 

of an assessment come intact before the court. But in order
to prepare them it is—or seems, at least, with us—rather natural
that the party brings his witnesses to the place in controversy,
or to the ship where the wares whose quality is questioned
are stored, and that he puts before their eyes or other senses
all such facts and circumstances which may impress their
minds in a way favorable to him; and the other party, when
preparing in his turn his witnesses follows a similar one-sided
method. Both sets of witnesses see in such circumstances
mainly with the eyes of their instructors; and so it happens
generally, as it happened once before the town court of Stock-
holm, that five or six of the best men of the Exchange of Stock-
holm called by the plaintiff, solemnly swore that a certain
coffee cargo was not equal to the standard sample, and that
immediately after about five or six other men of equally good
reputation, called as witnesses by the defendant, declared on
oath that the same cargo was of the required quality. Such a
result is not less natural than unsatisfactory.

It is obvious:

1. That if a view by the witnesses is wanted, such a view
ought to take place in the presence of both parties, or an impar-
tial exhibitor—as usual earlier in the United States. It is even
so obvious

2. That if on the whole a view is practicable, it is very
much to recommend that—as formerly usual in Sweden—the
investigators should be appointed by the judge or by some
other public officer; and also,

3- That such investigators should be selected among people
being particularly familiar with the special sort of things or
questions involved in the view.

Among all the different methods, of which I have got experi-
ence in different countries, to procure evidence, in matters of the
kind now in question, I scarcely think any is better than the
one now in use in Norway.

The Norwegians have built a most practical system upon
an old popular institution, common for all the three Scandinavian
PAPER OF HERR FAHLCRANTZ 73

 

kingdoms, that of ‘“‘good men” answering, after view, questions
of fact; but while in Sweden the ultra-bureaucratic atmosphere
of our courts has choked that institution, as all the great old
ones, the Danes, and still more and in a happier way the Nor-
wegians, have piously watched and cautiously developed it to
a true civil jury, without the name of jury.

To that institution “syn og skén,” to which recourse is
taken, in causes of the most various kinds, the high and
practical character of the jurisprudence of my neighbor
countries is undoubtedly due more than to anything else.

Having that institution of my brother country Norway
before my mind, I think that in the districts round each of the
inferior courts a number of good and trustworthy men or
women, representing the different kinds of knowledge and
skill within the province of which disputes generally occur,
should be selected by the inhabitants or proper corporations
of them; and the judge, as a rule, should have to take from
that number four persons to make the investigation, which
might be requested by some of the parties, or which the judge
himself might find to be wanted. When such an investigation
should require a more special or scientific experience, for which
representatives are not to be found in such districts, the in-
vestigators should be taken from other circles, according to
special arrangements. If the parties agree on certain persons,
and these are willing to act, these should be investigators. The
investigators should have to appoint among themselves an
umpire, having a casting vote. The said investigators to make
the necessary researches on the place where the object in dis-
pute is, or the object to be brought before them on a time to
be fixed by the judge according to the convenience of the parties,
who of course should be present in order to draw the attention
of the investigators to any point which they could think to be
of importance. Witnesses to be heard, if some of the parties
so require, and the parties to be compelled to give any informa-
tion requested by the investigators, the judge always to be
present, and, if wanted, also the secretary of the court, and
74. CONGRESS OF LAWYERS AND JURISTS

 

the judge to be the formal leader of the said investigation, and
to see that all lawful interests should be attended to, especially
those of a party who may not be able to take care of them.
A most important duty for the judge should be to take care
that the investigators do not go over their competency,
which should comprise matters of pure facts, and therefore,
also, to draw up the record or the instrument of view accord-
ing to the dictates of the investigators, or according to what
he understands what they mean to say. The judge should not
have to mix himself in the contents of the verdict more than to
see to it that contradictions may be avoided, that the verdict
answers all the questions involved, and that the verdict gets
fixed and intelligible. In the same way, as no legal question
may be involved in that instrument, the judge alone should
decide such legal questions which might arise during the trial,
and, for example, also the question, which may be the right
result of the suffrages of the investigators. It is undoubtedly
in consequence of the Norwegians having understood so clearly
how to draw and keep up the limits between issues of facts
and issues of law, or between the province of the judge and
the one of the layman, that we find that part of the proceedings
to give such prosperous results for their judicial practice, as
well as for the development of their jurisprudence as a whole.

The verdict of the investigators should, of course, be binding
on the judge, in such a way that he should not be able to make
another valuation of his own. If some party is unsatisfied with
the result, the Norwegians give him a right to request a new
investigation, to be held by a double number of men, or eight,
which should be named by the same judge, and have to act
in the same way as above.

I hold that method of new trial, on the whole, to be just,
but I think that such a benefit should be counterbalanced by
a duty for the discontented party, as a rule, to pay the costs
of the new trial, and that such a new trial should, perhaps,
also be made dependent upon whether it could be reasonably
believed that a better set of investigators could be found, sup-
PAPER OF HERR FAHLCRANTZ 75

 

posed, of course, always, that if some irregularity which could
affect the result had occurred, that should always be a good
ground for a new trial, or for simply canceling the first verdict
and beginning the trial anew. Whether it would be advisable
to deliver the very appointment of the eight men to the governor
or some other man but the judge might depend upon a con-
sideration of special circumstances in different countries.

Anybody will observe that, in a system as the one above
spoken of, the laymen have no opportunity to say “For the
plaintiff,” ‘For the defendant”; or, I mean to say, whether
damages should be given or not. They should have only to
make an assessment, and I think that such a restriction in
the power of the laymen would make the system more easily
acceptable in countries where prejudices against the civil jury
may prevail.

I need, besides, scarcely remark that something like the
Norwegian system is possible only in countries where districts
of moderate extent are laid to each court. The judges, being
judges for all the country and residing in the metropolis, can
of course not make views all round the provinces or countries.
But I think any party should be entitled to require a trial
by a jury of twelve men in such cases which are specially proper
to be tried by a jury, as questions of negligence, personal in-
juries, fraudulent representation, etc., simply because in such
cases the truth cannot be appreciated better than by laymen, or,
as Lord HERScHELL, certainly with full right and as a matter
of course, has said in a letter to me, “There a jury is the best
tribunal.” In such cases, consequently, the said trial should,
as a rule, be not an intermediary act in the lawsuit, but it
should form the main and final proceeding in it.

As regards commercial cases, our starting-point or our thesis
that the justice shall answer the practical necessity, brings us,
I think, thereto, that as a rule merchants should be judges,
or be sitting with the presiding judge and have votes of their
own at the final trial of such cases; and my reasons thereto are:

1. That the commercial life and practice are regulated by
76 CONGRESS OF LAWYERS AND JURISTS

 

laws, for the greater part unwritten, which in fact very few
judges know, and which they scarcely can be able always to
fully appreciate when laid before them in a new case, because
these unwritten laws, the system of book-keeping here included,
are originated and developed out of the wants of business, with
which people get fully acquainted only by living in them through
years.

2. That these laws, fully known by merchants from their
daily experience as they are, are on the other side, commonly
very easily adapted by merchants to cases in controversy, and
that it is thus a great and unnecessary waste of the precious
time of the judge to lay such work upon him, or, in all events,
upon a number of judges sitting together.

In maritime cases, too, similar considerations lead to about
the same claim.

My starting-point, or the practical thesis mentioned above,
gives me also reason to claim that matters of an administrative
nature or equity cases should be tried according to methods
appropriate to them; for example, by means of affidavits,
taking accounts, etc. For determining entangled questions of
claims and counterclaims, accounts current, etc., not falling
under some of the sections above, special modes of trial proper
for the purpose should be used.

Certain matters or cases (or parts of them), may require to
be delivered to a referee, who might be entitled to hold trials
at other places than the usual ones, to have inspections or
views, or to take evidence in the regular way, and, on the whole,
to perform acts of procedure which cannot be conveniently
performed by the court itself, and to do such a work according
to orders given by the court. In other cases it may be very
proper that a judge, or such a referee, should be assisted by
assessors, having only a deliberate vote, because the question
involved, although of a special intricacy, may be of a nature
requesting mainly a pure and strictly legal solution.

And, as the main rule, the judge should be entitled at any
time, or from time to time, to order such trial and such way of
PAPER OF HERR FAHLCRANTZ 77

 

determining issues of fact or of law as the justice of the case
might claim.

Here we may pause a little and take a look back. I have
been speaking of a system of legal procedure aiming to give to
people threatened by or suffering wrong a due redress accord-
ing to the merits of the case, which I consider as the practical
purpose of the administration of justice, and I mean that any
other purpose of that administration cannot rightly be given.

I have thereafter drawn the attention thereto that for such
a system the very first thing must, as a matter of course, be to
have the real facts of any individual case laid open for the
court giving the redress wanted, and I have specially and some-
what fully tried to give a recollection of the different methods
standing to our disposal for finding and stating the truth; at
the same time, also mentioning the second purpose of special
modes of trial, viz, of determining questions of law that might
be mixed up with questions of fact, or perhaps might request
an anticipated solution, although appearing free from any con-
troversy as regards facts.

We have been speaking of evidence, and we can now con-
sider the question of pleadings. What the pleadings shall be
depends much upon what the evidence is.

In my country there exists very little of all these different
modes of finding out the real facts or the truth of the individual
case. We have not trial by jury, not view “‘syn og skon,” as
in Norway and Denmark, not the examination of parties on
oath, not affidavits, not interrogatories, nothing to be compared
with the English discovery and inspection.

There exist, beside admission by some of the parties, two
methods or means for stating facts:

1. Examination of witnesses, and it should be observed
there are in Sweden, excluded from the duty to give evidence,
all the persons who may have any interest in the case, relatives
to the parties unto cousins inclusive, agents receiving a com-
mission, legal servants, etc.; that is to say, that about all are
excluded who could be supposed to know the facts best. The
78 CONGRESS OF LAWYERS AND JURISTS

 

parties cannot be heard as witnesses and they are entitled to
conceal the truth about as much as they like.

2. Our second method for stating facts is written documents,
and as a rule no party is with us bound to lay before the court
any document which seems unfavorable to him.

I am sorry to say, of all the possible sources of the truth,
our Swedish courts don’t know more than two, and these two
are so handicapped that not very much good can come from
them. A system like that, of course, works badly and sadly.
But our judges, the most honest men in the world, as they are,
are so perfectly dominated by the poorness of their own new
formalism that they think it can, on the whole, not be other-
wise, considering it as prudent and conservative not to claim
more.

What must the pleadings be in a system like the Swedish
one? Nothing is prescribed about the contents of the plead-
ings, nor about the form in which they should be drawn up,
and only in the appeal courts the number of pleadings is fixed,
viz, to two from each side. But in fact they have grown to
means for the parties to make their stories of what has hap-
pened in the case. The pleadings are thus exhibitions of the
facts on which the parties respectively rely, interwoven with
references to documents or other evidence, and to different
rules of the law and to judgments earlier given in similar cases.
The idea is that, after these pleadings are read in the court,
the parties may, then or on a later occasion, produce there
the witnesses or the documents with which they might be able
to prove the facts respectively relied on. As in the higher
courts witnesses very seldom are allowed to be heard, the
pleadings there will mostly take the character of a comment
on the contents of the records, drawn up in the first court,
which record also contains the pleadings delivered in that court.
In all events, the pleadings form the very basis for the judg-
ment to be given, viz, as far as the pleadings may be verified
later in the proper way, i. e., by competent witnesses, by docu-
ments, or by admission from the other party.
PAPER OF HERR FAHLCRANTZ 79

 

In most parts of European states, where the system of
evidence is pretty much like ours, or at all events has a shape
quite different from the English one, the use and the position
of the pleadings is much the same; and it is so, even where,
as in certain systems, an oral trial, finishing the proceedings,
is arranged, or if the theory says that the materials for the
judgment should be taken only from that oral trial. The
reason is simply this, that generally or very often it must be
very convenient for the judge to take the materials for his
judgment in these pleadings, and that it is rather unnatural
to request that the written pleadings should be ignored by the
judge, when he has them in his hands.

Practically the pleadings in these systems make for a great
part the oral trial an empty work, which is, therefore, very often
passed over.

In a system, again, as the one which I have spoken of first,
in which the always governing question is to find the true facts,
and where special means of stating them are constructed accord-
ing to the want of any individual case, the meaning and the
object of the pleadings can be one thing and get naturally
another one.

I think the purpose of the pleadings should be, in the first
place, simply to find the issues which really are in dispute
between the parties, and to cause as soon as possible those
issues to be solved in the proper way, or in one of the ways
mentioned above.

In all events, there would as a rule be no reason for the
parties when drawing up their pleadings to lay down all the
particulars, or to tell all the story of the case, nor any reason
to mention the evidence or the intended way of proving the
facts relied on. The pleadings should contain only the sub-
stance of the facts relied upon by the one or the other party,
and the one who answers should do so, taking matter by
matter. Only when particulars could be needed for finding the
important point, as, for example, for meeting fraud or wilful
machinations of any kind, such particulars should be stated
80 CONGRESS OF LAWYERS AND JURISTS

 

in the pleading. Nothing should be allowed to be illusive,
and if any pleading or written proceeding should seem to be
so, the judge should be entitled to order further and better
statement of the nature of the claim or of the defense, or further
and better particulars, as the case may be. But in order to
avoid useless controversy and to keep the whole case most
closely to the actual issues, there is need at the very outset of
the lawsuit to require the parties to state the true facts, of which
duty we have spoken before. In addition to the pleadings it is
necessary to give the right to the parties to make interrogatories
to be answered by the opponent on oath or under legal responsi-
bility along with discovery and inspection of documents, i. e., an
unlimited edztio documentorum, about as these things are regulated
in the English system. And I take the liberty to consider such a
right of the parties, or the exercise of that right of theirs, as a
very part of the pleadings or a necessary appendix to them,
because without that the pleadings must frequently be void of
their proper effect, and illusory. A plain first result of the rules
thus given will be, that scarcely any lawsuit wants to be far
entered into without both parties knowing the important facts
and all the documents belonging thereto. It is, of course, also
supposed that in the pleadings should be raised all such matters
or legal grounds by reason of which any action or claim from
the opposite party would be void or not maintainable. And
any breach against any of those provisions should, when setting
the other party’s right in danger, be counteracted in a peremptory
way, or at all events by imposing on the liable party the costs for
enabling the other party to get the case set on right footing.

Having by these means been informed of the details of the
cause, as far as these details are in the knowledge of the opponent,
each of the parties will in most cases know in advance what the
result of a trial in certain points is likely to be, or he will in all
events see which points may or ought to be the object for trial
of the one or other kind, which is about the same as to say that
pleadings of the form and the contents alluded to above can be
expected to lead to clear issues such as are aimed at.
PAPER OF HERR FAHLCRANTZ 81

 

But it is even as evident that such pleadings, together with
the above-mentioned ways of pressing forth the essential facts
from both sides, must have the effect of:

1. Frequently causing admissions to be given, after which
it would be nonsense to continue any defense, or claim, as the
case may be;

2. Frequently making the parties aware of the propriety of
a friendly arrangement; and

3. Frequently bringing the cases in such a state that the
court can dismiss them or give judgment without need of further
proceedings or of a costly final trial in an open court;

All those being consequences of the pleadings, which un-
doubtedly are highly desirable from any point of view. About
certain consequences of another kind we will have an oppor-
tunity to speak later.

Such a summary proceeding as in clause 3 alluded to can
evidently be adopted without danger, especially in cases where
the plaintiff seeks only to recover a debt or liquidated demand,
and in many similar cases, when the defendant makes default
or when the plaintiff verifies by oath or otherwise the cause of
action, and provided the defendant cannot make it seem prob-
able that he has a good defense. Must, however, the case go to
trial, the pleadings, including the steps mentioned coincident
with them, discovery, etc., will always produce the effect, that
the parties are able to enter in that trial with full knowledge of
each other’s position, and that they need not be taken by sur-
prise.

That is so much as to say that pleadings, so understood as
supposed here above, are the proper means and the conditions
for getting the trial to what it ought to be, a fair and plain
exhibition by the parties or their counsel before the eyes of the
judges, the jury, etc., of all that he or they ought to know in
order to be able to realize justice; and the pleadings so under-
stood are indeed apt to be the very pillars of honesty and good
faith in the halls of justice.

I need scarcely say that all the work requested for pleadings,
82 CONGRESS OF LAWYERS AND JURISTS

 

etc., can not and ought not to be laid upon the judge. The
parties themselves, or experienced men having the necessary
judicial knowledge ‘and enjoying the confidence of the court,
should manage that work between themselves, in such a way
that, as a rule, a copy of all pleadings, etc., should be filed in
the court, and that whenever some party should neglect or refuse
to do what he should do, the opponent could immediately call
him before the judge sitting in chamber or in open court and
get his order. It should also be part of the judge’s duty to
see that the rights of the parties against each other should not
be abused, thus to strike out frivolous and improper questions,
to say whether fuller and better answers should be given, etc.
If substitutes for the judge were appointed for that work, it
should be allowed, however, in a plain way to bring the question
before the eyes of the judge, always, of course, for getting an
immediate determination.

If the parties themselves were allowed to do all that work,
and if they were entitled consequently to appear in person
before the judge, it will scarcely have to be apprehended that—
as very often complained of in certain countries—the judicial
assistants of the parties would show each other too much of
indulgence with respect to adjournments during that preparatory
section of the lawsuit.

On this point J must make a remark or meet an objection,
which will be rather natural, especially from the side of American
and English jurists, I mean with respect to the very notion of
trial and the way in which I have understood that word. What
is trial? In old Rome, trial embraced all the proceedings
before the judex, but these proceedings included certainly the
main part of all that may be contained in evidence and plead-
ings taken in a modern sense.

And in my country, Sweden, the pleadings and all that may
belong thereto, together with the examination of witnesses,
form, indeed, the trial, but so that the said trial is split into a
number of hearings separated by adjournments. All is done
in open court (as far as our courts are open); and we have no
PAPER OF HERR FAHLCRANTZ 83

 

special trial in the meaning of a final, oral exposition for the
judge of something which has been prepared before; the whole
concern is trial. It is about so in many other countries, too,
and from such a point of view I have had no right or reason to
exclude anything of what I have been speaking of, although I am
quite aware that my way of taking matters might have puzzled
somebody. In all events, and even if trial were to be taken only
in the sense of a final oral act, we must needs have been talking
of evidence and pleadings, produced earlier, because without so
doing the meaning and effect of evidence and pleadings produced
at that trial could never have been duly understood.

Now, I think if we have before us a legal system aiming at
a practical relief to be given according to the justice of every
individual case; if we have before us a strong opinion prevailing
among the judges and in the people that the truth must, without
any weakness or restriction, be revealed before the courts; and
if we have at our disposal proper means to execute that idea—
then the preferable method to regulate pleadings is to do it in
such a way that

In an early period of the lawsuit as many cases as possible
might be brought to an end by admission or brought to a
friendly arrangement between the parties, and that as many
cases as possible might be brought into ripeness for their bring-
ing to an end by judgment, without any formal trial in the
specific meaning of that word; and

That, if such a trial must take place, it can be performed in
a fair way.

We have seen how that can be done, by bringing the prepara-
tory acts pertaining to evidence, interrogatories, discovery and
inspection in connection with the pleadings or simply by having
the parties to reveal the truth of the cause from the very beginning
of it, as far as the truth is known to them, in the same time as
they in their pleadings, which of course are not given on oath,
should try to take care of their interest as parties.

And the stronger the claims for truth and honesty from an
impartial or public point of view are formulated and performed,
84 CONGRESS OF LAWYERS AND JURISTS

 

the better becomes in every respect the result—I mean the result
of the administration of justice as a practical thing, i. e., as a
means of helping them who are threatened by wrong and of
helping them effectually and as soon and with as small costs for
them as possible.

Let us now consider trial as a final oral exhibition of the
case before the judge in open court, and let us look for which
position and significance pleadings and evidence should prop-
erly have in such a trial.

In a system of the kind which I have ventured to consider
as the preferable one, and in which pleadings have their first
object in preparing issues for trial, the pleadings have indeed
very little to do at the trial; they have in that moment done
what they should do. But I think they can be of use now in
a secondary way or so that it can be a good thing for the judge
to have copies of them in his hands as a support for his memory
regarding the matters in question, in the same way as, of course,
the parties, too, or their counsel, derive a good assistance from
similar copies when orally explaining the cause.

Also as regards the object of pleadings mentioned above,
to make each party acquainted with the grounds relied on by
his opponent, the pleadings ought at the trial to have produced
their effect, and, of course, they can in that respect make use
of showing whether the parties have duly performed such a
duty or not.

But supposing now, for a moment, that the parties had
drawn up pleadings of another nature than the one I have meant
should pertain to the preferable system, thus pleadings contain-
ing the whole stories of the parties’ case respectively, etc.
Whether such pleadings or certain parts of them should be read
at the final trial or not is a secondary question subordinated
to the one, whether on the whole a trial in open court may be
wanted in such circumstances. If the case is to be tried by
one judge or a small group of judges sitting without a jury or
assessors, the judges themselves could as properly read the
papers at home. If many persons are partaking in the decision
PAPER OF HERR FAHLCRANTZ 85

 

to be given, time might be saved by bringing the cause before
them all through one performance, but the question raised
depends simply upon whether reading the papers or free speak-
ing of the parties for explaining the circumstances of the cause
may be more apt to keep up the interest and the ears of the
judges, but is scarcely of any principal importance. In all
events, the parties get here a double work. Only in a system
as the one recommended above no unnecessary duplicity takes
place, and we return to that system. As said before, no plead-
ings are here to be read. But in the system now in question
pleadings could be taken as the oral way of the parties or their
counsel of explaining the cause to the court. And I think then,
indeed, that especially in civil actions it is a good thing if the
introductory part of the proceedings, before the evidence is
produced, takes the form to a certain extent more of a discussion
between judge and counsel, or of a questioning from the judge’s
side and giving informations about the real state of the cause
from the counsel’s side, than of a continual speaking of the
parties or their counsel—because the first thing is, of course,
now, to get the judge informed of the case; and by questioning
now and then he is able in the best way to get the points clear
which he wants for seeing the matters properly. The method
so much in use in England, of giving the court information of
the facts by laying before it drawings or constructions repre-
senting houses, railway lines, and other objects for controversy
or such objects themselves, when they can be brought before
the court, is a part of the pleading in the meaning which I have
now before my mind, and certainly one very much to be recom-
mended. But after production of the evidence, and when it,
for each party, is about to impress the court with their, so to
say, partial reasons and arguments, it seems again right that
each party or his counsel should be allowed, uninterrupted and
fully in his own way, to make his address to the court.

In this place we have to take into consideration a special
consequence of the system proposed above as the preferable
one. Supposed that an assessment of the value of an object
86 CONGRESS OF LAWYERS AND JURISTS

 

concerned in the case has taken place in an earlier period of the
lawsuit, the question of that value is then already determined,
and enters consequently not among the matters that are to be
tried at the final trial. The same result will follow, if in another
way some special question of fact, involved in the case, has been
brought to an anticipated solution; and in all such events the
object of the final trial has been limited in a manner which
makes the said final trial easier and less voluminous, even if it
should be so, that the legal importance in the cause of such
earlier determination may be fixed at first through the final
judgment to be given at the end of that trial. The existence
of all the different modes of stating facts or of determining even
issues of law, that we have taken as the inventory, being at the
disposal of the judge, makes such an arrangement possible and
easy, and I need scarcely draw your attention to the importance
thereof for the prosperous effect of the system as a whole. Nor
need I remark that the judge, when determining the main ques-
tion, which may be brought into trial, is, of course, entitled to
deliver a question of assessment or other questions of fact to be
tried afterwards in a manner proper for such a purpose, and
thus entitled in a second way to restrict the immediate object of
the trial.

It is easy to understand, that for many jurists, and especially
for those who belong to the German school, a great and hesitat-
ing question will be this: How decisions or orders of the judge
fixing a certain mode of trial may duly be appealed against. My
answer is this: The proper way of choosing the proper mode
of trial is, or shall principally be, the sake of the parties them-
selves, and thus be a matter which, as a rule, shall be no object
for an appeal. The best guidance as to the way I have in my
mind when saying so is contained in an ordinary manner of
procedure used formerly by our Swedish great judges, viz, in
certain circumstances to order parties to agree; and such
guidance is as well contained in the regular way used in old
Rome by the pretor giving in certain circumstances orders of
about the same effect as hinted at just now. The parties should
PAPER OF HERR FAHLCRANTZ 87

 

thus be obliged both to join about the different questions to be
put to trial and the mode of trial, the judge only, or principally,
to give his assistance as a mediator between them in case of need.
That might seem as a slight advice. But in a system which, as
the proposed one, should in all respects exclude or subdue mala
fides and any kind of wilfulness in the legal machinery or in the
use of it, the choice here alluded to should be considered as
something from which no party would have to draw any advan-
tage against the other—and the English and American systems
give us proofs of similar principles being still in our days able to
produce their due effect.

As regards the result of such an anticipated trial a new
trial should, in extraordinary circumstances, be allowed.

I beg to be allowed in this connection to make another remark.
A most important consequence of the system recommended
above, or indeed the very substantial character of it, is that a
great deal of questions regarding facts are to be determined by
laymen. The simple reasons why it should be done so, are that
the studies of the judge do not give him any superiority over a
prudent layman as regards saying whether a horse is black or
white, or what may have happened in a case, and that it is
simply unnatural to make statements of facts depending upon
a special judicial or technical way of looking upon matters, and
also that the only way of preventing administration of justice
from degenerating is in all possible points to have it formed
according to the needs of the practical reality as it is felt and
seen by the people themselves.

That the people as a nation will be in danger of losing the
necessary control over itself, if it delivers over to others the
power it can properly exercise itself with respect to practical
justice, is a reason of its own, which would not be overlooked.
And I venture to add: It should neither be overlooked, that
only with a system, which, as the proposed one, draws fixed
limits between questions of law and questions of fact, a due
basis can be laid for jurisprudence as a practical science.

Having considered these points, we may put before us the
88 CONGRESS OF LAWYERS AND JURISTS

question of evidence at the trial taken as the finishing act of
the lawsuit. There should be produced at that trial all that
judge and laymen must know in the matters now remaining for
determination. A big book could, of course, be written on the
questions here involved.

But I think it would be the best way, most shortly, to look
upon the matter from a certain point of view, which seems to
me to be one of a specially great practical importance, and that
point of view is, I think, contained in this question: How to
balance the relation between party and advocate as regards
trial in open court.

The parties are, as a rule, and, as observed earlier, the most
important sources for finding out the truth; but commonly the
parties like not—even if they be allowed—to go before the
court themselves, but they arrange that advocates appear and
speak for them; and so—according to the common way of
taking matters on the European Continent—the best sources
for finding out the truth at the trial are lost. In my country, and
I think I can say in most of the states of the European Continent,
the greatest inconvenience and awkwardness of the present
state of legal matters is the idea that the advocate should in all
make up for the party; he shall state the facts in his own way,
and say what part of these facts or of documents should be laid
before the court and which withheld; he shall say what is true
of the opponent’s allegations, and it depends upon his firmness
of mind to say how much of these allegations is false and how
many of the documents produced by the opponent are false or
worthless. If he is very firm he denies, of course, all; and, of
course, when he must speak positively for his client he should
prudently moderate the due portion of truth. Happy he is if
he knows nothing of the case, because then he can with rela-
tively good conscience deny all the truth, and it is from that
point of view, when an advocate is pleading for a defendant,
nothing to complain, if he has got the least portion of instructions
from him! To “make soup out of a nail”—as we say in
Sweden—becomes in these circumstances the flower of his art.
PAPER OF HERR FAHLCRANTZ 89

 

But I say such a situation of matters is unnatural and
wrong. The advocate should, I mean, have nothing to do with
stating the facts. The party should, before the case comes
to trial in open court, have declared on oath which documents,
notices, or material of any kind he has in his possession, or has
had, and which he knows to be in anybody else’s possession, of
such a nature that they can be relevant in the cause, and all
such documents should also have been delivered to the inspec-
tion of the other party.

Each party shall also have answered on oath to written
interrogatories regarding the circumstances in the cause—all
in a way as earlier alluded to.

Well, if all that is done, the result appears in the trial in
the way in which counsel are going to mention the facts of the
case, and an examination of the parties in open court or at the
trial will very often not be wanted.

But if it should seem to be good for the party himself to
explain the facts of his case before the court, or if the opponent
should want him to be examined, he should be examined and
cross-examined, as the case may be, in the same way as other
witnesses.

The position of the advocate, when delivered from duties
resting upon parties in their capacity of witnesses, becomes in
this way a far higher one than else; he is, as regards trial, the
learned, benevolent, and eloquent mediator between facts and
law, making it possible for the judge to see the facts rightly,
and helping the party to get the law as favorably for him as
possible understood and applied by the court; and I think
that should reasonably be the mission of an advocate.’

The parties, if wanted, thus to be present at the trial, first
of all for the sake of evidence, the advocates for the sake of
pleading—that is, indeed, the very first principle as regards trial,
taken in the restricted meaning of the word. But as the case and

1 If matters are seen so it will not be difficult to understand why, in England,
there exists, and that it properly everywhere should exist, a second class of
judicial assistants for the parties, viz, for all the preparatory steps before trial
and for regulating private business of different kinds.
go CONGRESS OF LAWYERS AND JURISTS

 

the interest involved therein belong to the parties and to nobody
else, they must be allowed themselves to defend that case, if they
wish to do so; and if they choose then to act alone, they have to
represent at the same time evidence and pleading, both to be
kept up in their ordinary character. If that principal rule is ad-
hered to and adapted in its consequences, the guidance wanted
and the way of regulating the whole trial, even in other points
than the ones mentioned before, are obvious, and I might there-
fore be entitled not to go into further details.

The system I demand might seem hard. Hard against
whom? Hard it will be for mendacity, for unrighteousness,
for mala jides, for old prejudices. Mild it will be for the one
who is suffering wrong, and a basis it will be for equity in its
highest meaning, for public and private honesty, for bona fides,
and mutual confidence among men—and what that means in
the commercial life and in all other intercourse between private
individuals, as between nations, I need not explain here. But
such a system is also a condition for keeping up this manliness
of characters, which makes a people strong, and which manliness
is wanted alike in peace as in the cruel battles for national
existence.

Somebody will say, perhaps, that I claim too much from
pleadings and evidence. No; it is not too much. They are
apt to produce such effects as alluded to above, and that is to
be learned from a comparative study of actual systems as well
as from the history of legal institutions.

But if it be so, it must indeed be the first duty for statesmen
to regulate them in such a way that those effects may be produced
—because it should never be forgotten that administration of
justice is a practical thing, and a thing upon which the firmness
and fate of kingdoms and republics depend. [Applause.]

The PRESIDENT:

After this interesting paper from Judge FAHLCRANTZ we
are now to have a discussion of the subject, to be opened by
Judge ApoLt¥r HartTMANN of Berlin.
DR. HARTMANN 91

 

Dr. Apotr HARTMANN, Judge in the Konigliches ,
Land-Gericht, Berlin, Delegate-at-large:

Mr. President, Ladies and Gentlemen: Let me offer some
general remarks, beforehand, saying that I agree in a general
way with the ideas pointed out by Mr. FAHLCRANTZ.

It is twenty-five years since the German code of civil procedure
was enacted. This code was first looked at very much askance
in Germany, the ideas advanced therein were too new; but
now it has stood its own, and the new German civil code is in
harmony with the code of civil procedure. There is very much
in common now, in respect to civil trials, between England and
America on the one hand, and Continental Europe on the other.
Everywhere there is to a greater or less extent publicity of trial
and the principle of oral pleading, so far as necessary for pub-
licity. Everywhere adjective law has changed, to say so, in
importance, when compared with substantive law. The prin-
ciple prevails in modern science throughout that where there
is a substantive right there must be a remedy. Modern thought
has brought forward more and more the high ideal that the best
results are brought about by the freedom which flows from the
spread of education and the development of science. There
is in this idea very much of optimism, often looked at with
skepticism on the part of legislators—an optimism more com-
mon now than in former times. (This optimism, for instance,
was prevailing in Germany when all citizens got equal political
rights.)

This optimism, the high ideal, that by freedom guarded by
publicity justice is best administered in every way, pervades the
German code of civil procedure, excepting a few instances of a
historical nature. In connection with this spirit of freedom
you will find generally a spirit of simplicity of proceeding I
think not yet surpassed. I think we all agree with Mr. Faut-
CRANTZ in the general tendency of his paper in respect to the
ascertainment of the truth in trials; but as truth in civil trials
oftentimes must be conditional, it might be better to use the
92 CONGRESS OF LAWYERS AND JURISTS

 

expression, ‘‘the merits of the case.” The saying, where there
is a substantial right there must be a remedy, is in some way
the same as saying, the judge shall go straightforward, so far
as possible, to the merits of the case. The German code, with
this high, optimistic ideal, has freed the judge so as to enable
him to do so best. How great the freedom is, I wish to set
before you in a few instances. It is a good principle to compel
the plaintiff to adhere to the main statements relied upon in his
pleading, and in former times no change of the main statement
was allowed; but the judge was required to give judgment
against the plaintiff changing his action, leaving him free to
bring in a new one. Now, with us the judge may allow every
change of action, even without the consent of the defendant,
whenever he thinks it in furtherance of justice. The judge is
free to adjourn the proceeding after pleading, even after evi-
dence, to this end, that the one party or the other, or both may
amend. He may adjourn as often as he thinks fit. The code
has, with one exception, done away with all rules of evidence.
There is, for instance, no hearsay rule at all. Moreover, the judge
may at times dispense with all evidence if he sees clearly the
merits of the case from the pleadings of the parties, and the
answers to questions put by him. When there is a damage suit
the judge may, without evidence, state whether the facts relied
on amounted to an injury, and need give no reasons for the
statement.

I beg here to call attention that in Continental Europe, at
least in Germany and France, there is in civil proceedings
neither jury, neither referee, nor master in chancery. We
learned just now that in Norway there is a board of views, very
similar, I think, to a referee. This, I think, is a rare case in
Continental Europe. In Germany one may sometimes observe
that able experts express their opinions to aid the judge, but
wanting authority with the public. Apart from such cases
the judges alone in Germany must bear the burden and respon-
sibility of deciding the facts upon the evidence. No referee, no
jury is there to share the burden with them. There is a high
DR. HARTMANN 93

 

ideal presented by the code to the judge, which contemplates,
one might almost say, that the mental power of judges is inex-
haustible.

If a man may be compelled by law to answer an action duly
served, why should he not be compelled to give answer under
oath? It is well understood by lawyers, as well in England and
America as in Continental Europe, that a party never may be
compelled by law to disclose all he knows about the case, and
so a party, compelled to answer a distinct question under oath,
must have a right to be protected by the judge against irrelevant
or improper questions. But, now, why should not a party
answering a distinct averment under oath give full evidence
under all circumstances, as required by the German code?
This is the one exception of freedom of the judges in respect
to evidence I have referred to. A legislator may be full of high
modern ideas, and yet be influenced by historical considerations.

Now, if we agree about the main principles I have referred
to, then it is possible to compare the English and American
system with the'system of Continental Europe, and by comparison
to answer the question which system better enables the judges
to reach the merits of the case. Indeed, one may fairly say,
an able man may accomplish more even with a poor method
than others could by a better method. Nevertheless, one
method may be preferable to another, and, in the long run,
produce better results.

The judge in England and America is less burdened than in
Continental Europe in this respect, because he is relieved from
determining the facts in a case. I think it would not lessen the
freedom of the German judge if he were allowed to avail himself
of a board of view, or a referee, or a master in chancery, in cases
of great complexity of matters of fact. If it were possible to
make popular throughout Continental Europe these institutions,
and when the German law of oath of a party will have been
changed in the way suggested just now, then, it would seem, that
the German method of procedure would be the preferable,
for I dare say if all the ideas put forward by Mr. FAHLCRANTZ
94 CONGRESS OF LAWYERS AND JURISTS

 

should be enacted in Sweden, then this Swedish code, to a very
large extent, would be the German code. I would not express
an opinion as to whether in Germany the rights of the party
are practically at the disposal of the counsel. In this respect
perhaps the ideas of Mr. FAHLCRANTz are not congruent with
the German law.

If I am not wrong, the method of proceeding in cases of law
extended to a certain degree its influence to the method in cases
of equity. Now, I have already said that modern thought has
brought forward more and more the high ideal that the best
results are brought about by the freedom which comes from
the spread of education and the development of science. But
this would not mean that where there is a jury the law may
dispense with rules of evidence—for instance, with the hearsay
rule. I beg to mention that learned men have realized that all
the English law of evidence rests upon and has been developed
in connection with the jury system. The English law of evidence
is apt, if I may say so, to control the thought and action of the
jury. A higher legal education and training and greater expe-
rience are necessary when there are no rules of evidence. I
understand that under the English system you may not bring
together again the same jury, after the trial has been adjourned,
while the same judge is likely to remain on the bench. It is
possible to withdraw a juror or discharge a jury, but doing so
may hurt the feelings of one party or the other. And, where
there is a jury, the judge, while endeavoring to reach the merits
of the case, may not avail himself of the right to adjourn the
trial.

When considering the development of civil procedure in
Continental Europe, one must remember that the changing the
method of civil trial was, at the time of NAPoLEon I, in France,
a political issue, and was afterwards, in the history of the German
unity, a political issue. In France and in Germany the states-
men agreed in respect to the main principles throughout with the
lawyers drafting the codes. The method of civil procedure in
Continental Europe developed along different lines from the
PROFESSOR NERINCX 95

 

English method. In Continental Europe, generally speaking,
since the Middle Ages, there was never more than one form of
action, and a form very simple in itself. Civil trials in Continental
Europe at the time of Napoleon may have been conducted with
less freedom than in England and America, but in times of
general political changes the method was improved by great
statesmen to a very high degree. The modern method of Con-
tinental Europe does not mean that there has arrived in Germany
in respect to civil procedure the millennium, the golden age.
So, in my opinion, if all the ideas pointed out by Mr. FAHI-
CRANTZ were enacted, even far better in many particulars than
the German code, the golden age would not be here. But,
nevertheless, the German method enables the judge in a very
high degree to discover the merits of the case. [Applause.]

The PRESIDENT:

I hope our friends from abroad will understand that we do
have in this country some halls with better acoustic properties
than this one. This hall evidently was designed for this great
organ, which alone can be heard.

We have also this morning to be favored with another dis-
cussion, by Mr. ALFRED NERINCX, Professor of Law in the
University of Louvain, Belgium.

Professor ALFRED NeErRIncx, LL.D., Delegate from
the Faculty of Law of the University of Louvain,
Belgium:

Mr. President, Ladies and Gentlemen: I first wish to
express the very deep sense of obligation under which I am to
this Congress, not only for inviting me to speak for a few minutes,
but for adding to that honor the greater honor of making a
young man a vice-president of the Universal Congress of Law-
yers and Jurists.

If I have well understood what Mr. FAHLCRANTZ wants,
I think he proposes:

That the pleadings should be prepared in the form of affh-
96 CONGRESS OF LAWYERS AND JURISTS

 

davits based upon statements or interrogatories sworn to by the
parties;

To have the parties make, if necessary, a new sworn state-
ment of facts in court;

To have some kind of civil jury to pass a verdict upon the
questions of fact;

To have counsel merely to argue the point of law before the
judge;

To have the judge to be bound by the verdict on facts, and
to give a legal opinion only.

That system theoretically seems very fine. I beg leave to
disagree on some points, and will try to explain, as briefly as I
can, the reasons drawn from practical experience, for which I
cannot agree with Mr. Fantcrantz. First, I beg your pardon
in stating it so frankly in this country, that I do not believe in
civil jury trials. I do not believe in it first of all on account of
the difficulty of convening a good jury in civil cases.

The duty of a jury, if you require it in all civil cases, is likely.
to grow so onerous to the community that you cannot reasonably
expect men of high standing in the business world, men of
ability, whose time is probably very much taken up by their
own business, to come and give away every month one or several
days, maybe, to the trial of civil cases. If you do not get these
men you get men of a lower standard, whose judgment you can-
not claim to be enlightened, to be the judgment or opinion of
educated men, and then, I am quite sure, that most lawyers
would rather go to a judge than to such a jury. Moreover, at
this time in most of the countries of America life is compli-
cated, and I do not believe that a man taken from his natural
business would be competent to give an expert opinion on a
question of some other business. If he knows railroading or
the grocery business it does not follow that he knows the
banking business or any other business. I do not believe that
a civil jury system is a sounder or better system than one in
which cases are brought before a good, honest, and trained
judge. You have proofs enough of that in America, and I will
PROFESSOR NERINCX 97

 

not speak upon it. You know that in England a distinguished
scientist wrote, not very long ago, after explaining how the jury
system had grown in England, “Indeed, no matter how the
truth may affect the feelings of those who believe in the system,
I believe the jury system is itself on trial to-day, and there is
every indication that the verdict of public opinion is going
against it.” In France or Belgium we never have had any-
thing to do with a civil jury, and there is an illustration which
points, in my opinion, to an error in the ideas of Mr. Faut-
CRANTZ, if he will allow me to say so. We have in France and
Belgium commercial courts that are alongside of the civil courts.
They are constituted by three judges; they are judges, but they
are business men elected for a term of years by their business
community. They sit as judges, but it was found necessary,
after instituting commercial courts, to add to each of the com-
mercial courts a lawyer as registrar, who must needs have
been a practicing lawyer, appointed for the purpose of prevent-
ing the business judges going astray on questions of law; and
moreover, when a case is appealed from the commercial court
where is it brought to? Before the court of appeals, where no
lay judges are sitting, but only real judges. In some places,
where the institution of commercial courts has not seemed to be
warranted by the amount of business transacted, it has been
found convenient to enact that the ordinary civil courts shall
sit as commercial courts in commercial cases, and there is no
sign in those communities where an ordinary court acts as a
business court that business men want a commercial court to be
instituted. In fact public opinion and legal opinion are going
a good deal against commercial courts in Europe to-day. It is
a fact that in most commercial countries in the world, the
leading countries in that respect for so many centuries, they
have never had commercial courts, but have transacted the com-
mercial cases in ordinary courts, and in Belgium and France
to-day the only reason for the retention of the commercial
courts is not a legal question, is not a practical question, I
should say it is a political reason, because after serving a short
98 CONGRESS OF LAWYERS AND JURISTS

 

time in a commercial court the business men earn the title of
judge and a decoration. [Laughter.]

I am afraid also that more occasions for the use of the jury
will lead to a larger number of new trials. In Continental
Europe, at least, we hardly know what a new trial is, because
we never have a jury, and therefore, when the judge has passed
on the case, unless something quite unexpected turns up, an
element which was not brought to the notice of the judge and
should have been brought, there is no new trial. That is the
only thing that is open to us and we cannot complain of it,
because my impression is, although I have never practiced in
the English courts, that new trials are generally a source of
expense and a hindrance in the administration of justice.

The extensive adoption, furthermore, of a system of sworn
statements made in court by parties would lead, I am afraid,
to a larger amount of perjury than is to-day committed, most
of which, I am sure, is very difficult to prove and a great deal
of which is not punished and even not prosecuted.

I remember that a philosopher who went astray into the
legal profession for a couple of years once told me he had prac-
ticed for about six weeks in the lower criminal courts, and
spoke of the sworn statements of witnesses whom he had
seen a few minutes before outside of the court barter and agree
for a few cents that they would make such and such testimony,
and when he had seen the parties themselves contradict, in the
most flagrant way, things on which it was agreed there could not
be any contradiction, he said: “I am sorry I went there, be-
cause I lost every faith I had in human nature.”

The statement of the facts by the parties themselves, as
Mr. FAHLCRANTZ wants to have them made in court, not under
oath and not by their own counsel, but by the parties themselves,
seems a bad suggestion. Parties are selfish, they are impas-
sioned, they are prompted by vivid interest, and they are easily
unfair to each other. I think that any one who has practiced
for some time knows how much unnecessary chaff is excluded
beforehand by counsel. When he has made a so-called cross-
PROFESSOR NERINCX 99

 

examination of his own client within his office walls he knows
what to leave out, and it is certainly in most cases about four-
fifths of what a client comes and tells.

Moreover, parties are nervous, they are awed by the solem-
nity of the occasion and sometimes they will make damaging
admissions through sheer ignorance or misunderstanding when
a lucid explanation of counsel will state the case in much shorter
time. Anyhow, the tale of each party will, in most cases, be
confused by the introduction of much extraneous matter
which will bore the counsel, bore the judges, and confuse the
jury.

I beg to be allowed to suggest a few ideas derived from
Continental practice, and which I suppose will be in order,
inasmuch as we are discussing the best way of trying civil cases
and the best way of reaching the truth. As Mr. FAHLCRANTZ
very properly suggested, it is the universal practice on the Con-
tinent that pleadings should be drawn up by both counsel on
each side some time, say a week or so, before the date set for
argument.

The PRESIDENT:

I regret to say the time allowed for this discussion has
expired, but by general consent you may proceed.

Professor NERINCX:

Just two minutes. The pleadings should be drawn up and
counsel should exchange them and exchange their briefs, both
briefs to be submitted to counsel on each side, in order that the
trial be not, shall I say, a sport ?—but be an argument on the legal
merits of the case by people who have exchanged beforehand
their ideas, and who have fully agreed to exclude from the court
all points except those on which they cannot reasonably agree.
No trial should take place before the pleadings, if not the
briefs, have been submitted to the judge, and it is the rule in
Continental courts that no trial can be opened unless the briefs
have been submitted to the judge, and the trial is always opened
too CONGRESS OF LAWYERS AND JURISTS

 

with the reading of the pleadings which seem most necessary
to reach the truth. The sounder system is to get good judges
appointed for life, properly paid, selected from the best ele-
ments of the bar at an age when experience, training, and the
respect won by their former achievements will secure for them
such confidence as will render the presence of a jury wholly
unnecessary. Then I am perfectly sure you will have a fair
and speedy trial of each case on its own merits. [Applause.]

The PRESIDENT:

We have very much enjoyed this discussion, and are very
thankful to the gentlemen for what they have presented before
us, and now Judge FAHLCRANTZ desires to speak five or ten
minutes in reply to what Professor NERINCX has said.

Herr FAHLCRANTZ:

With reference to the kind remarks of Judge Hartmann, I
should only say that I am happy to think he agrees with me
that the purpose of administration of justice would be promoted
by a system adopting a great deal of the ideas respecting evi-
dence and pleadings, which I have ventured to draw attention to.

The golden age will not be arrived at by them, but it would
be a good thing if we could shorten a little the time for arriving
at it, and even if we were or when we come in the midst of the
golden age, I am pretty sure that at least the American people
will never leave off, always to try to make it still a little bit better,
a little bit more golden.

Professor NERINCX has got the impression that I wished to
have pleadings drawn up on oath. I mean it not so, but indeed
my meaning is that they should in some way be regulated by
discovery and inquiry and interrogations which are to be
answered on oath.

Professor NERINCX has expressed some hesitation as regards
the possibility of getting good juries. I have a high esteem
for the people of the Roman race, but I am afraid they, as well
as the old Athenians, are a little more hotblooded, a little more
HERR FAHLCRANTZ IOI

 

passionate, than the German, Anglo-Saxon, and Scandinavian
races, and jurors should not be too passionate. In my country,
and certainly in all the colder regions of Europe and in all
North America, despite the 86 degrees of Fahrenheit which
seems to be the normal temperature of this country, I have no
doubt that the cool kind of people which are desirable in juries
will always be found, although I think indeed that the way of
selecting jurors will be subject to improvements.

With reference to another remark, I should say this: If it
is true that a good judge can be able to determine questions
of law, it is also true that laymen are able, and very well able,
to state the truth; but if it is so, it is not right to exclude them.
That is the very point. According to my opinion the very
normal way of stating facts is to have that done by representa-
tives of the people itself, and the people has need of keeping
such a natural privilege—it is an important part of their freedom.

With reference to commercial matters, I have had an oppor-
tunity of hearing such a man as the president of the Chamber
of Commerce in Paris, M. Dietz Monin, Sénateur—I hope he
may be still in life—say that the very honesty and probity of
the French world of commerce is due to the French commercial
courts in which only merchants are judges. I am about sure
that French merchants most generally agree with that authority,
and indeed I have heard many leading representatives of the
commercial interest express about the same opinion as expressed
by Monsieur Dretz Mownny, and I dare say that my personal
knowledge of the work performed by commercial courts amply
supports the idea I have of the propriety of such courts.

As regards the fear expressed by Mr. NERincx of perjury
if sworn statements would be brought in frequent use, and espe-
cially if the parties should be heard as witnesses, I might refer
to an utterance of one of the English high judges, I think it was
Baron Cu. Epw. Pottock. He said to me that earlier, or in
the first time after hearing parties as witnesses was allowed in
England, some judges were prompt to see perjury in any dis-
crepancy between statements of the parties, but that the English
102 CONGRESS OF LAWYERS AND JURISTS

 

judges had soon enough been aware that it is quite natural if
parties sometimes see facts different because they see them
from different points of view; and in this moment I think that
English judges generally join in the words once said by Lord
HERSCHELL, that it would scarcely be possible to administer
justice duly without the right of taking the truth from the parties
themselves. [Applause.]

The PRESIDENT:

Under the rules there is an opportunity for discussion by
the members of the Congress, but the rules, as I called to your
attention yesterday, are to the effect that any one wishing to
engage in such discussion shall send up his name on a card.
None has been sent up, so I propose temporarily to hear from
the Committee of Nations its report, and if during the reading
of the report a card is sent up by any gentleman, we will give
him an opportunity to take part in the discussion of the ques-
tions before us this morning.

The Honorable Wattace NEsBITT, Justice of the
Supreme Court of the Dominion of Canada (Chairman
of the Committee of Nations):

The only matter that the Committee have been able to deal
with up to the present moment is the motion submitted by Mr.
EVERETT P. WHEELER, who moved that the Committee be
requested to make arrangements for the holding of subsequent
meetings in the Hall of Congresses, owing to the difficulty of
hearing in Festival Hall. The Committee made inquiry and
found it was not feasible. The Hall of Congresses is engaged,
and this is the only place of meeting possible to be obtained for
meetings, so we will make report that we are unable to comply
with the request. On other matters we report progress.

The PRESIDENT:

I have received no card from any gentleman. Perhaps
there is some gentleman who wishes to speak and we will not
PROFESSOR NERINCX 103

 

stand on any rule. If there are any gentlemen who desire to
come on the platform and discuss the question we will be glad
to hear from them.

Mr. FREDERICK N. Jupson of Missouri, a Delegate
from the American Bar Association:

We have several gentlemen here who would like very much
to hear Professor NERINCX give us the rules of evidence in the
courts of Continental Europe, how the facts are ascertained.

The Honorable Joun F. Ditton of New York, a
Delegate from the United States Government:
Are witnesses produced before the judge?

Professor NERINCX:
Yes.

Judge Ditton:
Not the referee?

Professor NERINCX:

No, before the judge. But no transaction that covers more
than thirty dollars’ worth of property can be proved unless by a
written instrument. That is the fundamental principle of the
civil code which has been adopted in most of the Continental
countries. The whole system of evidence rests primarily on
written proof, and it is only for facts of which no written proof
could possibly be adduced that oral evidence is taken, and of
course this is not so in criminal matters, but in civil matters
where over thirty dollars’ worth of property is involved no oral
proof can be given. No proof whatever can go against a
properly executed deed beyond referring to the contents of the
deed, but such deed, you must remember, has been drawn up
by an official called a notary, not the same as a notary in
England and America, but a state appointed official who is
practically the record-keeper of every deed of real estate, wills,
1o4 CONGRESS OF LAWYERS AND JURISTS

 

settlements, and so forth. In many cases the law compels you
to go to such notary to have a deed made. There are quite a
number of deeds that you cannot pass under a private sign
manual.

Judge Ditton:
Can a deed be canceled for fraud ?

Professor NERINCX:

If there is fraud in the deed you must impeach the official who
drew up the deed because by the rules of his profession he is
supposed to look into the truth of everything told before him
when the deed is made. They are officials before whom the
charters of companies are drawn. The act requires that when
a company is incorporated the capital shall be entirely subscribed
for and ten per cent of it shall be actually in the hands of those
who incorporate the company and deposited on the table of the
official who draws the deed, and when, therefore, the capital is
not entirely subscribed for, or if that ten per cent is not deposited
there, the notary who draws the deed or charter is responsible
for the condition and the avoidance of the charter that will
ensue. On the other hand, if the charter is signed by proxy,
and the proxies are not proper, the notary is responsible, because
he, being a state official, has the means in his hands to probe
the genuineness of the signatures and other conditions.

Mr. Jupson:
Are witnesses examined by counsel in court?

Professor NERINCX:
Yes.

Judge Ditton:

I came into the hall this morning to listen and learn and
with no purpose to take any part in the discussions. But I
cannot refrain from expressing my great satisfaction and my
JUDGE DILLON 105

 

grateful sense of obligation for the very interesting and instruc-
tive papers which have just been read by our distinguished
visitors. They broaden our views, and I have no doubt where
a free people, like the people of Germany, like the people of
Austria, like the people of Sweden or Belgium, have adopted
their own system of jurisprudence under the light and guidance
of experience and of the sages of the law, that each system may
be and probably is the best for those respective countries, and
so applying the same observation to ourselves and to the system
of laws and jurisprudence which prevails in England and in
this country, I have ever been of the opinion (and I have heard
nothing to-day that has in the slightest degree changed it) that
our system is the best for us. It is a distinctive system, it pro-
ceeds radically from the idea of individual freedom, which
characterizes the people and the institutions of this country,
and it expresses my idea to say that it is from the foundation
to the entablature, from first to last, an adversary or contentious
system. If two men want to make a contract they act for them-
selves or select an attorney and they are not obliged to go before
a notary. There may be an advantage in going before a notary,
I cannot pronounce judgment on that, but our experience does
not recommend it tous. I have nothing to say against courts of
conciliation, but from what has been said this morning they do
not seem to be a marked success in Europe.

With us when controversy arises, the aggrieved party selects
his own counsel, he takes his advice; undoubtedly the parties
frequently undertake to effect conciliation and adjustment, but
when you come to the stage where the controversy cannot be
settled by conciliation or adjustment you resort to the judicial
tribunals. Such tribunals are the great sheet anchors of any
nation, and the trouble that we have in the Philippines is that
they have no independent judicial system in the English and
American sense of that term.

With us the plaintiff states his case in limine, in what we
call the old common-law declaration, or narration, or complaint,
or bill in equity. That is the case as his counsel states it in his
106 CONGRESS OF LAWYERS AND JURISTS

 

own way, and such statement is now freely allowed to be
amended. We have had a long struggle for that. The defend-
ant states his defense in his own way. And thus the exact con-
troversy is defined before evidence is taken. I cannot under-
stand the necessity or advantage of taking a large volume of
evidence on either side, or both sides, without the controversy
being delimited in advance, and prior to the trial. I can’t
understand it. Now, in regard to the mode of trial, we have,
may it please your Honor [Laughter] (I must have thought I
was in the Supreme Court at Washington), a presiding judge,
and in many cases trial by jury. Trial by jury is a part of our
liberties. We venerate and prize it. It connects the citizen
with the administration of justice. In complicated disputes
which are heard in courts of equity, and in commercial and
other intricate matters, under our system of jurisprudence
the jury has no cognizance, and such controversies are decided
by the chancellor or judge upon evidence produced before or
to him by the parties. In other cases we bring the witnesses
into court face to face with the judge and jury, and that is the
best way to arrive at the truth. In chancery cases we have to
resort at times to referees or masters in chancery; unfortunately
sometimes it is a necessity. The officers ought never to become
autonomous, they ought not to be clothed with independent
authority, they ought to be mere aids to the court. I am
opposed on principle, I am opposed in the interest of the highest
administration of justice, to attaching so much weight as modern
legislation sometimes attaches to the findings of masters or
referees, giving the finding some degree of conclusiveness.
The people of this country revere their judges and their judicial
institutions. They elect or select men of honor, men of training,
men of learning in the law and of experience and capacity, to
be their judges, who hold court in the open light of heaven and
are responsible to an intelligent bar and an intelligent public
opinion, and the people want just as little of masters and referees
as may be, and when in an argument of a cause in the high
tribunal, of which you [Mr. Justice BREWER] are such a dis-
JUDGE DILLON 107

 

tinguished member, allow me to say when you see in a cause
there a finding below, which you are to regard as conclusive,
and under the legislation of some states it has the sanctity of a
verdict and it prevents your Honor applying your ear to the
testimony and determining the very right for yourself, I think
the avenues of justice have been closed or clogged. Take the
testimony before a referee or master and let him find his con-
clusions, but do not let them be conclusive.

I have little more to say, except to express my great satisfac-
tion, on the whole, with the system of jurisprudence we have
to-day, including the trial by jury. Let me add that I have
had no inconsiderable experience in the trial of cases by jury,
and rarely, in my judgment, is the verdict of a jury wrong
where the presiding judge has fully, intelligently, and faithfully
performed his duty. I do not want a jury to usurp the pre-
rogatives of the judge, but on the other hand, where the ques-
tion is one of fact, pure and simple, where it relates to the com-
mon affairs of men, as, for example, with what purpose or intent
acts done, what were the circumstances which led to them,
is the accused upon the evidence innocent or guilty, on such
propositions, when submitted to the jury, if the jury are not
misled by false instructions, and if their judgment has full
play, I would, on such questions, as lief have the judgment of
a jury of ordinary intelligence as of twelve learned judges.
[Applause.] And for that statement I have the authority of a
judge in whose seat you sit in Washington, who was an honor
to the jurisprudence of his country, the late Mr. Justice
MILLER.

Now, then, I do not say if we could take the code of Germany
or Austria or France that we might not derive, and probably
could derive, valuable lessons, but I believe we would find
nothing to alter the great outlines or the essential nature of our
judicial system.

I hope many of the gentlemen here present heard the admir-
able paper which was read a day or two since in this hall before
the American Bar Association, prepared by Judge THaver. It
108 CONGRESS OF LAWYERS AND JURISTS

 

refers to the fact that out of the Louisiana Purchase, which
great event is the occasion of this assembling, the occasion of
these magnificent structures that we see around us filled with
masterpieces of the world in science, in mechanics, and in art,
the people of this country have erected fourteen states which
have been carved out of it, with fourteen millions free people
‘inhabiting them. In my early life the settlements were con-
fined to the Mississippi, for when I went to Iowa, in 1838, the
Indians were thicker than white men, thicker than leaves in
Vallambrosa. There is nothing, in my judgment, in all this
great acquisition comparable to the fact that the hardy, indus-
trious people who settled it, carried with them their laws and
their notions of freedom and independence, and the deep-rooted
conviction that liberty and justice are one and inseparable, and
in all that region, except to some extent in one or two States,
the principles of the common law have been adopted, and in
the forty-five States in this great Republic the strongest bond
of union is the system of jurisprudence, uniform and homo-
geneous in all its essential characteristics, which prevails from
Maine to California and from the Gulf to the Great Lakes, so
that a lawyer in any State familiar with the system of his own
State can take the statutes and decisions of the several States
and feel himself at home with them, and nobody knows that
better than your Honor. [Applause.]

Mr. C. C. CoLE, a Delegate of the Iowa State Bar
Association:

I should like to tell an anecdote. Some forty-five years ago
a young lawyer from New York came to Iowa to enter the prac-
tice of the law. In talking with an old Iowa lawyer, he said,
“What you ought to do here is to pass the New York code.”
The old lawyer asked, ‘What for?” He replied, “So you can
have the New York practice.” The old lawyer said, “That
would not do it; you could not get the New York practice here
without you imported New York lawyers and New York
judges.” [Laughter.]
JUDGE TUCK 10g

 

The Honorable Somervitte P. Tuck, Judge in the
Cairo Mixed Court, Delegate of the Egyptian Government:

Mr. President: I have listened with the greatest interest to
the papers and the discussion which has followed to-day. I
happen to be a member of a court which applies the civil code,
the code of Napoleon modified to suit the different conditions
prevailing in Egypt, and on all fours with the changes in judicial
science in the last hundred years. I have had an opportunity
during that time to persuade myself that civil matters can be
honestly decided without the interposition of a jury.

As regards the commercial courts, of which I am a member,
it might interest the Delegate from Belgium to know that the
reform he has suggested here to-day was made twenty-five
years ago in Egypt, where the commercial tribunal is composed,
like any other part of the court, of three foreign judges and two
native ones, and to them in commercial cases are added two
assessors, one foreign and one native. The assessors are selected
by different mercantile guilds, just exactly as the Delegate from
Belgium has explained. Those gentlemen sit monthly and in
rotation. The proceeding is a simple one. The action is
brought by a paper, summons, proof of service, and answer is
made in open court on the return day, and a day is fixed for
hearing. When the hearing comes on, should the parties
desire to introduce oral testimony a motion must be made, and
it is argued and the court determines whether written proof
shall be received, or whether there shall be a hearing of wit-
nesses. In the latter case the proofs are taken before one of the
judges. The case comes on for final argument and it is dis-
cussed. The judgments are postponed eight days, and the
presiding judge designates one of the judges to make a report
in the case and it is usually the judge who has taken the testi-
mony. During this time, the papers are examined by him
and considered. The judge who has made the report signs the
opinion and there is no dissenting opinion. I leave it to you
to say whether that does not offer some advantage over the
hurly-burly of the jury room.
110 CONGRESS OF LAWYERS AND JURISTS

 

Mr. THEODORE SutTRo of New York, a Delegate-at-
large:

Mr. President: I only want to say a few words. Nothing
can be added to the eloquent and just remarks of Judge DILLon
in favor of the jury system, and while it is true that in this
country and in many states there has been discussion as to
whether the requirement of a unanimous verdict of the jury
might not be open to question in certain cases, owing to the
difficulties therein, as we have experienced in New York, it is
unnecessary to add that every lawyer, practicing under the
common law, believes in the jury system, certainly those lawyers
who have had experience in jury trials. I wish to call attention
to one feature with respect to which I think there may be a
misapprehension. I would like to ask Dr. HARTMANN whether
I am not correct in the view that the jury system has obtained
a foothold in Germany and a jury is employed in the trial of
cases, and how far that system is in vogue. If he will explain
that to us, I think it will aid us by showing that the jury system
has been adopted in Continental Europe to a certain extent.

Mr. J. W. VANDERVOORT, a Delegate from the West
Virginia Bar Association:

I would like to ask Dr. HARTMANN whether or not in Germany
hearsay evidence is admissible in civil cases.

Dr. HARTMANN:

In civil cases we have in Germany no jury at all. There are
commercial courts in the Chambers of Commerce, and these
courts are composed of a learned judge, the presiding judge,
and two associates who are merchants. These associates may
be considered like a jury, but, nevertheless, this jury properly
has authority of its own, uncontrolled by the learned judge,
thus making a difference. We have no hearsay rule, as I said
before, in Germany, at all. Professor Nerincx spoke of the
restriction of the evidence of witnesses in Continental Europe.
This is the law in France and in Belgium, but not in Germany.
MR. SURVEYER III

 

I know that very often a lawyer coming from Germany to
America is asked whether there are no rules of evidence at all.
The rule is that the oath of the party makes true evidence under
all circumstances so long as the swearing party is not punished
by the criminal court for perjury. Aside from this rule of evi-
dence the judge, in determining matters of fact, is free to take
in and consider any evidence which he thinks fit. He may hear
what was told to a witness. He may require the witness to state
what Mr. A has told him, the witness, or what Mr. B has told
to another gentleman. The hearsay rule is unknown to us.
There may be one, two, three, or four persons and more between
the man who has seen or heard something and the witness
himself—it is all quite the same.

Mr. CoLe:

Mr. President: I want to add a single statement to the very
comprehensive suggestions by Judge DILLon in respect of the
desirability of a jury trial in this country, and that is the verdict
of a jury is more uniformly satisfactory and readily accepted
than a decision by a single judge, growing out, possibly, of the
fact suggested by some gentleman, of the possibility of one
individual being approached where a jury of twelve cannot be.
It is that satisfaction which is the great bulwark of our jury
system.

Mr. E. FABRE SURVEYER of Montreal, Canada, a
Delegate-at-large:

Mr. Chairman and Gentlemen of the Universal Congress of
Lawyers and Jurists: I am a member of the Bar of the Province
of Quebec, and have listened with the deepest interest to the
remarks made by our conjréres from abroad, and also to the
remarks made by eminent members of the bars of the different
States of this country. I have gathered from the remarks of
these men, men of experience, men of international fame, that
it is not the time for us to suggest any improvements upon the
excellent system of jury trials in the State of New York and
112 CONGRESS OF LAWYERS AND JURISTS

 

in the State of Iowa, and all we could be expected to do is to
give a brief explanation of our own system as a matter of curi-
osity only.

The Province of Quebec is in a peculiar situation, and pos-
sibly in view of its peculiar situation a short statement of its
system of laws and system of trials may be of some interest to
you. We have kept the French law as transmitted to us by
the founders of the province, and which was once embodied in
the old Custom of Paris. The Custom of Paris, the law then
existing, was codified in 1866 in a code which resembles very
much the code Napoleon and the code of Louisiana. So
much for our civil law. The criminal law comes altogether from
England. Now, in civil matters the evidence is based upon the
principles of the French law, and consequently the rules are
substantially the same as explained by our conjrére from Bel-
gium, Professor NERINCX. In commercial matters we have the
statute of frauds and in matters of bills of exchange the rules
of English law, as existing in England previous to 1849. Now,
to revert to trial by jury, trial by jury in civil matters is not
usual in the Province of Quebec. There are reasons for this:

First of all, it may be said, as Judge Ditton J think remarked,
there may be a question of temperament in the choice of a jury
system, or in the choice of a judge system. Four-fifths of the
inhabitants of the Province of Quebec are of French descent,
living under French civil laws, or civil laws originating from
France. In all cases where the parties are of different nation-
ality or different origin, a mixed jury, half French and half
English, may be obtained, which diversity of language requires
addresses in both languages, French and English, a translation
of the original deposition from French into English or from
English into French, and then the charge by the judge in both
languages. For these reasons trials by jury are comparatively
of rare occurrence. Add to the reasons above related the fact
that jury trials are only permitted in two instances, in a com-
mercial case where the amount in controversy exceeds four
hundred dollars, and in these cases are included those where
AN INTERNATIONAL BAR ASSOCIATION 133

 

one party is a trader or a trading corporation, and cases of torts
in relation to movable property, of libel and slander, and of
personal injuries for the same amount, and therefore we have,
on account of these various obstacles, a limited number of
trials by jury. Even in the above-mentioned cases, the party
who desires a trial by jury must make his option to that effect
within a specified time. I might say in respect to the remarks
of the gentlemen from abroad before the case goes to the jury
a statement of facts is submitted by both parties, a statement
of questions to be submitted to the jury is presented to the
judge and he drafts them in a definite form, and it may happen
that after the case has been decided by the jury the interrogatories
will be found faulty, by an appellate court.

I must apologize for having taken your time at this late
hour of this very interesting meeting, but I thought that the
Province of Quebec can be considered a hyphen between old
Europe and new America, and there might be something inter-
esting in my remarks on that account. I thank you heartily
for your very kind attention. [Applause.]

The Honorable RoBERT G. STREET of Galveston,
Texas, a Delegate from the Texas Bar Association,
offered a resolution in reference to a proposed permanent
international association of lawyers and jurists, which
was referred to the Committee of Nations.

At x p.m. the Congress took a recess until 2 P. M.

[During the recess a luncheon, given by the St. Louis bar, was served on the
stage of Festival Hall to the members and guests.]
114 CONGRESS OF LAWYERS AND JURISTS

 

SECOND DAY
THURSDAY, SEPTEMBER 29, 1904
AFTERNOON SESSION

The Congress was called to order by the President
at 2 P.M.

The PRESIDENT:

Tam requested by the Chairman of the Committee of Nations
to say that there will be a meeting of that committee in the rear
room immediately, and he would be very much obliged if the
members of the committee would join him in that room in
order that they may dispose of the matters which have been
submitted. I desire further to say that there is a vacancy in
that committee, caused by the necessary absence of Mr. Dicx-
INSON of Chicago, and it will be proper at this time to substitute
some one in his place.

Judge BaLpwin of Connecticut, a Delegate from the
United States Government:

I would move, Mr. President, the substitution of Mr. Moor-
FIELD STOREY of Boston, formerly president of the American
Bar Association.

The motion was seconded, and being put was carried.
Mr. STorEY was then declared chosen as a member of the
Committee of Nations.

The PRESIDENT:

I want to say further that Mr. Cuow of China desires to
have permission to submit in writing, for publication in the
proceedings, some remarks on the paper of Judge FAHLCRANTZ
submitted this morning. He felt that perhaps his knowledge
of the English language was not such that he could make him-
self heard and understood by the audience, and desires, therefore,
to have those remarks of his submitted and published in that
MR. CHOW TSZCHI II5

 

way in connection with the discussion this morning, and it will
be so ordered unless some objection is taken thereto.

Mr. CHow Tszcui, a Delegate from the Imperial
Chinese Government:

Mr. President and Gentlemen: After listening to these
several speakers who have so ably stated their positions, I am
glad to have the opportunity to speak of the conditions existing
in my country. In regard to the method of procedure, I regret
to say we have no universal regulation. Arbitration is the
general practice in all civil actions, when they are first brought
to the magistratic court.

In the towns and villages, a municipal board is established,
composed of men of mature years and of the gentry. Before
this board are brought all civil cases. A preliminary hearing
is granted, and a day named for trial. In accordance with the
stipulations made at this hearing, a certain number of persons
of established reputation present themselves on the day of trial.
These persons form a distinct class rendering permanent
service for this duty, and from this class the specified number
is chosen. This body, in a measure, corresponds to the jury
of the western countries. Their service is given without com-
pensation. If the decision handed down by this body be not
satisfactory, the case is appealed and goes over to the court of
hsien (district), presided over by the chihsien (mayor, or
district magistrate). Here, before formally reopening the
case, an effort is made to adjust it through the medium of
acceptable parties who have a full knowledge of the circum-
stances, and who are appointed by the chihsien (mayor, or
district magistrate). If this effort fails, however, the case is
taken before the chihsien, who, with his associates, renders a
decision. Should this not be satisfactory, the case ascends
thence through the various municipal divisions till it reaches
the judge of the province, the decision, as it passes through
each municipal grade, resting entirely with one man, the polit-
ical head of the territory.
116 CONGRESS OF LAWYERS AND JURISTS

 

From the judge of the province the case is carried to the
court of censors (the court for appeal) at Peking, where it comes
before a thoroughly equipped judicial body whose honorary
head is the Emperor.

As to the method of trial by jury, I wish in a few words to
present my view for your consideration. The jury is the most
essential element in civil actions. I do not believe that it
could be abolished, but I do believe that by the introduction
of certain reforms it could be improved. For instance, I would
suggest that:

1. From the ranks of each profession and avocation there
should be elected by the vote of its own members a certain
number of persons to serve as a first jury.

2. From the same sources a second jury should be elected
as an auxiliary. If any individual member of the first jury
be, directly or indirectly, involved in the case, the juror could
be empaneled from the auxiliary body.

3. If any member should be unable to answer the call, he
would appoint a representative, for whom he would be respon-
sible.

4. The term of service should be one year, but the individual
member would be re-elected.

5. A reasonable compensation should be paid to the jurors
by the party against whom the case is decided.

Were these conditions complied with, a jury dealing with
matters of which it has special knowledge would not fall into
errors as now might be made through ignorance. Both parties,
moreover, being known to the jury, nothing could be concealed.
With the honor and interest of the calling to which the jurors
themselves belong at stake, their decision would be rendered
with the utmost care.

The PRESIDENT:

We have this afternoon for consideration A Review of the
Four Hague Conferences on Private International Law, the
Object of the Conferences, and Probable Results, and on this
PAPER OF PROFESSOR JITTA 117

 

subject we are to be favored with two papers, the first by Dr.
JosEpHus Jrrta. of the University of Amsterdam, Netherlands,
and the second by Dr. F. Metzt, of the University of Zurich,
Switzerland, followed by a discussion by our well-known friend,
Judge Batpwin of Connecticut.

I have the pleasure now of introducing to you Dr. Jirra, of
the University of Amsterdam, who will read the first paper.

A REvIEW OF THE Four HaGuE CONFERENCES ON
PRIVATE INTERNATIONAL LAW, THE OBJECT OF THE
CONFERENCES, AND PROBABLE RESULTS,

A PAPER BY

Dr. D. JosEpHus Jirta, Professor in the Municipal
University of Amsterdam, Netherlands, Delegate from
the Government of the Netherlands.

Mr. President, Ladies and Gentlemen: The Committee of
Organization of the Congress has invited me to address you
on the subject of the four Hague Conferences for the codifica-
tion of private international law, and I have accepted that
invitation with the greatest pleasure, even with enthusiasm.
The cause of my enthusiasm is twofold: I am highly pleased
with the subject, and proud to have to treat it in an assembly
such as yours.

I am highly pleased with the subject because it reflects a
glory on my native country. Although I have acquired in my
studies on international law the professional habit, if I may
say so, of considering the whole of mankind as the community
to which I belong, in my heart no part of the world can be com-
pared with my native country, and so I am happy to have a
subject that redounds to the glory of the Netherlands, the power
that took the initiative in the conferences, and upon the states-
men of the Netherlands, who have been the promoters of a noble
endeavor. I have been sent to St. Louis as representative of
the Government of the Netherlands to this Congress, but I must
118 CONGRESS OF LAWYERS AND JURISTS

 

point out that in addressing you now on the said subject, I do
not speak as a representative of the said government, but only
as a private person, a jurist developing his personal ideas.

I am proud to have to speak on the said subject in this
country and on this spot. No country of the world is so near
as the United States to the ideal figure of an organization
affording to the universal community of mankind liberty and
justice under equitable laws. No assembly can be considered
as the juridical conscience of the world, with more right than
this Congress, when the learned jurists of all the nations are
forming the highest court of international equity that ever took
seat.

But the subject is very extensive in every dimension. It
is long in its historical causes, broad in its results, high in the
expectations of its future. If I should try to say everything
that could be said, it would require a volume with as many
chapters as I have minutes at my disposal. So I must refrain
from any profusion of particulars, and only attempt to give
you, in a methodical way, a summary of the leading ideas.
This methodical way will lead us along three groups of ideas:
the historical causes of the conferences, the results attained, and
the results to be expected in the future. I will divide my
summary in the said three parts, and try to be, if possible, not
too long in the exposition of historical causes, not too broad in
the development of results attained, and not too high in the
idealization of the future.

The direct cause of The Hague Conferences was an invita-
tion of the Government of the Netherlands, addressed to the
other European governments. A more remote cause, which may
be considered, too, as the reason of the success of the invitation,
was the general conviction among the nations that the extension
of international intercourse had more and more rendered intol-
erable the absence of a codification of private international law.

Private international law is the law regulating private rela-
tions between individuals in a community larger than a nation,
or, more exactly, larger than a group of men living in the same
PAPER OF PROFESSOR JITTA 119

 

territory, and subjected to the same legislation and jurisdiction.
Relations of this kind spread themselves over the whole private
law, but there are two species of international relations that
occur more frequently than others, namely: Relations of trade,
and relations of marriage. The international trade has created
relations of law by the exchange of the natural and artificial
products of the different countries, and the divine feeling of
love, much mightier than the commercial spirit, has brought
together the sons and the daughters of the various groups of
mankind.

International intercourse is not practically interrupted by the
boundaries of the national groups. But, in a judicial sense,
the division of the earth among powers exercising supreme
rights of legislation and jurisdiction in certain territories,
checks the development of a lawful intercourse, by rendering
the substantive law of private relations uncertain and the
sound exercise of jurisdiction problematic.

If we consider more specially the two mentioned principal
species of relations, trade and marriage, we find between those
species differences sufficient to make clear why international
trade needs more a regulation of the international procedure,
and the marriage more a regulation of the international law.

It is certainly a fact that the national laws on trade vary,
often very sensibly, and that a certain uniformity is highly
desirable. I point out, furthermore, that, as there are no great
religious and philosophical disputes in the greatest part of the
commercial law, for instance in the matter of bills of exchange,
or sea traffic, a unification of the merchant law would be attain-
able. But I must add that the discrepancies in the different
commercial laws of the nations do not lead to an almost intol-
erable situation, because all the laws are founded on the binding
power of regular contracts, and the contracting power of parties,
although not absolutely unlimited, is so great in commercial
matters that the inconveniences of the variety may be withdrawn
to a certain degree. But the international credit is almost
ruined when, in the international intercourse, the creditor is
120 CONGRESS OF LAWYERS AND JURISTS

 

not sure to be admitted as claimant in foreign courts, and when
the regular judgment in his favor is not enforced and executed
by the foreign authority, which has a power of fact on the
debtor’s property. No contract between individuals can regu-
late this matter of public policy, and so it is clear that only an
international agreement on the matter of jurisdiction and
execution can give to the international credit a sound basis.

With regard to marriage and domestic relations connected
with marriage, the position is quite different. So far as the
conditions of validity of a marriage, the admissibility of divorce
or separation, etc., are matters of legislation, there is no room
for the contracting power of parties, and if the law is dubious in
the international intercourse, an international agreement of the
public powers is the only way to come to rules, extending their
authority over more than one territory. On the other side, the
discrepancies of the laws, in the mentioned matters, are often
founded on religious faith. So long as this will be the case,
uniformity of the laws on marriage and divorce is unattainable;
a law, considered as an emanation of the will of an Almighty and
Infallible Being, cannot be amended. Therefore, the only
result attainable here by international agreement is a certain
harmony in the application of various national laws.

So the combination of the elements “desirability” and
“attainability” leads, in matters of trade, to common rules
of jurisdiction and execution of judgments, and in matters of
marriage and domestic relations to common rules of harmony.

The whole nineteenth century has been a preparation of
the needed common rules. Science in general, and the philoso-
phy of social science in particular, has become more and more
the common patrimony of the nations, and so, finally, the gov-
ernments came to the conviction of common duties towards
the juridical community of mankind. For Europe, the invita-
tion of the Government of the Netherlands has been accepted,
because it came at the right time, and I may add, not without
a little pride, that the success of the Conferences was, for a great
deal, a result of the fact that my native country has found as
PAPER OF PROFESSOR JITTA 121

 

chairman of the Conferences the right man, the distinguished
Dutch jurist and statesman, Asser, glorified by his work more
than words can do.

Four Conferences have been held at The Hague for the
codification of private international law, between 1893 and
1904. Four general treaties have been put in force in a good
deal of the European Continent, and several others have been
established in draft. I shall take the liberty, according to the
English practice, to give short titles to these treaties, and to
design each treaty by its title in my further explanations. The
four treaties in force are: One treaty on civil procedure and
three treaties on substantive subjects: validity of marriage,
divorce, and guardianship. The four treaties in draft relate
to succession, relations between husband and wife, lunacy, and
bankruptcy.

T have to give you a general idea of the principles on which
the treaties are founded. My intention is to be very short for
the treaty on civil procedure, as being more a technical subject,
and to call more particularly your attention to the matter of
validity of marriage and divorce, subjects, as I think, of great
interest for the interstate relations in the United States. The
leading principles of the marriage and divorce treaties will
be found, too, in the other treaties. So I hope tospare you the
tedious work of an inventory.

The civil procedure treaty has been the first result of the
work. It was concluded in 1896, and now, after the experience
of several years, a draft for a revision has been prepared in
1904. However, even after the approbation of the amendments,
the treaty will be only a modest beginning of a regulation.
The best way to make this clear will be a comparison between
the ideal of a regulation and the attained result.

An ideal regulation would have to establish universal rules
of jurisdiction, and to secure everywhere the execution of judg-
ments, regularly pronounced between the limits of this juris-
diction. The final result would be for the civilized world
what the Constitution of the United States has established for
122 CONGRESS OF LAWYERS AND JURISTS

 

the interstate relations, that judicial proceedings in one country
should have full faith and credit in all the other countries.

It was very difficult to come to an agreement on universal
rules of jurisdiction, and no serious attempt could be made to
constitute a supreme court for the world, having authority to
enforce the rules. So the Conference found it better to go
ahead with prudence, and to secure in the first place an agree-
ment on indisputable points. There are no rules of jurisdiction
in the treaty, and only with regard to a very special point a
disposition is given for the execution of foreign judgments, but
the treaty has elaborated a series of rules, the principal of which
are the regulation of the position of citizens of the contracting
countries (or persons assimilated to these) acting as plaintiffs
or defendants in other contracting countries, the regulation of
the service of summons on non-resident defendants, and the
statement of the international duty to give effect to rogatory
commissions of foreign courts. This series of regulations con-
stitutes a very valuable preparation of the future ideal.

The leading principles of the Conference work may easily
be found in the treaties on the validity of marriage, on divorce,
and on guardianship, and my intention is to point out these
principles.

I begin with the treaty on the validity of marriage.

Marriage, to be sure, may be considered as an institution of
the unwritten common law of the world. Very often marriage
is contracted between citizens of various countries. Moreover
there is an almost unlimited right of emigration and immigra-
tion of married and unmarried individuals, and the conse-
quence is that the validity of an intended or contracted mar-
riage may be questioned in a foreign country.

But it is a fact that the law of marriage varies considerably
in the different countries of the world. The cause of these
varieties is undoubtedly that marriage is not only a contract
between a man and a wife, but also the foundation stone of
social life. Therefore the social powers have endeavored to
control marriage to a certain degree. Conditions relating to
PAPER OF PROFESSOR JITTA 123

 

age, consanguinity, monogamy, consent of parents, etc., have
been imposed on men, and very generally, if not everywhere, the
laws have established a solemnization of marriage, not only to
facilitate the proof, but also as a means to research if the material
conditions are fulfilled, and to prevent void or voidable mar-
riages. The said conditions and forms of solemnization are
very ancient; the necessity to control marriage existed already
in patriarchal times and in the midst of tribes and so the habit
of many centuries has given to various rules a real consecration.
‘The roots of many old rules, besides, extend themselves to the
time in which the social powers were exercised by the churches,
and this connection with the holy law of God excludes any
amendment. There was no hope for the Conference to come toa
unification of the marriage laws of the nations, but the Confer-
ence had to examine the question if it would be possible to
establish uniformity with regard to a rule referring for the
validity of each intended or contracted marriage, to a definite
law. In that way harmony in the diversity could be attained.

The Conference had not to imagine such a rule. In scientific
works and in several positive laws, principles for the solution of
so-called conflicts of laws in the matter of marriage are to be
found with a very important distinction between the material
conditions of validity and the external conditions of the solem-
nization. As the rule relating to the material conditions is the
center of the difficulty, I begin with that rule. Three principles
have found less or more attendants. The material conditions
of the validity of a marriage may depend: either from the
national law or laws of the parties, or from the law of their
domicile or domiciles; or, at last, from the law of the country
where the marriage is contracted, or solemnized.

If we examine the philosophical basis of these three prin-
ciples, we find that there are really but two leading thoughts.
As the man and the woman have the liberty to change their
domicile, or to elect the place of solemnization, the two last
principles are emanations of a free selection, to be exercised
by the individuals. On the contrary, as nationality is the
124 CONGRESS OF LAWYERS AND JURISTS

 

result of allegiance, and cannot be changed by the mere will of
individuals, the first principle is an emanation of the subjection
of individuals to the law of a territorial group. The choice, to
be made by the Conference, was also a choice between the prin-
ciple of free individual selection, and the principle of national
subjection.

I have not to express a critical opinion on the matter, but
I point out that the Conference adopted, as a general rule, the
principle of subjection, in accordance with the existing civil
law of France, Italy, and Germany. So the treaty does enact
that citizens of one of the contracting countries are admitted
or not admitted to marriage in another contracting country, in
as far as the national laws of the parties admit or do not admit
a valid marriage in the circumstances of the case. Only, as it
was not necessary to give to a national law more authority than
it claims, the treaty provides that, when the national law of a
country does refer, for the citizens of the country, to another
law than the national law, for instance to the law of domicile,
this last law will be followed everywhere for these citizens.

The last clause is not properly an exception, but only a
modification in the application of the leading thought; there
are, however, exceptions. In a few cases connected with
religion and social policy, and expressly stated in the treaty, a
country may refuse to celebrate a marriage admitted by the
national laws of foreigners, or even celebrate a marriage in
cases excluded by these laws.

With regard to the external form of the solemnization the
difficulty was not so great. A general rule could be stated, in
conformity with an ancient principle, referring to the law of
the place of the solemnization. Some exceptions are admitted.
The most remarkable is certainly the clause that a country
which requires for its own citizens a religious solemnization is
not bound to recognize the validity of marriages contracted by
the citizens abroad in another form.

I have given you without multiplicity of detail, a general
idea of the treaty on the validity of marriage. I come now to
PAPER OF PROFESSOR JITTA 125

 

the divorce treaty, and shall try to explain its leading thought
in the same spirit. The treaty includes separation, but, as I
follow only the main line, I will speak only of divorce. The
difference is well known to everybody, and the leading principle
is the same.

The necessity of a social control is still more evident in the
matter of divorce than marriage. Even the civil laws, which
consider marriage as a private contract, requiring only the
consent of the parties, do not admit a dissolution of a marriage
without intervention of social powers. The laws of the civil-
ized nations agree in this point, but it is the only- point in
which they agree. The laws on divorce show still greater dis-
crepancies than the marriage laws. In several countries
divorce is absolutely excluded, as contrary to the law of God,
and separation is the only remedy. When divorce is permitted,
the conditions vary. Sometimes there is but one legal cause,
adultery, while other laws have a long series of causes; inhuman
treatment, abandonment, penal sentences, and even insanity.
Mutual consent, earnestly affirmed by the parties before a
court, is sufficient in some countries. Uniformity with regard
to the admission and the conditions of divorce was not attain-
able for the Conference, but it had to consider two important
questions of harmony:

1. The admissibility of divorce for parties residing in a country
other than their native country.

2. The jurisdiction to be recognized in the matter by the con-
tracting couniries.

The answer to be given to the second question depends
upon the solution of the first question.

In accordance with the principle of national subjection,
admitted for marriage, the treaty excludes divorce when it is
excluded by the national law of parties; no change of residence
can alter this, even after a long time. Naturalization only
can help, with the intervention of foreign authorities. But this
is but a part of the rule. In countries where divorce is excluded
as contrary to the law of God, it is almost impossible to grant
126 CONGRESS OF LAWYERS AND JURISTS

 

it to foreigners residing in the country. It is a case of con-
science. The Conference resolved to respect to the utmost
degree religious faith, and stated also that no country would
be bound to grant a divorce, in cases not admitted by its own
law. The final result was, for divorce (and separation) a
principle of double subjection, national subjection and subjection
to the law of the country where the suit is introduced. Both
laws must admit divorce. It is not absolutely necessary that
there be a cause admitted by both laws; if there are two causes,
one of which is sufficient according to the national law of the
parties, and the other one according to the law of the court, a
decree of divorce must be granted. Furthermore, the law of
a country may prescribe that the national law of the parties will
be followed, even when it does not agree with the law of the
court.

In the matter of jurisdiction for divorce, the Conference has
followed the line of national subjection. The courts of the
nation to which the parties belong are empowered with juris-
diction, even when parties are residing abroad; and the juris-
diction may be rendered, by the national law of parties, exclusive
of any other. When this exclusion has not been stated, the
court of the place of residence will have jurisdiction, according
to special rules, stated in the treaty.

The natural conclusion of the material and formal rules, in
the matter of divorce, is that a divorce, regularly granted accord-
ing to the treaty, in one of the contracting countries, against a
party who contested or was duly summoned, is to be recognized
in all the contracting countries. The other clauses of the
divorce treaty, relating to changes of the nationality of parties,
or to differences between the nationality of the husband and
that of the wife, I consider as details, and only mention them.

The last of the three general treaties, put in force in 1904,
relates to guardianship of infants.

The leading principle is here also, national subjection.
Guardianship is governed, as a rule, by the national law of the
infant, even when the infant resides abroad, and this rule extends
PAPER OF PROFESSOR JITTA 127

 

its effect to the whole of the estate of the infant, personal or
real, with an exception, not for lands in general, but only for
one category of lands, lands for which the law of the country
of situation has established a special rule. The exception con-
firms the rule.

But the application of the principle of national subjection
to the matter of guardianship shows a particularity, which is
to be noticed, and to which I call your attention.

The laws on guardianship, in force in the civilized countries,
are not without discrepancies, but these discrepancies do not
depend upon religious and social-philosophical disputes, as is
the case in the matter of marriage and divorce; the laws only
follow different ways, directed to the same aim, to secure the best
protection of the infant’s interests. There would be no insur-
mountable objection against international uniformity. But
far more important than the question of uniformity is the ques-
tion how to secure, in the international intercourse, protection
for each infant that needs it and is residing in a foreign country.
This is the cardinal point. And when we bear that in mind it
is easy to understand why the treaty, although it gives jurisdic-
tion, in the first instance to the courts of the native country of
the infant, has by no means considered the national courts as
exclusively empowered with jurisdiction. The courts of the
country where the infant is residing have jurisdiction, too. They
have the right and it is their duty to take, in every case, pro-
visional measures of protection, and even to provide for the guar-
dianship, when the national courts are not acting. Only it has
been exacted that the local guardianship has to cease when a
national guardianship has been organized.

The treaties on the validity of marriage, on divorce, and on
guardianship are in force. The ratifications were exchanged,
on June 1, 1904, between the governments of the Netherlands,
Germany, Belgium, France, Luxemburg, Roumania, and
Sweden, and according to the tenor of the treaties, they came
into force on the 1st of August. The accession of several other
European countries is expected.
128 CONGRESS OF LAWYERS AND JURISTS

 

As I said, the Conference of 1904 has elaborated, besides the
mentioned draft of the amendment of the civil procedure treaty,
four new drafts of treaties, to which I have given the short
titles of treaties on succession, on relations between husband and
wife, on lunacy, and on bankruptcy. I fear it would be tedious
to enter into a long analysis of the last four treaties, and I beg
to make only a few remarks.

The draft treaties on the relations between husband and
wife and on lunacy are applications of the principle of national
subjection, with the modifications needed by the consideration
that parties residing in a foreign country cannot entirely be
exempted from the authority of local laws and local courts.

With regard to relations between husband and wife, the
patrimonial relations were the seat of the greatest difficulty. In
pure social philosophy, the necessity that marriage should bring
any change in the property of parties or alter the capacity of the
wife—the feme covert of the ancient Norman-English law—may
be disputed; practically many laws have dispositions in the
said spirit, with the greatest variety in the details. Uniformity
was not easy to obtain, and there was no lady among the mem-
bers of the Conference. The fact is that no attempt was made
to come to uniformity, and the draft treaty refers, in general,
to the national law of the husband at the time of the marriage.
The draft has also many special clauses, regulating the form,
the contents, and the registration of ante-nuptial or even post-
nuptial contracts on patrimonial relations, etc., etc.—but I
resist the temptation to wander into by-ways.

The draft treaty on lunacy, and similar cases of incom-
petency, is established on the same basis as the treaty on guar-
dianship. The necessity to give to local courts at least a
subordinate jurisdiction was even more strict here than in the
case of minority, the presence of a lunatic being often a public
danger. The treaty contains also rules on jurisdiction, the
effects of a regular decree for the entire estate of the lunatic,
personal and real, the exterritorial publication of decrees, etc.

Of all the new drafts, the treaty on succession is the most
PAPER OF PROFESSOR JITTA 129

 

noteworthy. It is not only an attempt to establish, with great
respect for the individuality of national laws, a certain degree
of harmony, it has, on the contrary, deliberately rejected an
old rule, which in some countries has already lost its strength,
but it is still considered, in other countries, as consecrated by
the practice of many centuries. I mean the rule that real
property is only subjected to the law of its location. The main
point, the focus of the draft treaty in question, is a combination
of the principle of national subjection with the principle of the
unity of the estate of the deceased. The national law of the
deceased governs the whole testamentary and legal succession,
excepting the external form of the will, which form is generally,
but not even exclusively, submitted to the law of the country
where the will is made. With regard to lands a few reserva-
tions have been stated for local laws, enacted with the sole aim
to prevent the division of rural goods, or relating to special
categories of lands, but it is expressly provided that none of
the contracting countries will have the power to make an excep-
tion for lands in general. The jurisdiction, in matters of suc-
cession, will be the object of a special agreement, to be elaborated
in a further conference.

The last draft, contained in the final protocol of 1904, relates
to bankruptcy. The aim of the treaty is to give rules of juris-
diction for a decree of bankruptcy, and to secure the full effect
of that decree in foreign countries, for the common benefit of
all the creditors, foreign and domestic. Jurisdiction has only
been fixed for traders, and given to the courts of the country
within which the bankrupt has his principal commercial estab-
lishment, or, in the case of a corporation, its seat, without fraud
or fiction. The other features of the draft are relative to the
extraterritorial powers of trustees or receivers, and to the
general binding power of a regular composition between the
bankrupt and his creditors. I have to add that, as the idea of
a general treaty on bankruptcy encountered objections, that idea
was abandoned, and the Conference declared that the draft had
only to be considered as the outlines of an agreement, to be
130 CONGRESS OF LAWYERS AND JURISTS

 

concluded between two or more nations on the basis of a more
special mutual confidence.

I have tried to give you, Mr. President, Ladies and Gen-
tlemen, a bird’s-eye view of the pre-eminent parts of the Con-
ference work, and would beg to give also a few considerations
with relation to the future. Although personally I am an
idealist, I do not wish to be visionary, and I will try only to
make, logically and calmly, deductions from present to future
events.

As it is far easier to make these deductions for the European
Continent than for the rest of the civilized world, I will make
that distinction. For the Continent of Europe, The Hague Con-
ferences for the codification of private international law have
been a most remarkable event. They have afforded:

1. A working body of men of good will;

2. A not yet perfect, but certainly perfectible, form for
collective civil legislation; and

3. A valuable beginning of that legislation.

For many years international congresses have brought to-
gether men and ideas. But The Hague Conferences have done
more; they have assembled representatives of the national
powers, with a continuity in the representation most favorable
to an easy understanding. The members have not had to
work under pressure of time, a circumstance often so disad-
vantageous to private congresses, and they have had serious
hope of immediate practical results, as it could be foreseen
that the drafts would be earnestly considered by the govern-
ments.

I say that The Hague Conferences have afforded a practical
form for collective civil legislation. This form is the general
treaty, a form usual in the public international law, where
States are contracting parties, but not so perfectly suited to the
regulation of private law relations. We must bear in mind
that, in the absence of a federal legislative power for Europe,
no real supra-national statute could be enacted. The Conference
was obliged to choose between the surrogates of the supra-na-
PAPER OF PROFESSOR JITTA 131

 

tional statute, and therefore to use either a system of uniform
national laws or a general treaty. The choice has been in
favor of the general treaty, a form affording contractual reci-
procity. The treaty form may have imperfections, but the
practice opens the way to betterments.

If we take into consideration the fact that no general treaty
could be concluded without the unanimous consent of all the
parties, and that it was absolutely necessary, consequently, to
respect with the greatest care the religious feelings and the
juridical individuality of the nations, we must recognize that,
in the difficult matter of domestic relations, most valuable
results have been attained.

My conclusion is, as far as the European Continent is con-
cerned, that a further development of the work may be expected,
leading to an international union for the codification of private
international law. I dare say nothing more. It would be
possible to see in the Conferences the first step towards a
jederal parliament for Europe, which would include an over-
ruling of the minority by the majority; but, although I am not
personally adverse to this, I consider it as a matter of philo-
sophical faith, and not as a logical deduction from present to
future events.

I have spoken till now of the European Continent, but cer-
tainly the question will arise if an accession to The Hague
treaties would be desirable and attainable for what I take the
liberty of calling the rest of the civilized world, and particularly
for the states of North and South America. In a general
sense, I may state that a world union would be desirable. But
there are objections. I shall not attempt to examine the whole
of the imaginable objections. Some objections may concern the
constitutional law of a country, and the learned men of that
country are the best interpreters in that case. Other objections
may be derived from religion, and are not removed by logic
only. But I will not avoid the main objection, resulting from
disputes on leading thoughts. In the matter of civil procedure
we do not find disputes of that kind; the regulation is a question
132 CONGRESS OF LAWYERS AND JURISTS

 

of mutual confidence. But in the matter of domestic relations
and succession there are at least two great controversies. I
have in view: The principle of national subjection (nationality)
in opposition to the principle of free selection (domicile); and
the principle of the unity of the estate in opposition to the dis-
tinction between movable and immovable property.

Let us begin with the opposition between subjection and
selection, or, if you like, between nationality and domicile.

Would it be possible to move the countries belonging to
the group “domicile” to accede to the group “nationality” ?

My opinion is, that it would be most difficult to obtain a
complete accession, but that it would be possible to find a com-
promise, giving to nationality and to domicile a separate domain.
When we consider the question “nationality or domicile” from
the point of view of a single nation, enacting rules in its own
national law, as an instruction for national courts in matters of
international intercourse, it is easy to make out which consid-
erations will lead the choice. When a nation has the same
civil law for the subdivisions of its territory, and when this
national law bears a clearly marked national individuality,
connected with religion and secular practice, and limiting con-
siderably, in the interest of social policy, the liberty of the
individuals, such a nation cannot admit that its own citizens
should be able to elude the national law, for instance in the
matter of marriage and divorce, by a simple emigration. The
principle of nationality is then the most natural rule for citizens
residing abroad. On the other hand, when various laws are
in force for the different subdivisions of the territory, as is the
case in several federations, there will be no objection to a rule
allowing a free selection on the part of the individuals of the
local civil law under which they choose to live, as none of these
laws may be considered as absolutely contrary to social policy.
So we find most in federations or in countries with plurality of
local civil laws the principle of domicile. Germany is the
best illustration of this distinction. So long as there have been
many various local civil laws in Germany, the principle of
PAPER OF PROFESSOR JITTA 133

 

domicile has prevailed, but after the general codification of
1900, the principle of nationality has been adopted.

An international agreement cannot admit, at the same time
and for the same points, the full force of both principles, but it
could make of the two principles parallel rules, not unlike the
rails of a railroad. Some points could be governed by the nation-
al laws for citizens abroad, and other points by the laws of their
domicile. The Hague treaties, especially in the matter of mar-
riage and divorce, have already acted in this spirit. But a result
still greater could be attained, if an agreement could be arrived
at as to the exact definition of the juridical expressions “nation-
ality” and “domicile.” The main objection of reasonable
adherents to “nationality” to the domicile rule does not so
much concern the possibility of a change of the civil law relations
during the life of men, as the great facility of a change to be
obtained by simple emigration. Even under the nationality
rule, a change can be obtained, with more or less facility, by a
naturalization. Henceforth the objection could be removed,
if the change of the civil law would be attached, not to a simple
emigration, but to a reasonably long time of residence abroad.
The long residence then would have the effects of a naturaliza-
tion, not in the political sense, but with respect to points of civil
law. In this way I think the evolution of the international
private law could run forward on the rails, until the days of the
substantive uniformity, a far remote day, as I fear, on account
of historical causes of obstinate conservatism, in the matter of
the family law.

Another international dispute is the well-known question of
the devolution of lands, in the matter of succession and other
relations, concerning the whole of a man’s estate. My opinion
is that here also an agreement is attainable. The economical
constitution of immovable property is a matter of local policy,
and therefore it must not be possible to acquire on lands other
rights than those admitted by the local law; and it is necessary
to state also that the external conditions, enacted by the local
law in the social interest, must be observed, but I do not see the
134 CONGRESS OF LAWYERS AND JURISTS

 

necessity to submit the legal succession to the lands belonging
to the deceased to the law of the location of the lands. I am
aware of the fact that a regulation in this spirit involves a
partial sacrifice of a rule consecrated by the practice of many
centuries, but if the sacrifice could be reduced, by mutual agree-
ment, to a minimum, and compensated by sacrifices on the
other side for other matters, I feel confident that it is possible
of attainment.

My final conclusion is that, in a spirit of conciliation, The
Hague Conferences could afford, for the civilized world in
general, what they have afforded for the European Continent: a
center of action and a practical form for collective civil legisla-
tion.

Accession to The Hague treaties, or at least the participation
in further conferences, is worth being taken into serious con-
sideration by the whole of the civilized world. If the Universal
Congress of Lawyers and Jurists, assembled at St. Louis, could
bring that participation nearer to its realization, it would be a
noble work of peace and justice, and a boon to mankind.
[Applause.]

The PRESIDENT:

Doubtless many of you will feel such interest in the question
so ably presented by Dr. Jirra, and to be considered and dis-
cussed hereafter in other papers, that you may want, some of
you at least, to join in the discussion. I beg leave to call your
attention to the fact that the rules provide, although we put them
aside this morning in order to have some general talk, that those
who wish to take part in the discussion shall send up beforehand
their names to the Chair, in order that they may be called upon,
if time permits.

I now have the pleasure of introducing to you Professor
MEI1I, of the University of Zurich, Switzerland, who will con-
tinue the discussion of this same subject.
PAPER OF PROFESSOR MEILI 135

 

A ReEvIEw OF THE Four HaGuE CONFERENCES ON
PRIVATE INTERNATIONAL LAW, THE OBJECT OF THE
CONFERENCES, AND PROBABLE RESULTS,

A PAPER BY

Dr. F. Metz, Professor in the University of Zurich,
Switzerland, a Delegate-at-large:

In speaking to-day of the great theoretical progress" made
by international law, one is apt to think, in the first instance,
of the Peace Conference. And yet, preceding as well as suc-
ceeding it, there were other such Conferences of no less impor-
tance, though dealing with the regulation of international
private law. These Conferences constitute the subject of this
paper. Almost the whole of Europe assembled at The Hague in
1893 and 1894 at the invitation of the Government of the Nether-
lands; diplomats and international jurists represented their
governments at the Conferences. At the First Conference the
following countries were represented:

1. THE GERMAN EMPIRE. 8. LUXEMBURG.
2. AUSTRO-HUNGARY. g. NETHERLANDS.
3. BELGIUM. 10. PORTUGAL.

4. DENMARK. t1. ROUMANIA.

5. SPAIN. 12. Russia.

6. FRANCE. 13. SWITZERLAND.
7. ITALY.

At the Second Conference, Sweden and Norway also par-
ticipated. Servia did not reply to the invitation, and Greece
excused its non-appearance. Great Britain referred to the
peculiar nature of English law as the reason for not sending
delegates. In 1900 all the countries named again took part.
In 1904 (May and June), a delegate appeared representing the
Empire of Japan; this fact was a surprise to certain of the
delegates. The United States of America, as also South
America, have, up to the present, taken no part whatever in
the Conferences.
136 CONGRESS OF LAWYERS AND JURISTS

 

Jurists have been occupied for centuries with the question
as to what principles shall apply when two or more systems of
law appear to be applicable to the solving of a dispute of law;
the problem arises frequently by reason of the great mutual
intercourse between subjects of the different states. Histori-
cally, the question dates back as far as early medieval Europe,
and found special treatment in the Italian cities. Among
others, the question was taken up by BARTOLUS (1314-1355 OF
1357) whom PHILLmMorE, with a slight exaggeration, denotes in
his Commentaries upon International Law (IV., 3d ed., p. 19)
as ‘“‘the fountain of private international jurisprudence.’
Later it was the so-called Dutch school of the seventeenth
century which developed the theory of the collisio statutorum.
Its principal proposition was that basically no state was obliged
to take cognizance of foreign private law, and did so only out of
courtesy. English and Scotch jurists derived their education
largely from the Netherlands in the seventeenth century, and
it was they who established this doctrine in England. As the
English colonists took the English common law with them to
America (Comp. 1 Kent’s Commentaries on American Law,
Pp. 343), the whole complex of views upon international private
law went over to this country as a kind of article of export.’

There is no doubt that the principal English and American

1T refer in this connection tomy handbook (Zurich, 1902): Das internation-
ale Civil und Handelsrecht auf Grund der Theorie, Gesetzgebung und Praxis.
It may be of interest to the legal profession in general to know that Mr. ARTHUR
K. Kun, a member of the New York bar, now engaged in the study of inter-
national law at the University of Zurich, has translated this work into the Eng-
lish language, with additions as to the American and English theory and prac-
tice, under the title, International Civil and Commercial Law as Founded upon
Theory, Legislation and Practice, and that the work will shortly be published.
It has also been translated into Japanese.

? That passage in KENT is extraordinarily fine wherein he states the follow-
ing as to the English common law: ‘‘In its improved condition in this country
under the benign influence of an expanded commerce, of enlightened justice, of
republican principles, and of sound philosophy, the common law has become a
code of matured ethics to promote and secure the freedom and happiness of
social life... .. It is the common jurisprudence of the United States, and was
brought with them as colonists from England and established here, so far as
it was adapted to our institutions and circumstances. It was claimed by the
Congress of the United Colonies in 1774 as a branch of those ‘indubitable
rights and liberties to which the respective colonies are entitled.’’’ Kent fol-
lows this up with a poetic effusion upon the value of the common law.
PAPER OF PROFESSOR MEILI 137

 

authors consider the so-called comitas gentiwm as the basis of
private international law. Kent and Story, PHILLimore (Vol.
IV. is entitled Private International Law or Comity) and Twiss
(Law of Nations, 1, p. 160) have expressed this view. It is true
WHARTON (Conflict of Laws, §1) opposes this, and LorIMER
used even more energetic terms when he said (Institutes of the
Law oj Nations, 1, p. 357) ‘‘Private international relations are
relations of right on the one hand and duty on the other’; and
then afterwards he calls the comitas gentium ‘“‘an old woman’s
fable.” However, notwithstanding this energetic opposition,
it must be said that the Anglo-American theory of international
private law suffers from being placed upon so unsound a basis.

In view of the fact that most of the nations of Europe under
the leadership of the Netherlands have entered into confer-
ences for the purpose of settling questions of private inter-
national intercourse, in the most expedient way, by the estab-
lishment of binding rules, we may say that they have definitely
broken away from that historical epoch wherein the question
was merely deemed one of favor or courtesy. Two propositions
are thus embraced:

1. Foreign private law is, upon principle, of the same value
as the internal.

2. There is a legal duty to apply foreign private law to an
issue when it is subjected thereto.

As the European international conferences have now been
repeatedly held, and as rules have been accepted for solving
conflicts of law, theories many centuries old may be deemed as
surrendered and definitely done away with.

As it is my purpose to discuss the principal questions of
the four Hague Conferences, it will be necessary to sketch the
results in outline, avoiding all detail. Some slight indication
of the manner of procedure, however, will be in point. From
the First Conference, it was self-understood that the French
language should be the medium of expression, and so it remained.
Then, too, from the very beginning, committees were appointed
to discuss particular topics more freely and in detail, and thus
138 CONGRESS OF LAWYERS AND JURISTS

 

to arrive at concrete solutions. From 1900 onward a splendid
practice arose of having the various governments assume atti-
tudes with regard to concrete questions. The Government of
the Netherlands then collected these comments and proposi-
tions and sent them in due time to the various governments
with those of the special committee of the Netherlands. The
president of the committee for the time being also prepared
the detailed report and proposal to lay before the Conference as a
whole; sometimes a special appointment was made for a report.
The preparation of the report is a very laborious task, and we
were often obliged to appeal to the untiring courtesy of the
French delegates.’ The report was first examined and discussed
by the members of the committee. The topic then came for
discussion before the entire Conference, where, of course, any
delegate could propose amendments. As a rule there were
two readings. The second was usually intended only for cor-
rection of the text and for further discussing and voting upon
the questions. Still, there were exceptions, as, for instance,
where at the last moment the president of the Conference dis-
covered some new combination for the solution of existing
differences. But this did not often occur. State-Councilor
ASSER, who was re-elected president at each of the four Con-
ferences, proved himself so much the soul of the whole enter-
prise as always to discover a solution at the proper time.

The four international Conferences already held have under-
taken the most varied topics.

The work of the international Conferences should properly
be divided into three groups, for they represent subjects which,
on principle, should be kept separate:

(A) INTERNATIONAL CIVIL PROCEDURE.
(B) INTERNATIONAL PRIVATE Law.
(C) INTERNATIONAL BANKRUPTCY Law.
"It is a privilege for me to refer here, with particular recognition, to the ser-

vices of the celebrated French internationalist, L. RENAULT, under whose presi-
dence I labored at each Conference.
PAPER OF PROFESSOR MEILI 139

 

A
CONCERNING INTERNATIONAL CIVIL PROCEDURE

In 1899 a treaty was ratified between the fourteen nations
which were represented at the Second Conference. It bears
the following title: Convention pour établir des régles communes
concernant plusieurs matiéres de droit international privé se
rapportant a la procédure civile. The exchange of ratifications
occurred April 27, 1899. The duration of the treaty was for
five years, i. e., until April 27, 1904; but as no state gave notice
of termination before that time, the treaty is extended until
April 27, 1909, in accordance with an express provision.’ In
view of the fact that practice has shown a number of defects in
this treaty its revision was part of the order of the day for
the Conference of 1904, and in fact a new treaty has been
elaborated to take the place of the old; naturally the contract-
ing states are at liberty to conclude a new treaty at any time.
The present Hague Convention deals with the following
topics:

a) Communication of acts, judicial and extra-judicial
(notices, transfers, citations).

b) Rogatory letters or commissions.

c) Alien security.

d) Procedure in the case of poor persons.

e) Imprisonment for debt (contrainte par corps).

The provisions upon all these subjects are those which are
of importance to international intercourse—the internal or local
law remained for the most part untouched. Thus, for instance,
imprisonment for debt was not directly done away with, but it

1 The treaty is printed in French and German in the appendix to my pam-
phlet Das internationale Privatrecht und die Staatenkonjerenzen im Haag
(Zurich, 1900). See also C. D. AssER in Report of the Twentieth Conference
of the International Law Association (London, 1901), p- 299. The text is
printed in English at p. 305. See also T. M. C. Asser: La convention de la
Haye du 14 Novembre, 1890, relative 4 la procédure civile (1901).
140 CONGRESS OF LAWYERS AND JURISTS

 

was stated to be applicable as against aliens only in case it was
permissible against native subjects.’

Throughout the territory in which the treaty is in effect, the
communication of legal acts (in the broadest sense) has been
elevated to the position of a formal obligation in international
law, and a refusal is justifiable only in the event of most par-
ticular reasons.”

So far as citations are concerned, it is obviously a demand
of justice that the particular person shall actually receive them
when in a foreign country, for otherwise the action will have
been based upon a doubtful fiction. A certain guaranty for the
fulfilment of this requirement has been obtained in so far as
the forwarding of documents is now a treaty obligation. On
the other hand, it cannot be denied that the system existing in
some European countries, of a remise au parquet (France,
Italy),* or the delivery of the citation to the clerk of the court
(Austria), has not yet been done away with. The question has
arisen in practice as to whether the communication of legal
documents, provided for in Article 1 of the treaty, is completed
upon delivery to the local officials, or not until delivered to the
addressee. But the Conference did not wish to encroach upon
the internal law of procedure, and to this effect the treaty had
been interpreted in the reports elaborated in the several states,
in connection with the granting of the parliamentary sanction.
At the Fourth Conference the matter was made entirely clear.
Belgium proposed bluntly to insert the following clause in the
treaty:

“La signification ne produit son effet qu’a partir de l’'accomplisse-
ment de ces formalités” (i. e., after actual delivery to the party des-
ignated).

1 Comp. KLEINFELLER, Ueber den Einfluss der Konkurseréffnung au} die Per-
sonalhajt mit Ricksicht aut Art. 17 des Haager Abkommens, in Z. fur inter-
nationales Privat-und éffentliches Recht, XIII, pp. 1-11. The statement made
in my book: Das internationale Zivilprozessrecht auf grund der Theorie, Geseta-
gebung und Praxis, Zurich, 1904, p. 30, is subject to correction.

? This has also been properly stated by C. D. AssER, cited supra p. 301.
Comp. also my book, Das internationale Zivilprozessrecht.

®> Comp. my Internationales Zivilprozessrecht, p. 182, et seq.
PAPER OF PROFESSOR MEILI I4I

 

But the Fourth Conference refused to go so far, and merely
expressed the wish that the system of remise au parquet (and the
like) should be abolished by means of revision of the internal
law or by treaty. It is precisely here that the Conference showed
clearly how carefully it avoided encroaching upon the positive
legislation of the various states. I also voted to this effect,
although I regret exceedingly the existence of such systems.

Particularly important for the development of the law is the
provision whereby the states obligate themselves for the execu-
tion oj letters rogatory. Within the territory affected by The
Hague treaty, a peculiarly important obligation of international
law has thus been established, and I hasten to add that the revis-
ory project of 1904 has even strengthened it (see e. g. Art. 11).
The proposition was also established, that if the court to which
the commission is addressed is, or is no longer competent, it
shall be forwarded to the court actually competent. And as to
the revision of 1904 the following important addition was made
(Art. 11):

“L’autorité requérante sera, si elle le demande, informée de la
date et du lieu oi il sera procédé 4 la mesure sollicitée afin que la
partie intéressée soit en état d’y assister.”’

The present convention placed the right to accord or refuse
assistance by way of the execution of letters rogatory (and the
delivery of documents) within positive boundaries, in that
Art. 2 (see also Art. 7) provides that a refusal is justifiable,
only if the state within which the assistance is to be accorded
is of the opinion that its sovereignty or safety is endangered.
It was intended in this way that international assistance should
be extended. But it cannot be demanded, for example, where
the inquiry concerns matters which the nation whose aid is
required deems a state secret or which refer to secret govern-
mental information.’

Of further importance is the fact that the treaty provides
that attention may be given to some particular forms of law of
the state from which the commission emanates (Art. 10). Some

1 Comp. as to the details of my book, Internationales Zivilprozessrecht, p. 55.
142 CONGRESS OF LAWYERS AND JURISTS

 

systems of law forbid an oath to be taken by the parties to the
action, witnesses or experts, or which do not permit the presence
of the parties and their representatives at the taking of testi-
mony. In such cases a concession may be made ex comitate
gentium if the state from which the commission emanates makes
the request and the state executing it does not forbid the pro-
cedure desired.

The original treaty did not regulate the question of the
costs of commissions, but the revisory project of 1904 has done
so; it establishes the proposition that commissions are to be
executed without costs, except the expenses of witnesses and
experts and those costs which arise from the intervention of an
official (huissier) for the purpose of compulsory citation of wit-
nesses (Art. 16). If this principle be accepted, the proposition
will have been recognized that the according of assistance in
legal matters, in the broadest sense of the term, is a universal
duty on the part of the nations.

The Hague treaty abolished also alien security, or that
which a plaintiff was obliged to give by reason of being a foreign
subject, or of having no residence in the inland. Herein lies,
in my opinion, very considerable progress, as the giving of
security unreasonably impedes the prosecution of subjective
rights. On the other hand, the international execution of
judgments has been secured so far as concerns processual
costs. As is well known, the question of the execution of
foreign judgments is the most difficult to be found anywhere.
Both the Institut de droit international and the International
Law Association have labored strenuously in this connection’
and their work is to be deservedly appreciated. At the meet-
ing of the International Law Association at Rouen in 1900 a
project was advanced by ALDERSON FooTE which is printed in
English in the Report of the Nineteenth Conference (London,
1900) p. 196 et seg., and in French at p. 204. To this project
certain amendments were proposed for the meeting in Glasgow

‘I refer to my publication, Geschichte und System des internationalen
Privatrechts im Grundriss (Leipzig, 1892), pp. 170, 171; and also to my pam-
phlet, Reflexionen iiber die Exekution auswartiger Zivilurteile (Zurich, 1902).
PAPER OF PROFESSOR MEILI 143

 

(Report of the Twentieth Conference, pp. 274 et seg.). A num-
ber of critical remarks are also to be found in the later report,
pp. 282-208.

The question of the execution of judgments was again dis-
cussed at the meeting of the International Law Association
in Glasgow in 1901, but no conclusion was reached (Report of
the Twentieth Conference, London, 1901, pp. 309-325).

The International Law Association has lately concluded
to limit an agreement as to the recognition of foreign judgments,
to judgments for a sum of money. Art. 1 of the draft reads as
follows:

(Report of the Nineteenth Conference London, 1901, pp.
196, 197.)

“This convention shall relate to and operate in respect to the
following judgments only, viz, judgments for the payment of an

ascertained sum of money, whether by way of debt, damages or
costs, by one person to another... . . 8

To Art. 1 of the project of A. Foote there is the following
note:

(Report of the Nineteenth Conjerence 1900, London, 1901,
P. 197-)

“Tt is suggested that there is no practical chance of obtaining
legislation, or even agreement, at any rate for the present, except by
confining the attempt to the simple case of a judgment in personam
for an ascertained sum of money.”

It is just these experiences which the two principal societies
upon international law have made, that give manifest proof
that the international conferences have acted wisely in being
satisfied for the present with the proposition that judgments for
costs shall be executed by the states. Progress in the world
almost always starts in a small way, and if the matter proves
satisfactory as to that much, greater results can so much more
surely be expected in the same direction. I may add that the
Fourth Conference, of 1904, engaged itself more in detail with
this fragment for the execution of judgments, and especially
that the gratuitousness of the execution was agreed upon (Art.
144 CONGRESS OF LAWYERS AND JURISTS

 

18). I would like, furthermore, to emphasize that the whole
subject was formerly attacked in the wrong way. Its regulation
can be arrived at correctly only in connection with an agreement
as to the fora.’

Finally, The Hague Convention contains a provision in
javor of poor persons. Foreign subjects shall be admitted to
the privileges of poor persons equally with natives. In my
opinion, this represents progress from the point of view of
international philanthropy. There are those who include
hereunder the exemption from giving security and the right
to gratuitous representation. In this connection, reference
may be made toa report of CotpsTREAM of Edinburg: “The
expediency of uniformity in the procedure of the costs of civilized
countries with regard to pauper litigants,” and to the Twenty-
first Report oj the International Law Association, p. 39.

B
CONCERNING INTERNATIONAL PRivaTE LAW

The Hague Conference elaborated draft treaties dealing
with conflicts in various departments of the private law, viz:

a) Upon certain topics of family law?

a] Entrance into marriage.
&] Divorce.
¥] Guardianship of minors.

Each one of these topics is treated of in a convention. The
three treaties were accepted by the parliaments of the following
seven nations, ratifications being exchanged on the first day of
June, 1904, at The Hague, while we were assembled at the

I developed this idea further in my pamphlet, Reflexionen tiber die Exe-
kution auswartiger Zivilurteile. Naturally, I will again recur to it in the last
part of my book, Das internationale Zivilprozessrecht.

* Upon the two treaties regarding entrance into marriage and divorce, cer-
tain comments are to be found in the work of LesKe and LOWENFELD: Die
Rechtsverfolgung im internationalen Verkehr. Fourth volume: Das Eherecht
der europdischen Staaten und ihrer Kolonien, 1904, pp. 986-996.
PAPER OF PROFESSOR MEILI 145

 

Fourth Conference:' France, Germany, Belgium, Netherlands,
Luxemburg, Roumania, and Sweden.

The other nations have not yet expressed a determination
to join, though Austro-Hungary, Italy, and probably also
Spain and Portugal will do so before the end of 1904. Switzer-
land has, for various reasons, not been in a hurry to lay the
matter before the federal parliament. In the first place, the
concessions demanded for the benefit of the domiciliary law in
regard to guardianship were not made, and furthermore, a
difficult situation is presented for the reason that the work of
codifying a civil code is just now occupying foremost attention.

b) Upon the effects of marriage upon the personal rights of
Spouses and their rights of property.

In its projet de programme of December, 1897, the Govern-
ment of the Netherlands proposed a draft entitled, “ Disposi-
tions concernant les effets du mariage sur les biens des époux.” *
It was proposed to divide the subject-matter for the Third Con-
ference as follows:

“A. Les effets du mariage sur l'état et la capacité de la femme
(Documents relatifs 4 la quatrieme Conférence, 1904, p. 52).
“B. Les effets du mariage sur les biens des époux (Documents,

p- 64).
“C. Les effets du divorce et de la séparation de corps (Documents,

p. 80).”

The Fourth Conference then worked out a uniform project
entitled:

“Projet d’une convention concernant les conflits de lois relatifs
aux effets du mariage sur les droits et les devoirs des époux dans
leurs rapports personnels et sur les biens des €poux.”

1 Simeon E. BALDWIN discusses these treaties under the title, The New
Code of International Family Law (Yale Law Journal, June, 1903, p. 487). This
author is in error, however, in stating that the treaties went into effect, as to most
of the participating nations, on August 12, 1902. He was led to believe that
the signing by the diplomatic representatives on June 12, 1902, already in-
volved the exchange of ratifications.

2 The project is printed in my pamphlet, Das internationale Privatrecht
und die Staatenkonjerenzen im Haag, pp. 60, 61.
146 CONGRESS OF LAWYERS AND JURISTS

 

Meanwhile, I may mention here, that this projected treaty
is not yet ripe for acceptance; there was such an extraordinary
number of difficulties discovered when it was tested in detail,
that a more far-reaching study of it is required. Under these
circumstances, it would not be to the purpose to discuss it
further here.’

c) Upon the law of succession. The First Conference was
already well aware that the proposal could not be viewed as a
definite one, for even the introduction (Actes de la Conférence,
I partie) contained a reservation (sous la réserve expresse des
dérogations que chaque état pourra juger nécessaire, au point de
vue du droit public ou de l’intéret social... .). The Second
Conference again occupied itself with the subject (Actes de la
deuxiéme Conférence, p. 125), as did also the Third Conference
(Actes de la troisiéme Conférence, p. 107), which elaborated
a draft treaty entitled:

“Projet d’une Convention pour régler les conflits de lois relative-

ment aux successions, aux testaments, et aux donations 4 cause de
mort.”

But this treaty was not received with enthusiasm by the
participating nations, and the Government of the Netherlands
preferred not to advise a preliminary signing by the diplomats.
It thus becomes clear how the Fourth Conference again took up
the subject upon the basis of a whole series of criticisms made
by the several nations (Documents relatifs a la quatriéme Con-
jérence, 1904, p. 28). At the Fourth Conference, a tendency was
shown to deal only with certain isolated questions of the law
of succession and not with all the questions connected there-
with. It was, moreover, expressly declared that the convention
was not intended to regulate:

2) gifts,

4) contracts for succession,

vr) the position of juristic persons in matters of succes-
sion.

‘I refer to my pamphlet, Das internationale Privatrecht und die Staaten-
konferenzen im Haag, pp. 60-66.
PAPER OF PROFESSOR MEILI 147

 

Thus it comes that the draft convention now bears the title:

“Projet d’une Convention sur le conflit de lois en matiére de suc-
cessions et de testaments.’’

The Conference of 1904 expressed the following desire:

“Que le Gouvernment des Pays-Bas veuille bien, aussitét que
possible aprés la signature de la Convention sur les successions et les
testaments, convoquer une nouvelle Conférence, qui aurait pour
mandat de préparer le protocole additionel visé 4 l’art. 6, §2 de la
dite Convention aussi que la Convention relative 4 la compétence et
fl la pews en matiére de successions et de testaments visée 4

art, 8.

Art. 6, Sec. 2, here cited, refers to the specification of impera-
tive or prohibitive rules of law, the applications of which are
demanded _ by the internal or local law, even though a foreign
system of law, in successory matters, be applicable in other
respects.

And Art. 8 provides:

“Aussitét que possible aprés la signature de la présente Conven-
tion, les Etats contractants établiront d’un commun accord les
régles concernant la compétence et la procédure en matiére de suc-
cessions et de testaments.

“La convention contenant ces régles sera ratifiée en méme temps
que la présente Convention.”

The conventions bearing upon private law prepared at The

Hague refer to family law and succession; it would seem
appropriate to discuss briefly their principal features.

1. THE CONVENTION UPON MARRIAGE

This convention refers only to the conditions necessary for
the validity of the marriage, and in this connection sets up the
following rules—I will here again restrict myself to the main
points:

“Art. 1. The right of contracting marriage is determined by the
national law of each of the parties intending to be married... . ”

The standard rule for the solution of conflicts of law in
Continental Europe is the national law, whenever the question
148 CONGRESS OF LAWYERS AND JURISTS

 

is one of the so-called personal statute, and this arises when
capacity inherent in personal rights is under discussion. This
embraces, without doubt, the capacity to enter into marriage.
The laws of the nations of Continental Europe hold that the
national state alone is in proper position to determine the con-
ditions necessary for the conclusion of the marriage tie. Of
special importance in this connection is the age necessary,
which varies with climatic conditions. There are then an
array of further points connected with social and moral order,
as, for instance, impediments connected with relationship. Ji
is intended in Europe that authoritative control by the lex
patriae shall be a guaranty that the spouses shall not conjure
with the local laws by placing themselves, jor a shorter or
longer time, under a different system of law. Art. 1 is thus
explained.

Upon this momentous question, the English-American con-
ception differs from that of Continental Europe; for there it
depends upon the law of the domicile, yea, even that of the
mere place of sojourn. And I must add that England became
the matrimonial Eldorado for persons desirous of marrying and
who were unable to reach the goal in Continental Europe, much
in the same way as was Scotland for English men and women,
when Gretna Green marriages played a réle. In fact, so long as
conditions for the validity of a marriage are less irksome in
other more or less accessible countries, it is really only a question
of the pocket-book, whether the marriage cannot be entered into
in opposition to the national law. The Hague Convention in-
tends that an end shall be put to this situation within the territory
it affects.

It is true, however, that the principle has been moderated
so as particularly to meet the demands of Switzerland. The
following clause has been added:

“|... unless such national law refers expressly to some other
law.”

Art. 25 of the Swiss federal statute upon civil status and
marriages provides:
PAPER OF PROFESSOR MEILI 149

 

“Sera reconnu comme valable dans toute la Confédération le
mariage conclu dans les cantons ou 4 l’éranger, conformément & la
législation qui y est en vigueur.”

And the clause cited represents a concession made to Switzer-
land. I pointed out at the time before the committee on mar-
riage law that there was no sufficient ground to force Switzerland
to refer to the national law, upon a topic in which her laws were
so international in spirit as to recognize all marriages concluded
abroad according to the law there in force.

It was further said, that the legislation of the domicile
should also be given a certain influence, because it cannot per-
mit the conclusion of a marriage under all circumstances simply
because the national law permits it. The international con-
ferences found that in certain particularly salient cases, the
domiciliary state need on no account permit the conclusion of
a marriage. Three cases are cited in Art. 2, which reads as
follows:

“ArT. 2. The law Loci Celebrationis can refuse to marry aliens if
their marriage would be contrary to its own laws regarding:

“rst. Prohibited degrees of relationship for which there is an
absolute prohibition.

“ad. Absolute prohibition to marry brought against parties
guilty of adultery, for which reason the marriage of one of them
has been dissolved.

“3d. Prohibition to intermarry brought against persons con-

demned for having attempted to murder the husband or wife of
one of the parties.”

It is then further provided:

“A marriage performed contrary to one of the above-mentioned
prescriptions shall not be void, provided it would be valid according
to the law referred to in Art. 1.”

“Art. 3. The Lex Loci Celebrationis can permit marriage of
aliens notwithstanding the prohibitions of the law mentioned in
Art. 1, when these are exclusively founded on reasons of religious
character; but the other countries have the right not to consider as
valid a marriage performed under such circumstances.”

The conference has here tempered the influence of the
national law in the interest of the freedom of the marriage tie.
150 CONGRESS OF LAWYERS AND JURISTS

 

Where the national law forbids a marriage for religious reasons,
e. g., between Christians and Jews, another state is not obliged
to forbid the conclusion of the marriage. This would be in
contravention of the great principle of freedom, and I moved
the committee at the time to respect it, and succeeded (Actes
de la troisiéme Conférence, 1900, p. 174). A balance upon
this proposition lies in the fact that other nations (besides
that of the lex loci celebrationis) may regard such a marriage
as invalid.

I will cite still another provision, viz:

“Art. 5. The marriage performed in accordance with the law
Loci Celebrationis will be as regards its form everywhere considered
a valid marriage.

“Tt is, however, understood that countries whose legislation
requires a religious marriage ceremony will be free to consider as
invalid a marriage performed by their subjects abroad, where this
religious requirement has not been fulfilled.

“The requirements of the national law re publications must be
fulfilled, but the absence of these publications will not render the
marriage voidable in other countries, excepting in those countries
whose laws have been disregarded.

“An authentic copy of the Marriage Act shall be sent to the
authorities of the countries of both husband and wife.”

The well-known rule of locus regit actum is here also appli-
cable. But at the demand of Russia we agreed to a modifi-
cation of the rule, as this nation only recognizes marriages
solemnized by its church. It is for this reason that orthodox
Russians marrying in Switzerland are always notified to have
their marriage solemnized at the Russian church in Geneva,
after the civil ceremony. According to Art. 5, Russia is entitled
to regard marriages performed abroad without a solemnization
by the Russian church as invalid within its territory. But
this concession was not sufficient for Russia, and it did not join
the convention; it advanced the pretention that marriages
of Russians performed abroad according to the form of civil
ceremony there in force, should be regarded as invalid every-
where. This unwarranted mastery by the lex patriae could
not be acceded to by us. As Russia therefore did not join the
PAPER OF PROFESSOR MEILI 151

 

convention, the concession made for it was useless. The result
shows that, under circumstances, too much courtesy can be
shown to a state!

2. THE TREATY UPON DIVORCE

The regulation of divorce in international matters was
equally as important as that of the entrance into marriage.
As early as the First Conference, I moved (Actes, 1893, p. 71)
that this subject be placed upon the ¢ractandum list. I will
take up two questions here.

1. It was difficult to find a principle to serve as a solution
here, in view of the fact that legislation upon divorce differs
greatly throughout the world; that particularly certain Catholic
countries (Austria, Italy, Spain, Portugal) recognize only a
séparation de corps of their Catholic subjects and not an absolute
divorce; that other nations only permit of the latter; that cer-
tain systems of law recognize many grounds for divorce, while
others have only a few (England, America). Now, the Institut
de droit international proposed the following provision in its
“‘Réglement des conflits de lois en matiére de mariage et de
divorce”

“Art. 17. La question de savoir si un divorce est légalement
admissible ou non dépend de la loi nationale des époux.

“Arr. 18. Si le divorce est admis en principe par la loi nationale,
les causes qui le motivent doivent étre celles de la loi du lieu au
Vaction est intentée.

“Te divorce ainsi prononcé par le tribunal compétent sera reconnu
partout.””

From the very beginning, I maintained before the committee
that this idea developed by the Institut represented a splendid
means of reconciling the two main principles of lex patriae and
lex domicilii. I pointed out that the primary question in this
branch of law was whether the nations recognized absolute

1It is printed in my publication, Geschichte und system des internationalen
Privatrechts im Grundriss, pp. 73-75. It has been published in Spanish by

Torres Campos, Bases de una Legislacion sobre Extraterritorialidad Madrid,
1896, pp. 188-190.
152 CONGRESS OF LAWYERS AND JURISTS

 

divorce at all, and that the particular grounds were a secondary
question. The first question should therefore be determined
by the lex patriae. If denied by the national law, the domiciliary
state cannot grant the divorce. Thus Italians, Portuguese, and
Spaniards could not be divorced at their place of domicile,
even though the law of that place recognized absolute divorce.
If, however, the national state permits of divorce, the grounds
of divorce will be determined by the law of the domicile.

But this sententia media advanced by me did not gain a
victory in the committee.

In 1894 the opinions were much divided but in 1900 the
idea was adopted which the majority had already in 1894. It
was demanded that both the national and the domiciliary state
must recognize the institution of divorce, and that also the
grounds of divorce must exist according to both systems of law.
The same principle was adopted as to the séparation de corps.
The authoritative rules read as follows (and I note that a small
change was made in the first paragraph of Art. 2 through
diplomatic negotiations) : 5

“ArT. 1. Les époux ne peuvent former une demande en divorce
que si leur loi nationale et la loi du licu ot Ja demande est formée,
admettent le divorce l’un et l’autre.

“Tl en est de méme de la séparation de corps.

“Art. 2. Le divorce ne peut étre demandé que si, dans le cas dont
il s’agit, il est admis & la fois par la loi nationale des époux et par la
loi du lieu ot la demande est formée, encore que ce soit pour des

causes différentes.
“Tl en est de méme de la séparation de corps.”’

It is true that a small modification of the principle was
made because in Italy divorces have been granted to aliens
where their national law so permits, although Italy itself did
not recognize the institute of divorce at the time. The case is
very remarkable, but the matter is settled. It is a kind of dis-
counting of the divorce project in Italy.’

I cannot say that the provisions of Arts. 1 and 2 have my

* Comp. my publication, Das internationale Privatrecht und die Staatenkon-
ferenzen im Haag, pp. 51-53.
PAPER OF PROFESSOR MEILI 153

 

full sympathy; for in the particular case, it may be very difficult
to prove a concordance between two systems of law, and I do
not consider it proper to try to solve the difficulties in inter-
national private law by demanding the observance oj two laws—
that means simply adding to the difficulties of the situation. It
is true, the Third Conference tempered the principle by means
of a rather subtle distinction. An accordance of the two laws
as to the ground for divorce is no longer required, but simply
that one ground shall exist by the lex patriae and another by
the lex domicilii. Each ground is then considered internation-
ally as a half-ground (demie-cause) and two half-grounds make
one whole ground. It is that which has been expressed still
clearer by the additional clause in Art. 2, encore que ce soit
pour des causes différentes.

2. Special difficulties were also presented in the variously
regulated competence of the courts' to deal with actions for
divorce. According to the English and American view, the
courts of the domicile have the right to determine actions for
divorce. From the Continental European point of view it is
surprising that a married woman may acquire an independent
domicile so as to obtain a divorce at a remote place after a
short sojourn. The exceptional peculiarities contained in the
laws of South Dakota and Oklahoma Territory have made
these places known also in Europe as divorce factories.’

Other countries accord only the national courts jurisdiction
to grant divorces to their own subjects, while others recognize
the home forum only as an exception.

The convention did not found or create any forum, but made
the jurisdiction of the court dependent upon the particular
system of law. Especially important are Arts. 5 and 7. I will
quote Art. 5.

Art. 5. La demande en divorce ot en séparation de corps peut

étre formée: on
1. Devant la juridiction compétente d’aprés la loi nationale des

époux.

1 The details are given in my Internationales Zivilprozessrecht, p. 223 et seq.
2 See Zeitschrift fiir internationales Privat-und Strajfrecht, IV, pp. 404-407.
154 CONGRESS OF LAWYERS AND JURISTS

 

2. Devant la juridiction compétente du lieu ot les époux sont
domiciliés. Si, d’aprés leur législation nationale, les époux n’ont
pas le méme domicile, la juridiction compétente est celle du domicile
du defendeur. Dans le cas d’abandon et dans le cas d’un change-
ment de domicile opéré aprés que la cause de divorce ou de sépara-
tion est intervenue, la demande peut aussi étre formée devant la
juridiction compétente du dernier domicile commun. ‘Toutefois, la
juridiction nationale est réservée dans la mesure ow cette juridiction
est seule compétente pour la demande en divorce ou en s€éparation de
corps. La juridiction étrangére reste compétente pour un mariage
qui ne peut donner lieu 4 une demande en divorce ou en séparation
de corps devant la juridiction nationale compétente.

3. THE TREATY UPON THE GUARDIANSHIP OF MINORS AND
THE DRAFT CONVENTION UPON INTERDICTION

1) Both conventions are based upon the same principle:
The lex patriae was here again the victor. Art. 1 of the Con-
vention pour régler la tutelle des mineurs reads as follows:

La tutelle d’un mineur est réglée par sa loi nationale.

And Art. 1 of the Projet d’une Convention concernant Vin-
terdiction et les mesures de protections analogues provides:

“L’interdiction est régle par la loi nationale de la personne &
interdire, sauf les dérogations a cette régle contenues dans les articles
suivants.” '

2) If the national state does not institute a guardianship
over minors, the local officials may do so, but they are here again
restricted to the grounds recognized by the national state.

In regard to interdiction (of persons physically weak or
insane, spendthrifts) Art. 7 demands that in the event of officials
of the place of sojourn instituting the proceeding, the law of
that place and of the national state must permit of it. Scien-
tifically, the cumulation of two systems of law is objectionable—
I do not find it a nice solution.

3) Interdiction produces an effect everywhere so far as the
capacity of the interdicted person to act is in question. Still,
the state of sojourn may provide that the proceeding instituted
by the foreign state must first be made publicly known there
before such effect be given it. The limitation upon the capacity
PAPER OF PROFESSOR MEILI 155

 

to act will then date only from that time forth as against inno-
cent third parties.

Art. 9 is not intended to mean that every interdiction, e. g.,
also that based upon a declaration of weakness of mind, must
be recognized everywhere. According to the Actes de la IV
Conjérence, the question of personal freedom remains untouched
—in the discussion my colleague Rocurn clearly explained this
question, upon which we lay great stress in Switzerland, and all
the delegates were entirely agreed in relation to it.

4. THE TREATY UPON SUCCESSION

The project elaborated in 1904 differs materially from the
earlier projects. It may be said to rest upon four principles:
1) It enacts the unity or universality of the estate; so that

immovables may not be subjected to the law of succession
in force at the place of their situation.

In Continental Europe, this rule is regarded as very
important, although France, Belgium, Netherlands,
Hungary, and Russia support a different system. The
scientific writers of all these states, however, recognize
that the condition of the law requires reform. The
estate should not be cut up and subjected to various
systems of law.

2) The estate is subjected to national law in regard to the
transfer to the heirs, the rank of the heirs, their quota,
representation, deduction for advances, and the per-
emptory quota.

Norway, Denmark, and Switzerland have up till
now supported the principle of the domicile. As rep-
resentative of Switzerland I attempted a compromise
upon the basis of the existing laws. Art. 22 of the federal
statute upon the legal relationships of persons domiciled
and sojourning, provides:

“Succession is governed according to the law of the last

domicile of the deceased.
‘“‘A person may, however, subject the succession to his
CONGRESS OF LAWYERS AND JURISTS

estate tothe law of his home country by testamentary dis-
position or contract for succession.”

This rule applies also to aliens residing in Switzer-
land (Art. 32).

I stated to the Conference.(Comp., e. g., Actes de la
troisieme Conjérence, pp. 85-87) that there should also be
a means of reconciling the domiciliary with the national
law in matters of succession. I therefore proposed,
among other things, to let the /ex patriae govern, but to
give the testator the right, by a formal act, to designate
the domiciliary law. I thus reversed the Swiss provision.
I pointed out that many individuals in modern times
are intimately connected with the domicilary state, and
therefore it is improper to restrict them to the law of
succession of the national state, to which they are bound
by weak ties only.

But the majority continued to hold the view that the
national law must alone be authoritative.

3) Aliens are upon equal footing with natives, in matters of

succession.

This had to be stated particularly, because some
countries of Europe still give prior rights to native sub-
jects over pieces of property situated in the local territory.

This rule is based upon the French law of 1819.’

4) The attempt is made to specify the so-called imperative or

prohibitive rules by means of declarations to be given
by the governments of the participating nations within
a certain time (Art. 6). This matter will be treated
further at the next Conference.

The difficult question of jurisdiction in disputes over
successions will be also discussed at the next Conference.’

*Comp. my work, Internationales Civil und Handelsrecht, Il, p. 133:
Kuhn’s translation, Sec. 136, II, 2.

? Germany elaborated a draft relating to the jurisdiction of the courts, which
is printed in my Internationales Zivilprozessrecht, p. 256 et seq.
 

PAPER OF PROFESSOR MEILI 157

Cc
CONCERNING THE INTERNATIONAL LAW OF BANKRUPTCY

The international conferences dealt here with a subject
basically differing from the others. Whereas, international
private law deals with the question whether local or foreign
private law is applicable to a particular legal relationship, or
whether in instituting a guardianship, state A is entitled to
place an individual of state B under the machinery of guardian-
ship, international bankruptcy law has for its object the deter-
mination as to whether a local bankruptcy of its own force affects
assets situated abroad, and whether a foreign bankruptcy
affects assets in the local state; so also as to what influence
bankruptcy has upon the legal position of the bankrupt inter-
nationally and as to how the various proceedings such as certifi-
cates of incomplete payment, compromise agreements, or dis-
charges are to be interpreted internationally (a question which
may also arise intercolonially). Thus it will become important
to determine how far a question is one of the internal law of
execution (procedure) and how far one of foreign substantive
law, and to what extent each shall be applied. Of course, in
international bankruptcy law, the entire subject of international
private law may come into point.’

The subject was taken up at the Second Conference (1894)
but the project then elaborated designated itself only as a prelim-
inary work (Actes de la deuxieme Conférence, 1894, pp. 59-62).
At the Third Conference, the subject was again dealt with,
but no draft resulted (Actes de la troisiéme Conjérence, pp.
147-151).

Since some considerable time, the idea thrown out by SAVIGNY
(System des rimischen Rechts, VIII, p. 283) has been widely
followed, particularly by Italian jurists, to the effect that a
bankruptcy is possible only at one place; they put the concep-
tion of the pluralité or territorialité de la faillite over against that

1This remark has already been made by Lyon-CaENn and RENAULT,
Traité de droit commercial, VIII, 3d edition, No. 1225.
158 CONGRESS OF LAWYERS AND JURISTS

 

of unité.| This principle was supported also by an inter-
national congress held at Turin, which formulated detailed
conclusions.”

The same tendency was evidenced also by the Institut de
droit international.’ It formulated in Paris, in 1894, Régles
générales sur les rapports internationaux en matiere de faillite
(Annuaire XIII, 1894-95, pp. 279-281) and Rocuin worked
out proposals for the meeting at Brussels (Annuaire XIX, 1902,
p- 115; discussion at pp. 232 e¢ seq.). The Institut concluded
to rest upon the results of the discussion—certain questions were
not determined, but were left in suspense for regulation later.
(Art. 4 of RoGutn’s proposal; the equalizing of the non-merchant
with the merchant; the position of minors, interdicted persons,
etc.; also the question of mortgages and priorities.)

The draft treaty of Montevideo (1889) also treated of bank-
ruptcy, but without establishing the rule of universality. The
provisions are printed in the papers of the International Amer-
ican Conference and are entitled, Reports of Committees and
Discussions Thereon, Vol. II, pp. 900-g02.*

The idea of the universality of bankruptcy is at first sight
most captivating. It expresses the view that bankruptcy pro-
ceedings have extraterritorial effect, that they affect all the
assets of the bankrupt wherever found, and that the adminis-
trator in bankruptcy at the place of bankruptcy may distribute
equitably for all creditors. But as soon as the question is
approached practically, it becomes clear that WHARTON (Con-
flict of Laws, §807) not unjustly speaks of the “romantic cosmo-

*Comp., e. g., GEMMA, II fallimento nei rapporti internazionali, 1897, p.
12. The whole tendency is reflected in the publication of CaRLE entitled, La
dottrina giuridica del fallimento nel diritto privato internazionale, 1872.

2? Comp. my Geschichte und System des internationalen Privatrechts im
Grundriss, pp. 176-177.

3 KoHLER very unfavorably criticises the resolutions of the Institut de droit.
(Civilistisches, Archiv 96, pp. 348-349) He says they are far from grasping the
difficulties of the question, and that their deliberations cannot be regarded as
assisting matters.

‘ The provisions are also to be found in my Kodification des internationalen
Zivil-und Handelsrechts, pp. 133-146, and in Zeitschrift fir internationales
Privat-und Straprecht, I, 480-482 (Heck).
PAPER OF PROFESSOR MEILI 159

 

politan efficacy” of the bankruptcy decree.’ To effectuate the

bankruptcy upon assets throughout the world is a matter of

extraordinary difficulty:

1. Because of the diffusion of the various parts of the estate.

2. Because of the prosecution of claims at one place—the lin-
guistic difficulties may here be referred to.

3. Circumstances which may arise may have to do with the
credibility of foreign officials, the firmness of foreign
courts in dealing with doubtful bankruptcies, and in
seeing that all creditors are treated alike. In a word,
it is a question of the most intense mutual confidence.

Under these circumstances The Hague Conjerences did not
aitempt to elaborate a drajt treaty intended to be binding upon
all the participating nations. The Conference of 1904 satisfied
itself by working out a model treaty for such nations as may
desire to enter into treaty relations upon bankruptcy with each
other, permitting each state to determine whether or not it will
conclude a treaty with any other.’

Some few such treaties have been concluded in modern
times, sanctioning, upon this modest basis and between the
states concluding them, the universality of bankruptcy proceed-
ings. In this connection, reference is to be made to the follow-
ing treaties:

1. Between France and Switzerland, 1869 (Arts. 6-9 of the treaty
on the jurisdiction of the courts treats of the law of bank-
ruptcy).

2. Between France and Belgium, 1899, Art. 8.

3. Between Wurttemberg and Switzerland, 1826. (The treaties
with Bavaria and Saxony do not go so far.)

1 Comp. also KLEINFELLER, Die Universitat der Wirkungen des Konkurseréff-
nungsbeschlusses in Zeitschrift yur internationales Privat-und offentliches Recht,
XUL, p. §49-574-

2 There are also treaties dealing with bankruptcy law among other topics, as
for instance, certain treaties concluded by the German Empire (comp. BéHNE,
Die Réumliche Herrschaft der Rechtsnormen, 1890, pp. 212-214). The settle-
ment and consular treaty of Italy with Switzerland of 1868 also contains one
provision of bankruptcy law (Art. 8).
160 CONGRESS OF LAWYERS AND JURISTS

 

III.

The question may be asked as to whether other nations of
the world, particularly England and America, are in a position
to participate in The Hague Conferences in the future, and
eventually to join the conventions and convention drafts. In
this connection the following points may be emphasized:

1. An affirmative answer may be given in regard to the con-
vention upon the international law of procedure.

Here we have a neutral subject-matter that is, notwithstand-
ing, of considerable importance to the accomplishment of
justice. It is imperative that justice shall triumph throughout
the world, and particularly also in connection with processual
manceuvres, in that the nations obligate themselves mutually
to lend a helping hand in the matter of citations, the summoning
of witnesses, the taking of expert testimony, the forwarding of
documents, and further, in that they undertake to open the
courts of justice to aliens as much as to native subjects, without
imposing security and to foreign poor persons in the same
manner as the native, etc., they elevate the cause of justice to .
the rank of humanitarianism and give it the stamp of universality.
Only in this way can they fully accomplish the ideal task of justice.

But even exclusive of the fact that this union places inter-
national justice upon the only proper basis, a much fairer
judgment of the institutions of the various nations is arrived at
by the contact of their legal systems. It is similar to the process
which the individual undergoes in studying the language and
literature of another people; it may be taken as certain, that
every one understanding the language of a foreign people will
more justly appreciate their institutions. Furthermore, the
several nations are but a part of a greater whole, and we should
be solicitous of the welfare of the whole also in the law.

2. Much more difficult is it for me to judge the situation
in regard to the questions oj international private law, embracing
the convention now ratified by seven nations and the projected
conventions.
PAPER OF PROFESSOR MEILI 161

 

In this connection it is necessary to make some general
remarks. The theories and rules of law in force throughout
the world upon international private law may be divided into
three main groups:

a. There is a group of states supporting the rule that their
subjects may rely upon their national law in private
matters even though abroad, especially in regard to the
law of persons, the family, and succession, and that
aliens may do the same in the local state. This practice
is followed by nearly the whole of Europe with the excep-
tion of England, Denmark, Norway, and Switzerland.

b. There is a group of states in which the law of the momentary
domicile controls. This is, according to WHARTON, the
law of the United States of America and also the law of
the Province of Quebec, by virtue of a number of pro-
visions of the Civil Code of Lower Canada, e. g., Arts.
6, 7, 8, 135, 599, 600, 776;' this is also the law of Argen-
tine and of the treaty of Montevideo.

WHarTON, in his Conflict of Laws, Sec. 8, calls
nationality an ‘“‘unfair standard of personal law.”

c. Another group of states looks solely to the law of the place
where the parties are located. This is the English view.
The American jurist DupLtey Fieip, in his Drajt
Outlines of an International Code (under title of personal
capacity) lays down the following principle (Art. 542).

The civil capacities and incapacities of an individual in
reference to a transaction with living persons, except so far as
it affects immovable property . . . . are governed by the law
of the place where the transaction is had, whatever may be
his national character or domicile or the place of his birth.
And DupLey FIELD easily deluded himself with the idea
that Europe was also tending in this direction, for he
says: “It is not the rule now recognized by European
international law although the tendency of opinion is in
this direction.”

1 Comp. E. LAFLEUR, The Conflict of Laws in the Province of Quebec (Mon-
treal, 1898).
162 CONGRESS OF LAWYERS AND JURISTS

 

A kind of juristic dogma has existed upon the Continent of
Europe for several decades, referrable to the new Italian school
founded by MANcINI, an Italian jurist and statesman, to the
effect that the national law and statute represent the authorita-
tive and only standard in international matters. Sir WALTER
PHILLIMORE, in his address before the International Law
Association at Glasgow, 1901, spoke of the ‘‘more modern
school of French jurists.”’ This is an error. The doctrine
is traceable to Italy, and hence we may speak of the new Italian
school.’ It arises partly from political considerations in that
it is believed that the development of a people into a unified
nation necessarily requires that its subjects be respected, as
such, also abroad and be considered as subject to national law
in matters of civil law. But this is also an error. I recognize
thoroughly that the lex patriae should give the standard in
many branches of international private law, but I deny that this
principle can claim absolute control; it did not stand the test
of practical life in which I was long active. I was never too
tired to point out that a reconciliation should be accomplished
between the two main principles, and I have stated that the
task of jurisprudence should be scientifically as follows:*

“We should demarcate those elements, on the one hand, which
permit the lawmaker to give effect to the law of the domicile or
sojourn, and on the other hand, those which influence him to promote

and effectuate the continuance of that public bond which connects
the individual with his native (home) state.”

I have also continually supported this idea of reconciliation

* Comp. Report of the Twentieth Conference, p. 230, where W. PHILLIMORE
says, “The more modern school of French jurists would, if I understand
them aright, reject the /ex domicilit and substitute for it the national law.”

? Comp. my handbook, Internationales Civil und Handelsrecht, I, p. 120
et seq.; KUHN’s translation, §35 e¢ seg. The first Italian school may be asso-
ciated with the name of BARTOLUS.

*I made this proposal in my pamphlet (out of print): Der erste europdische
Staatenkongress uber internationales Privatrecht (1894), p. 10; in my address,
Der internationale Geist in der Jurisprudenz (Zurich, 1897), p. 27; in my article,
Das Problem des internationale Privatrechts in Oesterreichischen Centralblatt
fur die juristische Praxis, V, pp. 193-222; in my article: Ueber das historische
Debut der Doktrin des internationalen Privat-und Strajrecht (Leipzig, 1899),
p. 12, and in my handbook: Internationales Crvil und Handelrecht, 1, p. 164-
167, KuHn’s translation §45.
PAPER OF PROFESSOR MEILI 163

 

at the Conferences (Actes 1893, p. 69; Actes 1894, p. 37; Actes

1900, pp. 85-87). And again, in 1904, I referred to the necessity

of sanctioning a sententia media—I was supported in this by

my colleague, RocuiN, with a proposal relating to succession,
although indeed I had certain doubts as to its practicability.

A reconciliation might be accomplished:

1. By setting a period of time after which aliens domiciled in
the local state shall be subject to local private law—
say a period of five or ten years. We would not by
this force aliens to surrender their foreign nationality.

2. By respecting partly the national law and partly the domi-
ciliary law. This middle way would be possible:

a. In the law of persons as to the status.
b. In family law in regard to:

a. Matrimonial property.
B. Divorce.
y. Guardianship.

3. By making children of aliens born in the local state subjects
of that state.

These ideas, I believe, would find favor more easily with
the Anglo-American legal world than with the jurists of the
European Continent. And perhaps I would have had a greater
chance of success if England and America had participated in
the Conference—at any rate, I always regretted that these
nations were missing at The Hague.’ An unlimited emphasis
of the importance of the lex patriae is injurious to the unity of
private law; for this is destroyed when aliens can claim the
application of their national law in the local state. Particularly
bad would be the situation, where (as in America and Switzer-
land) many foreigners reside. On the other hand, it is difficult

1T stated my regret at the absence of the Anglo-American race already in
my pamphlet, Der erste europdische Staatenkongress ziber das internationale
Privatrecht, Vienna, 1894, pp. 13-14. In my handbook, I, p. 23 (Kuun’s trans-
lation International Civil and Commercial Law §¢, II, 6), I pointed out that
representatives from England and America would have counteracted the exag-
gerated importance given to the lex patriae. So, also, in my Internationales

Civilprozessrecht, p. 26, SIMEON E. BALDWIN is of a contrary opinion. Comp.
Harvard Law Review, XVII, p. 402, and Columbia Law Review, IV, p. 307.
164 CONGRESS OF LAWYERS AND JURISTS

 

to fight against articles of faith in jurisprudence, for that is
really what we have in the /ex patriae principle. Small states,
like Switzerland, are in an especially unfortunate situation,
for they must follow the weight of authority of theory and
practice even though little convinced of its correctness.

I am, on the other hand, glad to see that the unlimited con-
trol of territoriality (English conception) and of the lex domicilii
(American conception: WHARTON) is being shaken. In the
address of Sir WALTER PHILLIMORE before the International
Law Association at Glasgow (Report of the Twentieth Conference,
p- 230) he makes the following noteworthy remarks in men-
tioning the new school for the application of national law: “TI
have a great sympathy with this school, and I see much that
would be gained in simplicity and certainty by substituting in
all questions of personal status the national law for the law
of the domicile.” These words represent the strongest criticism
of the comments of the most reputed English and American
authors (WESTLAKE, WHARTON, STORY, DuDLEY FIELD). Jj
these words would gradually gain favor in English and American
legal circles, there would be hope for the reconciliation of the two
main principles, as proposed by me, and it would then be possible
to accomplish unijorm rules of conflict between the Old and the
New World, by concessions made on both sides.

But, in the mean time, I seriously doubt whether the time
has yet arrived for England and America to join the conven-
tions. A different question is that, as to whether these nations
should not be represented at the conferences ad audiendum et
referendum. The divergencies in the theories upon the inter-
national private law are—even exclusive of the personal statute—
very considerable. I will here merely recall the fact that accord-
ing to one of the leading tendencies in English and American
law, immovables are governed by the law of their situation.
This is true in regard to:

a) The capacity to act.

b) The form of legal transactions.

c) The law of succession.
PAPER OF PROFESSOR MEILI 165

 

I refer to the following statements made by leading author-
ities:

Story (Conflict of Laws, §424 et seg.): ‘The general prin-
ciple of the common law is that the laws of the place where such
property is situate exclusively govern in respect to the right of
the parties, the modes of transfer, and the solemnities which
should accompany them.”

Art. 586 of DUDLEY FIELD’s code provides:

“The succession of the immovable property of one who dies
intestate as to such property is determined exclusively by the law
of the place in which the immovables are locally situate.”

WHARTON (Conflict of Laws, §560) expresses himself with
assurance as follows: ‘‘The law, both in England, the United
States, and France, is clearly settled that in those countries
in matters of succession, realty is governed by the lex rei
sitae.

Kent (Commentaries on American Law, 12 Ed. [Hotes]
II, pp- 429-431): This jurist assumes to assert that it is well
settled in the law of all civilized countries, that real property
as to its tenure, mode of enjoyment, transfer and descent, is
to be regulated by the lex loci rei sitae.

Now, it must be said that, particularly in North America,
there is no adequate legal ground for the control of the locus
of the property in regard to immovables when not concerning the
determination of real rights, for feudalism, so far as I know, was
never introduced in America as it existed in Europe. The
theory that wherever immovables are in question (the law of
persons, obligations, succession), the law of the situation of the
property must govern was brought over from England essentially
as a kind of colonial freight and England took the rule from
the Netherlands—even rules of law may be traced to race
wanderings. But even without considering feudalism and the
journey that the theory made, it is urgently to be desired that
England and America relinquish the unlimited reference of
immovables to the place of situation; the rule is to be confined
to real rights. It should especially not be applied in the law of
166 CONGRESS OF LAWYERS AND JURISTS

 

succession, because the estate as a unity can and should be
subjected to only one system of law.

Still it would be mistaking the “tempo” of history to demand
of the Anglo-American sphere of jurisprudence to alter, as it
were, from one day to the other, conceptions to which the people
have become attached. For this is required a longer time, more
detailed study, comparative research, and the enlightenment
of younger generations.

It is also true that there are European nations whose systems
of law still support the doctrines of the lex rei sitae in regard to
immovables, e. g., France, Austria, Russia. But in the first
two countries, at least, the soundness of the theory has been
entirely destroyed, and there is no longer any faith in it. Even
in Russia, the celebrated jurist v. MARTENS is against it ‘“‘en
pure théorie”” In England and America, however, it is an
article of legal faith, and we all know how difficult it is to rejorm
it; this particularly so of a people who are very conservative
in legal matters.’ No author has opposed the controlling
view in these countries.

There is perhaps one treaty, namely that upon entrance
into marriage, which might be acceptable to England and
America, for the very reason that in Art. 1 other systems,
besides the national law, are reserved for application. Refer-
ence may here again be made to a recent discussion by Sir
WALTER PHILLIMORE (Report of Twentieth Conference of the
International Law Association, 1901, p. 288 et seq.). This
jurist favors even extending the conditions for a valid marriage,
for he proposes the following (238):

“The essentials of marriage should be regulated by the personal
law and by the /ex doc’; both should be complied with.”

In my opinion, this cumulation again goes too far, but it

' Martens-Lfo, Droit international, II, p. 455.

* This is shown also as to the limitation of actions. WHARTON, §545,
points out that European jurists are opposed to determining limitations by the
lex fori; the reasons he gives are sound, but he holds to the practice. Why?
“The rule is now too firmly settled to be shaken.’” Comp. my handbook, I, p.
210: A. K. Kunn’s translation, §56.
PAPER OF PROFESSOR MEILI 167

 

shows plainly how Purititmore has relinquished the belief in
salvation solely through the lex domicilii!

The Hague conventions were the subject of a general dis-
cussion before the International Law Association in Antwerp,
1903. Sir WALTER PHILLIMORE made an address also here and
discussed ‘“‘the advisability of the British Government taking
part in the legal conference at The Hague on private inter-
national law” (Report of Twenty-first Conference, 1904, p. 80).
PHILLIMORE here regretted that Great Britain has, up to the
present, not participated in The Hague Conference (and also in
other conferences upon maritime law). Sir WitiAM KENNEDY
(Judge of the High Court of Justice in London) proposed a
resolution (p. 85) which was accepted (p. 93):

“That this Conference, considering the great importance of the
co-operation of the Government of Great Britain in relation to
International Conventions for such purposes as are set forth in Sir
WALTER PHILLIMORE’s paper, resolves that it is desirable that the
Executive Council of this Association should take steps respectfully
to lay before the British Government the points dealt with in that
paper, together with this resolution, and to obtain permission for the
audience of a deputation for the purpose.”

But even though, in my opinion, the time zs not yet ripe
for England and America to join all The Hague conventions,
the time may, nevertheless, become ripe. This is the hope I
wish to express here, and this leads me to a brief recapitulation

of my ideas.
RESUME
The significance and scope of the Conferences which have
taken place at The Hague so far as concerns other nations may
be recapitulated as follows:
I. It has been proved in Europe that the gradual elaboration of

rules upon the private conflicts of law, or if one prefers, a code of
international private law, by means of treaties,’ is not an illusion.

1 Comp. Fr. Kaun, Die einheitliche Kodifikation des internationalen Privat-
rechts durch Staatsvertrage, (Leipzig, 1904); Contuzzi, Le conjferenze di diritto
internazionale privato all’Aja, (Napoli, 1904), advances some general views
upon the duty of Europe to codify international private law upon the basis of
the international conferences held at The Hague (pp. 312-320).
168 CONGRESS OF LAWYERS AND JURISTS

 

Speaking generally, this result of The Hague Conferences
is of the highest importance, for it furnishes a noteworthy con-
trast to the treaty projects elaborated by the South and Central
American states at Lima in 1878 and at Montevideo in 1889.’

II. It is of special importance to note that the only proper
procedure was adopted at The Hague; the details of the ques-
tions must be approached and the time of general axioms, the
significance of which were for so many centuries held in the
foreground, has passed away.

Further endeavors must be characterized by the same speciali-
zation of the questions, as has already proved so practical.

III. It is indeed true that after four conferences held at The
Hague we are merely at the beginning of our task, and that it is
particularly necessary to cultivate the study of international
private law in all countries more thoroughly and in detail than
heretofore. A noble competition should be called forth among
the jurists of the whole world. Only thus can the universal
uniformity of the rules of conflict be kept seriously in mind.
This international ‘ractandum must, of course, be approached
from the international and universalistic point of view if it is to
be properly accomplished.

In order to arrive at a practical result, various dangers must
be avoided.

IV. The subject-matter must be approached in a system-
atic and methodical] manner, and all hurry and stress should be
carefully avoided. There is plenty of time at the disposal of the
world’s progress.” Of course, all progress demands a certain
trend toward ideal,’ but the attempt to complete a great plan

1T have had these treaty projects re-printed in my publication, Die Kodifika-
tion des internationalen Crvil-und Handelsrecht (Leipzig, 1891).

? BROCHER, Cours de droit international privé suivant les principes consacrés
par le droit positi} Frangais, II, p. 428, is of the same view when he states: “Il
ne faut pas se le dissimuler: les antécédents historiques et la position actuelle de
certains Etats s’opposeront longtemps encore 4 ce que l’unité se fasse d’une
maniére plus ou moins absolute; c’est un but qu’il faut se proposer d’atteindre
sans y mettre trop d’impatience.”

3 There is no doubt a certain international trend in England, in more recent
times, that is much to be approved. Thus, G. G. PHILLIMORE, in the Journal
of the Society of Comparative Legislation (1904), expresses himself in favor of
England joining the international union relating to railroad freight law.
PAPER OF PROFESSOR MEILI 169

 

upon the spot usually meets with doubtful success, although,
indeed, the Pan-American Congress (held in Mexico, 1901-02),
concluded that a code of international private law could be
elaborated in the shortest time by a commission of five American
and two European jurists.

We may here recall the fact that two historical predecessors
of The Hague Conferences remained fruitless, viz, the efforts
of the Netherlands in 1874 to call a conference for an under-
standing upon the execution of foreign civil judgments, and the
efforts of Mancini in 1881. From this it is not difficult to
deduce that all new works require that the foundation be care-
fully prepared, and this has been done particularly by the labors
of the Institut de droit international, and in part also by those
of the International Law Association.

V. If we are to work toward accomplishing, in the natural
tempo of history, universal uniformity in the rules of conflict, it
is especially necessary that all nations take a lively interest in
international private law; that particularly Anglo-American
jurisprudence shall reform its views on certain topics; that
England and America shall carefully study and test the questions
discussed at The Hague Conferences, in order to determine
whether they will participate in them in future.’

In answering this question, the error already made in Eng-
land should not be repeated. The tendency toward establish-
ing cosmopolitan rules of conflict leaves the national autonomy
of each state wholly untouched as regards its substantive private
law; in fact, an agreement as to rules of conflict presupposes the
existence of divergent systems of private law. When, there-
fore, in 1893, England refused to participate in the conferences
at The Hague because of the peculiar nature of English private
law, it was, in my opinion, the result of an error as to the task
and purpose of those conferences.”

11 refer to the remarks of SImEoN E. BaLpwin in his article, ‘“Recent Pro-
gress Towards Agreement on Rules to Prevent a Conflict of Laws,” in Har-
vard Law Review, April, 1904, p. 404.

2 The statement of Councillor ASSER at the First Conference (September 12,
1893) seems to me to be sound when he says (Actes de la Conférence dela Haye,
170 CONGRESS OF LAWYERS AND JURISTS

 

This conception accords also with the reply given by Lord
GRANVILLE in 1881 to the memorandum of the Italian minister,
Mancrni, to the effect that an understanding might be arrived
at in regard to the following subjects: nationality, mixed mar-
riages, domicile, succession, droit d’aubaine, and the execution
of foreign judgments (Journal du droit, i, XIII, 1886).

VI. It is further absolutely necessary that international
private law, as an independent branch of law, be methodically
taught and studied in all countries, at least at the great univer-
sities. In other words, independent professorships should be
founded, and in this regard America, with its munificent
patrons of universities, can light the way to many of the nations
of Europe.’

Of course, as an accompaniment, comparative jurisprudence’
should also receive special attention at the universities.

VII. It would also be practical to establish private or off-
cial commissions in the principal countries for the special
purpose of studying the subject of international private
law, and make proposals for legislation and the conclusion
of treaties.

This practice has been followed in France, the Netherlands,
Belgium, and Russia, these states being thus inspired by the
spirit of The Hague Conferences.

VIII. It is also imperative that officially conducted legal
bureaus be created in every country, for the purpose of giving
correct information to foreign courts as to the existing private
law. Parties, advocates, and judges are frequently in an unfor-
tunate situation because of not knowing where and how to

1893, p. 26): “Nous respecterons la souveraineté et l’autonomie des Etats. Nous
n’aspirons pas a lunification générale du droit privé. Au contraire, c’est
précisément la diversité des lois nationales qui fait sentir la necéssité d’une
solution uniforme des conflits internationaux.

“Le programme de cette Conférence est donc, en lui méme, un éclatant hom-
mage 4 l’autonomie nationale.”

1T have often referred to this necessity; I did this as early as 1889, in my
publication: Die internationalen Unionen ziber das Recht der Weltverkehrsan-
stalten und des geistgen Eigentums (Leipzig, 1889), p. 77-

2I may here refer to my publication, Institutionen der vergleichenden
Rechtswissenschaft. Ein Grundriss (Stuttgart, 1898). I made therein a col-
lection of materials.
PAPER OF PROFESSOR MEILI 171

 

obtain this information—this applies with special force to the
Anglo-American sphere of law. In saying this, I nevertheless
recognize that the American Academy of Political and Social
Science has done good service in propagating the knowledge of
foreign laws.

Tt must be clear to us all that by virtue of the facility of travel
jrom state to state, and from one part of the world to the other,
international intercourse is making continual and praiseworthy
progress. Both jurisprudence and legislation must keep on a
parallel with this condition of things. It is to this tendency that
The Hague Conferences owe their existence. The Government
of the Netherlands and the promoter of the idea, State-Councillor
ASSER, of The Hague, are primarily the heralds which have
announced the legal demands of the times. And if the nations
show their good will, the work begun at The Hague may easily
be the starting-point of an important development in jurispru-
dence. Nothing is so clear as this, that international private
law can only be really great, significant, and effective if the rules
laid down are recognized in equal degree the world over. For
this purpose is required, besides an enthusiastic desire for
justice, methodical work, thorough study, and continual instruc-
tion. When I recall that jurisprudence has often been given
new impulses at world’s fairs, I am led to hope that the history
of the St. Louis Exposition may announce:

“That international private law was given new energy and new
fruit at St. Louis, in that there the necessity was pointed out that all
states, and especially those of the English and American sphere of
law must approach those of Europe in regard to their rules of
conflict, upon the basis of The Hague Conferences, and that this
branch of law may flourish only if supported by the spirit of uni-
versality.”

In conclusion, I would say that this spirit of universality
must be everywhere encouraged. It is in this way that interna-
tional intercourse and the science of international private law
will make great progress.’ [Applause.]

1See Appendix B for the text of the various Hague conventions and con-
vention projects.
172 CONGRESS OF LAWYERS AND JURISTS

 

The PRESIDENT:

We are now to listen to a discussion of these papers and this
subject by our well-known friend, Judge BALDWIN, of Connec-
ticut.

Judge Batpwiy, of the Supreme Court of Errors of
Connecticut, a Delegate of the United States Government:

Mr. President and Gentlemen of the Congress: A congress
like this, sitting but for three days, however distinguished may
be its membership, cannot justly hope to accomplish much of
original, constructive work, but it serves a useful and important
office in offering an opportunity for an exchange of views and
an exchange of information.

We have been fortunate in having had to-day brought before
us, in clear review, the doings of these four conferences of The
Hague for the advancement of private international law, con-
ferences which many, I am afraid, of the bar in all countries,
have, in an indistinct way, confused with the greater Conference
of 1899, by which The Hague Tribunal was constituted. But,
as shown by the papers this afternoon, two of these congresses
long preceded that and two followed it, one having been held
this summer, of which the gentleman who last addressed us
was a distinguished member.

We know well in the United States how important to the bar
and to the bench is this subject of preventing a conflict of laws.
Here we have forty-five different sovereignties, each with full
local jurisdiction and equal in autonomy—subject, to be sure,
in national affairs, to another sovereignty, but subject to it in
national affairs only. In framing the program of this Congress,
the committee of the American Bar Association, to whom it
was intrusted, took special pains to have what the powers of
Europe have been doing of late towards preventing a conflict
of laws there fully presented, and it is our rare good fortune to
have had such complete reports of the last Hague Conference,
which adjourned only in June.

It is now thirty years since the Government of the Nether-
JUDGE BALDWIN 173

 

lands, represented here by our distinguished friend, Professor
Jirta, initiated a movement in this direction. It takes at least
the space of a generation for any great advance in international
relations to become fully established. In 1874, as was men-
tioned by Professor Meru, the Netherlands proposed in vain to
the powers of Europe the convocation of a conference to estab-
lish a judicial union between them under which the courts and
governments of each should recognize a personal status acquired
in any other, and under which rules should be framed for the
enforcement of foreign judgments.

Now, in 1904, the Netherlands have the happiness of seeing
the results thus aimed at largely achieved.

England, as Professor Mrrz1 has stated, was approached by
the Government of the Netherlands with an invitation to join
in the first of these conferences in 1893, but declined. Her
government felt the substratum of her laws and her judicial
system differed too widely from that of Continental Europe to
warrant her adhesion to the movement, and I dare say if the
United States had received a similar invitation, it would have
been declined for similar reasons, especially in view of our con-
stitutional limitations. The Anglo-American distinction be-
tween real and personal property is so deeply rooted that any-
thing calculated to unsettle it must be looked upon by the English
or American bar with some distrust, if not disfavor. But is it
not evident that, on principle, this distinction has long ceased
to occupy its original position? The day when a man or family
was known by the land on which they had their home, and when
it was the tenure of that land which measured a man’s main
rights as a citizen, or as a ruler, has passed away. How many
families in countries recognizing a hereditary and landed aris-
tocracy are to-day the owners of the estate from which they
originally derived their names? The proudest house in Europe,
the House of Hapsburg, I believe, if it sought its original ances-
tral domain, would find it in the hands of strangers, in the canton
of Neuchatel, in the Swiss Republic.

The political reasons for controlling succession to land by
174 CONGRESS OF LAWYERS AND JURISTS

 

the laws of the country in which it lies are also no longer what
they were. Its ownership gives few and continually fewer
political rights. Its economic significance as a form of capital
is steadily declining. It has been replaced in this respect by
the modern private corporation. Great and small fortunes
alike, we all know, are largely, if not mainly, made up of cor-
porate securities, not land. Let the American or English
lawyer once bring himself to recognize the fact that, except as
a subject of taxation, land considered as private property now
stands to the government in no relation different in kind from
that borne by property of any other description, and he will find
it not difficult to look upon the settlement of successions and
bankruptcies and the management of guardianships from the
standpoint of Continental Europe.

A more serious difficulty, perhaps, is that Anglo-American
law centers all that pertains to the civil status of the individual
in his home, in his domicile, and does not test it by his nation-
ality. When, as a hundred years ago, here and everywhere,
nationality was unchangeable except by the express consent of
the sovereign, there was a reason for preferring domicile. That
could be freely chosen; but now nationality can be. The old
maxim, nemo patriam in qua natus est exuere nec ligeantiae
debitum ejurare possit, has perished, and has perished largely
by the efforts of statesmen and the provisions of treaties during
the last generation.

This removes one great objection to domicile and argument
in favor of nationality as a test of property rights and property
succession. On the other hand, in some countries, and espe-
cially in that where we are met, it adds another objection against
nationality. The emigration of foreigners into the United
States, with the purpose of settling here, either temporarily or
permanently, is, as you know, immense and increasing. Natur-
alization, if they wish it, cannot be had for five years. Mean-
while they may acquire a domicile. If they die during that
time, or if they marry during that time, or a great change in their
property relations occurs, it might be awkward for American
JUDGE BALDWIN 175

 

courts to search out and apply a foreign law to determine the
questions that arise because it was the law of their original
nationality. I do not, however, think (and I am glad to agree
with Professor MEILI in that), that these difficulties arising out
of a choice of nationality rather than domicile at The Hague
Conferences, as a test of personal status, and the distinction be-
tween land and other property so peculiar to England and
America, are fatal necessarily to their acceptance of the prin-
ciples of these Hague Conferences, and I hope that the wish
expressed by Doctor Jitra may be realized, and that in future
conferences of this character the invitations of the powers ex-
tending them may not be limited to a single continent.

It is international conferences like these, Mr. President,
that are bringing the civilized world together in matters of gov-
ernmental regulation. They are not called to deal with great
generalities. They are called to deal with practical questions
of present importance. They have respect to the property rela-
tions of private individuals. They may make use of existing
governmental agencies—I mean the courts of justice of the
powers concerned. They deal with particulars rather than with
universal propositions, and lawyers know that to attempt every-
thing is to fail in everything.

I have referred to the constitutional limitations which, in the
United States, have an important bearing on any project for
regulating by treaty matters of international private law. The
United States, as a nation, can hardly, under present conditions,
so far change their political traditions as to extend the treaty
power to a concert of legislation on matters of such a character,
which are purely local in their nature, with nations on other
continents. The States, acting individually, could not become
parties to such a concert, for it is expressly forbidden by the
Constitution of the United States. They can, with the consent
of Congress, agree among themselves to establish similar con-
ventions, and they can, without that consent, change, each for
itself, their laws so as to bring them into closer accord on these
subjects or on any other. They have been doing this during the
176 CONGRESS OF LAWYERS AND JURISTS

 

last dozen years through the annual conference of commis-
sioners on uniform State legislation, in which most of our States
and territories are now represented, and which gave encourage-
ment, as has been stated by Professor ASSER, to the Government
of the Netherlands to call these various conferences which have
been described to us to-day.

But it is as easy to repeal as to enact. There is, therefore,
no assurance of stability to the beginnings of uniform legislation
which have been made, at the instance of these conferences or
of the American Bar Association, by the several States. In
this respect the powers of Europe occupy a position much more
favorable to permanence of policy. Each of these Hague treaties
or conventions must, by its terms, remain in force for five years,
and will then be tacitly considered as renewed unless explicitly
denounced and terminated.

The Hague Convention has, as has been stated, been already
recognized not only by the executive, but by the legislative de-
partments of seven European states, and must eventually, to
have full effect, be ratified by the legislatures of most of the
rest. This gives them additional assurance of stability, but
stability is best guaranteed by the intrinsic character of these
treaties themselves as they have been described to us. They
have not attempted too much. They have not aimed at the
establishment of uniform laws in respect to the family, but uni-
form rules for applying the family law of particular states—
not, for instance, that marriage shall be celebrated in accordance
with the laws of any one state at all times, but that marriage
between those who are citizens of a certain state may be cele-
brated in accordance with the laws of that state, wherever that
celebration may occur.

The design of The Hague treaties, then, is simply to prevent
a conflict between the laws of one country and those of others
on the same subject by determining, in advance, by means of
general regulations, which shall govern, if the case turning on
them comes before the courts. Each country may think its
own laws the best, and yet each may, without any inconsistency,
PRESIDENT BREWER 177

 

agree to let foreigners in certain cases be subject to foreign rules,
with which they may be expected to be more familiar. It is
this spirit of moderation to which Professor Merxt has alluded
with such emphasis, this contentment with comparatively slight
advances which is so striking a feature of the work of the Four
Hague Conferences, and it is this that carries with it the surest
promise that their results will endure.’ [Applause.]

The PRESIDENT:

I have received no card from any gentleman indicating a
desire to speak upon this subject. I presume that most of you
have felt, as I have felt, more inclined to listen and take in the
thoughts of these papers than to express any thought of your
own. I do not propose to enter upon any discussion of the
questions which they have so well presented, but you will pardon
me a single word: I trust every member of this Congress will
carefully read these papers when they are published, for I am
sure he will find in them matter worthy of the most serious con-
sideration. We are making, in this country, an effort to secure
uniformity in State legislation in respect to commercial matters
and the family relations, and it is only part of the same thought
that the civilized nations shall be brought into harmony in their
legislation on these important matters.

As a member of the Supreme Court of the United States, I
may say, looking back on the questions that have been before
us during the last five or ten years, that we have had none upon
which we have had more earnest discussions, or which often
brought more perplexity than those affecting the validity of
divorces in one State of parties one of the other of whom resided
in some other State. We have had to upset decrees in cases
which have been very trying, cases in which individuals who,
innocently entering into the marriage relation relying on decrees,
which we have been compelled to vacate, were, in effect,

1A partial bibliography, miepared by Judge BaLpwin, of what has been

printed in reference to The Hague Conferences for regulating different matters
of Private International Law, will be found in the Appendix. (See Appendix B.)
178 CONGRESS OF LAWYERS AND JURISTS

 

branded as having violated the laws by entering into bigamous
relations. All these and similar difficulties may be and will be
avoided when the States and the nations realize the importance
of getting into harmony in their legislation upon, not merely the
family relations, but upon commercial matters. I most earnestly
commend these able papers to your thoughtful consideration.
The Committee of Nations is now ready to make a report.

Mr. Justice NesBitt (Chairman of the Committee of
Nations) :

Mr. President and Gentlemen of the Congress: A number
of the communications that have been handed in to the Commit-
tee have been discussed by it, I may say, very thoroughly. I
have been asked by the members of the Committee to request
if any gentleman has any matter which he desires to bring before
the Committee for expression of its opinion, that he will, at the
earliest opportunity, hand in the request. We have not had
before us, so far, anything that may be said to be really of a
character that would be expected to be brought before a Con-
gress of Jurists. The matters submitted, as you will see, are
more of an economic character, or those which relate to matters
of general interest. There has been nothing brought before us,
as yet—if it is expected that the Committee should deal with
such matters, in the nature of resolutions—affecting questions
of international law. Any question that any member of the
Congress may think ought to be dealt with by the Committee
on important questions of international law we will be glad to
have come before us, but we have not had any such matter
brought before us yet. Mr. FERDINAND SHAck, of New
York, submitted the following resolution:

“Resolved, That this Association hereby expresses its deep
gratification at the steps recently taken by the Inter-Parliamentary
Union toward the settlement of controversies between nations in the
same manner as disputes between individuals are settled, that is, by
the judgment of courts, in accordance with recognized principles of
law, and this association further records its great satisfaction at the
announcement by the President of the United States of his intention
THE COMMITTEE OF NATIONS 179

 

to comply with the request made to him by the Inter-Parliamentary
Union that he invite the nations to a conference.”

We also had, in the same connection, a motion offered by
Sefior Don Emitio VEtasco, a Delegate of the Mexican Gov-
ernment, in these words:

“The Universal Congress of Lawyers and Jurists, met in St.
Louis, Missouri, has the honor to address the Honorable President
of the United States to request him that when, in his judgment, it
may be convenient, he will extend an invitation to aSecond Conference
at The Hague for the discussions of the questions relative to arbi-

tration, and such other questions of International Law as it may be
deemed proper to propose.”

There was also a further resolution, in about the same
language, but which practically asks the Committee to recom-
mend a resolution by this Congress, to be forwarded by the Sec-
retary of the Congress to the Vice-Presidents representing the
various nations at the Congress, and to be by them forwarded
to the respective officers of their governments, asking the Czar
to bring about a Second Conference, as he, the Czar, was the
mover of the First Conference.

I may say a great deal of discussion took place between the
Delegates on the subject, and I am instructed to propose to this
Congress the following resolution as the only one upon which
there could be a unanimous opinion. It is not desirable, I
think, to outline the various arguments that were introduced by
the various Delegates on the Committee, but I may say that the
only resolution that I can bring before the Congress for it to
act upon which could have the unanimous voice of the Com-
mittee is the following:

“Resolved, That the Congress, sympathizing with all movements
to bring forward peace among nations by international friendly

agreement, welcomes the announcement of the President of the
United States that he proposes to call a new conference.”

I therefore ask the President of this Congress to put that to
the members of the Congress as the resolution which the Com-
mittee has brought forth.
18 CONGRESS OF LAWYERS AND JURISTS

 

On motion of Mr. SHack of New York, the report of
the Committee was adopted.

Mr. Justice NESBITT:

There was a further motion by Mr. StorEy of Boston, Massa-
chusetts, to the effect that the progress of international arbi-
tration will be arrested if nations decline to arbitrate their con-
troversies with one another, especially the larger nations. That
was debated very fully, and I am requested to state that the
majority of the Committee were not in favor of the adoption
of this resolution, considering it was already covered by the one
that has just been adopted by you; so that I move, Mr. Presi-
dent, that the resolution of Mr. StoreEy be not adopted.

The motion was seconded, and being put by the Presi-
dent, was declared to have been carried.

Mr. Justice NESBITT:

The Committee also presents the following, from Hon. G.
A. FINKELNBURG of St. Louis, a Delegate from the United
States Government:

“The undersigned begs leave to move the adoption of the fol-
lowing resolution:

“Whereas, The following modification of the laws of maritime
warfare was submitted to The Hague Peace Conference, viz:

“<The private property of all citizens or subjects of the signatory
Powers, with the exception of contraband of war, shall be exempt
from capture or seizure on the high seas or elsewhere by the armed
vessels or by the military forces of any of the said signatory Powers.
But nothing herein contained shall extend exemption from seizure to
vessels and their cargoes which may attempt to enter a port blockaded
by the naval forces of any of the said Powers.’

“And whereas said Conference, not deeming itself authorized to
act on this subject, recommended the calling of a special conference
to consider the subject; now, therefore,

“Be it Resolved, That this Congress of Lawyers and Jurists
expresses the hope that the principle expressed in the above proposi-
tion may be incorporated into international law.”’

I may say I asked Mr. FINKELNBURG whether by that it is
intended to imply that the private property of enemies should not
RESOLUTION OF DR. FERNANDEZ 181

 

be interfered with, and he said that was the idea. That matter
has been thoroughly discussed before the Hague Conference,
and has been a matter of a great deal of discussion, pro and con,
by Continental lawyers. I fancy that all of you know the argu-
ments both ways, the argument against it being that, as the de-
struction of the enemies’ private property is largely what people
go to war for, to say that you may take the lives of the enemy,
but you must not touch his property, is to offer a premium upon
killing and saving property. That is putting, in a nutshell,
the views of the opponents of this theory. The Committee,
after a very full discussion, by a majority resolved that they
would not take action on this, as it was already a matter of dis-
cussion before The Hague Conference, and as they considered it
was embraced in the previous resolution which they had passed,
the resolution of sympathy with anything that tended towards
the promotion of peace in the future. I therefore beg leave to
move that this resolution be not adopted, as, in the opinion of
the majority of the Committee, it is covered by the first resolu-
tion.

The PRESIDENT:

I suggest also that that question is to be considered in the
discussion to-morrow afternoon.

Judge BALDWIN:

My. President, I move that the consideration of this report
be deferred until the discussion to-morrow.

The President put the motion, which was carried.

Mr. Justice NESBITT:

We have the following communication from Dr. FERNANDEZ
of the Argentine Republic:

“TI beg to submit to you for transmission to the Committee of
Nations five propositions which I desire to bring before the Congress

for its consideration and disposition.
“The propositions in question I have classified under the title of
182 CONGRESS OF LAWYERS AND JURISTS

 

trusts, socialism, liberty in making of wills, rights and duties between
parents and children, divorce.

“With each of the foregoing I also submit a brief argument in its
support.”

The Committee are ready to report as to certain of these.
The first I beg to draw your attention to is this:

“Resolved, That the Universal Congress of Lawyers and Jurists
recommends as more in harmony with individual rights, more pro-
pitious to the unity of the family, more advantageous to the economic
principles and general progress of society, the establishing of the
absolute liberty to make a will, abolishing the right to contest.”

The argument in support which Dr. FERNANDEZ desires
read before the Congress is as follows:

“The fundamental principles of this proposition are found in
itself. Their ample development would require a space of time
inadequate with the functions of this Congress. And on the other
hand, the illustration of its points in general does not necessitate
greater amplifications. The following will be sufficient: It is clear
that individual rights are so much more respected when the limita-
tions to which they are subject are the least. The legitimate relatives
established by law being a limitation to the individual right to
dispose of his possessions after his death, it is to all evident, such
limitations having disappeared, individual rights are amplified.

“The family ties gain with the abolishing of the legal aspirants,
because, believing the uncertainty of the inheritance, the natural
interest will fortify the natural sentiment of love toward the father,
the mother, the grandfather, etc., and the heart of the old person
will gladden with the nearness of the offspring of his blood which
surrounded him, without his asking the reason why he is thus sur-
rounded.

“Economy and progress gain from society because the uncer-
tainty of the inheritance incites the heir-presumptive to work;
whereas the security of the inheritance, more or less near, encour-
ages idleness and fast life, which is not only unproductive, but also
injurious.”

That, you will all recognize as lawyers, is a matter that each
individual nation regulates for itself. Speaking from an English
and American standpoint, of course there is the utmost liberty
with us of making a will. Amongst other nations, particularly
certain nations of the Continent of Europe, that right is vastly
restricted. As these are economic considerations, which are the
THE COMMITTEE OF NATIONS 183

 

subject of much discussion in works on international law, the
Committee, by a majority, thought it was not wise for this
Congress to enter into the discussion of them; and, therefore, I
was instructed to report to the Congress that, in the opinion of
the Committee, it was not considered a subject on which the
Congress should express an opinion, being a matter of regulation
by each individual nation. Hence, I would move that this reso-
lution submitted by Dr. FERNANDEz be not acted upon by this
Congress for the reasons I have indicated.

The President put the motion, which was carried.

Mr. Justice NESBITT:

There are certain other matters submitted by Dr. FERNAN-
DEZ, one relating to trusts. Dr. FERNANDEZ suggests that they
be treated about in the same way as dealing with economics,
and the Committee has determined that it is not within the
functions of this Congress to open up the questions of trusts,
as to whether they are an evil or a benefit. I dare say there
may be many views on that in the audience that I see before me,
and, therefore, with the consent of Dr. FERNANDEZ, I suggest
that this be acted upon in the same way as the other, as not
within the purview of the Congress.

The President put the motion, which was carried.

Mr. Justice NESBITT:

I may say that you observed from the reading of these why
I ask that any questions of law that you desire the Congress to
pass upon, if there are any, should be submitted. The Com-
mittee feels—at least the majority of the Committee feels—
that such questions as I have brought before your attention
this afternoon are not properly questions that this Congress
of Lawyers and Jurists should be asked to express an opinion
upon. They are rather questions of economics and the like,
which we are not likely to agree about, and which do not come
within the purview of this Congress.
184 CONGRESS OF LAWYERS AND JURISTS

 

The PRESIDENT:
Some resolutions have been offered which will be referred to
the Committee of Nations. The Secretary will read them.

The SECRETARY:

As the proposed resolutions are rather lengthy, I will read
them merely by title. One is a resolution offered by Mr.
WALTER S. Locan of New York, thanking the Exposition
Company and the various bar associations for their hospitality.
Another is a motion offered by JosepH R. Epson of Washington,
D. C., in favor of establishing laboratories under governmental
control for the study of the criminal, pauper, and defective
classes. Another motion offered by JosepH R. Epson of
Washington, D. C., relates to patent laws.

The PRESIDENT:

They will be referred to the Committee of Nations. I beg
leave to say that to-morrow morning I shall not be here. The
fact of it is that I lived many years of my life in Kansas,
and that is a peculiar state. It has a day here to-morrow, and
as I feel as though I ought to give a little time to the celebration
of that day, I have asked my friend Judge BaLtpwin to preside
to-morrow morning and my friend Mr. Justice KENNEDY to
preside to-morrow afternoon.

The Committee of Nations will meet on this platform
to-morrow morning at 9 o’clock.

If there is nothing else to be brought up this afternoon, this
Congress will stand adjourned until to-morrow morning at
to o'clock.
THE DELEGATE FROM BRAZIL 185

 

THIRD DAY
Fripay, SEPTEMBER 30, 1904
MORNING SESSION

The Actinc PRESIDENT (Judge Batpwin, Vice-Presi-
dent for the United States):

The morning session of the Congress is now open. Does
any Delegate call for the reading of the minutes of the last
meeting? If not, the reading of the minutes will be deemed
waived. The Chair hearing no call, the reading of the minutes
is waived.

The next regular order on the programme is the roll-call of
Delegates who have registered since the last roll-call. Is there
any call for the reading of those names? If not, that will be
deemed waived. The Chair hears no call and that is waived. I
understand that in the case of one of these Delegates who has
registered since the last roll-call, the Chairman of the Exposition
Committee on Congress has a motion which he desires to submit.

Mr. LEHMANN:

Mr. President: Mr. Lopez GONGCALVES has been accredited
as the representative of the Government of Brazil to this Con-
gress, and I move you, sir, that he be elected a Vice-President
and a member of the Committee of Nations.

The motion was duly seconded, and being put, Mr.
GoNCALVES was thereupon declared chosen a Vice-Presi-
dent and member of the Committee of Nations.

The ACTING PRESIDENT:

The next business before us is the reading of the formal
paper for the morning. There are many here who had the
pleasure, five years ago, of hearing the distinguished jurist who
is to address us, when he presided over the Conference of the
International Law Association held at Buffalo in that year,
186 CONGRESS OF LAWYERS AND JURISTS

 

the year of the Buffalo Exposition. They will be very glad to
welcome him again, and we shall all, I am sure, be glad to hear
from Sir WILLIAM R. KENNEDY, a Justice of the High Court of
England, on the question, ‘‘To What Extent Should Judicial
Action by Courts of a Foreign Nation be Recognized?” I
have the honor of presenting to you Mr. Justice KENNEDY.

To Wuat ExTENT SHOULD JUDICIAL ACTION BY COURTS
OF A ForEIGN NATION BE RECOGNIZED?

(Considered with especial reference to the status of
individuals as affected by divorce or other decrees, and
the right to represent the person or property of another.)

A PAPER BY

The Honorable Sir Wm1t1Am R. KENNEDY, one of the
Judges of the High Court of Justice of England, a Dele-
gate from the International Law Association:

“Would not an international union for the execution of
foreign judgments,” asks M. CHARLES ConsTANT, “practically
be the last word of the science of the Law of Nations, crowning,
so to speak, the efforts of jurists towards the attainment of the
unity of judicial principles?”’ Without placing such a union on
quite so high a pedestal, one may, I think, fairly claim that the
subject upon which I have had the honor of being invited to
speak is one of very real importance to the family of civilized
nations. Let me hope that the difficulty and the virtue of the
theme will breed in your minds a kindly tolerance for the
imperfections of its treatment. You will remember that my
judicial duty is a jealous mistress, and also that mere regard
for your patience must compel me to pass by some points
altogether, and give brief notice to others, on which otherwise I
should have felt myself bound to dwell.

1 Introduction to his work, “De execution des jugements étrangers.”’ Paris,
1890.
PAPER OF MR. JUSTICE KENNEDY 187

 

The complete unification of laws is as far beyond the range
of practical possibility as the universal adoption of a common
language, or a poet’s dream of the ‘Parliament of man, the
federation of the world.” There are not wanting, however,
signs of augury that in respect, at any rate, of laws and state
regulations which affect mercantile and maritime interests,
an advance towards practical unification in particular directions,
such as the law relating to collisions at sea and marine insurance,
may be made ere long, and thus some visible fruit reward the
good work of the International Law Association and its fellow-
laborers in the same field.

Indeed, when one considers the wonderful increase during
the last sixty years both in the wish and in the effort of civilized
mankind for a better understanding between its component
parts, it seems rather strange that in the sphere of private
international law more has not been accomplished towards
evolving order out of chaos. Steam and electricity and the
power of the press have, as it were, drawn together the ends
of the earth. Swift intercommunication, the facility of fre-
quent personal intercourse, and the ceaseless interweaving
everywhere of the diverse and tenacious threads of commercial
enterprise, have taught the workers of the Western World not
merely the error of much of their old unreasoning and indis-
criminating mistrust of all foreign institutions, but its costliness.
They have come to see the gain, both direct and indirect, moral
and material, which would ensue if the machinery of those
foreign institutions and of their own could be brought into
smoother and more harmonious co-operation.

In these circumstances, it is only natural that now for many
years the matter of the execution of foreign judgments should
have been more and more discussed alike by men of business and
by students and professors of private international law. Nor
only by them; for the question of the recognition by the state
of foreign judicial acts is of great general concern to its subjects.
I may I think properly pause here to notice, in passing, that
some part at least of the difficulties which, in spite of many
188 CONGRESS OF LAWYERS AND JURISTS

 

favorable influences, retard a universal recognition of foreign
judicial proceedings (especially in regard to questions of mar-
riage and divorce) has arisen during the last century from the
introduction into European politics, as Mr. WESTLAKE puts it,
of a new factor, nationality, and from the tendency of Con-
tinental states, and especially of France and Italy, to refer
to nationality, and not, as most jurists formerly did, and as
most English lawyers at all events still do, to domicile, the
determination of the personal law and jurisdiction. The
intrusion of a new criterion has added to complications which
were already sufficiently perplexing, but it has found consider-
able support.

In what spirit, then, should this question of the treatment of
foreign judgments be approached? In the spirit, I submit, of
the utmost possible liberality. There is nothing either profitable
or patriotic in national pharisaism, nor would it stand upon any
solid ground. The more one studies the matter, the more
satisfied one becomes that there are few canons in the domain
of international jurisprudence for which the distinctive title
of orthodoxy can confidently be claimed. On points of impor-
tance, after consulting the authorities, professional and judicial,
one can sometimes only sigh—‘‘Quot doctores, tot sententiae.”
Each member of the family of states, mindful of the degree in
which equality of civilization, identity of moral standard, and
community of ideas as to legality exist throughout Western
Christendom, should generally presume that right has been done
in the judicial proceedings of a sister state. Let us be ready to
admit that in regard to the application of legal principles there
may be, not infrequently, alike in point of abstract reasoning
and in point of practical advantage, something to justify a
foreign practice which is not our practice. Provided always that
the litigant parties have been judged by a foreign tribunal of
competent international jurisdiction, the fact that a legal
principle has there been applied to which we should have pre-
ferred another (as, e. g., the lex loci contractus and not the lex
loci solutionis) ought generally, and in regard to what may be
PAPER OF MR. JUSTICE KENNEDY 189

 

called ordinary matters of litigation, to be regarded as of slight
concern in comparison with the establishment of the principle
that a judgment anywhere is a judgment everywhere. We in
England and in America, the fortunate inheritors of the com-
mon law, may be greatly right in preferring our system of law
and of legal administration to the system which, under some-
what varying forms, dominates Continental Europe. I have no
doubt that there is a reciprocity of feeling on the other side.
But nowadays, so universal is the respect and desire for justice,
so rarely is its administration impure, and so great the gain of
the extraterritorial recognition of judicial decrees, that the
application of the comitas gentium, from which such recognition
proceeds, may, I hope, safely receive extension. I am glad to
believe, judging from the past, that my own country will not
stand back in this matter. ‘No country,” wrote Sir ROBERT
PHILLIMORE in his great work on International Law (3d ed.
Vol. IV., p. 764), ‘‘has been more liberal than England in giving
effect to the decisions of foreign courts. This will be found
the just conclusion from the decisions which have taken place in
the British courts, from the time of the decision of WErR’s
case in the reign of James I. to the decisions in Vallee v. Du-
mergue in the English Court of Exchequer in the year 1849,
and Barber v. Lamb in the Court of Common Pleas in 1860,
and since.’ The same praise has been bestowed by Chief
Justice MarsHaLt (cited by Story, Conflict of Laws, 590)
in his judgment in Rose v. Hinsley (4 Cranch, p. 270) where he
speaks of the decisions of the courts of England as giving, in
his belief, to foreign sentences, as full effect as is given to them
in any part of the civilized world. A like encomium would,
I doubt not, be found due to the United States and, in Europe,
pre-eminently to Italy. A general principle upon which all
states ought to proceed in the treatment of foreign judgments
has been enunciated by VaTreL and approved by Story. (Con-
fuct of Laws, §585.) It is the province of every sovereignty to
administer justice in all places within its own territory and under
its own jurisdiction, and to take cognizance of the controversies
190 CONGRESS OF LAWYERS AND JURISTS

 

which arise within it. Other nations ought to respect this
right; and as the administration of justice necessarily requires
that every definitive sentence regularly pronounced be esteemed
just, and executed as such, when once a cause in which for-
eigners are interested has been decided in form, the sovereign
of the defendants ought not to hear their complaints. The
decision made by the judge of the place, within the extent of his
authority, ought to be respected and to take effect even in
foreign countries.

If we accept this general principle, we must, at the same
time, admit that at present it cannot be applied to every class of
case, and cannot be applied to any without some reservation;
and, further, that as to the proper conditions and limitations,
great difference of opinion exists. The question is, how far
might national action properly go in the direction of recognition ?

And here, by way of preface to the more particular examina-
tion of this question, I desire to make two observations of a
general nature. First, we must carefully keep in view the
basis of the jurisdiction of courts of justice in all countries.
Nowhere, as far as I am aware, has that basis been better or
more concisely set forth than in the judgment of the Privy
Council delivered by Lord SELBORNE in the case of Sirdar
Singh v. Faridkote (1894 A. C. 670): “All jurisdiction is prop-
erly territorial, and ‘extra territorium jus dicenta impune non
paretur.’ Territorial jurisdiction attaches (with special excep-
tions) upon all persons, either permanently or temporarily
resident within the territory, while they are within it, but it
does not follow them after they have withdrawn from it, and
when they are living in another independent country. It
exists always as to land within the territory, and it may be
exercised over movables within the territory; and in questions
of status or succession governed by domicile, it may exist as
to persons domiciled, or who, when living, were domiciled,
within the territory. As between provinces under one sov-
ereignty, the legislation of the sovereign may distribute and
regulate jurisdiction; but no territorial legislation can give
PAPER OF MR. JUSTICE KENNEDY 191

 

jurisdiction which any foreign court ought to recognize against
foreigners who owe no allegiance or obedience to the power
which legislates.” Secondly, it is clear, I think, that special
considerations arise according to the nature of the subjects to
which the judicial action in the foreign country relates. A
judgment in personam which settles a claim of debt or for
damages in contract or in tort; a judgment in rem, which
makes a disposition of movable property by vesting the property
in some person or persons as against all the world or by decree-
ing a sale of it in satisfaction of a money demand which it has
adjudged to have constituted a lien on the property itself; and
a judgment establishing or affecting the status such as one
which declares the legitimacy of a child or grants a divorce—
are not susceptible of identical treatment. And in considering
the effect which ought to be given to a judicial declaration of
bankruptcy, by a foreign court, one has carefully to keep in
view the difficult duty of providing for the equitable adjustment
inter se of the claims of creditors whose rights against the bank-
rupt may have arisen under different jurisdictions, and subject
to different laws in respect of the legal incidents which attach
to their contractual relations with him.

Let us consider first the recognition of foreign judgments
in personam. On what conditions and under what limitations
should they be enforceable? Be it understood that when I use
the word “enforceable,” I do not refer to a particular method
of enforcing them. I intend to include alike that which is the
English and American method of procedure, i. e., by an ordinary
action in which the claim is based upon the foreign judgment;
and the method of procedure as I understand it to exist in
Italy, where effect is given to claims under foreign judgments
by an extraordinary procedure—‘‘instance en delibation (giudizio
di delibazione)”” whereunder a ‘“‘tribunal dexequatur” after
examination of the foreign judgment on certain specified points
rejects or adopts it, and, if it adopts the judgment, admits it,
like a domestic judgment, to execution within the jurisdiction.

I suggest that a foreign judgment im personam should be
192 CONGRESS OF LAWYERS AND JURISTS

 

held valid, and, unless already satisfied, have the effect of a
conclusive determination given to it and be enforceable in the
courts of any state as against the unsuccessful party, and per-
sons who through that party are privy to it, provided that it
appears to the court which is asked to give effect to it that:

A. It has been pronounced by a court of competent juris-
diction.

B. It is final, or as Continental jurists term it, executory, in
the country in which it was pronounced.

C. It does not decree anything and does not give effect to a
claim which itself is contrary to the public policy or to the
law of the country in which it is sought to enforce it.

Provided, always, that the tribunal before which the question
of the enforcement is raised should treat the judgment as
invalid if it is shown to have been obtained by fraud.

I hope that, to some extent at least, these suggestions, which
represent, in my opinion, the irreducible minimum of condi-
tions, explain themselves. I feel, however, that I ought to add
a few words; chiefly, and in the first place, as to what might
otherwise be deemed unintentional omissions.

Ought proof also to be required by the court from which en-
forcement is sought that the parties were duly cited, and, if it
was a judgment by default, that the party against whom it was
pronounced had been made aware of the action and had the
opportunity of defending himself?

I have not suggested such a condition, because, in the first
place, so far as regards the due observance by the foreign court
of its own prescribed procedure, we might apply, I am inclined
to think, the maxim, “Omnia presumuntur rite esse acta,” and
not allow the contrary to be alleged except as an element in a
defense of fraud in the obtaining of the judgment; and in the
second place, because the only objections on the plea that the
prescribed procedure was itself improper (or, as the point has
sometimes been put, “‘inconsistent with natural justice”), which
ought, in my humble judgment, to be entertained will be found,
I think, really to be objections to the international competence
PAPER OF MR. JUSTICE KENNEDY 193

 

of the tribunal. It is beyond controversy that, in the absence
of an international agreement as to rules of competence, it is
right and also consistent with the comity of nations that the
court which is asked to give effect to a foreign judgment, should
satisfy itself that the tribunal which gave the judgment belonged
to a country whose sovereign, in the language of Mr. Dicey
(Conflict of Laws, pp. 35, 36), might, in accordance with the
principles maintained by the court which is asked to enforce
the judgment, rightly adjudicate upon the matter in which the
judgment was given. It is, I am afraid, equally beyond con-
troversy that the principles which are maintained by courts of
law as to international competence of jurisdiction are not every-
where the same. I believe that an American court would con-
cur with the judges of our courts‘ in the opinion that it will not be
right to treat as internationally competent a forwm actoris, such,
e. g.,as has been created in France by Article 14 of the Code
Napoleon; whereby, as Mr. WESTLAKE has put the matter, a
Frenchman, as against a non-resident foreigner, has been given
a jurisdiction neither personal to the defendant nor connected
with the obligation, but personal to the plaintiff. The same
would be true, I suppose, as to the claim advanced by the courts
of some communities, and especially of Scotland, to ground
jurisdiction in an action 7m personam on the mere fact of the pos-
session by the defendant of property lying within the limits of
the country to which the courts belong.” Nothing except an
international convention can create a uniform criterion of the
competence of the jurisdiction of the adjudging tribunal.
Assume, however, that in the particular case no question of
want of jurisdiction can be raised, and that the party against
whom judgment has passed in the foreign country is held by the
court of the country where enforcement is sought rightly to
have been treated by the foreign tribunal, in regard to the
claim against him, as subject to the foreign jurisdiction, must

1See Schibsby v. Westenholtz, L. R., 6 Q. B, 155: WESTLAKE Private Inter-
national Law, p. 347.
2Dicry, Conflict of Laws, p. 380.
194 CONGRESS OF LAWYERS AND JURISTS

 

he not clearly be held bound by the ordinances of the law which
that foreign tribunal administers in regard to citation, and all
other matters of legal procedure? Is it altogether reasonable
that, when sued abroad upon the judgment which has been
regularly obtained against him in conformity with that law, he
should be allowed to find a defense in the opinion of the court
of the country where he is sued, that the law as to procedure in
the country of the judgment ought to have been other than it is?
Look at the matter from another point of view. There is no
recognized standard of morality of natural justice in regard to
legal procedure; we are dealing with acts, not of barbarous or
of uncivilized, but of equally civilized, nations. If we agree
that it is desirable that foreign judgments in personam should
be recognized, ought we not to assume, not merely that the rules
of legal procedure prescribed by the laws of the adjudging state
have been duly observed by its court before judgment has been
pronounced, but also that these rules themselves, although not,
perhaps, in accordance with our own notions, do not constitute a
violation of morality or natural justice?

As to my inclusion amongst the conditions of a permission
to a party sued on a foreign judgment to resist the claim on the
ground of fraud, let me say that I should have been glad if I
could have submitted, for your consideration, some compro-
mise between the English law, which is, I believe, the law also
maintained in the United States, and the opposing view enter-
tained, as I know, in the legal world upon the Continent of
Europe. It is settled law with us that the defendant may
show that the foreign judgment was obtained by fraud, and, if
it be necessary for that purpose, may have questions retried
which were adjudicated upon by the foreign court. The Con-
tinental jurist objects to this. He contends, as M. OcTAvE
Marais, a distinguished French lawyer, put the point at the
Rouen Conference of the International Law Association in
1890, “‘celte question devrait etre agitée devant le juge du pays qui
a rendu le jugement.” It was suggested at the same conference,
by Mr. Foote, a well-known authority on international law,
PAPER OF MR. JUSTICE KENNEDY 195

 

in his draft Foreign Judgments Convention, that besides alleging
and proving that the judgment was obtained by fraud, the
party sued must, in order to make out a complete defense,
further show that he had no means or opportunity of setting
aside the judgment, or obtaining other sufficient relief, on such
ground, in the country of the judgment.

There is, I think, so much that may fairly be urged, at all
events in support of the Continental opinion, that the defend-
ant should be left to apply to the tribunal which gave the judg-
ment against him for an amendment or reversal of it, that I am
inclined to think that the compromise of the contending views,
on the lines suggested by Mr. Foote, should receive careful
consideration, if a convention between states could be arranged,
which should also settle and codify rules as to competence of
jurisdiction. Without such a convention, and except as part
of such a convention, I could not, myself, adopt any modifica-
tion of the English position. I feel too strongly the goodness
of the point put at the same conference by Mr. CEPHAS BRAIN-
ERD of New York: ‘Where I serve a process upon a person
passing through the State of New York, a Frenchman, if you
please, which is the most helpless case, and I obtain final judg-
ment by fraudulent conduct, he ought not to be called upon to
come from France to the State of New York to litigate the ques-
tion of fraud, but he ought to have the option and right to wait
until I attempt to enforce the fraudulent judgment against him
in the country of his residence, namely, in France; and then he
ought to have the opportunity to test the question whether he
had been honestly or fraudulently treated in the courts of my
State.”

So far I have been dealing with a foreign judgment in
personam as a judgment which the successful party is seeking
actively to enforce. But the judgment may have been in favor
of the defendant. If it was, and the plaintiff afterwards pro-
ceeds against the defendant elsewhere upon the same cause of
action, the foreign judgment should be recognized, as it is rec-
ognized in England, as affording the defendant a conclusive
196 CONGRESS OF LAWYERS AND JURISTS

 

answer to the claim. In the language of Eyre, C. J., in Phil-
lips v. Hunier, ‘It is in one way only that the sentence of judg-
ment of a foreign court is examinable here, that is, when the
party who claims the benefit of it applies to our courts to enforce
it, and thus voluntarily submits it to our jurisdiction. In all
other cases, we give entire faith and credit to the sentences of
foreign courts, and consider them conclusive upon us.” And
so Story (Conflict of Laws, §598): “It is res judicata, which
ought to be received as conclusive evidence of right, and the
exceptio rei judicatae, under such circumstances, is entitled to
universal conclusiveness and respect.” Clearly the plaintiff,
who has himself invoked the action of the foreign court, must
‘not be allowed to impeach its jurisdiction. At the same time
I would venture, although it is generally held otherwise, to
suggest that, if a defendant in proceedings against him on a
foreign judgment, may defeat the claim by proving that the
judgment was obtained by fraud, it would be equitable that if
the plaintiff is met by the exceptio rei judicatae, he should be
allowed a reply upon the same ground of fraud. Subject to
this, and upon the assumption that the foreign judgment appears
or is shown to have been a judgment on the merits, and not
founded on a statute of limitations peculiar to the /ex fori, and
upon the assumption also that the claim in the actions in the two
courts and the character in which the plaintiff has sued in both
are the same, the foreign judgment should be recognized by
the court in which the second action is brought as a conclusive
answer to the plaintiff ’s demand.

Before passing on to the consideration of judgment in rem,
I think it may be useful to some who are here and are inter-
ested in the question of the enforcement of foreign judgments in
personam, if J call to their notice the very valuable papers, dis-
cussions, and draft conventions which they will find in the Re-
ports of the Conferences of the International Law Association,
held at Milan in 1883, at Brussels in 1885, at Rouen in 1900,
and at Antwerp in 1903. Especially interesting is the report

12H. BI. 4o2.
PAPER OF MR. JUSTICE KENNEDY 197

 

which was presented to the last named Conference by M.
GasTON DE Lavat of Brussels, Counsel to the British Legation
there. It contains a draft projet de convention between Great
Britain and Belgium, which is prefaced by noteworthy comments
of the author upon the subject of the execution of foreign judg-
ments, and the possibility of such an international convention.
He calls attention to a difficulty of a minor, but still troublesome
kind, which might be easily overlooked, but which, according
to the author, unless it were removed by the convention, would
raise an obstacle to the execution of some English judgments in
Belgium. By the Belgium Constitution, Art. 97, “Tout juge-
ment est motivé. Il est prononcé en audience publique.” If a
Belgian court gave effect to a foreign judgment which did not
set forth in writing the grounds on which it is founded, and was
not also pronounced in public, there would result, in the view
of M. pE Laval, a violation of the Belgian Constitution. A
judgment given by a judge in chambers, or pronounced in
court upon the general verdict of a jury, without special find-
ings, as is usual in the case of ordinary money claims, would not
satisfy these conditions. We are apt to forget that trial by
jury in civil cases is not an institution of the procedure in France
and in other parts of Continental Europe.

A judgment in rem should be held, as I believe it is generally
treated now, to be conclusive everywhere, provided always, that
it has been pronounced by a court of competent jurisdiction,
and is not shown to have been obtained by fraud. By the term
judgment in rem, I mean a judgment as defined by CockBurRn,
C. J., in Castrique v. Imrie,’ “determining the status of a chattel
with reference to property, or vesting the property at once in the
claimant, as a condemnation of the Court of Exchequer in a
revenue case vests the property in the crown, or the sentence of
the Court of Admiralty in a matter of prize vests the property
in the captor.’”’? Such a judgment in regard to its claim for rec-
ognition elsewhere stands even in a stronger position than a
judgment in personam. The thing duly adjudicated upon and

18C.B.N.S., 405.
198 CONGRESS OF LAWYERS AND JURISTS

 

disposed of by the judgment, if it be a movable, is within the
jurisdiction of the court. If it is in an analogous position to land,
or other immovable property, as to which the judgment pro-
nounced in the jorwm rei sitae, is held to be of universal obligation
as to the matters of right and title which it professes to decide
in relation thereto.’ According to the law of England, in the
language of Mr. Foorr, in his work on Private International
Jurisprudence, ‘In the absence of fraud, for which a foreign
judgment in rem may be impeached, just as a foreign judgment
in personam may be impeached for the same cause, the only
requisite necessary to the validity and conclusiveness of a for-
eign judgment in rem is that it should have been pronounced by
a competent court” [i. e., a court possessing international com-
petence], “having actual jurisdiction over the subject matter.”
It is conclusive in all courts, and not only as a judgment in
personam between the same parties or privies, but against all
persons; and not only in regard to the fact or facts directly
adjudicated upon, but in regard to all facts upon which the
judgment of the court is necessarily founded. The recognition
which my country accords to foreign judgments in rem should
be accorded to such judgments everywhere.

I now approach the questions, and very thorny questions
they are, which present themselves for solution, if an attempt is
made to systematize the recognition of foreign judgments affect-
ing the status of persons. Some of such judgments touch to the
quick the most sacred and intimate relations of social life; and
the claim for anything beyond territorial recognition has to fight
its way through a jostling crowd of jealous susceptibilities.
Foremost, no doubt, in public interest, as it is in the title of
this paper, which was chosen for me by the conveners of the
Congress, is the question of the recognition of the foreign judi-
cial proceedings which relate to marriage and divorce. ‘‘Mar-
riage,” said Lord WestBury in the House of Lords in the case
of Shaw v. Gould, “is the very foundation of civil society.”
True. True, also, that up to a point certain ideas in regard to

' Story, Conflict of Laws, §590.
PAPER OF MR. JUSTICE KENNEDY 199

 

the law of marriage are common to all parts of Christendom.
“Tt is agreed that the essentials are that the parties should not
be within prohibited degrees of kinship, that each should have
sufficient age, sufficient intelligence, freedom of will, intention
to contract marriage, and to contract it with a particular part-
ner, and that there should be some overt act or sign evidencing
the marriage.” But, as Mr. Justice PHILLmorE, the distin-
guished author of this statement, proceeds to point out, we have
here reached the limit of agreement. As to the prohibited
degrees of kinship, as to the age which should constitute capa-
city, as to the requirement of consent, or of absence of dissent,
on the part of parent or guardian, exist divergencies which race,
religion, and nationality have combined to create and to main-
tain. Radically different views have been expressed by emi-
nent judges and eminent jurists as to the legal principles which
ought, according to international law, to be applied in determin-
ing the validity of marriages and of divorces. Is consent to
the marriage on the part of parent or guardian an essential,
or only a matter of form and ceremony? Is the lex loci cele-
brationis to be the criterion of the validity of the marriage only
in matters of form and ceremony, or as to essentials also? Is
the question of personal capacity or competence to contract to
be determined by the law of the domicile or by the law of na-
tionality? Ought the lex loci also to be complied with in these
respects? Ought the incapacity of one only of the parties to
be held sufficient to justify a decree of annulment? And in
regard to the dissolution of marriage by a sentence of divorce,
what circumstances are necessary or sufficient to create com-
petence in the court of a country which was not the locus cele-
brationis? In the face of the apparently irreconcilable differ-
ences in the answers which competent lawyers are found to give
to these vital questions, and of the importance which all nations
attach to the support of their own marriage laws, it would be,
in my judgment, futile at the present time to try to formulate
terms or limitations, subject to which nations should agree to
recognize as conclusive the judgments of foreign courts as to
200 CONGRESS OF LAWYERS AND JURISTS

 

marriage and divorce. We must first reach a condition of
greater harmony, or, perhaps, I ought to say, of less discord, as
to the legal principles to be applied. The prospect of improve-
ment in this direction is not good. The view of Mr. WESTLAKE
is thus expressed at the close of his well-known work on Private
International Law (page 373). ‘‘A unity as to marriage and di-
vorce is as important as any topic I have mentioned, but there
we touch the point in which modern civilization has, during three
centuries, been receding from unity, and perhaps will not rejoin
it without first passing through even greater diversity.” In an
earlier part of this paper I ventured to say that in regard to
ordinary actions in personam, in contract or in tort, we ought not
to hesitate, if we may thereby attain even to an approach
towards the universal recognition of judicial proceedings in
such actions, to incur the risk of thereby sanctioning sometimes,
in effect, by the enforcement of a foreign judgment, an adjudi-
cation which has proceeded on, or has been affected by, the
application of one principle of law where our own courts would
have preferred another. But marriage cannot properly be
treated as a contract and nothing more. “In truth,” Sir James
HANNEN has said, ‘“‘very many and serious difficulties arise if
marriage be regarded only in the light of a contract. It is in-
deed based upon the contract of the parties, but it is a status
arising out of a contract to which each country is entitled to
attach its own conditions, both as to its creation and duration.”
The only suggestions I can offer for the consideration of the
Congress are suggestions of a restrictive character.

First: That a court should be held bound to recognize as
valid a foreign decree of nullity of marriage on the ground of
incapacity or prohibition only where the court which pro-
nounced the decree was a court of the territory wherein the
marriage was celebrated. Obviously it is there that the valid-
ity or invalidity of the marriage should be investigated. In
1860, in the case of Simonin v. Mailac, the English court rightly,
if I may humbly say so, exercised jurisdiction to inquire into
the validity of a marriage celebrated in England, and refused to
PAPER OF MR. JUSTICE KENNEDY 201

 

hold that it was null and void, although such a decree had been
given in France, which had always been the country of the
domicile of the parties.’

Secondly: A court which is not the court of the country of
the matrimonial domicile at the time when divorce proceedings
are instituted, should not be recognized elsewhere as a court
competent to pronounce a decree of divorce (judicial separation
and alimony stand on a different footing), except in favor of a
wife who has been deserted by her husband, or whose husband
has so conducted himself that she is justified in living apart
from him, and who, up to the time when she was so deserted,
or began to be so justified in living apart from him, was domi-
ciled with her husband in that country. By domicile I do not
mean mere residence or sojourn; I mean, according to the defi-
dition given by Sir RoBERT PHILLIMORE, “residence at a par-
ticular place, accompanied with positive or presumptive proof
of an intention to remain there for an unlimited time.”

As to the propriety and the importance of this restriction, an
English judge (Lord PENZANCE), of great eminence and of great
experience in questions of marriage law has placed on record
this weighty opinion: “It is the strong inclination of my own
opinion that the only fair and satisfactory rule to adopt in this
matter of jurisdiction is to insist upon the parties in all cases
referring their matrimonial differences to the courts of the coun-
try in which they are domiciled. Different communities have
different views and laws respecting matrimonial obligations,
and a different estimate of the causes which should justify
divorce. It is both just and reasonable, therefore, that the
differences of married people should be adjusted in accordance
with the laws of the community to which they belong, and dealt
with by the tribunals which alone can administer these laws.
An honest adherence to this principle, moreover, will preclude
the scandal which arises when a man and a woman are held to
be man and wife in one country and strangers in another.”

A decree of dissolution pronounced by a court which is not

1 See a discussion of this case, Pigott on Foreign Judgments, pp. 274, 275.
202 CONGRESS OF LAWYERS AND JURISTS

 

the forum domicilii (subject to the limited exception in favor of
a wife which I have stated), unless, perhaps, it were shown that
the respondent had, by unconditional appearance, voluntarily
submitted to the jurisdiction, should be refused recognition in
all other countries. The law of England is now, I think, defi-
nitely settled in this sense. With the sincere respect which is
due to the different views of its authors, I cannot help expressing
my regret in regard to such legislation as seems to have been in
force in the State of Pennsylvania in 1892, whereby, as appears
from the reported English case of Green v. Green & Sedgwick,
tried before Mr. Justice GORELL BARNES, in 1893, it was made
possible for a married woman, if only she had formerly been a
citizen of that State, on showing, in her petition, that she had
been obliged by her husband’s misconduct to leave his habita-
tion or domicile, to obtain from the court of that state a decree
of dissolution of marriage. Jurisdiction is thus held to be well
founded on a former citizenship alone. The place of the cele-
bration of the marriage, and of the matrimonial domicile, may
have been elsewhere. Even matrimonial residence within the
jurisdiction of the State may never have existed. Perhaps that
legislation has since been modified or repealed. I hope, although
I confess I have been surprised by the reports which I have read
recently in American newspapers of the treatment of divorce in
the courts of some of the States, that it has not been imitated.
In regard to the recognition of an administrator, appointed
by a foreign court to administer the personal estate of a deceased
person in the case of intestacy, and the title of an executor which
has been established by a foreign grant of probate, the propriety
of universal recognition, in accordance with the comity of nations
is, I think, generally admitted. The administrator or executor
does not, indeed, by the mere virtue of the proceeding in the
foreign court, acquire a status outside its territorial jurisdiction;
but, by the comity of nations, the courts of the country in which
there is property of the estate of which the administrator or
executor seeks possession, will generally follow the appoint-
ment or the grant of the foreign court, and act, as it has been
PAPER OF MR. JUSTICE KENNEDY 203

 

judicially expressed, as auxiliary to the foreign court. I have
used the phrase “‘will generally follow,”’ because it is not rea-
sonable that it should be absolutely bound in every case to vali-
date the appointment of the nominee of the foreign court or
grant probates, as auxiliary to the foreign court. There might
be a case where the appointment or the grant would be a pro-
ceeding contrary to the law of its own country. Except in
such possible, but, no doubt, very exceptional, circumstances,
an executor or administrator who comes with the proper author-
ity of the foreign court will be clothed in the manner pre-
scribed by the law of the forum in which he seeks recognition,
with authority, as the representative of the estate of the de-
ceased, to deal with assets within the jurisdiction of that forum,
and to sue in respect of the deceased’s choses in action. Of
course, as he draws his authority from the local forum in regard
to the exercise of powers within its jurisdiction, he will rightly
be held in respect of such exercise, bound to conform to its
laws in all matters of procedure.

In regard to curators and guardians, having regard to the
differences of opinion and of legal rule which exist as to the age
of full capacity, and as to the nature and extent of the control
which the law should intrust to the discretion of one who stands
towards another in loco parentis, I do not think it reasonable to
suggest that a state should, in all cases, he bound, without any
reservation of the right of independent inquiry and decision,
to recognize, in the sense of enforcing, such rights as the courts
of a foreign state should think proper to confer upon a person
when it appoints him guardian or curator of another. More
than one reported case has shown that an English court, if the
welfare of an infant who is the subject of a foreign state is
brought before it for consideration, will, whilst not surrendering
its own discretionary power, pay great respect to the wishes of
the guardian appointed by the foreign court, and this degree
of recognition is all I think that can be reasonably looked for.
Disabilities of a penal character must be held to operate only
within the jurisdiction of the state whose laws impose them.
204. CONGRESS OF LAWYERS AND JURISTS

 

And so an English court has refused to recognize the incapacity
which a French adjudication had attached to a reckless spend-
thrift (prodigue), who was not an infant, and has rejected the
claim advanced by his conseil judiciaire to interfere with his
receipt of money due to him according to the law of England.

The curator or committee of a lunatic, acting under a foreign
declaration of lunacy, stands, in regard to the claim for recog-
nition abroad, in a different position. Lunacy is universally
recognized as a thing which justifies, and indeed requires, the
appointment of a representative protector. Prima facie, the
committee of a lunatic, appointed by the proper court of the
residence of the lunatic, should be treated as a person rightly
clothed with the powers which the foreign appointment has
purported to give him. But even in this matter the court of
another state, should, I think, retain the privilege of inquiring
upon good cause shown, into the question of the sanity or in-
sanity of the alleged lunatic, if the representative appointed by
the foreign state asks its sanction in order to enforce, within the
jurisdiction of the other state, rights derived from the lunatic,
or in order to deal with property of the lunatic.

In regard to a bankrupt’s representative, whether designated
as assignee or trustee, every one should desire, wherever there
are movable assets of the foreign bankrupt, that there should
be complete recognition of the title of the person appointed by
the court of the country of the bankrupt’s domicile, as the person
in whom (according to the legal effect of the appointment), the
bankrupt’s estate is vested, or to whom, for the benefit of cred-
itors, the administration of that estate has been intrusted by
that court. The degree of such recognition, which is accorded
by states at present, is varied and unequal. Germany, for
example, appears to give to the foreign assignee the right to get
in assets of the estate in Germany, if by diligence he can antici-
pate the action of German creditors in obtaining execution, but
the fact of his appointment by a foreign court does not hinder or
invalidate such action on their part. In Belgium, according to
the statement of Mr. A. F. TopHaw, in an interesting article in
PAPER OF MR. JUSTICE KENNEDY 205

 

the Law Quarterly Review, No. LXXV, it has been judicially
declared that “the state of the bankrupt trader extends its
effects everywhere where the trader possesses any property; the
administration of bankruptcy is one, indivisible and universal.”

In regard to England, the general principle seems to be that
bankruptcy, or any proceeding in the nature of bankruptcy in
a foreign country, where the bankrupt is domiciled, is an assign-
ment to the trustees, assignees, curators, syndics, or others who,
under the law of that country, are entitled to administer his
property, of all his movables, or, in other words, of his chattels,
personal and choses in action, in England; and, it would seem,
as far as English courts can deal with the matter, of his movables
situate in any other country. (See Dicey, Conflict of Laws, p.
444.) France, in practice at any rate, if HorFrmMan’s case, which
Mr. TopuHam cites from the Journal Clunet, may be taken as
typical, pays little or no respect to the unity or universality of
the bankruptcy administration. It is an interesting case, and
illustrates the difference between the French and the Italian
treatment of the same question. HoFFMAN carried on business
in London, with branch establishments in Paris, Milan, and else-
where. He was declared bankrupt in England. Some Italian
creditors attached his property in Milan. The court there
upheld the title of the English trustees as against those creditors
on the ground that Hoffman was domiciled in England, and the
Italian branch was connected with the English house. After
the declaration of the English bankruptcy, a French court de-
clared Horrman bankrupt in respect of his branch establish-
ment in Paris. The French Court of Appeals avowedly pre-
ferred the interests of French creditors to the principle of uni-
versality.

In these circumstances of international variance (a) as to
the recognition of the title of the foreign assignee in bankruptcy
as against local creditors, (6) as to the priority inter se, where
there are concurrent and competing bankruptcies, and (c) as
to the proper test of competent jurisdiction to adjudicate a
person bankrupt, i. e., whether the competence should depend
206 CONGRESS OF LAWYERS AND JURISTS

 

upon domicile in the strict legal sense of that term, or upon the
personal residence of the debtor within the jurisdiction, or
whether what may be called commercial residence should be
sufficient to justify an adjudication, the only hope for uniform-
ity in the recognition of the representative of the bankrupt
appointed by a foreign court, appears to lie in an international
convention. Why should that be impracticable? In regard
to the administration of the debtor’s property, where bankruptcy
has been declared in more countries than one, as in HOFFMAN’S
case, suggestions of a scheme which seem to be both practical
and practicable have already been put forward by Dr. Jrrra,
and are summarized in the article of the Law Quarterly Re-
view, to which I have already referred. The world of commerce,
and for reasons stated by Mr. TopHam, the English part of it
especially, suffers much from the present confusion, and the
power of the world of commerce, if exerted in unison, is great.
There are no side currents of tradition or of religious or moral
sentiment to divert or hinder the course of unifying reform in
this direction, such as unfortunately must impede the achieve-
ment of unity in respect of the law of marriage. A real ob-
stacle, it appears to me, to the success of procedure by interna-
tional convention in such matters is that, if the scheme involves
a change in municipal law and legislative sanction, it is not
everywhere easy, in these busy times, to get a legislative author-
ity, in the press of public affairs, to give sufficient time and atten-
tion to a matter which is devoid of political or party interest
and is too technical to create any enthusiasm in the general
public.

And here, perforce, I must conclude this address, cursory
and incomplete as I feel it to be. The subject is too large and
too intricate to be handled in a paper of this kind as one would
wish to handle it. It is, alas, not one which inspires rhetorical
audacity or lends wings to the flight of imagination. Forgive
the absence of all such compensations for your patience. Let
me comfort myself with the thought that those whom I have
the honor to address are not gathered together here for the
SIGNOR PAVIA 207

 

purpose of amusement, or even for intellectual enjoyment. You
are my brethren in the glorious study and profession of the law,
assembled for serious conference; brethren whose united efforts
may do much to make all men more brotherly, by composing,
in some measure, the conflict of laws, and to give throughout
Christendom to a decree of Justice, wherever made, universal
significance. [Applause.]

The ActinGc PRESIDENT:

We have listened to a very full and clear discussion of the
subject which has been before us this morning from one con-
nected with the government of a country which has always stood
for domicile as the measure of personal rights and the test of
judicial competency in matters depending on personal status.
We are now to hear a continuation of the discussion by one
officially connected with a government which has always been the
leader in pressing upon jurists the claim that not domicile, but
nationality, was the test to be regarded in these respects, a
claim put forward early by Italy, which, as we heard yesterday,
has received the approval of The Hague Conferences on private
international law with respect to members of the nations of
Continental Europe.

I have the honor of introducing to you Signor ANGELO
PaviA, a member of the Italian bar, and of the Italian Parlia-
ment.

Signor ANGELO PaviA of Rome, Italy, a Delegate-at-
large:’

La questione del divorzio @ in Italia in questi termini;
Vaugusta parola del Re disse—nella solennita di una funzione
in cui ogni promessa diventa dovere—che é necessario sistemare
la legge coniugale contro questa tirannia della perpetuita del
disaccordo matrimoniale; e cid disse dopo che dall’ ambiente
parlamentare era sorta la proposta di una legge che largamente
accordava lo scioglimento di legami resi nefasti dalla infamia

1 For an English translation of Sig. Pavia’s remarks, see Appendix C.
208 CONGRESS OF LAWYERS AND JURISTS

 

di una pena—da un malore incorreggibile—da minaccie e dal
tempo.

Uno statista, la cui morte addolord il mondo degli uomini
politici e dei giuristiGiusEPPE ZANARDELLI, si era fatto pala-
dino di questa innovazione giuridica, ma una vera sommossa
della Chiesa, cosi potente in Italia, arrestd la necessaria riforma;
ed oggi, il divorzio esiste ancora come progetto di legge nei nostri
atti parlamentari, ma molti anni dovranno passare prima che
anche I’ Italia possa annoverare fra le sue leggi civili questa
che della civilta @ un vero bisogno—la fine della prigionia
coniugale. Intanto agli infelici turbati nella loro domestica vita,
si era aperto uno spiraglio di luce. Tra il sentimento di patria
che rende chiaro ad ognuno il chiamarsi cittadino della terra
che lo vide nascere e lo strazio di dover continuare un’ amara
connivenza nelle pareti della propia casa, si era trovata una
via giuridica che rendeva esuli volontari dalla patria politica
i cittadini per formarsi una nuova patria domestica. Si
accorreva in una terra ove il divorzio era concesso e, forti della
acquistata naturalizzazione, si otteneva lo scioglimento della
aborrita catena e, come stranieri, si veniva in Italia a chiedere
Vesecutorieta della sentenza straniera.

La battaglia fu viva nella dottrina e nella giurisprudenza
intorno a questa trovata.

I credenti timorosi, i codini si sollevarono in massa a dire
che la sentenza estera non poteva essere delibata nel Regno
perché con un artifizio si veniva a far sentenziare da magistrati
italiani quel divorzio che il codice patrio chiama contrario al-
Yordine pubblico, perché la nostra legislazione proclama la
indissolubilita del matrimonio.

I liberali, i riformatori invece sostennero che I’ exequatur di
un fatto non in fieri, ma gia avvenuto, gia compiutosi perfetta-
mente all’ estero, non era che una conseguenza del rispetto
dovuto alle leggi degli altri paesi.

La giurisprudenza si divise pure in due campi e mentre le
corti di Venezia e di Firenze liberalmente fecero trionfare la
delibazione dei giudicati esteri; la Suprema Corte di Torino, in
SIGNOR PAVIA 209

 

un recente giudicato, che mosse a rumore tutto il campo dei
giuristi, non solo vietd la esecutorieta delle sentenze pronunziate
a favore di regnicoli naturalizzati all’ estero per ottenere il
divorzio,—condannando la mutata cittadinanza come jraus
legis—ma, giunse persino,—sempre sotto il pretesto di non con-
traddire all’ ordine pubblico del Regno—a non riconoscere
neppure il divorzio di stranieri sempre stati stranieri, e che
giustamente credevano non fosse vana parola quella scritta nel
Codice Italiano, nell’ art. 6 delle Disposizioni Preliminari; che
lo stato di capacita delle persone e i rapporti di famiglia—e,
per conseguenza, anche il cambiamento di stato nascente dal
divorzio—sono regolati dalla legge della nazione cui lo straniero
appartiene.

Ebbene cid é enorme, e siccome il negare cid é di vero inte-
resse internazionale @ bene ed @ bello che in congresso come
questo—che raduna nella ricerca della stabilita del giusto—
tutte le nazioni civili—sorga un voto che dica che non si vuole
che in Italia—terra sempre sacra al Diritto—alligni una tanta
stranezza giuridica.

. Tutti avete un interesse per associarvi nella difesa di questa
tesi. Da ogni parte del mondo si accorre per godere lo splen-
dore del nostro creato, ad ammirare la bellezza dell Arte, che
popolo di gioielli le cento citta d’ Italia, e ! ambiente finisce con il
conquistare molti stranieri che finiscono per stabilirsi fra
nol, o cercando riposo di conquistate dovizie nello azzurro del
Golfo di Napoli o nella Conca di Palermo, o per ricerca di lucri
maggiori insidiandosi nei centri opulenti di vita delle citta lom-
barde. Ora se é giusto che questi cittadini s’ adattino—venendo
a risiedere fra noi—a tutte quelle disposizioni che solo la legge
Italiana deve regolare —é altrettanto giusto che essi non per-
dano quel privilegio sotto la cui egida credettero scegliere
nuova dimora; la conservazione della loro legge personale per
tutto cid che riguarda  ambito del loro stato domestico.

Non porto fra voi la questione se i cittadini Italiani fattisi
stranieri abbiano ragione d’ invocare il riconoscimento del loro
divorzio ottenuto come stranieri sempre stati tali, non si vedano
210 CONGRESS OF LAWYERS AND JURISTS

 

vulnerati in un diritto acquisito Quindi non vengo a sostenere
tra voi un beneficio nazionale, ma a perorare con voi, per vol,
—fratelli nostri diletti di ogni terra lontana che venite in Italia
a darci la dolce letizia della vostra dimora,—affinché resti sta-
bilito che voi dovete aver pari alla costanza del nostro clima i
raggi del nostro sole anche la costanza delle notre leggi.

Ora il nostro Codice con un liberalismo che ebbe il plauso
di tutti i giurist? stabili e la giurisprudenza dei nostri Tribunali
sanziond che gli straneiri sono ammessi a godere dei diritti
civili attribuiti ai cittadini e per lart. 12 delle Disposizioni Pre-
liminari del Codice Civile, e per art. 941 del Codice di Proce-
dura, @ riconosciuto ai Tribunali esteri la facolta di pronunciarsi
in cause che concernano il diritto pubblico di uno Stato estero,
e quindi si argomenta che i Tribunali del Regno hanno facolta
di pronunciarsi in cause che concernono il diritto pubblico delle
altre nazioni, e per gli art. 105 e 106 del Codice di Procedura,
lo straniero pud essere convenuto avanti i Tribunali del Regno
per qualsiasi contraversia, non esclusa quella di stato.

Si pud fino ad un certo punto ammettere che, pur potendo
lo straniero piatire dei suoi diritti avanti i giudici Italiani, non
possa chiedere la dichiarazione di divorzio ab origine nel Regno;
ma quando egli ha gia ottenuta questa dichiarazione nel suo
paese, allora in Italia non si chiede altro che il riconoscimento
della sovranita della giustizia forestiera nel suo propio territorio.
Nulla vi @ in contrario al nostro diritto pubblico dando esecu-
toriett in Italia alla sentenza estera di divorzio, perché non si
fa che constatare la cessazione del matrimonio all’ estero.
Pronunciato legittimamente il divorzio all’ estero fra due coniu-
gati, il libero stato cosi riacquistato, costituisce per loro un
vero JUS QUESITUM che deve essere dalla legge Italiana
riconosciuto. E con cid non si viene a cooperare—come dicono
erroneamente i nostri avversari—all’ opera del giudice straniero
da parte del giudice italiano nel pronunziare una sentenza che
ripugna al diritto pubblico italiano; perché il constatare un fatto
giuridico, seguito e confermato all’ estero, per svolgerne gli
effetti nel territorio del regno lungi dall’ essere una cooperazione
SIGNOR PAVIA 211

 

con il giudice estero nel compiere cosa in opposizione alla legge
nazionale d’ ordine pubblico, non costituisce che |’ effetto
indiretto della sentenza estera di divorzio implicante il ricono-
scimento della sovranita della giustizia straniera.

L’ esser vietato il divorzio in Italia, |’ essere |’ indissolubilita
del matrimonio dettata da ragioni d’ ordine pubblico porta alla
conseguenza giuridica che il magistrato italiano non potra mai
pronunciare il divorzio, venga esso richiesto da cittadini o da
stranieri perché trattandosi di disposizione di ordine pubblico
questo deve regolarmente osservarsi nel regno cosi riguardo
ai cittadini come riguardo agli stranieri che si trovano nel
nostro Stato; ma quando invece si tratta di stranieri i quali
ottennero nella loro patria, sentenza di divorzio, allora non é
pit contrario al nostro ordine pubblico e non é pit vietato
ai nostri magistrati il dedurre ed il valutare le conseguenze
giuridiche dello stato degli stranieri quale venne legalmente
riconosciuto dai tribunali esteri competenti.

In questo caso i magistrati italiani si trovano di fronte a
due stranieri che domandano il riconoscimento di un fatto che
interessa il loro stato personale che @ regolato dalla legge della
loro nazione ed il far luogo alla loro domanda non pud turbare
il nostro ordine pubblico perche trattasi di un fatto avvenuto
all’ estero in conformit’ delle leggi ivi imperanti.

Si dice dagli avversari che in conformita dell’ art. 12 delle
nostre Disposizioni Preliminari, le sentenze delle Corti estere
non possono derogare alle leggi proibitive del regno che con-
cernano le persone, i beni, gli atti né alle leggi riguardanti in
qualsiasi modol’ ordine pubblico o il buon costume ma @ un
errore perche una legge del regno pud essere derogata da una
sentenza estera se ha autorita rispetto allo straniero; ma le
nostre leggi non hanno siffatta autorita per quanto concerne
lo stato e la capacita giuridica degli stranieri ed i loro rapporti
di famiglia, perche sono regolati dalla legge della nazione a cui
appartengono. Percid la sentenza estera di divorzio pronun-
ziata secondo lo statuto personale deiconiugati, non viene a
derogare a leggi proibitive italiane.
212 CONGRESS OF LAWYERS AND JURISTS

 

Si dice infine che é FRAUS LEGIS questo riconoscimento e
che il magistrato italiano—custode della legge patria deve
respingere qualunque offesa che in qualsiasi modo ad essa si
faccia.

L’ argomento manca di base.

Perché possa parlarsi di atto commesso in frode alla legge
@ necessario che |’ agente sia sottoposto alla legge che intende
di eludere; ora gli attori di questa richiesta sono sempre stranieri
sia che fossero tali AB ORIGINE sia che lo sieno divenuti poi.
Percid se la legge che regola il loro stato é la legge straniera e
non I’ italiana, non vi @ frode valendosi di una legge che non @
quella che si vorrebbe elusa.

Teri un oratore tedesco, sostenendo nell’ efficace suo dire, il
giudice stabile, citava con reverenza ed ammirazione una gloria
dei giuristi italiani—il Manctn1—permettete che io citi—a titolo
di onore per tutti noi che professiamo la tesi che il divieto del
divorzio non sia un principio di ordine pubblico—un tedesco—il
Prof. WINDSCHRID, il duce di quella schiera di giureconsulti
italiani che strenuamente combattono per la vittoria della nostra
tesi.

La giurisprudenza tedesca, svizzera, inglese, e la vostra
degli Stati Uniti ci pure favorevole ed io credo sia reso omaggio
al principio della solidarieta degli Stati costituenti una sola
famiglia invitandovi a sanzionare in cosi solenne congresso il
principio che nessuna autorit&’ possa toccare al patrimonio
giuridico personale degli stranieri in questione di Stato—; e
percid propongo al Congresso un ordine del giorno che risponde
a questi sentimento; e, mentre il mio pensiero di giustizia anela
di vedere nella terra di CESARE Beccaria, la quale, fra le prime
aboli la pena di morte—, abolita la pena della eterna catena
coniugale—che @ la morte morale della bella poesia della
famiglia—il mio cuore sente che la sola indissolubilita a cui
posso dare voto é il culto di rispetto e di entusiasmo che porto a
voi, sacerdoti potenti della umana giustizia.

Ordine Del Giorno: 4

Il Congresso Giuridico di St. Louis per il rispetto dovuto al
MR. JUSTICE NESBITT 213

 

patrimonio giuridico personale degli stranieri in questiont dt
stato—ja voti che in tutte le nazioni che accordano agli strantert
il godimento di tutti i diritti civili sia data esecutorieta alla
sentenza patria di divorzio. [Applause.]

The AcTING PRESIDENT:

In connection with Signor Pavia’s remarks on the Italian
project of a divorce law, and its bearing on the rights of Italians
who have obtained divorces in foreign countries where they
have been domiciled, he presents this motion:

“The Universal Congress of Lawyers and Jurists, considering the
respect due to foreign laws and establishing matters of personal
status, expresses the wish that in all nations where foreigners are

conceded all civil rights, foreign judgments of divorce should be
fully recognized.”

This resolution will be referred, under the rules, to the Com-
mittee of Nations.

The subject will now be further discussed by Mr. Justice
Nessitt of the Supreme Court of the Dominion of Canada.

The Honorable WALLACE NEsBiITT, Justice of the
Supreme Court of the Dominion of Canada, a Delegate-
at-large:

Mr. President and Gentlemen of the Congress: I shall not
attempt to add anything to the very exhaustive and masterly
treatment of the necessity for the extension of the rule that
judgments should be recognized by foreign courts, but shall
refer, in some detail, to the practical working of the rules which
the cases show have been formulated on the various suljects
treated in the paper which we have just listened to by Mr.
Justice KENNEDY, and if it is not improper for me at this point,
I wish to say I think I voice the views of the whole of this
audience when I say that the paper we have had the pleasure
of listening to from Mr. Justice KENNEDY is a most remarkable
one. [Applause.]

It is only necessary in a congress of jurists, such as this is,
214 CONGRESS OF LAWYERS AND JURISTS

 

to listen to such a paper in order to realize the extent of reading
and the extent of knowledge required to write that paper, a
close knowledge of the judicial systems of practically every
country in Europe, and a very accurate knowledge of the
American system as well. If you gentlemen can fancy what an
array of text-books alone on that subject it means, I think you
will agree with me that the pleasure we have had of listening to
it is a most remarkable one.

For myself, as you will see in the hurried notes that I have
before me, I do not concur in some of the views that have been
put forward by Justice KENNEDY. This is not to be wondered
at, because you will find on nearly every matter he has treated,
I venture to say, of the anywhere from eight to fifteen of the
international law-writers dealing with the subject perhaps not
three of them concur, so that it is perhaps not to be wondered
at that even Britishers will not take the same view of, for instance,
the right to defend against a foreign judgment, on the ground
of fraud. J may say in my own country it is a matter of fre-
quent occurrence that a judgment in Michigan, Indiana, Illinois,
or New York is brought into one of the provinces of Canada
and sued upon, and promptly the plea in almost every case is
set up that the court from which the judgment was obtained
was misled by fraud of the person in favor of whom the judg-
ment is sought to be enforced. As I understand, if the English
rule as laid down is to be fully adopted, the result would be
almost in every instance a retrial of the case. In other words,
you appeal from a Michigan jury to an Ontario jury. As I
shall point out shortly in this paper, I think that is a condition
of things that ought not to prevail, but I think that some com-
promise should be made between the Continental rule which
prevails upon the subject and the American rule. Referring to
the Continental rule, the reason I speak with some familiarity
of it is that in the particular court to which I have the honor
to belong we have both the French law from Quebec and the
English law from the other provinces, and the result is that at
the same sitting that court would probably have to take one
MR. JUSTICE NESBITT 215

 

view of the Quebec law on the subject and a very different
view on the same subject practically coming from another
province. Of course, you have had in your own Supreme
Court at Washington different State laws receiving different
treatment at the hands of the Court.

After the very exhaustive and instructive paper to which
we have just listened, it would be trespassing too much on your
time and good nature to do more than glance at the various
headings treated, and to offer a few observations thereon.

I concur heartily in everything that has been said in refer-
ence to the desirability of extending the recognition of foreign
judgments, even if in some cases the court has to give effect to
such foreign judgments, and feels that it would, under different
circumstances, have come to a different conclusion from that
which has been come to by the foreign court. Speaking of the
statement that there can be no question as to the international
recognition where there is territorial] jurisdiction, I would only
suggest that the text-writers are by no means agreed as to
what is included in the word “territory.” Is this to be con-
fined to the land where there is possibility of actual mastery or
dominion, or is the three-mile limit of waters to be included ?
Tf the latter, is the rule to be confined to the resolutions adopted
by the Institute of International Law in 1888?

Judgments in personam. I take it the principle on which
foreign judgments im personam are recognized is that the
judgment creates a legal obligation to pay, and therefore any-
thing that can show the non-existence of such an obligation is a
defense, and this is the real ground for the exceptions to recog-
nition which now obtain. As I understand these they may
be broadly stated in four classes:

(a) Excess of jurisdiction

(b) Want of notice to defendant

(c) Fraud

(d) They must not infringe on maintenance of public order
or morality.

There is another possible exception, namely, that courts
216 CONGRESS OF LAWYERS AND JURISTS

 

will not recognize the judgments of a foreign court which does
not itself extend that courtesy to other foreign courts; in other
words, a reciprocity doctrine, supported as you know by the
recent majority decision in Hilton v. Guyot, 159 U. S. 113, a
decision which, in my humble judgment is not consistent with
the view of the best modern text-writers. I would refer you more
particularly to a criticism of this by Sir FREDERICK POLLOCK
in the Law Quarterly Review.

Excess of jurisdiction. Many countries broadly assert for
their courts jurisdiction in all cases of nationality, and this
claim, it seems to me, should not be internationally recognized.
I would refer you to the various tests of jurisdiction given by
Bar in his valuable work of Private International Law, for the
Continental rule, and to Mr. Foote’s work on Foreign and
Domestic Law, 1904 ed., for the most recent exposition of the
English and American rule. It would be easy for you to see
how difficult it would be for you to attempt a definition of what
should be a test for international recognition of jurisdiction if
you glance at the works of Picotr, StoREy, Dicey, WHARTON,
BEALE, and others, but I think it may safely be said that there
is no consensus of opinion on the point. If I were to choose
from a mass of cases I would refer to Lord MacLaren’s judg-
ment in a case of Waygood v. Bennie, reported in Fourth Court oj
Sessions Cases, 12th Vol., at page 651, as an admirable attempt
to harmonize the conflicting views of the Continent and England
and America.

Want of notice to defendant. The English cases recognize
an exception in that they hold that the required notice need not
necessarily be notice in fact if the defendant is bound or has
consented to accept anything less as a substitute, as for instance
where a person had joined a foreign company the statutes or
articles of association which have contained special provisions
authorizing constructive notice of process or action by something
which would or might not be notice in fact. Is this a salutary
rule with the increasing facilities for commerce? Does it not
double the danger of the breach of the old rule, that natural
MR. JUSTICE NESBITT 217

 

justice requires that no man shall be condemned unheard?
As you know, stocks are purchased daily on the stock exchange
of corporations having their charter rights from various parts
of the world, and if the private regulations or private provisions
of statutes creating these companies contained provisions
enabling judgment to be had against stockholders perhaps for
the whole debts of the concern by constructive notice, it seems
to me that the cause of freer intercourse and trading is injured,
not helped, by the recognition of judgments obtained upon any
such constructive notice. I look for attempts on the part of
courts to break away from the rule I refer to promulgated by
such cases as Bank of Australasia v. Harding, 9 C. B. 661; Cop-
linv. Adamson, L. R. 9 Ex. 345; Vallee v. Dumergue, 4 Ex. 290.
I agree that it is best to give the fullest effect to foreign judg-
ments, but subject above all things to the right of the defendant
to have full notice of the proceedings affecting him and the op-
portunity to be heard, even assuming the court pronouncing
judgment has, internationally speaking, full jurisdiction over
the cause.

Fraud. There is no doubt great weight to be attached to
the observations of Lord Coxg, that fraud avoids all judicial
acts, ecclesiastical or temporal, and to those of Lord SELBORNE,
that all courts of law and equity should take cognizance of
fraud in obtaining judgments; but it seems to me that it is a
very debatable question whether the parties should not be
relegated to the courts of the country having jurisdiction in the
country pronouncing the judgment, and compelled to litigate
there the question whether such judgment has not been obtained
by fraud. The limited time at my disposal will not permit of
a discussion of the cases, but it does seem to me that if we are
to recognize foreign judgments where the courts have juris-
diction from the point of view of international law we should
assume that those courts would rectify any error arising from
fraud on application to them and proof of such fraud, and if
necessary, proceedings should be stayed in the courts of the
country where the foreign judgment is sought to be enforced
218 CONGRESS OF LAWYERS AND JURISTS

 

to enable the party alleging the fraud to obtain relief in
the courts imposed upon, and if it appeared that no process was
available for such purpose, then and then only should the
question of fraud be allowed to be tried. I, of course, assume
that in any event only the fraud of the party to the suit, not that
of a mere witness (such fraud or perjury not being known to or
connived at by the party seeking to rely on the judgment as
an obligation) can be invoked. The question is a very practical
one, as the plea that one of the parties deceived the foreign
court by wilfully adducing false evidence involves the examina-
tion of the evidence by which the fraud was effected, and so
retries by a judge or jury of one country the findings of fact
of the other.

The ground of defence, that the judgment infringes upon
the maintenance of public order or morality, leaves open again
very debatable questions, and I shall be surprised if it does not
undergo modification. It seems to me one that should be
applied sparingly, owing to the changing views of the world on
what is public order and even morality. Take, for instance, the
views prevalent a century or half-century ago of public divorce
in England on the recognition of foreign judgments of divorce
by courts of competent jurisdiction for causes not known in
England, and see the views obtaining to-day. I instance
Pemberton v. Hughes, 1899, 1 Ch. 781. Would a judgment
obtained in a country where a bond for payment for illicit inter-
course was a good cause of action receive at the present day the
same treatment as fifty years ago? See also the recent case of
Kaujman v. Gerson, 1904, 1 K. B. 593, where a bargain in
France to pay a sum for an agreement not to prosecute a crim-
inal was sustained by the first English court, although such a
bargain would not give rise to a cause of action as being against
the view of public policy in England. This judgment was
overruled, but see the vigorous comment in the judgment in
appeal in the Law Quarterly Review of July, 1904, pp. 227-229.

Res judicata. The rule stated by Bar in his second edition,
page 904, would seem to be too well established to be open now
MR. JUSTICE NESBITT 219

 

to criticism, although I cannot see why the defence, of fraud
for instance, should not be applied where the judgment is used
as a means of defence as well as of offence.

In speaking of recognition of judgments in personam, I
assume, of course, that it is understood that foreign judgments
obtained on a foreign penal statute are excepted. The leading
case in America is Wisconsin v. Pelican Insurance Co., 8 Sup.
Ct. 1370, and in the British Empire, Huntington v. Attrill, 1893,
A. C. 150. I assume also that it is understood that all foreign
judgments in personam, are only entitled to recognition as
creating an obligation between the same parties or privies, and
in the case of the Mecca, 6 Prob. Div. 116, it was held that a
foreign judgment in personam would not be enforced in England
by proceedings in rem. I presume that rule would be followed
elsewhere.

Judgments in rem. Where the judgment settles or changes
the ownership of movable or immovable property, the court
possessing jurisdiction (and in the absence of fraud), the judg-
ment is not only conclusive against the parties to the original
action, but as against all the world. The rule laid down by
Mr. Chief Justice MarsHALL that there must be lawful juris-
diction over the cause, the thing, and the parties, seems to me
to be the universal rule.

I might say here, in passing, that it is a singular thing that
many of the rules practically recognized as universal rules
relating to international law were either hinted at or suggested
by Chief Justice MARSHALL, in many cases twenty, forty, or
fifty years before they were adopted by other jurists throughout
the world. You may be very proud of the Louisiana Purchase,
but I think you can be prouder of the man who, to my mind, is
the greatest jurist the world has ever seen, Chief Justice Mar-
SHALL. [Prolonged applause.]

It may be found, however, that the difficulties arise when you
come to determine to what the conclusiveness shall be held to
extend, and it is difficult to reconcile the cases with the universal
recognition of the well-defined rule of incontestability. I am
220 CONGRESS OF LAWYERS AND JURISTS

 

unable to harmonize the well-known case of Simpson v. Fogo,
29 L. J. Ch. 657, with the rule. In that case, you will remem-
ber, a creditor of the owners of a British ship obtained in
Louisiana a judgment against them under which their interest
in the ship, and no more, was sold under process of execution.
The Bank of Liverpool, who had at the time a mortgage on the
ship, valid according to English law, intervened in the Louisiana
proceedings, and a judgment was pronounced against them on
the ground that the law of Louisiana ignored all rights, even
though acquired in England in an English ship before the vessel
had passed into the jurisdiction of Louisiana that had not been
acquired according to Louisiana law. The English court held
that the Bank of Liverpool was not estopped from setting up
their rights as mortgagees in an English court.

Suppose a ship condemned as a prize by a court of com-
petent jurisdiction, does this settle the question of neutrality in
an action against underwriters? It has been held it does not.
But is this consistent with the statement that the judgment is
final upon all facts inferentially decided and which are impliedly
necessary as grounds of decision? I can understand the decision
if the rule is to be that only such facts as are expressly found and
necessarily laid down in the judgment relied on will be adopted.

Marriage and divorce. A judgment of divorce, unlike other
judgments, does not declare merely existing rights, but it intends
to create a new condition of things, and therefore ordinary rules
are scarcely applicable. In Canada some curious questions
have arisen as to marriage with Indians according to Indian
rites, and I presume such questions are likely to arise elsewhere
where there are no priests or magistrates, no religious or civil
authority or registers. Why should not such a marriage be
held binding if it possesses the essential characteristics of a
Christian marriage, namely, the idea of a permanent union
with one woman to the exclusion of all others? All questions
of succession, legitimacy, etc., to be determined accordingly,
and universal recognition to be given to a judgment based upon
this consideration ?
MR. JUSTICE NESBITT 221

 

Divorce. The rule as to this seems well settled in the
British Empire, that ‘‘a decree of divorce must be pronounced
by a judge of the domicile of the husband, no matter where the
offense justifying the decree is committed or where the mar-
. Tiage was celebrated, except in the single case of a wife deserted
by or compelled to live apart from her husband, when she may
apply to the courts where the husband and wife were heretofore
domiciled.” I thoroughly agree with the rule laid down by
Mr. Foote in the 1904 edition of his Foreign and Domestic
Law, where he says:

“Domicile being a question of fact, it is not competent for indi-
vidual states to enact restrictions upon or facilities for its acquisition,
and such enactments should not in the tribunals of other states
obtain recognition.”

This undoubtedly refers to some of the laws of the states of
the United States and of some other countries which give the
courts of a particular state or country jurisdiction to grant
divorces after a certain residence by one or both of the parties
in the state or country in question. That is what is called a
matrimonial domicile or bona fide residence, and such standard
is taken to fix jurisdiction. While this is, no doubt, sufficient
to found decrees of alimony, separation, and the like, it is
wholly insufficient beyond the boundary of the state or country
to found jurisdiction in divorce.

By domicile is meant without distinction domicile by fixed
and settled purpose, a determination, final and deliberate
intention, to elect a country as a place of habitation. Mere
residence, however long, is not sufficient, as it is clear beyond
all doubt with regard to the domicile of birth, that the personal
status clings and adheres until the personal status of another
domicile is acquired.

I might call attention to a recent case in the House of Lords
where domicile was held not to have been obtained although
an American citizen had lived in England from 1859 to 1897,
without ever having visited America, and I take it that the
House of Lords must have held that in such a case the English
222 CONGRESS OF LAWYERS AND JURISTS

 

court could not grant a divorce valid outside of England. If
the tests applied in that case are to be applied in cases relating
to divorce, I fear it will make validity of many judgments of
divorce open to attack under the plea of want of jurisdiction in
the court granting the divorce. The subject is one of such
practical importance that it might be well to illustrate my under-
standing of the practical working out of the rule above indicated.
Suppose a citizen of one of the United States of America marries
according to the form of English or Canadian laws, an English
or Canadian woman, the status or capacity of the parties to
marry is determined by the law of the domicile of the parties, the
jorm by English or Canadian law, the court to grant a divorce
is that of the State where the husband has his domicile, which
court can grant a valid divorce, no matter where the cause of the
divorce may arise, and no matter whether the cause would be
one recognized as valid by the courts of England or Canada.
No other court whatever would have jurisdiction under inter-
national law.

To pursue the matter further. Suppose a citizen of one of
the United States of America marries in the States an English
or Canadian woman, and suppose he elects for a domicile in
either England or Canada, the Court in England or Parliament
in Canada (as to the majority of the provinces which have no
divorce court) would be the only court having jurisdiction to
grant a divorce universally recognized.

Or to further illustrate: Suppose a domiciled Frenchman
marries an American and takes her to live in France, and during
a visit to Egypt or elsewhere an act is committed which would
be a sufficient cause for divorce in France, the only court which
can. grant a divorce is the French court. Or again, a not
uncommon case, a domiciled Englishman marries an American
girl, in say New York, and the married couple travel about in
various places, and then a divorce is desired by the wife. The
only valid divorce must be obtained in England. I think these
illustrations will sufficiently make it plain that a great number of
divorces which have been obtained are absolutely worthless
MR. JUSTICE NESBITT 223

 

outside of the jurisdiction of the court which had granted
them.

Ihave not dealt with fraud or collusion, which always vitiates.
By collusion I mean connivance between the parties to bring
about the state of affairs creating the cause, such as an agree-
ment that one should commit adultery, or the like. It appears
to be the better opinion that after the state of affairs justifying
has arisen without connivance, it is not collusion for one of the
parties to accept money, etc., not to appear or oppose. I may
here mention that in Canada, under the British North American
Act, which forms our written constitution, the Parliament of
Canada has jurisdiction in matters of divorce, and in the case
of Susan Asu, Sir JoHN ABBOTT, then leader of the Senate,
and afterwards Premier, laid down the doctrine that Parliament
would not recognize the decrees of foreign courts in divorces.
He said:

“The proposition contended for by those who insist that this
divorce is valid is, that inasmuch as there has been a judgment of a
court—a competent court in the place where it was rendered—we
must accept that judgment as binding upon us as declaratory of the
dissolution of this marriage, as effectually dissolving this marriage.
Now, there is a great distinction to be taken between an argument
of that kind addressed to a court of justice, and an argument of
that kind addressed to a tribunal like this. This House is, in this
instance, acting not only in a quasi-judicial capacity, but is acting
in a legislative capacity as well, and in determining to pass this bill
this House will decide in its legislative capacity that this marriage
is dissolved. The effect of a judgment of a court in one country upon
the judgment of a court in another depends upon the comity between
nations, and on this principle, that as both nations, being Christian
and civilized nations, have determined to treat the subject matter of
a judgment as a fit matter for discussion, inquiry and decision by
their courts, then out of, as it were, international courtesy, they
treat the judgment of the court of another country upon that sub-
ject—the jurisdiction over which is common to the courts of both
countries—as entitled to consideration and weight, and they give it
by courtesy that consideration and weight involved in regarding it
as prima facie a correct judgment. That proposition, however,
does not seem to me to apply to a case where one of those countries
has not relegated the subject matter of the judgment to the courts
where, in one of those countries, the courts have no jurisdiction
224 CONGRESS OF LAWYERS AND JURISTS

 

over it. Where, therefore, the subject of the judgment is not a
matter the jurisdiction over which is common to the courts of
both countries, the courts of one country are not called upon by
any rule of courtesy, such as that arising from the similarity of juris-
diction, to recognize the validity of the judgment of its neighbor.
We stand in that position. We have not yet recognized the power
of any court to deal with the question of divorce. We hold it to be
a matter beyond the jurisdiction of the courts, while, on the contrary,
on the other side of the line, the matter of divorce is so much within
the jurisdiction of the courts that as his Honor, the Speaker, has
shown, there is scarcely any ground of difference between a man
and woman living together as husband and wife, which has not
been held sufficient to justify the dissolution of marriage. I agree
therefore with the honorable gentleman from Ottawa that there is
nothing binding in the argument which claims for a judgment by a
foreign court that kind of consideration and recognition in this
House which that judgment would have before an ordinary tribunal
upon a matter the subject matter of which was common to both.”

I apprehend this view would not now prevail, as since its
expression the text-writers are almost universally agreed that
the doctrine of comity is not the true basis of recognition of the
efficiency of foreign judgments, and if the latter ground of
recognition contended for by the text-writers is a true one, the
reason for the distinction between the recognition by Parlia-
ment and the courts would fail, and as the law for the courts
of the British Empire may be taken to be settled that ‘“accord-
ing to international law, the domicile for the time being of the
married pair affords the only true test of the jurisdiction to
dissolve the marriage.” I take it that the Parliament of Canada,
acting as a court in this particular, would adopt the present
rule. I would suggest that some rule by which not only domicile
which rests in intention, but domicile coupled with some overt
public act of declaration of domicile should be required in order
to found jurisdiction. This would be plain enough in a case
of foreign citizens who might be required not only to elect for
a domicile in the country, but to publicly declare their intention
to create a new domicile and acquire a nationality of the courts
of the country in which they sought to obtain a judgment of
divorce, but there are practical difficulties in the case of feder-
MR. JUSTICE NESBITT 225

 

ated empires where the courts of one state or province are, with
respect to the courts of another state or province, in the empire
or federation, foreign courts; in such a case it might perhaps
be necessary to require a public declaration of domiciliary inten-
tion and state citizenship.

Lunacy, etc. As to representation of estates in matters of
lunacy, curatorship, administration, etc., the judgments of the
courts having jurisdiction are generally recognized, although
necessarily different considerations as to recognition are involved,
as for instance, in cases of administration ancillary letters are
usually required to be taken out, as the courts are jealous of the
rights of creditors within their own jurisdiction, and it is usually
necessary to have some person over whom the court has personal
jurisdiction to enforce these orders. As to lunacy, I think the
rule should be that the court which should have jurisdiction
to declare lunacy is the court where the lunatic has a bona fide
residence, and that the judgment declaring his status as a
lunatic should be universally recognized. The courts of other
countries where he has either movable or immovable property
protecting the rights of creditors in that country should recog-
nize the declared status as a lunatic and the curatorship which
the courts of his residence have created. And in case of infant
children and judgment as to guardianship the court to declare
their status should, in my opinion, be the court of the domicile
of the father, because I think it is generally recognized that until
an infant attains age he is not capable of himself obtaining a
domicile different from that of the father, and, therefore, the
court to declare his personal status should be the court of the
father’s domicile at the time of his death.

It would seem most desirable that many conflicts of laws
should be regulated by treaty, and so far as Canada is concerned,
the necessary machinery has been provided by our constitution.
Section 132 of the British North American Act provides:

“SECTION 132. The Parliament and Government of Canada
shall have all powers necessary or proper for performing the obliga-
tions of Canada or of any Province thereof as part of the British
226 CONGRESS OF LAWYERS AND JURISTS

 

Empire, towards foreign countries, arising under treaties between
the Empire and such foreign countries.”

And under this the Parliament of Canada could act should the
imperial authorities make any treaty regulating conflicts of
laws.

I think it is a very great pity that there should not be some
legislation immediately regulating many questions on interna-
tional law, at any rate between Canada and the United States.
The growing interchange of business, owing to the geographical
continuity, makes it very important that there should be well-
defined rules applicable to both countries upon many questions
which are constantly arising. Take, for instance, bankruptcy,
receiverships, administrations, etc. Suppose a receiver is
appointed for a railway company in New York or Michigan,
can such receiver maintain his right to the property of the com-
pany temporarily, necessarily, say in Canada, against creditors
who may wish to attach such cars for a debt sued upon in
Canada, but perhaps due in New York, where the receiver was
appointed P

Again, take a case of collisions on the high seas. Why
should not this be immediately settled by treaty, either accord-
ing to the English rule or the Continental rule, or a compromise
between the two? Mr. Bar suggests a good working rule by
way of compromise which might well be adopted.

Again, the question of legitimacy, succession, etc., might
well be thrown into short codified rules which should obtain
universal recognition.

I cannot but think that a congress such as this could do
much towards bringing about some such result, and I would
impress upon the members of the American Bar Association an
active, prompt action looking towards a convention of one or
two delegated jurists of all the civilized countries, the business
of which convention should be the consideration and framing
of a short code of rules upon some of the subjects I have indi-
cated, which should be binding upon the courts of all the
countries, and which could no doubt rapidly obtain legislative
MR. KEASBEY 227

 

force from all the countries if such a convention could be got
together, and could agree upon short rules relating to the prin-
cipal subjects and return them to the respective countries with
recommendation that they be passed as a beginning. I would
suggest also that before such a convention a short memorandum
should be obtained from each of the countries, of the law in each
upon the subject, so that a comparison would be easy and the
matter could be immediately dealt with.

I think a great work lies with the American Bar Association
which convened this Congress if it could bring about at an early
date a small convention of the kind I have indicated, with at
least one delegate from each country, and that in the case of
such quasi-independent nations as Australia, New Zealand,
Canada, and India, representations be allowed, so that the
Parliament or Assemblies of those countries might feel that they
had a voice in the matter.

ConFucius said: “If at any time harmony reigns over
humanity as it ought to reign, evil will no longer have any power
over mankind. Physical evils are only the consequence of
moral evil, of the hatred and injustice which always separates
human beings.” [Applause.]

The AcTING PRESIDENT:

There is now an opportunity for a general discussion by the
Congress on the subject under consideration, and gentlemen
desiring to speak will, under the rule, send their cards to the
Chair. The first speaker will be one of the Delegates from the
Government of the United States, Mr. Eowarp Q. KEAsBEy of
New Jersey.

Mr. EpwarpD Q. Keassey of New Jersey, a Delegate
of the United States Government:

Mr. President: There is a point suggested by Mr. Justice
KeENNEDY’s address on which I wish to say a word, I mean
what was said as to the test of the jurisdiction being the com-
petency of the court. The competency of the court was made a
228 CONGRESS OF LAWYERS AND JURISTS

criterion of the jurisdiction of the court, and the question of
jurisdiction in actions im personam seemed to be made to depend
on whether the court should determine that it had power to
take jurisdiction of the question and the person. It struck
me that it was interesting to note that in the United States we
have already reached, under the Constitution, the principle
which it is sought to reach in this conference, the principle that
full faith and credit should be given to the judgments of the
courts of other states. This principle is applied only when the
court pronouncing this judgment has jurisdiction, and the
courts of the United States have not yet taken the ground that
jurisdiction can be established by the determination of the court
which takes cognizance of the case, but they have rather taken
the ground that jurisdiction cannot be assumed unless there is
personal service of process on the defendant, or at least some
kind of actual legal service upon the defendant within the terri-
tory in which the court is constituted.

I have observed that in England the tendency has been in
another direction, and has been away from the judgment of
Lord WEstxurRy in the case of Cockney v. Anderson, forty years
ago, which was to the effect that there must be service in the
territory; that it is not enough to give notice to the defendant
elsewhere. In a recent English case it was said that it makes
no difference where the man has notice, and that if he has notice
it is of little consequence whether it is given in Dover or Bou-
logne. In America it is held that there is a difference whether
the man is served in New York or in New Jersey. There must
be jurisdiction over the person in the territory in which the court
sits. That doctrine has been adopted by all the States. Lately
in New Jersey it has been held that although the statute pro-
vides for giving notice to the defendant by publication, and for
a decree in default of appearance, yet if the party is not to be
found within the State, and the suit does not relate to property
within the State, the court has no jurisdiction to make a decree
in personam and the bill must be dismissed as to him.

What I wanted to say was, that the tendency in England
JUDGE BREAUX 229

 

seems to be to allow the court to determine whether it has juris-
diction, so that, as suggested by Mr. Justice KENNEDY, the
jurisdiction depends upon the competency of the court, and that
is determined by the court, but in the United States it is now
the settled doctrine that the jurisdiction exists only in case of
service within the territory.

The principle that jurisdiction is based upon the presence
of the defendant within the territory is in accord with the idea
of domicile as the basis of jurisdiction, and this is the
idea adopted by England and America, while in France and
in Italy the tendency is to adopt the idea of nationality.
[Applause. ]

The AcTING PRESIDENT:

The Chair is of the opinion that speeches will have to be
limited to five minutes, instead of ten minutes. The Chair now
calls on Judge Breaux, of the Supreme Court of Louisiana.

The Honorable JosrpH A. BREAUX, a Delegate from
the Supreme Court of Louisiana, U. S. A.

Mr. President: I had not intended to deliver an address at
all—I merely want to say a few words. I have listened to the
papers that have been read, and the discussion, with a great
deal of pleasure. There was a decision of the Supreme Court
of Louisiana pronounced a great many years ago. Owing to
several unfortunate expressions in it the decision is made to
appear as if preference was given to home creditors. That was
a very unfortunate expression. It was taken up by an English
court, and was severely criticised. A learned gentleman said
that he had never heard that the decision had been reversed
since. That is because of the very good reason that no occasion
has ever arisen to reverse it. It has been criticised within the
limits of our own State. Let me assure you, gentlemen here
present, that Louisiana is as anxious as any State or any nation
to enforce every right that every citizen has, whether he is a
citizen of Louisiana, or any other State or nation.
230 CONGRESS OF LAWYERS AND JURISTS

 

The AcTiINnG PRESIDENT:
The floor is now given to Associate Justice RoBERT M.
Dovuctas, of the Supreme Court of North Carolina.

The Honorable Ropert M. Dovuctas, a Delegate of
the Supreme Court of North Carolina, U. S. A.

Mr. President: This is neither the place nor the occasion
for unprepared addresses, but sometimes free expression in sim-
ple words-of the convictions of a lifetime have greater effect
than any power of studied words.

Coming directly to the point, while recognizing the fact that
divorces granted in one state must, of necessity, be universally
recognized, as they, in fact, break up the marriage tie, I do not
think that a decree allowing alimony should have any extrater-
ritorial effect.

Divorce may at times become a necessary evil, but it still
is an evil that should receive neither moral encouragement nor
pecuniary reward. Many States, including our own, deem it
contrary to public policy to allow any alimony whatever in a
divorce, and hence are loathe to enforce any such decree,
which they regard as directly opposed to the letter and spirit
of their laws, and the welfare of their people. Petitioners obtain
divorces purely on the sworn allegation of bona fide residence
in the State whose jurisdiction is invoked; therefore, they should
be content to abide there and enjoy such pecuniary advantages
only as its laws may give and its courts can enforce.

I am personally opposed to absolute divorces, that is, divorces
permitting remarriage. Aside from its religious phase, it
strikes at the very root of society by destroying its chief con-
stituent of unity, the family home. If the parties alone were
affected, I would care but little, but it directly affects the helpless
child as well as society itself. Especially repugnant are those
carpet-bag divorces which are so freely granted in certain States
to merely nominal residents, in proceedings which are, in their
essential nature and purposes, purely ex parte, although digni-
fied by the title of actions at law. [Applause.]
PROPOSED RESOLUTIONS 231

 

Remarriage after divorce has well been called successive
polygamy, and it seems to me that it is but little removed from
the contemporaneous polygamy which we so freely denounce
in our Mormon citizens. Should not we avoid even the sem-
blance of that sin which we denounce so strenuously in others?

I am aware that our own State has always permitted divorces
for certain causes, and has recently further relaxed its ancient
rule apparently to meet the unusual hardships of special cases,
but I am sure that the trend of public thought is strongly in favor
of its restriction. North Carolina feels a just pride in her mate-
rial development, but she is prouder still of the manhood of her
sons and the womanhood of her daughters. Around the family
hearthstone clings her fondest affections, and from it emanate
her noblest aspirations. I know she is called the ‘Rip Van
Winkle State’ of the Union, and we have frequently heard that
she will awake from her slumbers and follow what is called the
progressive Thought of the Age, but it were better to let her
sleep forever than to awake to infamy and shame. [Applause.]

The AcTING PRESIDENT:

The limit of time requires the discussion to be closed at this
point. His Excellency Sefior Don Manuret bE AzprRoz,
Ambassador from Mexico to the United States, and a Vice-
President of this Congress, submits this resolution:

“That the Universal Congress of Lawyers and Jurists indorse
all efforts intended to facilitate the surrender of perpetrators of
atrocious crime, who seek asylum in foreign countries, to their
national judges, for the sake of justice; and, therefore, it recom-
mends to the consideration of the government represented here,
and such others as may consent, the system agreed upon by the
Republic of Mexico and the Kingdom of Italy in their treaty on
extradition of 1899, for designating criminal facts which shall form
the basis of extradition proceedings.”

In connection with this his Excellency has submitted obser-
vations in writing, which will be handed to the Secretary for
printing in the proceedings of the Congress. [See Appendix D.]

The following motion has been sent up by Mr. FRAncis
232 CONGRESS OF LAWYERS AND JURISTS

 

RAWLE of Pennsylvania, former President of the American
Bar Association, and a Delegate in this Congress from the
United States Government.

“Resolved, That the Committee of Nations be instructed to
consider and report as to whether in the interests of the peaceful
commerce of the world the right of search of neutral vessels now
accorded to belligerent nations cannot properly be restricted to

such parts of the high seas as are reasonably contiguous to the
ports of the combatants.”

While that resolution calls for a vote of the Congress, under
the general rules of the Congress, it will be submitted to the
Committee of Nations for their opinion as to whether it should
be submitted to the Congress and the action indicated taken.

The following is presented by Mr. GrorGE WHITELOCK of
Maryland, a Delegate from the American Bar Association:

“Resolved, That the Committee of Nations be instructed to
consider and report whether cases of infraction of police regulations
should not be made an exception to the immunity from the jurisdic-
tion of local tribunals accorded to the representatives of foreign
nations in the countries to which they are accredited.”

That also will be referred.

The following resolution is presented by Mr. Henry C.
NILES, a Delegate of the Pennsylvania Bar Association:

“Resolved, That this Congress records the death, during its
sessions, of Hon. Grorcr F. Hoar, of Massachusetts, with keen
grief and deep regret.

“He was one of its most distinguished members, and his pro-
found learning, consistent patriotism, and ripe experience have here
been sadly missed. His example will be long an inspiration to all
students of law and lovers of justice.

“Resolved, That the Secretary convey to Mr. Hoar’s family an
expression of the condolence of this Congress, with a copy of these
resolutions.”

These resolutions will all be referred, according to the rule,
to the Committee of Nations, without exception.

Mr. Fasrus H. Busse of North Carolina, U.S. A., a
Delegate-at-large:
REPORT OF COMMITTEE OF NATIONS 233

 

Mr. President: Would it not be in order that the rule should
be suspended in regard to the last resolution? I had the honor
of introducing a similar resolution before the death of Senator
Hoar, which has not been acted upon, and action on this will
prevent any action on the other.

The AcTING PRESIDENT:

The Chair rules the gentleman out of order. The rules of
this Congress are like the law of the Medes and Persians,
irrevocable and unalterable.

The next business before us is the report of the Committee
of Nations, by its chairman, Mr. Justice NESBITT.

Mr. Justice NEsBItT:

Mr. President: I shall not trouble, at this late hour, the
Congress with the reading, as I did yesterday, of the material
brought before us.

The matter first in hand is that of patents, contained in a
resolution submitted by Mr. JosrpH R. Epson of Washington,
D.C. The Committee, after discussion, have

“Resolved, That it is of great importance that the laws of the
different countries on the subject of patents be harmonized so that
patents can be granted according to the same principles, and on like
terms and conditions in each, and that the expenses of a patentee in
obtaining a patent be reduced as much as possible, and the Congress
further invites the governments to consider the propriety of regu-
lating the renewal or extension of patents on like conditions in each
country.”

On motion the report was accepted and the resolution
adopted.

Mr. Justice NESBITT:

In reference to the communication from Mr. JamEs E. Bass
of Idaho, in respect to the exchange of law publications and
statutes, the matter was deemed by the Committee to be of
very great importance, and I am sorry that time will not per-
mit me to bring before you some of the information obtained
234 CONGRESS OF LAWYERS AND JURISTS

 

from the different Delegates. In the United States, I see by a
report from a gentleman in charge of the matter in the Con-
gressional Library, that there is a bureau now established by
the United States Government which authorizes the librarian, to
the extent of one hundred copies, to exchange with any country
certain publications. The Committee, after deliberation, will
ask you to adopt the following:

“Resolved, That this Congress recommends that the Nations
represented here, and such others as may consent, enter into an
agreement for the mutual exchange of publications containing the
statutes of each, and the decisions rendered by the courts of last
resort in each, and the Vice-President from each Nation in the Con-
gress is requested to bring this matter to the attention of the proper
authorities in his own Government, so that it may result in the various
Governments establishing a bureau where, on any Government
sending its own statutes and the decisions of its highest court to the
other Government, there will be an interchange.”

On motion the report was accepted and the resolution
adopted.

Mr. Justice NESBITT:

Mr. StREET of Galveston, Texas, submitted a communica-
tion in reference to the permanent organization of an inter-
national association of lawyers and jurists. I may say for the
information of the gentlemen present, that to speak of this as
the first Congress of its kind in the history of the world is
erroneous. As you gathered from the observations of Mr.
Justice KENNEDY this morning, there have been, I think, at least
five very important congresses of this character held at various
places in Europe, and the discussions that took place were the
subjects of a great deal of controversy. The Committee has
considered carefully the resolution offered by Mr. StREET, and
will report as follows:

“They are convinced that an international association of
jurists and lawyers meeting at stated intervals to consider
subjects of general interest would be an organization likely to
accomplish important results. It would promote an acquaint-
AN INTERNATIONAL BAR ASSOCIATION 235

 

ance between lawyers all over the world, and so establish strong
links between different countries, most useful in times of inter-
national difficulty. It would facilitate an interchange of
opinion on questions of interest to the lawyers of every country.
It would exercise a strong influence in favor of uniform laws
on many subjects, and would hasten the adoption of reforms.
All associations which bring the representatives of different
countries together upon a common ground must tend to prevent
misunderstanding and to cement international friendship. The
Committee is, therefore, in hearty sympathy with the purpose
of the resolution. They recognize, however, that it is impossible
for this conference of men, gathered from widely different
places, and on the point of separating, to perfect a scheme for
such a permanent organization as is proposed. They have
not the necessary machinery, and, after to-morrow, conference
among the members of any committee, which should be inter-
national in its composition, must be conducted by correspondence
and with great inconvenience and delay. They, therefore,
recommend that the American Bar Association, which has been
so active in assembling this Congress, be requested to continue
the work, and, through its officers, take such steps as are neces-
sary to organize an international association of jurists and
lawyers. To this end, they offer the following resolution:

“Resolved, That this Congress, recognizing the importance of
promoting friendly intercourse between the jurists and lawyers of
different nations, to the end that by harmonious effort they may
labor efficiently for the improvement of the law and the maintenance
of international peace, request the American Bar Association to take
such steps as are necessary to organize a permanent association of
lawyers representing the different countries of the world, which
- shall meet at intervals, to discuss legal questions of public interest;
and that this resolution be transmitted to the secretary of the Amer-
ican Bar Association.”

The ACTING PRESIDENT:
Gentlemen, you have heard the report of the Committee

of Nations. Does any gentleman desire to discuss the
report ?
236 CONGRESS OF LAWYERS AND JURISTS

 

Mr. Justice KENNEDY of England:

Gentlemen: I would just like to say a word about this,
merely because some of you here may not know of the facts
which, I think, should be known and may usefully, as it were,
be considered in reference to this resolution, to which I see no
objection, and that is this, that there has existed for many
years now—certainly more than thirty—under slightly changed
names, what is deemed now an international law association,
a body that already contains, among the lists of its members,
many distinguished jurists—jurists from, I think I may say,
almost every civilized country. It contains the names of a
large number of men who belong to the American Bar Associa-
tion. There are committees on almost every important subject.
No association, or no body, I think, has ever given the time and
attention of able and competent men to such questions as
foreign judgments, for instance, as the International Association.
Our meetings are held in different countries, and one most
enjoyable was the one we held in Buffalo at the hospitable
invitation of the American Bar Association, where we worked
together. Many members of the American Bar Association are
members, and I think my friend Judge BALDWin is one of our
vice-presidents.

I appear as a Delegate, also as a vice-president, and, for the
purpose of this Congress, as a representative, of the International
Law Association, which, I think, may be, on consideration, found
to be a body which at present, while it would be delighted in
any accession of help, is a body that is really actively—not
merely existent, but most actively—existent for the excellent
purposes recommended by the Committee of Nations. I think
I ought to say this, because, while there can be no possible
objection to other bodies working too, yet, at the same time,
it is always a pity to multiply organizations, and I think it
will be found that there is in the International Law Associa-
tion both the cosmopolitan character desired, and also, I
think one may say, a readiness to co-operate with any other
association.
PAPER OF MR. FINKELNBURG 237

 

On motion of the Honorable Martin DEWEY FOLLETT
of Ohio, U. S. A., a Delegate-at-large, a vote on the pro-
posed resolution was deferred to the afternoon session of
the Congress.

At 1 Pp. M. the Congress took a recess until 2 P. M.

[During the recess the members and guests partook of a luncheon,
given by the St. Louis bar, which was served on the stage of Festival
Hall.]

THIRD DAY
FRIDAY, SEPTEMBER 30, 1904
AFTERNOON SESSION

The Congress was called to order at 2 P. m. by Vice-
President the Honorable Sir Witt1am R. KENNEDY, act-
ing as President.

The ACTING PRESIDENT:

I will now call on Mr. G. A. FINKELNBURG to read us a paper,
which he has promised, on ‘‘The Protection which should be
Accorded to Private Property on the High Seas in Time of
War.”

“Toe PROTECTION WHICH SHOULD BE ACCORDED TO
PRIVATE PROPERTY ON THE HicH SEAS IN TIME OF
War,”

A PAPER BY

The Honorable Gustavus A. FINKELNBURG of St.
Louis, Mo., U.S. A., a Delegate from the United States
Government:

Mr. President and Gentlemen: Before reading my very
brief paper on this subject, I wish to say that the subject was
originally assigned to abler hands. The subject was assigned
238 CONGRESS OF LAWYERS AND JURISTS

 

to Mr. CHARLES HENRY BUTLER of Washington, D.C. Owing
to the unexpected and unfortunate illness of Mr. BUTLER, he
could not attend, and his paper was not in such a state of com-
pleteness that it could be read by some one for him at this meet-
ing. Under these circumstances, about two weeks before this
Congress met, the Committee having in charge these matters
asked me whether I would not endeavor in some measure to
fill the vacancy upon the programme. I have endeavored to
do so, but, Mr. President, if the paper, as I fear, bears upon it
marks of haste, I will have to ask your kind indulgence.

It has been said that inviolability of person and property
is the only true basis on which the spiritual and material com-
merce between the nations can flourish and reach the remotest
portions of the earth, and that therefore it should be respected
by all civilized nations as much as possible in war as in
peace.

The mitigation of the laws of war has been going on ever since
the time of Grotius. Owing to the want of an international
tribunal to speak with authority, and owing to divergent national
interests, this movement has necessarily been a slow one. But
the growth of civilization gradually affects and absorbs all the
activities of man, and war has not been exempt from its restrain-
ing and humanizing influences.

The old practice was to inflict the greatest amount of injury
and hardship possible—the modern practice is to inflict the
smallest amount of injury and hardship consistent with the
necessities of war.

In war on land we have indeed made great progress in this
direction. In the treatment of prisoners, in the treatment of
the enemy’s wounded, and the degree of immunity now accorded
to unoffending non-combatants in their persons and property;
in these and other matters we have gone to the utmost extent
compatible with the conduct of active hostilities. But on the
ocean, one of the old-time practices with respect to private
property still remains. I refer to the rule of international law,
still adhered to, that the private property of the enemy found
PAPER OF MR. FINKELNBURG 239

 

at sea, or afloat in a port, is liable to capture and confiscation—
the proceeds being usually divided among the captors.

It is a rule old in age and authority though much out of line
with the more modern ideas of warfare. International law of
to-day permits the capture of private property in war on land
only under certain exceptional circumstances when the exi-
gencies of the war make it imperative for military purposes.
This amelioration of the laws of war did not come to a full
development until the nineteenth century, although the germ
is to be found as far back as Magna Charta, which provided that
the property of foreign merchants in England should be pro-
tected even in war if the enemy reciprocated." The modern
tendency is to confine war to public warfare, i. e., warfare
between armies and armies—between navies and navies—
leaving non-combatants, as much as possible, free from injury
to persons and property. But on the high seas we still chase
after booty, and plunder the property of non-combatants, very
much as was done in the centuries gone by.

From an ethical standpoint such a legalized appropriation
of the private property of others is not calculated to strengthen
the respect for property rights in general, or to elevate the
standard of legal conscience among the people.

From an economical standpoint the enormous losses inflicted
upon all maritime nations by the present system of captures
seem out of all proportion to the gains. Indeed, it is doubtful
whether the losses thus inflicted upon belligerents have any
appreciable influence on the final result of a war or tend to
shorten its duration, and yet unless they do so there is no
legitimate excuse for them, and the existing practice becomes a
wanton increase of the hardships of war, and a wasteful destruc-

1 The decision of the U. S. Supreme Court in the case of Brown v. U. S.
(8th Cranch, 110), rendered in the early part of the nineteenth century, shows
the transition era. The court still recognizes the abstract legal right to seize
and appropriate the private property of an enemy subject, but speaks of “The
mitigation of this rigid rule which the humane and wise policy of modern
times has introduced into practice,’ and then refuses to enforce the right in
the case before it, because Congress had not passed a special act directing an
exercise of that right during the War of 1812. Evidently the court was loath
to apply the old rule and found a way to escape it.
240 CONGRESS OF LAWYERS AND JURISTS

 

tion of values created by the peaceful industry of man. In the
Napoleonic wars the French commercial marine was destroyed
at an early day, but the Empire flourished until its armies were
defeated at Leipzig and Waterloo. The losses entailed on
American commerce by Confederate cruisers during our Civil
War were very great. They did not shorten the war or change
the result. They only added to the bitterness engendered
between a kindred people.

After the late Spanish War, President McKINLEY, in a mes-
sage to Congress, spoke of this practice as the ‘‘waste of war,”
damaging all nations more or less by the state of uneasiness and
apprehension into which an outbreak of hostilities throws the
entire commercial world.

Let us not confuse this subject with that of contraband—
that stands on a different footing. Every belligerent nation
must have the right to prevent its enemies from being supplied
with arms, munitions, and other military supplies; that may
be said to be a sine qua non of war. What we are considering
here is the forcible appropriation of private property clearly not
contraband in character; as, for instance, the ordinary goods,
wares, and merchandise of peaceable merchants engaged in
their regular mercantile pursuits.

When BENJAMIN FRANKLIN was acting as one of the American
plenipotentiaries to negotiate treaties with European powers,
he said:

“There are three employments which I wish the law of nations
would protect, so that they should never be molested or interrupted
by enemies even in time of war; I mean farmers, fishermen, and
merchants; because their employments are not only innocent, but
for the common subsistence and benefit of the human species in
general.” (Letter to Mr. Wendorp, Franklin’s Works, Vol. 9, p. 41-)

In 1783 he transmitted to one of the English Commissioners
a paper containing ‘‘A proposition for improving the law of
nations, by prohibiting the plundering of unarmed and usefully
employed people.” In it he speaks of the “practice of robbing
merchants on the high seas,” as “‘a remnant of ancient piracy.”

He proposes that ‘‘all merchants or traders with their unarmed
PAPER OF MR. FINKELNBURG 241

 

vessels, employed in commerce, exchanging the products of
different places, and thereby rendering the necessaries, con-
veniences, and comforts of human life more easy to obtain and
more general, shall be allowed to pass freely, unmolested.”
(Franklin’s Works, Vol. 9, pp. 466-467.)

FRANKLIN succeeded in having these principles recognized
and inserted in our first treaty with Prussia (178s), and this, so
far as I have been able to discover, was the first definite recog-
nition of the immunity of private property in any treaty
between nations.

Since FRANKLIN’S time the position of the United States on
this subject has been clear and consistent. In 1823 President
MonROE submitted a proposition to abolish war upon private
property at sea, to the ruling powers of Europe. In submitting
it, JoHN Quincy Apaws, Secretary of State, said:

“The principle upon which the Government of the United States
now offers this proposal to the civilized world is, that the same pre-
cepts of justice, of charity, and of peace, under the influence of
which Christian nations have, by common consent, exempted private
property on shore from the destruction or depredation of war,
require the same exemption in favor of private property upon the
sea.” (Adams to Middleton, 1823, WHARTON, Vol. 3, p. 261.)

In 1854 President Prerce declared himself in favor of the
principle in one of his annual messages to Congress. We come
next to an important epoch in the development of international
law, the Declaration of Paris of 1856. By an agreement among
nearly all the maritime nations of Europe, a number of trouble-
some questions were settled in the interests of peace and com-
merce, and the rights of neutrals were established on a more
liberal basis by exempting their property from capture, though
found on an enemy’s ship, and by exempting an enemy’s prop-
erty when found on a neutral ship. This removed several
vexatious questions from international disputes, and gave a new
and firmer basis to commerce in time of war. But in addition
to this the signatory powers declared that privateering should
be abolished. This was a significant step, and its logical se-
quence was the entire immunity of private property from capture.
242 CONGRESS OF LAWYERS AND JURISTS

 

The United States Government so regarded it. When invited to
join in this declaration, Mr. Marcy, then Secretary of State,
wrote his celebrated reply to the Count DE SarticEs, the French
Minister, from which I quote as follows:

“The reasons which induced the Congress at Paris to declare
privateering abolished are not stated, but they are presumed to be
only such as are usually urged against the exercise of that belligerent
right.

. “The prevalence of Christianity and the progress of civilization
has greatly mitigated the ancient mode of prosecuting hostilities.
War is now an affair of governments. It is the public authority
which makes and carries on war; individuals are not permitted to
take part in it, unless authorized to do so by their governments. It
is a generally received rule of modern warfare, so far at least as
operations upon land are concerned, that the persons and effects of
non-combatants are to be respected. The wonted pillage and
uncompensated appropriation of individual property by armies,
even in possession of an enemy’s country, is against the usage of
modern times. Such a mode of proceeding at this date would be
condemned by the enlightened judgment of the world, unless war-
ranted by special circumstances. Every consideration which upholds
this sentiment, in regard to the conduct of war on land, favors the
application of the same rule to the persons and property of citizens
of the belligerents found upon the ocean.

“Tt is fair to presume that the strong desire to ameliorate the
severe usages of war by exempting private property upon the ocean
from seizure, to the extent it is usually exempted on land, was the
chief inducement which led to the ‘ Declaration’ by the Congress at
Paris, that ‘privateering is, and remains, abolished.’

“The undersigned is directed by the President to say that to this
principle of exempting private property upon the ocean, as well as
upon the land, applied without restriction, he yields the most ready
and willing assent. The undersigned cannot better express the Presi-
dent’s views upon the subject than by quoting the language of his
Annual Message to Congress of December 4, 1854.”

After quoting the President at some length, he continues:

“The President, theretore, proposes to add to the first proposition
in the declaration of the Congress at Paris the following words: ‘And
that the private property of subjects and citizens of a belligerent on
the high seas shall be exempt from seizure by public armed vessels
of the other belligerent, except it be contraband.’ Thus amended,
the Government of the United States will adopt it, together with the
other three principles contained in that declaration.”
PAPER OF MR. FINKELNBURG 243

 

Russia not only approved the proposed amendment, but
promised to co-operate in endeavoring to obtain the assent of
other powers. (See President Prercr’s message of 1856.) Itis
understood that the French, Prussian, Italian, and Netherlands
governments likewise expressed to the American ministers their
willingness to have the American amendment adopted. (See
Dana’s Wheaton, §358.) But it required the unanimous con-
sent of all who had signed, and that assent could not be obtained.

In a recent decision, the United States Supreme Court,
speaking through Mr. Justice PECKHAM, said:

“Tt is, we think, historically accurate to say that this Government
has always been, in its views, among the most advanced of the
governments of the world in favor of mitigating as to all non-com-
batants, the hardships and horrors of war. To accomplish that
object, it has always advocated those rules which would in most

cases do away with the right to capture the private property of an
enemy on the high seas.” (The Buena Ventura v. United States,

175 U.S., p. 384.)

In the Austro-Prussian War of 1866, the principle of inviola-
bility was adopted by both parties, and Germany proclaimed
the same principle in the Franco-Prussian War without recip-
rocal action on the part of France.

The Hanseatic cities of Hamburg and Bremen had taken
strong ground in favor of the amendment prior to their incor-
poration with the German Empire. The resolutions adopted by
the Bremen Chamber of Commerce, December 22, 1859, con-
tained the following:

“That the inviolability of person and property in time of war on
the high seas (extended also to the subjects and citizens of belligerent
states, except so far as the operations of war necessarily restrict the

same) is imperatively demanded by the sentiments of justice uni-
versally entertained at the present day.”

In 1871 a treaty was entered into between the United States
and Italy which embodies the principle of immunity between the
subjects and citizens of these two countries. This treaty is now
in force.

And finally the principle of immunity as a general amend-
244 CONGRESS OF LAWYERS AND JURISTS

 

ment to international law was urged upon The Hague Peace
Conference of 1899, where it was ably advocated by Ambassador
WHITE on behalf of the United States and cordially supported
by Count Nicra on behalf of Italy; but the subject not being
within the scope of the call under which the Conference assem-
bled, and most of the Delegates being without instruction on
the subject, it was recommended for consideration to a future
conference to be especially called for that purpose.

President RoosEVELT has recommended the calling of such
a conference, in a recent message, and in doing so, uses the
following forceful language:

“T advocate this as a matter of humanity and morals. It is
anachronistic when private property is respected on land that it
should not be respected at sea. Moreover, it should be borne in
mind that shipping represents, internationally speaking, a much more
generalized species of private property than is the case with ordinary
property on land—that is, property found at sea is much less apt
than is the case with property found on land really to belong to any
one nation. Under the modern system of corporate ownership, the
flag of a vessel often differs from the flag which would mark the
nationality of the real ownership and money control of the vessel;
and the cargo may belong to individuals of yet a different nationality.
Much American capital is now invested in foreign ships; and among
foreign nations it often happens that the capital of one is largely
invested in the shipping of another. Furthermore, as a practical
matter, it may be mentioned that while commerce-destroying may
cause serious loss and great annoyance, it can never be more than a
subsidiary factor in bringing to terms a resolute foe. This is now
well recognized by all of our naval experts. The fighting ship, not
the commerce destroyer, is the vessel whose feats add renown to a
nation’s history, and establish her place among the great powers of
the world.”

Let us hope that after the present war is over, such a con-
ference may be called together, and that one of the first achieve-
ments of the new century will be the abolition of this heritage of a
ruder period, when the suspension of all property rights was
considered a necessary incident to international warfare.

Now, Mr. President and Gentlemen, I am aware that the
views which I have endeavored to express in this paper are not
in accord with the views of those who believe in the rigid school
CHEVALIER VON STIBRAL 245

 

of war; they are not in accord with the present state of the law
of war; but standing here, as we do, upon ground dedicated, nay,
I might say, consecrated, to the highest achievements of peace,
I think it is a fitting and opportune moment and place to plead
for the further amelioration of the rigors of war, and in that
behalf to invite the softening influence of modern civilization.
[Applause.]

The AcTING PRESIDENT:

I will now ask Chevalier ADALBERT VON STIBRAL of Vienna,
Austria, to address the Congress.

ADALBERT Ritter voN STrBRAL of Vienna, Austria, a
Delegate-at-large:

Mr. President and Gentlemen: I am sure of expressing the
general sentiment of all who have listened to Judge FINKELN-
BuRG’s address in congratulating him upon the very able, clear,
and lucid statement which he has given us, and to which we have
listened with the greatest interest. Indeed, it is very difficult
to say much more on the subject than he has said. Preliminary
to the few remarks which I may venture to offer, you will,
perhaps, allow me to explain my personal position. Being a
government official, you might believe that I am speaking in an
official capacity. That is not the case. I am speaking as a
private individual here. I know nothing of the intention of my
government on the subject in question, and cannot say, as once
a member of Parliament did, that he did not know the intentions
of his government, but he disapproved them. Not knowing the
intentions of my government, I am perfectly sure that they are
all right.

I think Judge FINKELNBURG has shown very well, indeed, that
the confiscation of private property on the high seas is a survival
from a state of things which, in all other respects, has ceased to
exist, and he has shown us that, even in respect to this matter,
there is a general tendency now to proclaim the inviolability of
private property on the high seas as it is recognized on land. If
246 CONGRESS OF LAWYERS AND JURISTS

 

this principle has not yet received universal recognition, the
reason for it, I think, is not alone historical, and it might, per-
haps, be interesting to investigate more closely the points where
the difference comes in. J am afraid, however, that even if I
were able to do so, I should not have the time to enter more
closely into the matter and to show you what motives of expedi-
ency have influenced the powers not yet to establish this prin-
ciple in a universal way. It is absolutely sure that by inflicting
losses on the commerce of your adversary on the sea, you do him
a considerable damage, you weaken his resources. It may be, in
most cases, as Judge FINKELNBURG has said, that this will have
no decisive influence on the results of the war; nevertheless, you
are able to damage him, and in consequence of the natural condi-
tions of trade on the sea, you can do it in a way which is not
open to those apparent difficulties which the confiscation of
private property on land would bring about. It is evident that
by the confiscation of property of subjects of a foreign country,
by letting loose soldiers to loot cities and plunder peasants, you
completely disorganize the army, and you do to yourself a greater
harm, perhaps, than to the enemy. The same cannot be said
of the confiscation of property on the sea, where it can be done
under certain forms which I might liken to a form of justice, if
that word is appropriate here.

I think, perhaps, there is a second consideration which may
serve to explain why the principle of the inviolability of property
on the seas has not been universally recognized. Certainly it
is very important for any belligerent to control that no contra-
band is carried to the enemy’s country, or by the enemy’s ships,
and, furthermore, a belligerent will not, I think, easily renounce
the exercise of the right of blockade. In both cases, of course,
the risk for blockade breakers, or carriers of contraband, is much
lessened if private property is declared inviolate, whereas, in
the case, if you make it extremely dangerous to carry on com-
merce under the flag of the country with which you are at war,
it will be that much more risky to undertake the business if the
other belligerent is trying to suppress it.
MR. EVERETT P. WHEELER 247

 

There may perhaps be some other motives yet why the powers
have not consented to make an end of the confiscation of
private property on the sea; but even these considerations show
that this is a matter which might be settled, which ought to be
settled, by international agreement, and I think the direction
of modern ideas concerning the way of conducting war is so
clear and unmistakable that we can hardly have reasonable
doubt of the end which Mr. FINKELNBURG has advocated being
finally attained. And finally, if I may say this as my personal
impression, is it not a curious thing what an immense amount
of effort is taken nowadays to restrict the evils of war, and what
a good thing it would be if all this jurisprudence of war could
disappear altogether by the disappearance of war itself. [Ap-
plause.]

The AcTING PRESIDENT:

IT will now ask Mr. Everett P. WHEELER, of the New
York Bar, to address the Congress.

Mr. Everett P. WHEELER of New York, a Delegate
from the United States Government:

Mr. President and Members of the Congress: I have listened
with the greatest interest to the paper of Mr. FINKELNBURG, and
to the address of Chevalier ADALBERT VON STIBRAL. One point
I want to make, supplementary to what they have said, but car-
rying forward their line of argument. My proposition is that the
right of seizure of private property of belligerents does not tend
to promote the successful issue of war, but rather tends to defeat
it. What the present law does is to put the greatest possible
temptation before a naval officer. It does exactly what the old
right of seizure of private property on land did to the com-
mander. Review the history of war, and you will find that the
right of plunder was always an injury to the army. You will
remember not only from history, but from poetry, when the
Scottish army on the field of Flodden had beaten a part of the
English army, that instead of attacking the centre, as they should
248 CONGRESS OF LAWYERS AND JURISTS

 

have done, they went to plundering the tents. This allowed the
English to reorganize and overpower the remnants of the Scot-
tish army. Coming down later, those who have read MAHAN’s
Lije oj Lord Nelson know how bitterly Lord NELSoNn complained
of some fellow-admirals, who were more intent on capturing
rich merchantmen coming home from the West Indies than
they were to meet and defeat the French fleet. On land the
British army was demoralized by the sack of Badajoz.

It is often said that the more terrible war is made, the more
infrequent it will be. Those who bring forward this argument
forget their Shakespeare.

“You take my life when you do take the means by which I live.”

They also forget their history.

Centuries ago prisoners taken in war were sold into slavery,
towns were plundered, crops destroyed, women ravished. The
Thirty Years’ War left whole provinces a desert. Germany
did not recover from its ravages for a century. All this, as
NAPIER says (who knew it from long experience), “‘hardens the
vulgar spirit.” This brutalizing of the soldier made wars
more frequent. Nations engaged in them on the least pretext.
During the past century the laws of war have become more
humane. Plunder on land is prohibited. The persons of non-
combatants are entitled to protection. Prisoners are well
treated and are exchanged. Occasional violations of these
humane laws are looked upon with horror. But the whole
machinery of war is more effective than ever. Wars have be-
come less frequent and when they do come are “short, sharp,
and decisive.”

All experience shows that the object of war can best be
accomplished on land by defeating and capturing, if possible,
the enemies’ armies, and on the sea by overwhelming his fleet.
A recent instance that occurred during the Spanish war will
illustrate, perhaps better than any argument, the truth of my
proposition. The American forces besieged Santiago. Not only
at sea did our fleet blockade it, but the city was beleaguered from
MR. EVERETT P. WHEELER 249

 

land, and the American forces had already taken the neighbor-
ing port of Guantanamo. The American commander had
given notice to the inhabitants to leave the city of Santiago,
because a bombardment was intended. There were at that
period in Santiago more than one thousand persons who were
not Spanish citizens. Among them was the British consul,
one of the best and noblest of men, who did more, let me say,
for American citizens in Cuba than any American resident ever
did. He was there, and his wife and children were there.
There were many non-combatants, men, women, and children,
people of wealth, who had everything but the necessaries of life,
and the American troops had given them, in effect, orders to
leave the city. A British ship-owner in Jamaica, which is only
a few hours’ distant, sought to take advantage of this opportunity
to furnish these non-combatants with the means of escape to
that neighboring friendly island. His vessel started from
Jamaica, went to the port of Guantanamo, and asked permission
to go to Santiago and to take away those non-combatants. The
naval commander should have said: ‘Go, by all means to
Santiago and take them away. Our troops have given them
notice to go, and we want them away. We have neither food
nor shelter for them, and for God’s sake take them.” That is
what he would have done if he had had an eye single to the suc-
cess of the military operations against Santiago. But, on the
other hand, the law held up before him the opportunity to add
to his prize money. So he took possession of the vessel, as the
Supreme Court held (four judges dissenting) he had the legal
right to do.’ He sent it to Savannah, and one thousand
neutrals were left at Santiago. In the hot July sun they
wandered, some of them with infants in their arms, some
women in feeble health, with feet torn and bleeding, to the
American camp. What could he do with them? We had
hardly provisions for our troops. They were on short rations.
Many of these neutrals lost their lives on account of the una-
voidable failure of our army to care forthem. Yet, in the harbor
1 The Adula, 176 U.S. Rep., 361.
250 CONGRESS OF LAWYERS AND JURISTS

 

of Guantanamo, only fifteen miles distant, was a British vessel
with an owner anxious to take them away, but the prize law was
such that this offer, I will not say kindly (although it was a kindly
and friendly offer), but this helpful offer to our military expedi-
tion was not accepted. You can study the history of the world
in its military and in its naval operations and you will find that
the law of plunder, the law of loot, is an obstacle to the effective-
ness of all military or naval operations.

Allow me one more illustration. Look for a moment at the
history of the American Civil War. It is admitted now, though
those of us who lived through the war can remember grave
doubts on that subject, that on the Northern side GRANT was the
greatest commander. His proposition was, “It is not Rich-
mond that I am after, it is LEE’s army. The capture of Rich-
mond is nothing; the point is to strike and, if possible, to
capture or annihilate LEE’s army.”

We had another great general, who made the famous march
to the sea. It was a famous march and he was a great general,
yet I must say what the march was in a few words. It was not
so much the destruction of an army, as a great swath cut through
the country by the destruction of private property, the burning
of school-houses and churches and private residences. Did
that destruction tend for a moment to hasten the end of the war?
Not at all. Did it tend for a moment to hasten the hour when
LEE surrendered at Appomattox? No, but it left behind a
woeful heritage, a smarting sense of injustice and cruelty that has
taken years to eradicate. War is the same on land and on sea.
When General SHERMAN said ‘‘War is hell,” he had reason to
say that it was, for that is the war he waged. On the other hand,
it was said of Caisar that he treated his enemies as if he expected
them to be his friends. And in modern times Lord Bacon
said: ‘Wars are not massacres and confusions, but the highest
trials of right.” When war is put on that basis, and we spare
not only the persons of men, women, and children, but the
property of peaceful merchants, then we eliminate the element
of private brutality and private greed, and shall have done
MR. MOORFIELD STOREY 251

 

just so much to prevent war and promote arbitration.
[Applause.]

The ActiInc PRESIDENT:

Mr. MoorfieLtp Storey of Massachusetts, who has sent us
his card, will give us the benefit of his views.

Mr. MoorrFietp Storey of Massachusetts, a Delegate
of the United States Government:

Mr. Chairman and Gentlemen: You will observe that yes-
terday the Committee of Nations did not report favorably the
resolution which had been submitted by Judge FINKELNBURG,
and it is, perhaps, appropriate that the reasons for that action
should be briefly indicated by me.

It is impossible to discuss this question on the theory that
war is humane or Christian. There is nothing about it that can
be squared with any of the doctrines of Christ. As SIDNEY
SmiTH has well said, ‘In war God is forgotten.” The suggestion
of Judge FINKELNBURG and the doctrine which he has stated, is
that it is cruel and inhumane, a barbarous thing, to destroy the
property of non-combatants. I agree with him. Is it humane
and Christian to take the lives of men who are drafted into the
army, men who have no grudge whatever against the opposing
force? In other words, is it humane and Christian to take life
and not to destroy property? Are dollars more sacred than men?

Now, the assumption seems to be that in war private property
on land is exempt from attack. Is it so? During the Civil
War every bale of cotton that we succeeded in getting, which
belonged to the enemy, was either confiscated or destroyed,
and when we did it we weakened the fighting force of the enemy.
When SHERMAN made his march to the sea, and made that
broad swath, he destroyed the food on which their armies de-
pended for continuing the contest. Three or four years ago
the so-called Christian nations of the world made an attack on
China. They did not call it war; they called it a punitory expe-
dition, and when they reached Tientsin they saw between them
252 CONGRESS OF LAWYERS AND JURISTS

 

and Pekin a plain covered with a contented, industrious, happy
population, with crops and houses, saw everything that be-
longed to civilized life, and when the expedition had passed over
it they left nothing but a waste, rivers choked with the dead
bodies of non-combatants, crops, houses, and everything de-
stroyed. The other day our forces were trying to put down an
insurrection in the Philippine Islands, and in order to deal with
a class of people who were peaceful citizens in the morning, but
enemies in the evening, they made of Samar a waste in which
not even a bird could live. They took the inhabitants of that
whole region and brought them together in small villages, and
they destroyed the houses and property which they could not
carry. Private property is not respected by the great powers
of this world, and it is destroyed for the reason that by that any
resistance of the nation is most effectually broken down.

War, as I say, from the beginning is unchristian; it is an
attempt of one nation, by force, to make another submit to its
will, and you wish to attack the most vulnerable part of the re-
sisting nation. What was it, at a very critical period of our
Civil War, that protected us from an encounter with England ?
Was it not the fact that the large oceans of this world were
covered with British commerce, and that the United States had
reserved the right to take private property on the ocean, and the
citizens of Great Britain appreciated perfectly well that in the
event of war American privateers would cover the ocean and
their commerce would be taken away? That may or may not
have been the decisive consideration, but it was one considera-
tion which undoubtedly weighed with a great many people.

They tell us that war is an affair of nations, but nations are
composed of individuals, and we want the individuals, the
owners of private property in any nation that is proposing to
go to war, to recognize the fact that war will cost them money
and cost them property, and when that proposition is brought
home clearly to them you have established in their midst a
sentiment against it, for men are not disposed to go to war if it
is going to cost them something. Many men may stand up and
MR. G. S. ROBERTSON 253

 

make strong war speeches when the people are excited, and some
men are very anxious that other men shall go to war and that
other people’s property shall be affected, but if you are going to
war let every man understand that he has something at stake.
I do not consider it Christian or humane to say to the people of
Germany or England, “If you go to war with us you may des-
troy our army, but you must not touch anything in the city of New
York.” As between dollars and men, I plead for men. [Ap-
plause.] As between the burning of houses, the destruction of
private property, and the carrying off of a whole generation of
youth, I think the burden of war should fall on the pocket and
not on the heart.

I am distinctly opposed to war of any kind. I agree with
FRANKLIN that, “There never was a good war and never was a
bad peace.” I believe no result in the history of war has been
accomplished by war that could not have been better accom-
plished without it; therefore, I want to oppose war by every-
thing that can be done. I do not want the citizens of a great
country to feel that they can go out among the farmers of the
country and say, ‘‘Give me your sons, but our pockets are to be
exempt from contribution.” If we are to have war, let it fall
on the material resources of the country. You cannot bring
people to peace as quickly by killing as you can by destroying
their resources, and for that reason I am not inclined to pass this
resolution.

It tends to reduce war to a gladiatorial show, like a foot-ball
game, instead of making every man in the nation feel the effect
of it. [Applause.]

The AcTING PRESIDENT:
We will now listen to Mr. GEorGE S. RoBERTSON, Barris-
ter-at-law, of London, England.

Mr. GrorGE S. ROBERTSON, a Delegate from the Gen-
eral Council of the Bar of England:
Mr. President and Gentlemen: I feel a difficulty in stating
254 CONGRESS OF LAWYERS AND JURISTS

 

my position here. You remember the story of the soldier in
the Civil War—I will not say which side he was fighting on—
who, as he was about to go into battle, saw a rabbit running
away from the line of battle, and said, “If I had no more repu-
tation to lose than you have, I would run too.” As I seem to
be the only surviving representative among the Delegates from
the nation which feels the greatest interest in the right to seize
private property in the time of war—I mean England, of course
—I think I ought to make a remark or two.

Whatever we may think about the principle enunciated in
Judge FINKELNBURG’s paper, I cannot help, from my bringing
up, being very much opposed to it. It seems his view of it is
this: Judge FINKELNBURG did not suggest for a moment that
private property which was contraband of war should be exempt
from capture. Therefore, you have to define contraband of
war. If you discuss the question without defining contraband
of war, you are working in a circle, which reminds me of the
miracle play where they build a stage and you will find Adam
there waiting to be created. [Laughter.] Well, gentlemen,
Judge FINKELNBURG’s proposition stands on what is to be
created on the doctrine on what contraband of war is. The text-
books say that certain articles are contraband of war, and there
are certain other articles which a belligerent party may define
at the commencement of the war to be contraband or not.
In the present war, Japan and Russia gave a list of articles
that were contraband of war. If it is a principle of law that
the belligerents will determine what is contraband, then, unless
other nations determine that they are contraband, nothing is
settled. I do not see much force in the proposition that private
property should be respected because it has to be left to the pow-
ers to determine what is contraband, and, therefore, anything
which determines what is contraband of war is rather insuffh-
cient. If you are prepared to say that all private property is
exempt unless it is contraband, that is not sufficient, and then,
again, the proposition may be a reasonable one, but there is
this difficulty: if the powers are not of equal strength—because
AN INTERNATIONAL BAR ASSOCIATION 255

 

there are strong powers and weak powers that go to war—and
it seems to be quite impossible that any proposition will be
accepted in regard to what is contraband of war, because the
weak one will insist that certain articles are, and the stout one
will say that other articles are. It will be like the time when a
duck and a horse were occupying the same stall, and the duck
said to the horse, “‘I am afraid of being trod on. Let us fix it up.
I will not tread on your toes if you will not tread on mine.” The
weaker powers desire to exempt private property from seizure,
and you cannot expect England, which may be said to be the
horse, to agree to that proposition. [Laughter and applause.]

The ACTING PRESIDENT:

There being opportunity for no further discussion of this
matter, I will ask if there is any further report from the Com-
mittee of Nations.

Mr. Justice Nespitt, Chairman of the Committee of
Nations:

I really want to say before beginning my report that I am
made happy by hearing the remark of my “uncle” [Mr. Ros-
ERTSON], for we in Canada are nephews. I think he has put an
end to the statement that an’ Englishman does not understand
a joke.

The first matter that I desire to report upon is in reference
to the matter which was laid over this morning, the proposed
permanent international association of lawyers and jurists. I
think there is some gentleman on the floor who desires to say a
word on that matter. It was suggested by Mr. Justice KEn-
NEDy that there was already an international association, which
had held several meetings, and he thought it was unwise to
multiply associations.

The Honorable MArtin Dewey FOoLiett of Ohio, a
Delegate-at-large:

I made the motion to defer a vote on the question, and it was
with that idea, that we had an organization which filled the place.
256 CONGRESS OF LAWYERS AND JURISTS

 

Mr. James HacGERMAN (Retiring President of the Amer-
ican Bar Association), a Delegate from the United States
Government:

Mr. President and Gentlemen of the Congress: J rise now
for the purpose of having what I may say put on record, so as
to connect this Congress with the American Bar Association
and the objects and purposes for which the Congress was called.
When the Louisiana Purchase Exposition authorities deter-
mined upon its series of Congresses of the various arts and
sciences, they issued an invitation in the nature of a memorial
to the American Bar Association, asking that Association to
co-operate with them in bringing about an universal congress of
lawyers and jurists of the world, and that co-operation was
promised by the American Bar Association by vote of its mem-
bers at its annual meeting in Denver, in 1901, and subsequently
confirmed at the annual meetings of 1902 and 1903. When the
American Bar Association acted on this subject, they appointed
a committee, which they called in their record the Louisiana
Purchase Exposition Committee. That committee, in consider-
ing the method of calling together this Congress, as to whom
should constitute it, and as to what subjects should be consid-
ered by it, which were largely left by the Exposition Company
to the American Bar Association, at one stage of their delibera-
tions considered the question of what permanency, if any, there
should be to this congress. Should it be left with simply the
records of its proceedings, or should it be a link between the past
and present leading up to some organization framed somewhat
along the lines of the American Bar Association, but which
should embrace the nations of the earth, as the American Bar
Association embraces the States and Territories of the American
Union? It was known at that time that there was in existence
another law association international in character, and having
recourse, as members of our association always do when they
want current information as to international matters, to the
Nestor of our Association—I refer to the gentleman who pre-
MR. JAMES HAGERMAN 257

 

sided over your deliberations this morning, Judge BALDWIN of
Connecticut—we asked him whether the proposed perpetuation
of this Congress would conflict with the international associa-
tion now in existence. He told us that that association was
composed in part of laymen and in part of jurists and lawyers,
but that, in his judgment, it did not cover the field which was
covered by the American Bar Association in this country. We
found that it was not an international bar association which
brought together fighting soldiers—if I may call members of the
legal profession such—face to face; that bench and bar which
does the practical work of justice in times of peace for organized
society. The action of that committee was to report a simple
resolution to the American Bar Association to the effect that
when the Congress met, the delegates of the American Bar
Association in such Congress, after conferring with delegates
from foreign countries as to the advisability of some interna-
tional bar association formed along the lines of the American
Bar Association, if that should be deemed advisable, should pre-
sent the matter to the congress. That resolution was unani-
mously adopted. Its exact words are:

“Resolved, That the delegates from the American Bar Associa-
tion to the International Congress of Lawyers and Jurists be instructed
to take into consideration, after consultation with foreign delegates,
the advisability of presenting to that Congress a project for the
formation of an International Bar Association.” (See Annual
Report American Bar Association, 1903, pages ror and ro2.)

Afterwards I assumed, as President of the Association, some
authority in referring to Mr. HENsEL of Pennsylvania, Judge
BaLpwin of Connecticut, and Mr. RAWLE of Pennsylvania,
the subject as to whether or not the delegates of the American
Bar Association to the Congress should make any tentative
proposition, and if so, what, as to an international bar associa-
tion or international congress of lawyers. As I understand, the
report of this Committee of Nations, of which Mr. Justice
Nespitt of Canada, is Chairman, is the result of the confer-
ences with the foreign delegates. We do not know, we could
258 CONGRESS OF LAWYERS AND JURISTS

 

not know, whether this International Bar Association or Inter-
national Congress would be perpetuated, or what its plan will
be, but it is with a sense of congratulation that we find that the
Committee of Nations of this Congress has unanimously agreed
that the necessary steps may be taken looking to something of
that kind. If it should be that this Congress should bring forth
an International Congress or International Bar Association that
would come, in the future, to have the illustrious career that the
American Bar Association has had, and become the leader of
Bar Associations throughout the world, as the American Bar
Association is throughout the States and Territories of the
United States, a great work would be done. The project may be
visionary, but this resolution is certainly of a practical character.
Sir FREDERICK POLLOCK said, at the last banquet of the Amer-
ican Bar Association, that, while they had nothing like the
American Bar Association throughout the vast British Empire,
that he hoped to see the day when, in Great Britain, there
would be a bar association, central in its character, much like
the American Bar Association, and he would then have us, some
day, come to Canada, and would welcome us there as guests of
that association.

What I have said is not for the purpose of advocating the
passage of the resolution reported by the Committee of Nations,
because there is no opposition to it. The explanation I have
made is for the purpose of having it go on record, so that if a
great international bar association shall be formed, we can refer
back to its beginning.

Mr. WALTER S. Locan of New York, a Delegate from
the United States Government:

Mr. President: I heartily agree with all that Mr. HacrERMAN
has said. J am a member of the International Law Associa-
tion, and fully recognize the great and good work which that
association, under the leadership of yourself and others, has
done. I am one of those who have been quite contented to
share in the glory of that association, leaving its labor to others.
MR. WALTER S. LOGAN 259

 

I quite agree with Mr. HAGERMAN that the field of the proposed
association reported by the committee and the field of the Inter-
national Law Association are entirely different. The associa-
tion, of which you have been so conspicuous a leader, is called
“The International Law Association.” Its object is to promote
international law throughout the world. It is for the promo-
tion of the study of the science of thelaw. The name of the pro-
posed association is to be ‘“The International Bar Association,”
and its object is to bring together the bar of the world quite as
much as to promote the study of law. The International Law
Association naturally deals with things; the International Bar
Association will have more to do with men. In the one case
lawyers come together to study international law; in the other,
they come together to study one another, and to get acquainted
with their fellow-members of the bar throughout the world.
The International Bar Association is to be organized, not
specially in the interest of the study of the law of nations, but
rather in the interest of the lawyers of the nations—the law-
yers behind the bench as well as the lawyers in front of the
bench. I am sure the two associations will not in any way
conflict. The International Bar Association will be to the world
what the American Bar Association has been to the United
States. There are some of us whose hair is gray enough so
that we remember when the American Bar Association was
founded. At that time the lawyers of the United States did
not know one another. The lawyers who practiced in the same
court were acquainted, but their acquaintance was confined, to
a very great degree, to the courts they practiced in. The bar
of the United States was unacquainted one man with another.
To-day, throughout the whole United States, the lawyers know
each other, and we have learned to appreciate each other. The
American Bar Association has had its effect, not simply upon
the bar itself, but upon our whole national life. The members
of the bar coming together each year become acquainted, one
man with another, and members of the bar in different sections
of the country, who are always men of influence and importance
260 CONGRESS OF LAWYERS AND JURISTS

 

in their sections, are coming to know far better than they ever
knew before the citizens of other sections of the country. We
in the North and East have learned to appreciate the members
of the bar and the leading citizens of the West and South, and
you, I think, have learned to appreciate us. We have learned
that none of us are as bad as we have been painted. The
American nation is stronger to-day for what the American Bar
Association has done. It has been a great promoter of patri-
otism. We love our country better as we know our fellow-citi-
zens better.

We have been discussing to-day the question of universal
peace. It is perhaps a dream now, though dreams of the night
sometimes become realities in the morning. There is nothing
that will do more to promote the peace of the world than to make
leading people of the world become acquainted with one another,
and the lawyers are the leading men of all nations. If you can
organize an association that will bring together, once a year or
even less often, the members of the bar of the world, you will
do more to secure peace than The Hague Tribunal can ever do.
If you make the lawyers of all nations acquainted with one
another, so that they will understand each other and appreciate
each other, you will be doing a great work for civilization.
When I was a boy I was taught the rhyme,

“Fe, fi, fo, fum,
I smell the blood of an Englishman.”

That expressed with tolerable accuracy our sentiments towards
our cousins across the sea. We looked upon them with a feeling
of hostility rather than of friendship. In later years we have
learned to know them better, and now the people of England
and America are fast coming to regard themselves as brothers
not only in race and blood, but in civilization and in character,
with a common history and a common future, and the security
of the peace of the world to-day, as between the English-speak-
ing nations of the world, lies not in treaties, but in the fact that
the people of the two nations have come to know and appreciate
AN INTERNATIONAL BAR ASSOCIATION 261

 

one another, and to look upon each other as brethren. I be-
lieve that will be true of all nations and peoples as they become
acquainted better and better with one another. I know of no
profession, no body of men, more entitled to take the initiative
in this matter than the lawyers of the world. The lawyers are
the leaders in every nation, and the more civilized the nation,
the more the lawyers lead. If the lawyers of the world will
establish an international bar association which will bring them
together, you will take a long step towards abolishing war in
the world. It will, I believe, be a great triumph for peace.

I hope that the resolution which was reported from the com-
mittee will be passed, and I am sure there will be no member of
this body who will rejoice more in the perfection of such an as-
sociation and be more glad to help make it successful than the
distinguished jurist who sits in the chair this afternoon, and who
has done so much to make the International Law Association a
great success in the world. [Applause.]

Mr. FOLLETT:
I am glad to learn what has been said, and I concur with it.

Mr. Everett P. WHEELER:

Mr. President: The International Law Association does
everything which Mr. Locan has informed us ought to be done.
Through it we meet lawyers and judges from different nations,
and we promote the ends of friendship and social intercourse
by our meetings. These features are quite as prominent as
the study of the law. In short, if you were to take down one
name and put up the other, you would find in the meeting of the
International Law Association a congress of lawyers and jurists.
It seems to me it would be a distinct misfortune if there were two
associations. If I may be pardoned for making the comparison,
it would be like the two organizations the “Daughters of the
Revolution” and the ‘‘Daughters of the American Revolution.”
There is a certain limit to human powers, and if you have in
one year a meeting at Amsterdam, or London, or Paris, or
262 CONGRESS OF LAWYERS AND JURISTS

 

Rome, of the International Law Association, and the same
year have another meeting of the Congress of Lawyers and
Jurists at Berlin or at St. Louis, we should find it impossible to
attend both.

Mr. F. M. Hurraker, a Delegate appointed by the
Supreme Court of Nevada, U. S. A.:

Mr. President: Being a representative of that growing em-
pire that lies west of the Rocky Mountains, which will soon con-
tain the center of population of this nation, I want to say that
if the law is a conservative factor in civilization, I see no better
way to reach the millennium, foretold in Revelations, than to
convince the world that difficulties now settled by the sword can
be settled by the application of law. As we have representa-
tives here from all nations of the earth, we, as Americans, can
say to them that if they meet with us and investigate these ques-
tions that concern our national relationships, as we do those
that concern our individual relationships, we will find in time
that by meeting and discussing propositions no question can
arise as to what may be the rights of belligerents on the sea,
or as to the protection of private property in time of war, because
there would be no such thing known to the human race, and if we
reach that time it will be through the instrumentalities of the law.
If we can get an association formed to bring the people of the
world together and understand their rights, law being founded
on justice, that will do away with everything except the adjudi-
cation of rights according to the forms of law, and when that is
done no war will be necessary. [Applause.]

Mr. J. O. Crossy, a Delegate from the Iowa State Bar
Association, U.S. A.:

Mr. President: I am.a member of this International Law
Association. As it deals with questions of international law, it
seems to me that it covers the substantial requirements of the
resolution that has been referred to. From the remarks of Mr.
Locan, of New York, it seems to me that his idea of the new
AN INTERNATIONAL BAR ASSOCIATION 263

 

organization is that it should be like the preacher that I once
heard of who was neutral in politics and religion. Mr. Locan
wishes to have the assemblage for the benefit of the members
of the bar, and not for the advancement of the science of law.
That is, lawyers, the lawyers of the world, should assemble
together in that organization for social purposes, and for the
time being they should be like “‘necessity,” that ‘‘knows no law.”
I was somewhat surprised to hear from Mr. HAGERMAN the
opinion which was expressed by the gentleman who was the
former president of the International Law Association, that it
did not answer the purposes which the resolution proposes for
the new organization. I cannot see why it does not answer the
purposes, and I wonder that Mr. Logan, in his attendance on
the meetings, has never struck the social vein in that organiza-
tion. Because we have discussed questions of law, it has not
interfered with social discussions among the members. [Ap-
plause.]

Mr. Joun N. DrypDeEn, a Delegate from the Nebraska
State Bar Association, U. S. A.:

Mr. President: The Universal Congress of Lawyers and
Jurists ought to be perpetuated somehow. The spirit of these
deliberations must make us more regardful of the humanities.

I was much impressed by the report of the Committee of
the American Bar Association on the subject of the American
Indians. Among other things, an army officer was quoted as
saying that property had always been a constant menace to the
Indian. That statement is an epitome of our American policy
from the beginning, and whenever danger has threatened the
Indians in the form of property that was at all attractive, we
have saved our wards by relieving them of the property.

As lawyers, we know that this principle is susceptible of a
much broader application. I have practiced it constantly
toward my clients for many years. Lawyers in the Great
American Desert are not practicing their profession for hygienic
purposes. But, seriously, it seems to me, gentlemen, that the
264 CONGRESS OF LAWYERS AND JURISTS

 

organization which has been described here will do much toward
keeping before the world the best ideals of the Christian religion,
and likewise toward maintaining that splendid poise which pre-
serves the integrity of institutions for righteousness everywhere.
[Applause.]

The AcTING PRESIDENT:

Time presses, and I will simply put the resolution which has
come to us. The resolution is this:

“Resolved, That this Congress, recognizing the importance of
promoting friendly intercourse between the jurists and lawyers of
different nations, to the end that by harmonious effort they may
labor efficiently for the improvement of the law and the maintenance
of international peace, request the American Bar Association to
take such steps as are necessary to organize a permanent association
of lawyers representing the different countries of the world, which
shall meet at regular intervals to discuss legal questions of public
interest, and that this resolution be transmitted to the Secretary of
the American Bar Association.”

The resolution was unanimously adopted.

THE ACTING PRESIDENT:
The Committee of Nations is now ready to make a report.

Mr. Justice NEspitt, Chairman of the Committee of
Nations:

Mr. President, and Gentlemen of the Congress: For the
Committee of Nations, I wish to submit a resolution from Mr.
NIes, which we present for action by this Congress.

“Resolved, That this Congress records the death, during its
sessions, of Hon. GEorcE F. Hoar of Massachusetts, with keen
grief and deep regret.

“He was one of its most distinguished members, and his pro-
found learning, consistent patriotism, and ripe experience have
here been sadly missed. His example will long be an inspiration to
all students of law and lovers of justice.

“Resolved, That the Secretary convey to Mr. Hoar’s family
expression of the condolence of this Congress, with a copy of these
resolutions.”
RESOLUTIONS 265

 

The Actinc PRESIDENT:

I shall consider that resolution as adopted.

Mr. Justice NESBITT:

J beg to present another resolution of Mr. FINKELNBURG’S,
with reference to the exemption of private property other than
contraband of war, which you have heard discussed in his paper,
and on which there have been addresses delivered. This
was a matter which was laid over yesterday. You will remem-
ber that Mr. FINKELNBURG asked for the consideration of his
resolution in favor of the exemption of private property of ene-
mies except contraband in the time of war. The Committee of
Nations, after very full discussion of it, a slight echo of which
you can see in the discussion which took place this afternoon,
came to the conclusion that it were better that it should be
simply forwarded as one of the matters to be considered by the
further conference, if one is to be held, at The Hague. It was
discussed there very thoroughly and no action was taken,
because the late conference felt that it had no power to deal with
the subject. It is now for this Congress to say whether it will
pass Mr. FINKELNBURG’s resolution or leave it as a matter not
to be decided here.

Mr. FINKELNBURG:

In view of the late hour, not permitting of any further dis-
cussion of this important question, I suggest, as a substitute for
my original motion, that this Congress recommend the change
in international law referred to. I think it would be well to
accept the suggestion as made, that this important subject be
recommended to the next conference, which is to be held at
The Hague, for its consideration.

The AcTING PRESIDENT:
I have no doubt that it will be adopted unanimously.
266 CONGRESS OF LAWYERS AND JURISTS

 

Mr. Justice NESBITT:

There is a large number of other communications, and I
mention them because I do not wish any gentleman to feel that
his communication has not been considered by the Committee
of Nations. I will say that we have worked rather hard on
these matters. I shall just mention them, and bring in a resolu-
tion which, if it pleases you, will cover all these various matters.
Many of them are matters of the very greatest importance,
matters which call for the gravest consideration, and which
would be the subject of debate, judging from what transpired
at the meetings of the Committee, because you will understand
that a committee, composed of gentlemen, as that is, is likely
to have divergent views until they can be harmonized. Each
man thinks for himself.

There is one matter that I would like to have reported on,
and that is in regard to some British attaché running down
somebody in Massachusetts with an automobile. I will say,
speaking for myself and being with the majority, that I would
like to see any scorcher sent to jail. The Committee feel that
it is not right to take action yet in regard to matters interfering
with the various legations.

There was a resolution by Mr. FRANcIS RAWLE in regard to
the right of search of neutral vessels, which was under discus-
sion by the Committee; also a resolution in regard to the sur-
render of criminals, offered by Sefior Don MANUEL AzprIRoz; a
resolution in regard to divorce, the rights and duties between
parents and children; a resolution in regard to the establishment
of a bureau for the study of criminology, introduced by Mr.
JosrrH R. Epson of Washington, D. C., and a very important
resolution by M. DE LoBet of Paris, France, which I am sorry
we had not greater time to discuss, relating to a matter that is
of very great moment to investors, to get, by treaty or otherwise,
some settled form of articles of association for all joint stock
companies throughout the world, so that no matter in what part
of the world you are dealing, you are quite certain the legislation
is the same. There was a very full argument on the matter.
THE COMMITTEE OF NATIONS 267

 

It is a matter that you can readily see would call for a great deal

of discussion, and certainly has a great deal of merit in it, but

the Committee have instructed me to present, for your consid-

eration, a general recommendation covering all these matters.
The general recommendation is as follows:

“That there has been submitted to the Committee a variety of
resolutions dealing with subjects of much importance, but upon
which a great division of opinion exists. In view of the very limited
time which remains before this Congress adjourns, it is clear that no
adequate conclusion can be reached upon any of these matters, and
the Committee therefore recommends that they be sent to the Secre-
tary of the American Bar Association, with a view to their possible
consideration by another Congress.”

On motion the recommendation of the Committee was
adopted.

Mr. Justice NESBITT:

Closing the labor of the Committee of Nations, I desire to
present a resolution presented by Mr. WaLTeR S. Locan of
New York, which each member of the Committee desires to par-
ticipate in:

“Resolved, That the Universal Congress of Lawyers and Jurists
acknowledge and appreciate the hospitality of the Louisiana Pur-
chase Exposition Company and its officers, and of the Missouri
State Bar Association, and the Bar Association of St. Louis, and
the officers and members of the associations as well as the citizens
generally of the city and State.

“Our stay here has been made hoth pleasant and profitable, and
we shall carry back to our homes and ever retain a lively remem-
brance of what we enjoyed while guests at the Exposition.”

On motion the resolution was adopted unanimously.

The SECRETARY:

The Department of Music of the Exposition, which has
charge of this Festival Hall, extends a cordial invitation to all
the members of the Congress and their ladies to remain for an
organ recital by M. ALEXANDRE GUILMANT of Paris, which
268 CONGRESS OF LAWYERS AND JURISTS

 

will take place at five o’clock, following the adjournment of the.
Congress.

I am requested to announce again that the reception, to be
given from eight to ten o’clock this evening by the Board of
Lady Managers of the Exposition at their rooms in the Hall of
Congresses, is not only for the members of this Congress, but
also for the ladies of the party. Delegates who may not have
received individual invitations should know that invitations have
been mailed to all who have registered. They were mailed to
local addresses, but possibly some have miscarried. All are
expected to be present.

The President desires to have announced that the reading of
a paper on the subject “Notes on Chinese Legislation,’’
by Professor C. M. Lacry-Sites of Shanghai, China, a Dele-
gate-at-large, which he has prepared by invitation of the Com-
mittee, will have to be omitted, owing to lack of time remaining
at the disposition of the Congress, but it will be printed in full
in the proceedings of the Congress. [See Appendix F.]

I am requested to announce also that an address, prepared
by his Excellency Sefior Don ManueEt DE Azprroz, the Mexi-
can Ambassador to the United States and a Vice-President of
this Congress, will be printed in the proceedings of this Congress.
{See Appendix D.]

At this point Vice-President Sir Witt1AM R. KENNEDY
resigned the Chair to President BREWER.

The PRESIDENT:

Is there any other matter to be brought before the Congress
prior to its adjournment? Your silence answers this question
in the negative. The programme provides that at the close of to-
day’s session there shall be an adjournment either to to-morrow
morning or sine die; to-morrow morning, if there is any unfin-
ished business, sine die if there is none. There is no unfinished
business, and so it becomes my duty to declare this Congress
finally adjourned, and in doing so permit me to express the
ADJOURNMENT 269

belief that it will prove to be fruitful in results, that not in vain
have you gentlemen gathered from different sections of this
country, and from other countries, to take part in this Congress,
this Universal Congress of Lawyers and Jurists. We know
that the poet says:

“Some day love shall claim his own,
Some day right ascend the throne,
Some day brotherhood be known,
Some day, some sweet day.”

And I feel sure that this gathering will tend to bring on that
sweet day towards which we all look. I now declare this
Congress adjourned sine die.
LIST OF DELEGATES ACCREDITED TO
THE UNIVERSAL CONGRESS OF
LAWYERS AND JURISTS

[(*) InvicatEs THOSE PRESENT]

ARGENTINE REPUBLIC

Delegate-at-large:
*Dr. José V. FERNANDEZ.

AUSTRIA

Delegate from the University of Vienna:
Dr. EUGEN VON PHILIPPOVICH.

Delegate-at-large:
*ADALBERT RITTER VON STIBRAL.

BELGIUM

Delegate from the Order of Advocates of Ghent:
*HENRI BODDAERT.

Delegates from the Order of Advocates of Brussels:

Lovis DE SADELEER.
JuLEs RENKIN.

Delegate from the University of Louvain:
*PROFESSOR ALFRED NERINCx, LL.D.

Delegates-at-large:
HENRI LA FONTAINE.
Emitter VANDER VELDE.

* VALENTIN BRIFAUT.
270
LIST OF DELEGATES 271

BRAZIL

Government Delegate:
*Loprs GONCALVES.

CANADA

Delegates from the Law Society of British Columbia:
*GORDON HUNTER,
Chief Justice of British Columbia.
*E. P. Davis.

Delegates from the Law Society of Upper Canada (Toronto):
/EMILIUS IRVING.
ALLEN BRISTOL AYLESWORTH.
WILLIAM RENWICK RIDDELL.
James Morrison GLENN.

Delegates from the General Council of the Bar oj the Province of
Quebec, (Montreal):
H. ARCHAMBAULT,
Attorney-General of the Province.

F. X. Drovum,

Batonnier of the Quebec Bar.

D. MAcMASTER.

Delegates from the Junior Bar Association of Montreal:

*EDOUARD FABRE SURVEYER.
*LEON GARNEAU.

Delegates from the Law Societies of the Northwest Territories:
J. A. LoucHEED.
R. B. BENNETT.
James SHORT.
*OLIVER M. BIGGAR.

Delegate jrom the Law Society of the Province of Prince Edward
Island:

Justice FITZGERALD,
Of the Supreme Court of the Province.
272 CONGRESS OF LAWYERS AND JURISTS

 

Delegates-at-large:

*WALLACE NESBITT,
Justice of the Supreme Court of the Dominion.

Davip HEARNE,
Of the Bar of Nova Scotia.

CEYLON

Delegate from the Law Society of Ceylon:
Hector VAN CUYLENBERG.

Delegates-at-large:

*D, OBEYESEKERE.
*R, E. Pieris.

CHINA

Government Delegates:

*CHow TSZzcHI.
*SuN SzE YEE.

Delegate-at-large:

*C. M. Lacey-SITEs.
Professor in Nanyang College, Shanghai.

EGYPT

Government Delegate:

*SOMERVILLE P. Tuck,
Judge in the Cairo Mixed Court.

Delegate-at-large:
L. Carton DE WIART.

FRANCE

Government Delegate:

*A, LARNAUDE,
Professor in the Faculty of Law of Paris.
LIST OF DELEGATES 273

 

Delegate from the University of Bordeaux:
M. Picuir.

Delegate from the University of Montpellier:
JuLes VALERY.

Delegate from la Société de Législation Comparée de Paris:
*GEORGES BLONDEL.

Delegate-at-large:
*Loicg DE LOBEL,
Of Paris.

GERMANY

Delegates jrom the Internationale Vereinigung fiir Vergleichende
Rechtswissenschajt und Volkswirthschaftslehre 2u Berlin:

Dr. ZAHN,
Regierungsrat Professor in Berlin University.

Dr. WAHRMUND,
Professor at Innsbruck, Austria.

A. BRUNIALTI,
Councilor of State, of Rome, Italy.

*GEORGES BLONDEL,
Of Paris, France.

L. S. Rowe,

Professor in the University of Pennsylvania, U.S. A.

*MONROE SMITH,
Professor in Columbia University, New York, U.S. A.

EDMUND JAMES,
President of Northwestern University, Evanston, Ill., U.S. A.

Delegates-at-large:

*Dr. ADOLF HARTMANN,
Judge in the Kénigliches Land-Gericht, Berlin.

*PauL DOERTENBACH,
Of Stuttgart.

*Dr. R. BERNDES.
Of Hamburg.
274 CONGRESS OF LAWYERS AND JURISTS

 

GREAT BRITAIN AND IRELAND

Delegate: from the International Law Association:

*SIR WILLIAM R. KENNEDY,
One of the Judges of the High Court of Justice of England.

Delegates from the General Council of the Bar of England:

Sir R. B. Fintay (the Attorney-General).
W. DonaLpson RAWLINS.
J. F. P. Rawiinson.
Joun Scott Fox.
Sir JoHN MAcDONNELL.
Epwarp W. D. ManseEN.
J. H. Keene.
GEORGE G. PHILLIMORE.
J. PawLey Bate.
J. A. Simon.

*GEORGE S. ROBERTSON.

Delegate from the Incorporated Law Society of the United Kingdom:
Sir ALBERT K. ROLtIt.

Delegate from the Incorporated Law Society of Ireland:

WILiiAm S. HAvEs,
Solicitor and King’s Proctor for Ireland.

Delegate jrom the Faculty of Law of Oxford University:

James WILLIAMS.
ARCHIBALD A. PRANKERD.

Delegate from the Law Faculty of Cambridge University:
WILLIAM HEPBURN BUCKLER.

Delegate from the Law Faculty of the Victoria University of Man-
chester:

ALEXANDER GRANT.

Delegate jrom the University of Edinburg:

HAnnis TAYLor,
Of Washington, D. C., U.S. A.
LIST OF DELEGATES 275

 

Delegates from the University of Wales:

*W. JETHRO Brown.
*T. ArTHuR LEvI.

HAITI

Government Delegate.

J. N. LEceEr,
Envoy Extraordinary and Minister Plenipotentiary.

HUNGARY

Government Delegate:

GABRIEL VALYI.
Professor in the University of Kolozsvar.

ITALY

Delegates from the Order of Advocates of Rome:

VITTORIO ScCIALOIA, Senator.
STANISLAO MoNTI-GUARNIERI,
Deputy in the National Parliament.

Delegate from the Order of Advocates of Naples:
ERNESTO FORTUNATO.

Delegate from the Order of Advocates of Ferrara:
VICTOR DE ANDREIS, Preetor.

Delegates from the Order of Advocates of Catania:

PROFESSOR GAETANO MAIORANA.
CoLoGERO GAGLIO.
FRANCESCO CIANCICO.

Delegate from the Faculty of Law of Padua University:
*PROFESSOR CARLO FRANCESCO FERRARIS.

Delegates-at-large:

A. BRUNIALTI,
Of Rome, Councilor of State.
276 CONGRESS OF LAWYERS .AND JURISTS

 

*ANGELO PAVIA,
Of Rome, Deputy in the National Parliament.

*P, GIORDANA,
Of Crema.

*ARNOLDO DE DANINOS,
Of Milan.

*ALBERTO ALFANI,
Of Florence.

MEXICO

Government Delegates:

*MANUEL DE AzprIROzZ,
Ambassador Extraordinary and Plenipotentiary.

*EMILIO VELASCO.
*EMETERIO DE LA GARZA.
*YGNACIO PEREZ SALAZAR.

[Secretary of the Delegation:
*Luis G. LaBAsTIDA, JR.]

NETHERLANDS

Government Delegate and Representative of the Faculty of Law of the
University of Amsterdam:

*D. JosEpHUS JiTTA.

SWEDEN

Delegate-at-large:

*GusTAF E. FAHLCRANTZ,
Of Stockholm.

SWITZERLAND

Delegate-at-large:

*F, MEILI,
Professor in the University of Zurich.
LIST OF DELEGATES 277

 

UNITED STATES OF AMERICA

THE GOVERNMENT DELEGATES, APPOINTED BY THE PRESIDENT OF
THE UNITED STATES

(This list comprises the Chief Justice and Associate Justices of
the Supreme Court of the United States; the presiding Judges of the
United States Circwit Courts of Appeal; the Chief Justices of the
Appellate Courts of the District of Columbia and the United States
Court of Claims at Washington; the lawyers of the President’s Cabinet;
the Solicitor-General; the living ex-Attorneys-General; lawyers from
the Senate and the House of Representatives of the United States,
taken largely from the judiciary committees of those bodies; the Pre-
siding Justices and Attorneys-General of the courts of our Territories
and foreign possessions; the living ex-Presidents of the American
Bar Assoctation, and eminent lawyers in various parts of the country.)

(The Chief Justice and Associate Justices of the Supreme Court oj
the United States)

MELVILLE W. FULLER.

Henry B. Brown. OLIVER WENDELL HOLMES.
Joun M. Harian. Rurus W. PECKHAM.

*Davip J. BREWER. JosEPpH McKENNA.
Epwarp D. WHITE. WiitaM R. Day.

(The Presiding Judges of the United States Circuit Court of Appeals)

Le Baron Cot : Bristol, R. I.
WILLIAM J. WALLACE és Albany, N. Y.
Marcus W. ACHESON Pittsburg, Pa.
NATHAN GOFF Clarksburg, W. Va.
*Don A. PARDEE New Orleans, La.
*Horace H. LurToN Nashville, Tenn.
James G. JENKINS Milwaukee, Wis.
*WALTER H. SANBORN St. Paul, Minn.
WiiiiAm B. GILBERT Portland, Ore.

(The Chief Justices of the Appellate Courts of the District of Colum-
bia and of the United States Court of Claims)

RicHarD H. Atvey, Court of Appeals of the District of Columbia.

Harry M. CrasaucH, Supreme Court of the District of Columbia.

Cuar.es C. Nott 3 : United States Court of Claims.
278 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
THE GOVERNMENT DELEGATES (continued)

(The Lawyers of the President’s Cabinet)

Joun Hay

LEstiE M. SHAW
Witiiam H. Tart
PHILANDER C. Knox
Witi1am H. Moopy

Secretary of State.
Secretary of the Treasury.
Secretary of War.
Attorney-General.
Secretary of the Navy.

(The Living ex-Attorneys-General of the United States)

Grorce H. WILLIAMS
WaynE MacVEAGH
W. H. H. MILLER
RICHARD OLNEY
Jupvson Harmon
Joun W. Griccs .

Portland, Ore.
Washington, D. C.
Indianapolis, Ind.
Boston, Mass.
Cincinnati, Ohio.
New York, N. Y.

(The Solicitor General)

Henry M. Hoyt .

Washington, D. C.

(Lawyers from the Senate and the House of Representatives of the
United States, taken largely from the Judiciary Committees of

those Bodies)

GEorGE F. Hoar
Joun C. SPOONER
Joun T. Morcan
Joun W. DanreL :
CHARLES W. FAIRBANK
Francis M. CockrELi
ALFRED B. KITTREDGE
Joun J. JENKINS
Joun DatzELt .
*HENRY W. PALMER
Cuar_es E. LItrLerreLD
*Davip A. DE ARMAND
Henry D. Clayton .
Joun SHarp WILLIAMS

United States Senate.
United States Senate.
United States Senate.
United States Senate.
United States Senate.
United States Senate.
United States Senate.

House of Representatives.

House of Representatives.
House of Representatives.
House of Representatives.
House of Representatives.
House of Representatives.
House of Representatives.
LIST OF DELEGATES 279

 

UNITED STATES OF AMERICA (continued)
THE GOVERNMENT DELEGATES (continued)

(The Presiding Justices of the Courts of the Territories and Foreign
Possessions of the United States and other officials)

*WILLIAM H. Pope,
Supreme Court of New Mexico, Roswell, N. M.

EpwarpD KEntT,
Supreme Court of Arizona, Phcenix, Ariz.

*JAMES WICKERSHAM,
United States District Court, Eagle, Alaska.

SANFORD B. Dote,
United States District Court, Honolulu, Hawaii.

LorriIn ANDREWS,
Attorney-General, Honolulu, Hawaii.

Wituiam H. Hont,
Governor of Porto Rico, San Juan, P. R.

José SEVERO QUINONES,
Supreme Court of Porto Rico, San Juan, P. R.

LUKE WRIGHT,
Governor of the Philippine Islands, Manila, P. I.

L. R. WILFLEY,
Attorney-General, Manila, P. I.

CAYETANO ARELLANO,
Supreme Court of the Philippine Islands, Manila, P. I.

WILLIS SWEET,
Attorney-General, San Juan, P. R.

(The Living ex-Presidents of the American Bar Association)

*CORTLANDT PARKER . : Newark, N. J.
*SIMEON E. BALDWIN : 2 New Haven, Conn.
*Joun F. DILLon 3 New York City.
James C. CARTER : New York City.
*MOORFIELD STOREY . ‘ " 2 Boston, Mass.
James M. WooLworTH  . : L Omaha, Neb.

Witt1am Wirt Hower & New Orleans, La.
280 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
THE GOVERNMENT DELEGATES (continued)

(Living ex-Presidents of the American Bar Association) (continued)

JosrrpH H. CHOATE .
*CHARLES F. MANDERSON .
EpMUND WETMORE

U. M. RosE

*FRANCIS RAWLE

(Eminent Lawyers)

*CHARLES CLAFLIN ALLEN .
*James DeWitt ANDREWS
GEORGE TUCKER BISPHAM
CHARLES J. BONAPARTE
*WILBUR F. BOYLE
*WILLIAM P. BREEN

*A. B. BROWNE

CHARLES HENRY BUTLER .
Joun G. CARLISLE
HoitmrEs CONRAD

FREDERICK R. CoupDERT, JR.

Don M. Dickinson
*J. M. DickINson

*M. F. DICKINSON
SAMUEL DICKSON
*Amasa M. EATon

*G. A. FINKELNBURG
*JoHN W. FosTER
*THEODORE S. GARNETT
WiiiiAM D. GUTHRIE
*JAMES HAGERMAN
*ALFRED HEMENWAY
Francis J. HENEY
*JoHN HINKLEY
Witi1amM B. HoRNBLOWER
*James H. Hoyt

Joun G. JoHNSON

London, England.
Omaha, Neb.
New York City.
Little Rock, Ark.
Philadelphia, Pa.

St. Louis, Mo.
Chicago, Il.
Philadelphia, Pa.
Baltimore, Md.
St. Louis, Mo.

Ft. Wayne, Ind.
Washington, D. C.
Washington, D. C.
New York, N. Y.
Washington, D. C.
New York, N. Y.
Detroit, Mich.
Chicago, Ill.
Boston, Mass.
Philadelphia, Pa.
Providence, R. I.

St. Louis, Mo.
Washington, D. C.
Norfolk, Va.

New York, N. Y.
St. Louis, Mo.

Boston, Mass.

San Francisco, Cal.
Baltimore, Md.
New York, N. Y.
Cleveland, Ohio.
Philadelphia, Pa.
LIST OF DELEGATES 281

 

UNITED STATES OF AMERICA (continued)
THE GOVERNMENT DELEGATES (continued)

(Eminent Lawyers) (continued)

*EDWARD Q. KEASBEY
*FRANK B. KELLOGG
*JacoB KLEIN
¥*E. B. KRUTTSCHNITT
¥*FREDERICK W. LEHMANN
*CHARLES F. Lippy
Isaac H. LIONBERGER
*WALTER S. LoGAN
*ALVIN J. McCrREARY
*P. W. MELDRIM
*RODNEY A. MERCUR
JoHN BaAsseTT Moore
*CHARLES NAGEL
*JoHN W. NoBLE
THOMAS PATTERSON
GEORGE R. PECK
WHEELER H. PECKHAM
James H. REED
*JoHN K. RICHARDS
*EDWARD S. ROBERT
*PLATT ROGERS .
Errau Root
*GEORGE B. ROSE
*FERDINAND SHACK
*GEORGE M. SHARP
BENJAMIN F. TRAcY
*HENRY ST. GEORGE TUCKER
GEORGE TURNER
ARTHUR VON BRIESEN
*FREDERICK E. WADHAMS
Davin T. WATSON
*EVERETT P. WHEELER
A. S. WorTHINGTON

Newark, N. J.

St. Paul, Minn.
St. Louis, Mo.
New Orleans, La.
St. Louis, Mo.
Portland, Me.

St. Louis, Mo. @
New York, N. Y.
Binghamton, N. Y.
Savannah, Ga.
Towanda, Pa.
New York, N. Y.
St. Louis, Mo.

St. Louis, Mo.
Pittsburg, Pa.
Chicago, Ill.

New York, N. Y.
Pittsburg, Pa.
Cincinnati, Ohio.
St. Louis, Mo.
Denver, Col.

New York, N. Y.
Little Rock, Ark.
New York, N. Y.
Baltimore, Md.
New York, N. Y.
Washington, D. C.
Spokane, Wash.
New York, N. Y.
Albany, N. Y.
Pittsburg, Pa.
New York, N. Y.
Washington, D. C.
282 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)

DELEGATES FROM THE JUDICIARY

(This list comprises those judges of the Federal courts and the State
and Territorial courts of last resort who accepted invitations to become
members of the Congress.)

Federal Judges:'

PETER S. GROSSCUP . “ Chicago, Ill.
*Wittiam C. Hook . s St. Paul, Minn.
Witiram W. Morrow P E San Francisco, Cal.
*Amos M. THAYER . f St. Louis, Mo.
*WILLIS VAN DEVANTER . Cheyenne, Wyo.
*ELMER B. ADAMS Z St. Louis, Mo.
*WALTER EVANS z 3 Louisville, Ky.
Ett SHELBY HAMMOND. : Memphis, Tenn.
CorNELIUS H. HANFoRD . Seattle, Wash.
Benjamin F. KELLER Z Bramwell, W. Va.
*HrraAmM KNOWLES) . ‘ Missoula, Mont.
SmitH McPHERSON . Red Oak, Iowa.
*THomas J. Morris . Baltimore, Md.
Witit1am H. MuNGER Omaha, Neb.
Witiiam T. NEwMAN 5 Atlanta, Ga.
*JouHn F. Puiripes. : Kansas City, Mo.
*JoHNn C. PoLttock . Topeka, Kan.
Joun H. RoGErs . 4 é Fort Smith, Ark.
Emory SPEER . 5 3 . Macon, Ga.
ALBERT C. THomPSON Cincinnati, Ohio.
Harry T. Toutmin . 5 Mobile, Ala.
Jacos TRIEBER : “ Little Rock, Ark.
GrorcE P. Wanty . . Grand Rapids, Mich.
Cuar_Les B. Howry a ‘i Washington, D. C.

1 Exclusive of the Chief Justice and Associate Justices of the Supreme Court
of the United States, the presiding judges of the United States Circuit Court of
Appeals, the Appellate Courts of the District of Columbia, the Courts of the
Territories, and the Court of Claims, who were named by President Roosevelt
as Government Delegates, and will be found listed under that head.
LIST OF DELEGATES 283

 

UNITED STATES OF AMERICA (continued)
DELEGATES FROM THE JUDICIARY (continued)

Judges of State Appellate Courts of Last Resort:

James F. AILsHIE
*GEORGE W. BartTcH
B. B. Battie .

*R. S. BEAN

*W. D. BEARD .
*JosEPpH A. BREAUX .
*JoHN P. BrIscoE

T. J. Brown

Henry G. BuNN

H. E. DEEMER
*ROBERT M. Doucras
Lucitius A. Emery
D. NEwiin FELL
Davip FOWLER
*JamMeEs D. Fox
*JAMES B. GANTT
Craupius B. GRANT
Icnatius C. GRUBB .
Hrram E. Hapiey
ALBERT HAIGHT
Dick HANEY

W. A. JoHNSTON

W. K. McALISsTER
Emin McCLaiIn .
BENJAMIN D. MAGRUDER .
Henry F. Mason
*LESLIE S. MESTREZAT
*JosepH B. Moore
Joun R. NICHOLSON
Denis O’BRIEN
James A. PEARCE
CHaArRLES N. PoTTER
*WILLIAM P. POTTER .
OLIVER O. PRovosTY
THomas M. SHACKELFORD

Boise, Idaho.

Salt Lake City, Utah.
Little Rock, Ark.
Salem, Ore.
Nashville, Tenn.
Baton Rouge, La.
Prince Frederick, Md.
Austin, Tex.

Little Rock, Ark.
Des Moines, Iowa.
Raleigh, N. C.
Augusta, Me.
Harrisburg, Pa.
Annapolis, Md.
Jefferson City, Mo.
Jefferson City, Mo.
Lansing, Mich.
Dover, Del.
Olympia, Wash.
Albany, N. Y.
Pierre, S. D.
Topeka, Kan.
Nashville, Tenn.
Des Moines, Iowa.
Springfield, I.
Topeka, Kan.
Philadelphia, Pa.
Lansing, Mich.
Dover, Del.
Albany, N. Y.
Annapolis, Md.
Cheyenne, Wyo.
Harrisburg, Pa.
Baton Rouge, La.
Tallahassee Fla.
284 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
DELEGATES FROM THE JUDICIARY (continued)

Judges of State Appellate Courts of Last Resort (continued) :

*WILLIAM R. SMITH
*WILLIAM T. SPEAR .
RoBERT W. STEELE
Joun H. STINEss
*CHARLES O. STOCKLAGER
Irvinc G. VANN
ALBERT H. WHITFIELD
CHARLES E. WOLVERTON
C. A. Woops

Territorial Judges:

Jor BARNARD
Epwarp F. BincHAmM
*Joun H. BurrorpD
*B. F. BURWELL
*FLETCHER M. Doan
W. S. Epincs

C. A. GALBRAITH
JosrraH A. GILL
*F, E. GILLETTE
*BAYARD T. HAINER
Wiiiiam H. Hort
*W. R. LAWRENCE
GILBERT F. LITTLE
Joon R. McFIEr
Witi1am J. Mitts
Martin F. Morris
J. L. Pancoast
CHARLES W. RAYMOND
SETH SHEPARD

P. L. SopER

Louis SULZBACHER

Topeka, Kan.
Columbus, Ohio.
Denver, Colo.
Providence, R. I.
Hailey, Idaho.
Albany, N. Y.
Jackson, Miss.
Salem, Ore.
Marion, S. C.

Washington, D. C.
Washington, D. C.
Guthrie, Okla.

El Reno, Okla.
Florence, Ariz.
Kailua, H. I.
Honolulu, H. I.
Vinita, I. T.
Kingfisher, Okla.
Perry, Okla.

San Juan, P. R.
Vinita, I. T.

Hilo, Hawaii.
Santa Fé, N. M.
Las Vegas, N. M.
Washington, D. C.
Alva, Okla.
Muscogee, I. T.
Washington, D. C.

Vinita, I. T.

Muscogee, I. T.
LIST OF DELEGATES 285

 

UNITED STATES OF AMERICA (continued)

DELEGATES FROM THE AMERICAN BAR ASSOCIATION
(One hundred in number.)

Alabama.
*Oscar R. HUNDLEY Huntsville.

Alaska Territory.
*ROBERT W. JENNINGS 3 Skagway.

Arizona Territory.

EVERETT E. ELLINwooD Prescott.
Arkansas.
*JOHN FLETCHER Little Rock.
Colorado.
Kurnev R. BaBBITT Colorado Springs.
*Lucius W. Hoyr ‘ Denver.
*THomas J. O’DONNELL Denver.
*EDWIN VAN CISE : Z - Denver.
CHARLES W. WATERMAN Denver.
Connecticut.

EDWARD AVERY HARRIMAN . Derby.
Delaware.

BENJAMIN NIELDS x Wilmington.

District of Columbia.

*MELVILLE CHURCH Washington.
Henry E. Davis Washington.
NATHANIEL WILSON : . Washington.
Florida.

Witiiam A. BLount é Pensacola.
Georgia.

*B. F. ABBOTT 2 é Atlanta.

Hawaii Territory.
Davip L. WITHINGTON ; 4 Honolulu.
286 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
DELEGATES FROM THE AMERICAN BAR ASSOCIATION (continued)

Idaho.
Witt1am W. Woops

Illinois.

*GEORGE A. FOLLANSBEE
STEPHEN S. GREGORY
Joun S. RUNNELLS
Epwin Burritt SMITH
Joun H. WicMorE

Indian Territory.

*JosEPH G. RALLs

Indiana.
*MERRILL MooRES
*JoHN Morris
*TRUMAN F. PALMER
Iowa.
A. B. Cummins
Davip B. HENDERSON
Kansas.
BALIE P. WAGGENER
Kentucky.
W. O. Harris
Louisiana.
*THomas J. KERNAN
Maine.
*HANNIBAL E. HAMLIN
Maryland.

*RICHARD M. VENABLE
*GEORGE WHITELOCK
STEVENSON A. WILLIAMS .

Wallace.

Chicago.
Chicago.
Chicago.
Chicago.
Chicago.

Atoka.

Indianapolis.
Fort Wayne.
Monticello.

Des Moines.
Dubuque.

Atchison.

Louisville.

Baton Rouge.

Ellsworth.

Baltimore.
Baltimore.
Bel Air.
LIST OF DELEGATES

287

 

UNITED STATES OF AMERICA (continued)
DELEGATES FROM THE AMERICAN BAR ASSOCIATION (continued)

Massachusetts.
CHARLES W. CLIFFORD
Henry S. DEWEY .
FREDERICK P. FisH
*WILLIAM SCHOFIELD
Michigan.
*WitiiaM L. JANUARY
Tuomas J. O’BRIEN
Minnesota.
*RomE G. BRowN
Mississippi.
R. H. THompson
Missouri.

*PauL BAKEWELL

* ALEXANDER G. COCHRAN
*EDWARD C. ELIoT .
*FRANK HAGERMAN
*FREDERICK N. JUDSON
*SELDEN P. SPENCER
*CHARLES O. TICHENOR

Montana.

WILpur F. SANDERS

Nebraska.

EpmMuNpD M. BARTLETT
*Irvinc F. BAXTER

New Hampshire.

FRANK S. STREETER

New Jersey.

*JAMES J. BERGEN
R. WAYNE PARKER

New Bedford.
Boston.
Boston.
Boston.

Detroit.
Grand Rapids.

Minneapolis.

Jackson.

St. Louis.
St. Louis.
St. Louis.
Kansas City.
St. Louis.
St. Louis.
Kansas City.

Helena.

Omaha.
Omaha.

Concord.

Somerville.
Newark.
288 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
DELEGATES FROM THE AMERICAN BAR ASSOCIATION (continued)

New Mexico Territory.

*THomas B. CATRON

New York.
*ROBERT D. BENEDICT
*HENRY D. ESTABROOK
Austin G. Fox
ADRIAN H. JOLINE
Witiram Pratt Rupp
ANSLEY WILCOX

North Carolina.
*JouHn L. BRIDGERS

North Dakota.
ANDREW A. BRUCE

Ohio.
*CHARLES M. HEPBURN
*FRaNcIsS B. JAMES .
*LAWRENCE MAXWELL, JR.
*ANDREW SQUIRE

Oklahoma Territory.

Henry E. Asp

Oregon.
*CHARLES H. CAREY

Pennsylvania.

Hampton L. Carson
Joun CAaDWALADER
GEORGE W. GUTHRIE
*W. U. HENSEL, Chairman
ALEXANDER SIMPSON, Jr.
WALTER GEORGE SMITH .

Santa Fé.

New York.
New York.
New York.
New York.
Albany.
Buffalo.

Tarboro.

Grand Forks.

Cincinnati.
Cincinnati.
Cincinnati.
Cleveland.

Guthrie.

Portland.

Philadelphia.
Philadelphia.
Pittsburg.
Lancaster.
Philadelphia.
Philadelphia.
LIST OF DELEGATES 289

 

UNITED STATES OF AMERICA (continued)
DELEGATES FROM THE AMERICAN BAR ASSOCIATION (continued)

Philippine Islands.
Davip WALKER YANCEY 7 ‘ S Manila.

South Carolina.
CHarLes A. Woops : : ks 7 Marion.

South Dakota.

*CorE I. CRAWFORD . S : Huron.
Tennessee.
*HENRY H. INGERSOLL Knoxville.
Texas.
*T. S. MILLER Dallas.
*J. W. TERRY . : : : : Galveston.
Utah.
*CHARLES S. VARIAN 3 : 4 Salt Lake City.
Vermont.
*Etinvu B. Tart 2 - Burlington.
Virginia.
A. C. BRAXTON : : Staunton.
Witiiam A. GLAsGow, Jr. Roanoke.
ALEXANDER HAMILTON Petersburg.
S. S. P. Patreson - : Richmond.
Washington.
CHARLES E. SHEPARD. 2 F 7 Seattle.

West Virginia.

W. W. VAN WINKLE. ‘i j 5 Parkersburg.
Wisconsin.

Burr W. JONES. u é F : Madison.

FREDERICK C. WINKLER . 3 ‘ : Milwaukee.
Wyoming.

Josran’ A. VAN ORSDEL Cheyenne.
292 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

Illinois State Bar Association (continued)

Joun S. MILLER
Apotpa Moses
*SIGMUND ZEISLER
Joun Maynarp Hartan.
ArTHUR J. EpDy
CuHaries H. HAMILt
*HeENRY V. FREEMAN
Wiiiiam L. Gross
*BENSON Woop
*JoHN S. STEVENS
*ALFRED ORENDORF
*James M. Riccs
*GEORGE T. PAGE
*E. P. WILLIAMS
LEsTER H. STRAWN
*JouN F. Voict, JR.
*GEORGE F. McNuLty
*WILLIAM R. HUNTER
*WILLIAM R. CURRAN
GEORGE W. GERE .
*OLIVER A. HARKER
*James H. MatHENY

Chicago.
Chicago.
Chicago.
Chicago.
Chicago.
Chicago.
Chicago.
Springfield.
Effingham.
Peoria.
Springfield.
Winchester.
Peoria.
Galesburg.
Ottawa.
Mattoon.
East St. Louis.
Kankakee.
Pekin.
Champaign.
Carbondale.
Springfield.

Indian Territory Bar Association.

C. L. HERBERT
N. A. GIBSON
*W. P. FREEMAN

*J. F. SHARP
F. H. KELLocc

Indiana Bar Association.

*CHARLES S. BAKER
*GEORGE A. CUNNINGHAM
*THEODORE P. Davis 3
*EDwiIn P. HaMMoND

Ardmore.
Muscogee.

South McAlester.
Purcell.

South McAlester.

Columbus.
Evansville.
Indianapolis.
Lafayette.
290 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)

DELEGATES FROM STATE AND TERRITORIAL BAR ASSOCIATIONS

(Equal in number to the representation of the particular State in
the House of Representatives of the United States, but each State or
Territory entitled to a minimum of five.)

Alabama State Bar Association.

*EDWARD DE GRAFFENRIED Greensboro.
*SAMUEL D, WEAKLEY : Birmingham.
James WEATHERLY Birmingham.
GrorGE P. HARRISON “ Opelika.
*LAWRENCE COOPER Huntsville.
*FREDERICK C. BROMBERG Mobile.
*WILLIAM H. Tomas i Montgomery.
*THomas R. RovuLwac Sheffield.
*ALEXANDER TROY Montgomery.
Bar Association of Arizona.
*BEN GOODRICH Tombstone.
*F. H. HEREFORD Tucson.
*WiLLIAM H. BARNES Tucson.
*GEORGE D. CHRISTY Pheenix.
*JOHN J. HAWKINS Prescott.
Bar Association of Arkansas.
*ALLEN HUGHES Jonesboro.
*James F. READ Fort Smith.

*J. W. House .-
*H. M. ARMISTEAD
*JosEpH M. HILy

*THomMAS B. MARTIN
*JosEPpH M. Stayton

Little Rock.
Little Rock.
Fort Smith.
Little Rock.
Newport.

California State Bar Association.

*CHARLES H. BANE .
*WILLIAM J. HUNSAKER

San Francisco.
Los Angeles.
LIST OF DELEGATES 291

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

Colorado Bar Association.

Jutius B. BissELy Denver.
*L. M. CUTHBERT S Denver.
*CHARLES E. Gast Pueblo.
*WILLIAM V. HopDGES . Denver.
*HENRY T. ROGERS Denver.

Bar Association of the District of Columbia.

*JacKson H. RALsToN Washington.
WitiiaM F. MarrtincLy Washington.
NATHANIEL WILSON ’ Washington.
Freperic D. McKENNEY Washington.

*HENRY P. BLAIR “ Washington.

Georgia Bar Association.

HENRY C. CUNNINGHAM . ‘ < Savannah.
*J. E. DoNALSON ‘ Bainbridge.
H. R. GortcHius 3 : Columbus.
B. H. Hitt. f x Atlanta.
WASHINGTON DESSAU_. Macon.
¥JOEL BRANHAM 7 2 Rome.
Tuomas G. Lawson Eatonton.
*J. C. C. Brack Augusta.
W. M. Hammonp Thomasville.
*W. E. Simmons 3 Lawrenceville.
O. A. PARK 5 Macon.

Bar Association of Hawaii.
*WitLIaM R. CASTLE 5 Honolulu.
Rosert W. BRECKONS Honolulu.
Wiiiiam L. STANLEY : Honolulu.

Illinois State Bar Association.

James B. BRADWELL. : Chicago.
Jesse Hotpom : Chicago.
*FRANK ASBURY JOHNSON. Chicago.
 

LIST OF DELEGATES 293
UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)
Indiana Bar Association (continued)
*ADDISON C. HARRIS Indianapolis.
*CHARLES L. JEWETT New Albany.

Epwarp DaANIELs Indianapolis.
*THomas E. ELLIson Fort Wayne.

SAMUEL PARKER Plymouth.
*SAMUEL O. PICKENS Indianapolis.
*JaAMES H. ROSE Auburn.
*SAMUEL M. SAYLER Huntington.

Witiiam L. TAyior Indianapolis.
*HENRY B. TuTHity Michigan City.
*WILLIAM J. VESEY Fort Wayne.
*Dan W. Simms Lafayette.

Iowa State Bar Association.

Epcar A. Mortine Emmetsburg.
H. K. Evans Corydon.

#*C. C. CoLe Des Moines.
*L. C. BLANCHARD Oskaloosa.

J. L. Carney Marshalltown.
¥*J. O. CrosBy Garnaville.
*WILLIAM HOFFMAN Muscatine.
*H. M. EIcHER Washington.

S. M. WEAVER Iowa Falls.

Scott M. Lapp Sheldon.

H. E. DEEMER Red Oak.

H. M. Towner : z Corning.

Bar Association of the State of Kansas.

*J. C. SLONECKER
Otto G. ECKSTEIN
*J. W. GREEN

*J. D. MILLIKEN
*WINFIELD FREEMAN
*Joun H. CRAIN
FreD DuMONT SMITH
*R. W. TURNER

Topeka.
Wichita.
Lawrence.
McPherson.
Kansas City.
Fort Scott.
Kinsley.
Mankato.
294 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

Kentucky State Bar Association.

*J. C. Dooran.
*JEP C. Jonson
Joun S. KELLEY
*LEwis McQuown
L. A. FaurEst

E. J. McDermorr .
*W. C. HALL .

*D. L. THORNTON

J. R. Morton
Joun F. Hacer 2 és :
L. C. WILtIs .

Louisiana Bar Association.

*Joun D. Rouse. 5
*ERNEST B. KRUTISCHNITT
WitiiAm Wirt Hower
*ROBERT J. PERKINS
*WILLIAM S. BENEDICT

Louisville.
Greenville.
Bardstown.
Bowling Green.
Elizabethtown.
Louisville.
Covington.
Versailles.
Lexington.
Ashland.
Shelbyville.

New Orleans.
New Orleans.
New Orleans.
New Orleans.
New Orleans.

Maine State Bar Association.

JosEPpH W. SYMONDS
LLEWELLYN POWERS
*JoHNn A. Morrirr .
*LESLIE C. CoRNISH
*HucH R. CHAPLIN .

Portland.
Houlton.
Auburn.
Augusta.
Bangor.

Maryland State Bar Association.

*WILLIAM L. Marpury
GEoRGE L. VAN BIBBER
*EpGaR H. GANS
FERDINAND WILLIAMS
*PHILEMON H. Tuck
*ALFRED S. NILES

Baltimore.
Bel Air.
Baltimore.
Cumberland.
Baltimore.
Baltimore.
LIST OF DELEGATES

295

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

Michigan State Bar Association.

MicHAEL BRENNAN
*CLARK E. BALDWIN
*DALLAS BOUDEMAN e
Puitirp T. COLGROVE . 2 -
Frank D. M. Davis

RussELL C. OSTRANDER .

Lincotn AVERY

Lorenzo T. DurAND

Aaron V. McALvay

THEODORE F. SHEPARD .

Cartes W. PERRY

Dan H. BALyi

Detroit.
Adrian.
Kalamazoo.
Hastings.
Tonia.
Lansing.
Port Huron.
Saginaw.
Manistee.
Bay City.
Clare.
Marquette.

Minnesota State Bar Association.

*Lynpon A. SMITH
*JED L. WASHBURN .
CuHartes B. ELLiotr
*M. B. Koon
*HASCAL R. BRILL
*DANIEL FISH .
*ALBERT SCHALLER .
*JULIUS COLLER
*HenRY DEUTSCH

Missouri Bar Association.

*WaRWICK HoucH

*D. D. FIsHER

H. S. PRIEst

*A. M. Woopson

*C. A. MosMAN

*O. M. SPENCER

*SANFORD B. Lapp . A J
*W. B. TEASDALE i
Tuomas A. SHERWOOD

*HENRY Lamu

*W. M. WILLIAMS

Montevideo.
Duluth.
Minneapolis.
Minneapolis.
St. Paul.
Minneapolis.
Hastings.
Shakopee.
Minneapolis.

St. Louis.
St. Louis.
St. Louis.
St. Joseph.
St. Joseph.
St. Joseph.
Kansas City.
Kansas City.
Springfield.
Sedalia.
Boonville.
296 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

Missouri Bar Association (continued)

*GEORGE ROBERTSON Mexico.
A. D. Burns . Platte City.
R. F. Roy New London.
B. G. THURMAN Lamar.
*J. J. RussELL Charleston.
Nebraska State Bar Association.
*C. B. Letton Fairburg.
*ROSCOE PouND Lincoln.
*JoHN L. WEBSTER . Omaha.
SAMUEL P. DAVIDSON Tecumseh.
*RALPH W. BRECKENRIDGE Omaha.
*Joun N. DRYDEN . Kearney.
*WiLtiAM G. HASTINGS Wilber.
*Wittis D. OLDHAM Kearney.

Bar Association of the State of New Hampshire.

ARTHUR H. CHASE . : Concord.
JosEpx MADDEN Keene.

New Jersey State Bar Association.
*JAMES J. BERGEN . : Somerville.
R. WAYNE PARKER . Newark.
J. Kearny RIcrE New Brunswick.
*JoHN R. HARDIN . Newark.
CHARLES C. BLACK . Jersey City.
Norman GREY Camden.
*CLARENCE L. COLE Atlantic City.
CHarLes H. HARTSHORNE Jersey City.
E. M. Coie . ‘ Newark.

New Mexico Bar Association.

Witi1am J. Mitts . : - Las Vegas.
BENJAMIN S. BAKER : ‘ Albuquerque.
W. A. HAWKINS Alamogordo.
W. C. WRIGLEY Raton.

*A. A. JONES . ‘ East Las Vegas.
LIST OF DELEGATES

297

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

New York State Bar Association.

Davip B. Hitr
*GEORGE M. DIVEN
J. Newton Fiero .
Tracy C. BECKER .
Epwarp G. WHITAKER .
Stmon W. ROSENDALE
Joun G. Mirpurn .
Epwarp M. SHEPARD
CEPHAS BRAINERD .
EpWwarp W. SHELDON
Louis MARSHALL .
*SOLOMON HANFORD
*EDWARD A. SUMNER
*CHARLES BULKLY HUBBELL
Joun F. CLARKE
*FRANK HARVEY FIELD
*FREDERICK E. CRANE
*GRENVILLE M. INGALSBE
SmitH M. LIinDSsLEY
James T. Rocers .
*ERNEST W. HurFFcutT
C. W. H. ARNnoLp
Lewis E. Carr
*ALPHONSO T. CLEARWATER
Epwarp W. DouGLas
ELBRIDGE L. ADAMS
ApoLtrH J. RODENBECK
Puy T. SEXTON
*W. MARTIN JONES
*RALPH KELLOGG .-.
*E. C. AIKEN .
*JaRED T. NEWMAN
*E. D. RoNAN
ADELBERT Moor
MartTIN CAREY

Albany.
Elmira.
Albany.
Buffalo.
New York.
Albany.
New York
New York.
New York.
New York.
New York.
New York.
New York.
New York.
Brooklyn.
New York.
Brooklyn.
Sandy Hill.
Utica.
Binghampton.
Ithaca.
Poughkeepsie.
Albany.
Kingston.
Troy.
Rochester.
Rochester.
Palmyra.
Rochester.
Buffalo.
Auburn.
Ithaca.
Albany.
Buffalo.
Buffalo.
298 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

New York State Bar Association (continued)

ALBERT HESSBERG
*SIMON FLEISCHMANN
*DoNALD McLEAN

Albany.
Buffalo.
New York.

North Carolina Bar Association.

W. D. PRUDEN
James E. Boyp
*CLEMENT MANLY
*FRED A. WOODARD
L. H. CLEMENT
*R. B. REDWINE
*J. CRAWFORD Biccs
C. S. VaNN
*LINDSAY PATTERSON
GrEorGE H. Brown
¥*A. B. ANDREWS, JR.
*F. P. Hoscoop, JR.

Ohio State Bar Association.

*J. W. BANNON

*S. O. BAYLESS

*H. J. Boots .

Har an F. BuRKETT
J. B. Burrovcus
ALBERT DouGLAS
*JoHN H. DoyLEe

*L. C. LAyLIn

U. L. Marvin

W. H. A. READ
*WILLIAM T. SPEAR .
*J. T. Hotmes
*JoHn N. Van DEMAN
*A. IT. Vorys

S. S. WHEELER
Wave H. E zis

Edenton.
Greensboro.
Winston.
Wilson.
Salisbury.
Monroe.
Durham.
Edenton.
Winston.
Washington.
Raleigh.
Greensboro.

Portsmouth.
Cincinnati.
Columbus.
Findlay.
Painesville.
Chillicothe.
Toledo.
Norwalk.
Akron.
Toledo.
Warren.
Columbus.
Dayton.
Lancaster.
Lima.
Cincinnati.
LIST OF DELEGATES

299

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

Ohio State Bar Association (continued)

Joun C. Hate
*T. H. Hocsett
E. H. Hopkins
*EDWARD KIBLER
*EpDMUND B. KING

C. B. Ames

¥*M. J. Kane

*S. H. Harris
*PauL F. MACKEY

Oklahoma Bar Association.

S. M. CUNNINGHAM

Pennsylvania Bar Association.

*ROBERT RALSTON

SAMUEL W. PENNYPACKER
*WILLIAM H. STAAKE
Joun B. CoLaHAN, JR.

*HOWARD W. PAGE

* MONTGOMERY EVANS
*H. S. Prentiss NICHOLS
*JosEpH P. MCKEEHAN

J. Hay Brown

EVERETT WARREN .-

CHARLES E. RICE
D. C. HENNING

ALonzo T. SEARLE

*Voris AUTEN .

GEORGE B. ORLADY
*WILLIAM N. HARGEST

*JoHN H. JORDAN
*HENRY C. NILES

*NATHANIEL EWING

J. Norman Martin

Epwarp J. Fox

Cleveland.
Cleveland.
Cleveland.
Newark.

Sandusky.

Oklahoma City.
Kingfisher.
Perrv.

Pond Creek.
Lawton.

Philadelphia.
Harrisburg.
Philadelphia.
Philadelphia.
Philadelphia.
Norristown.
Philadelphia.
Carlisle.
Lancaster.
Scranton.
Wilkesbarre.
Pottsville.
Honesdale.
Mt. Carmel.
Huntington.
Harrisburg.
Bedford.
York.
Uniontown.
Newcastle.
Easton.
300 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

Pennsylvania Bar Association (continued)

Ross REYNOLDS Kittanning.
*CHARLES W. STONE Warren.
ROBERT S. FRAZER . Pittsburg.
*WILLIAM SCOTT : Pittsburg.
CLARENCE BURLEIGH Pittsburg.
Witi1am H. McCiune Pittsburg.
THEODORE F. JENKINS Philadelphia.
*GEORGE F. BAER Philadelphia.
*RUSSELL C. STEWART Easton.
JoHN STEWART Chambersburg.
C. H. RuwL . Reading.

Philippine Bar Association.
(Colegio de Abogados de Filipinas.)

CAYETANO ARELLANO Manila.
VICTORIANO Mapa . Manila.
Joun T. McDonoucH Manila.
CHARLES WILLARD Manila.
Juan SUMULONG Manila.
Tomas G. DEL ROSARIO Manila.
Oscar SUTRO Manila.

South Carolina Bar Association.

J. E. McDonatp Winnsboro.
*W. G. BELSER Columbia.
D. S. HENDERSON Aiken.

J. H. Hupson Bennettsville.
*WASHINGTON CLARK Columbia.
*HUNTER A. GIBBS Columbia.

South Dakota Bar Association.

BARTLETT TRIPP Yankton.
*THOMAS STERLING Redfield.
H. R. Horner Pierre.

W. G. RICE Deadwood.

J. H. VoorHEES

Sioux Falls.
LIST OF DELEGATES

301

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

Bar Association of Tennessee.

E. BAxTER
J. W. Jupp
J. C. Braprorp

J. J. VERTREES
*J. S. PIrcHEeR

J. W. Bonner

J. H. Matone
*W. D. BEARD
*H. C. WARRINER

M. B. TREZEVANT

F. H. HEISKELL

*C. W. METCALF
*E. T. SANFORD

G. W. PICKLE

R. M. Barton, Jr .
W. G. M. THomAs
FRANK SPURLOCK

J. W. Moore

C. J. Sr. Joun

Texas Bar Association.

RHODES 5S, BAKER
A. L. Breaty .

*W. L. CRAWFORD
TuHomas H. FRANKLIN
James E. HILi
A. E. WILKINSON
W. G. SEARS .

*W. W. SEARCEY

*WILLIAM H. BURGESS

*H. C. CARTER

*M. A. SPOONTS

#*R. E. L. SANER

*WYNDHAM KEMP

*S,. R. BLAKE .

Nashville.
Nashville.
Nashville.
Nashville.
Nashville.
Nashville.
Memphis.
Memphis.
Memphis.
Memphis.
Memphis.
Memphis.
Knoxville.
Knoxville.

Chattanooga.
Chattanooga.
Chattanooga.

Brownsville.
Bristol.

Dallas.
Sherman.
Beaumont.

San Antonio.

Livingston.
Austin.

‘Houston.

Brenham.
El Paso.

San Antonio.

Ft. Worth.
Dallas.

El Paso.
Bellville.
302 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

Texas Bar Association (continued)

*J. S. Hoce p Austin.
*ROBERT G. STREET Galveston.

Virginia State Bar Association.

Wittiam A. ANDERSON . 5 a cs Lexington.
SAMUEL C. GRAHAM Tazewell.
*MARSHALL McCormick Berryville.
RicHARD B. TUNSTALL : Norfolk.

* THEODORE S. GARNETT Norfolk.
*SAMUEL GRIFFIN. Bedford City.
J. K. M. Norton . Alexandria.
*JosEpH L. KELLy , ‘ Bristol.

*C. F. Moore . 2 3 - Covington.
*WiLLtAM E. BARRETT . x Newport News.

Washington State Bar Association.

Witt H. THompson ‘ Seattle.
JosEPH SHIPPEN Seattle.
CARROLL B. GRAVES : Ellensburg.
*EDWARD WHITSON North Yakima.
*ALFRED L. BLACK 4 Bellingham.

West Virginia Bar Association.

*J. W. VANDERVORT . Parkersburg.
*THomas P. JAcoss : New Martinsville.
*HENRY M. RUSSELL Wheeling.
*WESLEY MoLLoHAN Charleston.
*CHARLES J. FAULKNER . ‘ Martinsburg.

State Bar Association of Wisconsin.

Joun C. Lupwic Milwaukee.
*ALFRED L. Cary Milwaukee.
*A. A. JACKSON Janesville.
*H. H. GRACE . Superior.
*L. J. NASH Manitowoc.

*M. A. Hurry

Wausau.
LIST OF DELEGATES 303

 

UNITED STATES OF AMERICA (continued)
STATE AND TERRITORIAL BAR ASSOCIATIONS (continued)

State Bar Association of Wisconsin (continued)

*W. D. TaRRANT . Milwaukee.
*GEORGE H. NovEs & Milwaukee.
*CORNELIUS I. HARING Milwaukee.
*JoHN M. OLIN ‘ Madison.

*JamEes M. PERELES Milwaukee.

DELEGATES FROM STATES NOT HAVING STATE BAR ASSOCIATIONS

(Appointed by the judges of the highest courts thereof, and equal
in number to the representation of the particular State in the House
of Representatives of the United States, but each State entitled to a
minimum oj jive.)

Florida.
*ROBERT W. WILLIAMS : Tallahassee.
Idaho.
W. E. Borsw i Boise.
R. V. CoziEr . Moscow.
J. H. Forney é Moscow.
F. S. DretricH é Pocatello.
*James E. Bass Lewistown.
Massachusetts.

*Lrewis S. DABNEY = Boston.
James R. DUNBAR Brookline.
SAMUEL J. ELDER 3 : Winchester.
Rockwoop Hoar . Worcester.

*EDWARD W. HUTCHINS . g Z Boston.

*ANDREW J. JENNINGS 2 Fall River.

*WittiaAM W. McCLENCH . : : Springfield.
Henry P. Mouton 2 - Salem.

*Witiiam H. NILES 5 : 3 Lynn.

*ALFRED P. SAWYER i : : ; Lowell.

EpWwarp T. SLOCUM . 5 : ti Pittsfield.
304 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
FROM STATES NOT HAVING STATE BAR ASSOCIATIONS (continued)

Massachusetts (continued)

WINFIELD S. SLocum Newton.

Joun P. SWEENEY . A ji Lawrence.

WINSLOW WARREN . 7 4 ‘ Boston.
Nevada.

A. E. CHENEY s Reno.

M. S. BoNNEFIELD . Winnemucca.

E. S. FARRINGTON . Elko.

Key Pittman ; 5 Tonopah.

*F, M. HUFFAKER . é : Virginia City.

DELEGATES FROM THE FACULTIES OF AMERICAN LAW SCHOOLS

(Aitached to State Universities or members of the Association of
American Law Schools.)

Delegates from the Association of American Law Schools:

*E. W. Hurrcut, of Cornell University College of Law.
Wit11aM P. RoceErs, of the Cincinnati Law School.
*JosrepH H. BEALE, Jr., of the University of Chicago Law School.
GrorcE W. KircHwey, of the School of Law of Columbia Univer-
sity.
*Henry S. Ricuarps, of the Wisconsin University Law School.

ARKANSAS.

University of Arkansas, Law Department.
*J. H. CARMICHAEL J Little Rock.

CALIFORNIA.

Leland Stanford Junior University.

*NATHAN ABBOTT . . , ‘ : Stanford University.
Wituiam CULLEN DENNIS. : Stanford University.

(Alternate)
Davip STARR JORDAN ‘ 3 : Stanford University.
LIST OF DELEGATES

395

 

UNITED STATES OF AMERICA (continued)

LAW SCHOOLS AND UNIVERSITIES (continued)

CoLoRaDo.
University of Colorado School of Law.
*Joun D. FLEMING fi Boulder.

University of Denver, School of Law.
*Lucius W. Hoyt fi Denver.
*WILLIAM V. HopcEs Denver.

CoNNECTICUT.
ry Yale University, Law Department.

*JameS HENRY WEBB J : New Haven.

District oF CoLUMBIA.
Columbian University, Department of Law.

Witiiam A. Maury s Washington.
STANTON C. PEELE ‘ Washington.
(Alternates)
ARTHUR PETER . 3 ss Washington.
Joun Paut EARNEST . 3 ‘ Washington.
GEORGIA.
University of Georgia.
WALTER B. HILL P ‘ Athens.
Sytvanus Morris s ‘ Athens.
ILLrnoIs.
University of Chicago Law School.
*JosEpH H. BEALE, JR. . . F Chicago.
*JAMES PARKER HALL * Chicago.
*JutiaAN Witiiam Mack. Chicago.
Illinois College of Law (Dearborn University)
*Howarp N. OGDEN ‘ Chicago.
*JoHn T. GOsE Chicago.
(Alternate)

GrorcE W. WaRVELLE . 2 Chicago.
306 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
LAW SCHOOLS AND UNIVERSITIES (continued)

University of Illinois.
¥*OLIVER A. HARKER. : : Champaign.

Northwestern University, Law School.

*SAMUEL ADAMS 2 : 2 . Chicago.
*Lovis May GREELEY Chicago.
*HENRY SCHOFIELD ‘ i Chicago.
(Alternate)
ALBERT MARTIN KALES Chicago.
INDIANA.
Law School of Indiana University.
*Enoca G. HoGATE : : Bloomington, Ind.
*CHARLES M. HEPBURN . 5 Cincinnati, O.
Towa.
Iowa College of Law (Drake University)
*C. C. CoLE : Des Moines, Ia.
*C. A. DUDLEY ; Des Moines, Ia.
(Alternates)
E. B. Evans Des Moines, Ia.
H. F. Date Des Moines, Ia.
W. H. McHENRY f Des Moines, Ia.
State University of Iowa, College of Law.
CHARLES NoBLE GREGORY . Towa City, Ia.
*ELMER A. WILCOX J é Iowa City, Ia.
(Alternates)
SAMUEL Hayes. Iowa City, Ia.
Lawrence M. BYERS Iowa City, Ia.
Barry GILBERT Iowa City, Ia.
Kansas.

Washburn College, School of Law.
*ERNEST B. ConaNT i s Topeka, Kan.
LIST OF DELEGATES 3°7

 

UNITED STATES OF AMERICA (continued)
LAW SCHOOLS AND UNIVERSITIES (continued)

MAINE.
The University of Maine, School of Law.
*WILLIAM E. Warz . ‘ ‘ Bangor, Me.
Louis C. SourHarRD Bangor, Me.
MASSACHUSETTS.

Boston University Law School.
*EDWARD A. HARRIMAN . . 7 Boston, Mass.

Law School of Harvard University.

*JamES BARR AMES 5 - : Cambridge, Mass.
*SAMUEL WILLISTON Cambridge, Mass.
MICHIGAN.
University of Michigan, Department of Law.
*HorAcE L. WILGUS ‘ Ann Arbor, Mich.
*James H. BREWSTER i : Ann Arbor, Mich.
Missouri.

University of Missouri, Law Department.
*EDWARD W. HINTON Columbia, Mo.
*Vasco H. ROBERTS Columbia, Mo.

St. Louis Law School (Washington University)
*WILLIAM S. CURTIS St. Louis, Mo.
*WILLIAM W. KEyYsOR St. Louis, Mo.

NEBRASKA.

University of Nebraska, College of Law.
W. W. Cook ‘ . : Lincoln, Neb.

New York.

School of Law of Columbia University.
GrEorGE W. KircHWEY : New York, N. Y.
*James B. ScoTT 5 5 . New York, N. Y.
308 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
LAW SCHOOLS AND UNIVERSITIES (continued)

Cornell University, College of Law.

*E. W. Hurrcur . A 5 : Ithaca, N. Y.
College of Law of Syracuse University.
*Louis L. WATERS e Syracuse, N. Y.
PENNSYLVANIA.

University of Pennsylvania, Department of Law.
*WILLIAM DRAPER LEWIS 5 Philadelphia, Pa.
*WILLIAM FE. MIKELL. Philadelphia, Pa.

PHILIPPINE ISLANDS.
La Real y Pontificia Universidad de Sto. Tomds de Manila.

*P, TomAs LoRENTE : . New Orleans, La.

TEXAS.

The University of Texas, Department of Law.
*CHARLES HENRY HUBERICH ; Austin, Tex.

WISCONSIN.
University of Wisconsin, College of Law.

*H. S. RICHARDS . E Madison, Wis.
*E. A. GILMORE ‘ F . : Madison, Wis.

DELEGATES AT LARGE

(Eminent judges, jurists, and lawyers who accepted special invita-
lions to participate in the Congress, together with those who served as
members oj the organization committees.)

*E. T. ALLEN 2 2 St. Louis, Mo.
*B. Mason AMBLER . , Parkersburg, W. Va.
*W. N. APPEL . i & Lancaster, Pa.
*Present.

{+Members of the American Bar Association’s Committee on the Universal
Congress of Lawyers and Jurists.
LIST OF DELEGATES 309

 

UNITED STATES OF AMERICA (continued)
DELEGATES AT LARGE (continued)

{*ALBERT ARNSTEIN
T*SHEPARD BARCLAY
*CHARLES A. BARNES
*W. S. BICKSLER
*W. W. BRANNON
*FREDERICK V. BROWN
*James F. BROWN
t*Faprius H. BusBEE
t*Hucew Burier .
{FREDERICK H. Butron
GEoRGE H. Carr
M. M. Coun
}*Paut F. Coste

*EDWARD CUNNINGHAM, jr.

{F. C. Ditrtarp
*CHaRLES L. DuNDY
*GEoRGE Du RELLE .
+*SAMUEL C. EASTMAN
*JosEPH R. EDSON

A. C. ELLs

*Joun G. EwInc
*FRANKLIN FERRISS
*ERNEST T. FLORANCE
*A. D. FOLLETT
*Martin D. FOLLETT
T*GEORGE M. ForsTER
*EDWARD W. FRost
{Smita P. Gat
+GEORGE GRAY .

James S. HARLAN
*M. M. Harniso

*W. O. Hart

*Present.

St. Louis, Mo.

St. Louis, Mo.
Jacksonville, Il.
Denver, Col.
Weston, W. Va.
Minneapolis, Minn.
Charleston, W. Va.
Raleigh, N. C.
Denver, Col.

New York, N. Y.
Des Moines, Iowa.
Little Rock, Ark.
St. Louis, Mo.

St. Louis, Mo.
Sherman, Texas.
Omaha, Neb.
Louisville, Ky.
Concord, N. H.
Washington, D. C.
Salt Lake City, Utah.
Notre Dame, Ind.
St. Louis, Mo.
New Orleans, La. ,
Marietta, Ohio.
Marietta, Ohio.
Spokane, Wash.
Milwaukee, Wis.
St. Louis, Mo.
Wilmington, Del.
Chicago, Ill.
Lancaster, Pa.
New Orleans, La.

+Members of the American Bar Association’s Committee on the Universal

Congress of Lawyers and Jurists.

{Members of the Exposition’s Committee on the Universal Congress of

Lawyers and Jurists.
310 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
DELEGATES AT LARGE (continued)

{Tomas B. Harvey
*THomas E. Harwoop
T*R. B. HaucHTon
*Lynn HELM
t*J. C. Herndon
*FRANK M. HIGGINS .
TW. J. Hits
}*CiirForD L. Jackson
{t*Jonn D. JoHNnson
*WYNDHAM KEMP
t*Henry T. Kent
tR. H. Kern
fFWittiam A. KetrcHam
GARDINER LATHROP .
*Joun D. Lawson
*JoHN F. LEE
{Benjamin S. LIDDON
Henry McBripE
*W. S. McCain
tL. E. McComas
t*J. E. McKricHan
*DonALD McLEAN
yA. E. Mayvaew
RALEIGH C.. MINOR
T*CHARLES MONROE
T*M. A. MonTcoMERY
*J. M. Moore .

+*T. MouttriE MorRDECAI .

*IrRA D. OGLESBY
*E. W. PATTISON
*V. Mott PorTER
T*LEo RAssIEUR

*Present.

St. Louis, Mo.
Benton, Tenn.
St. Louis, Mo.
Los Angeles, Cal.
Prescott, Ariz.
Limerick, Me.
Juneau, Alaska.
Muscogee, I. T.
St. Louis, Mo.

El Paso, Tex.

St. Louis, Mo.

St. Louis, Mo.
Indianapolis, Ind.
Kansas City, Mo.
Columbia, Mo.
St. Louis, Mo.
Marianna, Fla.
Olympia, Wash.
Little Rock, Ark.
Williamsport, Md.
St. Louis, Mo.
New York, N. Y.
Wallace, Idaho.
Charlottesville, Va.
Los Angeles, Cal.
Oxford, Miss.
Little Rock, Ark.
Charleston, S. C. .
Fort Smith, Ark.
St. Louis, Mo.
St. Louis, Mo.
St. Louis, Mo.

+Members of the American Bar Association’s Committee on the Universal

Congress of Lawyers and Jurists.

{Members of the Exposition’s Committee on the Universal Congress of

Lawyers and Jurists.
LIST OF DELEGATES 311

 

UNITED STATES OF AMERICA (continued)
DELEGATES AT LARGE (continued)

{VALLE REYBURN

H. H. Roraprp .
tCuinton ROWELL
¥*BENJAMIN H. RUTLEDGE
T*WILLIAM SCALLON

*E. L. SCARRITT
*CHARLES J. SCHNABEL
*F, L. SCHOFIELD
{*James A. SEDDON
tArTHuR B. SHEPLEY
*ADIEL SHERWOOD
*GEORGE H. SHIELDS

F. L. Sippons
*THomas K. SKINKER
*ALFRED PERCIVAL SMITH
;BuRTON SMITH
T*CHARLES BLoop SMITH
TELENEIOUS SMITH
*HaARVEY F. SmitH
{+BURLEIGH F. SPALDING
*HORACE SPEED

*E,. G. SPILMAN

*R. G. STREET -
*THEODORE SUTRO
+*W. B. SWANEY
tGrorcEe W. Taussic

R. S. TAYLoR -
James TILLINGHAST
-*EpMunD F. TRAUBE
*W. J. TURNER .-

*E. WAKELEY
*BRADLEY WALKER

*Present.

St. Louis, Mo.
Ogden, Utah.

St. Louis, Mo.
Charleston, S. C.
Butte, Mont.
Kansas City, Mo.
Portland, Ore.
Hannibal, Mo.
St. Louis, Mo.
St. Louis, Mo.
St. Louis, Mo.
St. Louis, Mo.
Washington, D. C.
St. Louis, Mo.
Philadelphia, Pa.
Atlanta, Ga.
Topeka, Kan.

St. Louis, Mo.
Clarksburg, W. Va.
Fargo, N. D.
Guthrie, Okla.
Kingfisher, Okla.
Galveston, Tex.
New York, N. Y.
Chattanooga, Tenn.
St. Louis, Mo.
Fort Wayne, Ind.
Providence, R. I.
Louisville, Ky.
Milwaukee, Wis.
Omaha, Neb.
Nashville, Tenn.

{Members of the American Bar Association’s Committee on the Universal

Congress of Lawyers and Jurists.

{Member of the Exposition’s Committee on the Universal Congress of

Lawyers and Jurists.
312 CONGRESS OF LAWYERS AND JURISTS

 

UNITED STATES OF AMERICA (continued)
DELEGATES AT LARGE (continued)

*ROBERT F. WALKER 3 St. Louis, Mo.
*ROBERT WHITE Wheeling, W. Va.
7P. L. Witiiams Salt Lake City, Utah.
t*Horatio D. Woop . - : St. Louis, Mo.
7Davip WALKER YANCEY Lucena, Tayabas, P.I.

GENERAL NUMERICAL SUMMARY

Number of delegates accredited 5 gho
Deduct for names inserted twice on account ‘af ap-

pointment from two sources. s : . 21
Number of individuals accredited as delegates 939
Number of delegates who registered . 481
Number of delegates who were absent or failed to

register z 2 é ‘ 458 939

*Present.

Members of the American Bar Association’s Committee on the Universal
Congress of Lawyers and Jurists.

{Members of the Exposition’s Committee on the Universal Congress of
Lawyers and Jurists.
APPENDIX
APPENDIX A
HISTORY OF THE ORGANIZATION OF THE CONGRESS

At the twenty-fourth annual meeting of the American
Bar Association, held in 1901, at Denver, Colorado, Mr.
CHARLES CLAFLIN ALLEN of Missouri read the follow-
ing Memorial from the Louisiana Purchase Exposition
Company:

Mr. President and Gentlemen of the American Bar Association:
In 1803 the United States purchased the Louisiana Territory from
France; in 1903 the Centennial of that purchase will be celebrated
in the city of St. Louis, Missouri.

After the purchase treaty was signed, NAPOLEON said to MaRzols,
“This acquisition of territory strengthens forever the power of the
United States.”

His prophetic words have been realized. The Louisiana Pur-
chase paved the way for the acquisition of Oregon, California, and
Texas, enabled the United States to span the continent from the
Atlantic to the Pacific; and made her territory the meeting-ground
for the Occident and the Orient. The wilderness of 1803 has devel-
oped into fourteen States and Territories, including the great State
of Colorado, in which the meeting of the American Bar Association
is held.

The price paid by the United States for the territory was fifteen
million dollars. Its taxable wealth to-day exceeds six thousand
millions, and St. Louis, with the generous aid of Congress, is pre-
pared to devote a sum equal to the price of the purchase solely ‘n
the celebration of its centennial in 1903.

The resources of this great domain are wonderfully varied and
marvelous in their extent. Perhaps few people, even within the limits
of the Purchase Territory itself, realize that it produces one-half of
the cotton raised in the United States; that a billion bushels of corn
a year is not an extraordinary crop; that its wheat crop often amounts

315
316 CONGRESS OF LAWYERS AND JURISTS

 

in value to two hundred million dollars; its hay crop to one hun-
dred and fifty million dollars; and that the cattle, horses, and mules
upon its ranges are valued at a thousand million dollars.

This wonderful development in material resources has been
accompanied by a corresponding development in the mental and
spiritual life of its inhabitants. Universities, colleges, scientific and
normal schools in many of the States are supported at the expense
of the State; private institutions of learning are numberless, and
public schools, which must be, in the future even more than in the
past, the conservators of the liberties of the people, can be seen from
every hilltop.

Medical schools and law schools are to be found in many of the
cities in the Louisiana Purchase, some of them ranking with the
best professional schools in the country.

The Centennial Exposition to be held in 1903 is in charge of
the Louisiana Purchase Exposition Company, and the plans of the
management contemplate a World’s Fair greater and more wonderful
than any everheld. Jt hasan appropriation from Congress of five mil-
lion dollars, the largest aid ever given by the United States to a like
purpose, and it has the promise of full support by the Government.
It will not be like any of its predecessors in architecture, landscapes,
designs, or the arrangement of its exhibits. It will be a stupendous
monument to the material growth and commercial and manufacturing
development not only of the Louisiana Purchase and the United
States, but of the whole world.

But it will be more than that. It is a part of the plan to gather
together the learned men of the world in the several departments
of arts and sciences, including the science of jurisprudence.

There will be held in the city of St. Louis, Missouri, during the
Centennial Exposition of the Louisiana Purchase, a Universal
Congress of Lawyers. This congress will be composed as follows:

1. Lawyers and jurists from every nation of the world.

2. Teachers of law and persons learned in special branches of
jurisprudence.

3. Persons learned in ancient law, including teachers of the
history of law, and students of the laws of peoples and nations now
extinct.

The foregoing summary is an outline of the underlying idea of
the plan. The character, constitution, and management of the
APPENDIX A 317

 

Congress itself will be developed hereafter, and chiefly, it is hoped,
by the American Bar Association.

The Committee on Education of the Louisiana Purchase Exposi-
tion Company, upon whom falls the duty of preparing for this con-
gress, adopt the definition of Justinian: ‘‘Jurisprudence is the
knowledge of things divine and human, the science of the right and
the wrong.”

The one great object is to make the congress of lawyers as
universal in scope as that definition. Therefore the Louisiana Pur-
chase Exposition Company, acting through its Committee on Educa-
tion, extends to the American Bar Association, as the great body of
representative lawyers and jurists from all parts of the United States,
an invitation to unite with the Louisiana Purchase Exposition
Company in securing a Universal Congress of Lawyers, to meet at
St. Louis, Missouri, during the Exposition of 1903.

To that end the American Bar Association is requested to appoint
a committee of one hundred or more representative lawyers from
different States and Territories of the United States and from foreign
countries, if desired, whose duty it shall be to plan, and, subject to
the supervision of the Louisiana Purchase Exposition Company,
arrange for the holding of such Universal Congress of Lawyers.

THE COMMITTEE ON EDUCATION OF THE LOUISIANA PURCHASE

EXposiTION CoMPANY,
Approved: By Jomn ScHroeErs, Chairman.
Davin R. FRANCIS,
President of the Louisiana Purchase Exposition Company.

After the reading of the Memorial, on motion of Mr.
STEVENS of Minnesota, the invitation therein contained
was referred to a special committee of nine members, to
be appointed by the President of the American Bar Asso-
ciation.

The following gentlemen were named by the President
as members of the Special Committee:

Hiram F. STEVENS of Minnesota.
James HacERMAN of Missouri.

Watrter S. LOGAN of New York.
Wituiam A. Ketcaam of Indiana.
318 CONGRESS OF LAWYERS AND JURISTS

 

CHARLES F. Lipsy of Maine.
HucwH Butter of Colorado.
Burton Smite of Georgia.
ApotpH Mosés of Illinois.
F. C. Drttarp of Texas.

The above Committee, after considering the matter,
brought in the following report:

To the American Bar Association:

Your Special Committee on the Louisiana Purchase Centennial,
to whom was referred the Memorial of the Exposition authorities,
advising of the contemplated holding of an Universal Congress of
Lawyers and Jurists during the Centennial Celebration at St. Louis,
Missouri, in the year 1903, and asking the co-operation and support
of this Association in planning such Congress, with the accompanying
invitation for this Association to hold its annual meeting at St. Louis
in that year, having carefully considered the same, are unanimously
of the opinion that the encouragement and promotion of the holding
of an Universal Congress of the Lawyers and Jurists of the World,
such as contemplated by the Memorial, tends to further one of the
principal objects of this Association, which, as its constitution declares,
is “‘to advance the science of jurisprudence.”

The Louisiana Purchase Centennial has received liberal aid
and encouragement from the National Government in the appropria-
tion of five million dollars, which, with the eleven million dollars
provided by the city of St. Louis, its citizens, and the State of
Missouri, constitutes a guaranty of the Centennial Exposition itself,
and the appointment of national commissioners to co-operate with
the local management is an added assurance of the proper adminis-
tration of the trust.

We are advised that the educational forces of the world are to
hold their meetings in St. Louis during the Exposition of 1903.
The President of the United States has given further official sanction
of the Government to the Exposition in a proclamation issued to
the nations of the earth, August 21, 1901, in which he says:

“In the name of the Government and of the people of the United
States I do hereby invite all the nations of the earth to take part in
the commemoration of the purchase of the Louisiana Territory, an
APPENDIX A 319

 

event of great interest to the’ United States and of abiding effect upon
their development, by appointing representatives and sending such
exhibits to the Louisiana Purchase Exposition as will most fitly and
fully illustrate their resources, their industries, and their progress in

civilization.”

We recommend the adoption of the following resolution:

1. Resolved, That a committee composed of one member from
each State and Territory of the Union and from the District of
Columbia be appointed by the President of this Association to co-
operate with the authorities of the Louisiana Purchase Exposition
Company and the United States Commission having in charge the
celebration of the centennial of the purchase by the United States
from France of the Louisiana Territory, in bringing about the holding
of an Universal Congress of Lawyers and Jurists at St. Louis, Mis-
souri, in 1903, on the lines proposed in the Memorial of the Louisiana
Purchase Exposition Company presented at this meeting to this
Association.

2. Resolved, further, That the President and the Executive
Committee of this Association be requested to take all necessary
and appropriate steps to promote and carry out the plan of holding
such Universal Congress of Lawyers and Jurists.

3. Resolved, further, That a copy of these resolutions and the
accompanying report be transmitted by the Secretary to the Louisiana
Purchase Exposition Company and to the said United States Com-
missions.

Hiram F. Stevens, Chairman.

The resolutions proposed in the above report were, on
motion, duly adopted. The committee provided for in
the resolutions was thereafter appointed by the President
of the American Bar Association. Its membership, as
first constituted, was as follows:

AMERICAN BAR ASSOCIATION COMMITTEE ON LOUISIANA PURCHASE

EXPosITION
James HAGERMAN, Chairman. St. Louis, Missouri.
Tuomas N. McCLeLLan  . : Montgomery, Alabama.
W. J. Huis .. é ‘i Juneau, Alaska.

Joun C. HERNDON . : : Prescott, Arizona.
320 CONGRESS OF LAWYERS AND JURISTS

 

Ben T. Du VAL
CHARLES MONROE
HucuH BurLerR

Simeon E. BALDWIN .
GEORGE GRAY

A. B. BROWNE .
BENJAMIN S. LIDDON .
BurToN SMITH
BamrorD A. Rogs
AportpH MosEs
CLiFFoRD L. Jackson
Wiiiiam A. KETCHAM
James C. Davis
CHARLES BLoop SMITH
Epmunp F. TRABUE .
WILLIAM Wirt Howe
HANNIBAL E. HAMLIN
Louis E. McComas
ALFRED HEMENWAY
ALFRED RUSSELL
Hiram F. STEVENS

M. A. MontTGoMERY
Joun W. CoTTER
CHARLES F. MANDERSON
SAMUEL C. EASTMAN .
R. WAYNE PaRKER
Tuomas B. CAaTRon
Wa ter S. LocANn
Fasrus H. BusBEE
Bur LeicH F. SPALDING
Jupson Harmon
BAvAarD T. HAINER

R. S. BEAN

W. U. HENSEL

Davip WALKER YANCEY
James TILLINGHAST

T. Movuttriz MorDEcal
BARTLETT TRIPP

Ep. BAXTER

Little Rock, Arkansas.
Los Angeles, California.
Denver, Colorado.

New Haven, Connecticut.
Wilmington, Delaware.
Washington, D. C.
Marianna, Florida.
Atlanta, Georgia.

Boise, Idaho.

Chicago, Illinois.
Muscogee, Indian Territory.
Indianapolis, Indiana.
Keokuk, Iowa.

Topeka, Kansas.
Louisville, Kentucky.
New Orleans, Louisiana.
Ellsworth, Maine.
Hagerstown, Maryland.
Boston, Massachusetts.
Detroit, Michigan.

St. Paul, Minnesota.
Oxford, Mississippi.
Butte, Montana.

Omaha, Nebraska.
Concord, New Hampshire.
Newark, New Jersey.
Santa Fé, New Mexico.
New York, N. Y.

Raleigh, North Carolina.
Fargo, North Dakota.
Cincinnati, Ohio.

Perry, Oklahoma Territory.
Salem, Oregon.

Lancaster, Pennsylvania.
Lucena, Tayabas, P. I.
Providence, Rhode Island.
Charleston, South Carolina.
Yankton, South Dakota.
Nashville, Tennessee.
APPENDIX A 321

 

F. C. Dittarp . é 5 Sherman, Texas.

P. L. Witiiams 4 ; Salt Lake City, Utah.
FREDERICK H. Butron - Rutland, Vermont.
RateicH C. Minor 3 ‘ Charlottesville, Virginia.
GEORGE M. Forster . y 4 Spokane, Washington.

B. Mason AMBLER . Parkersburg, West Virginia.
FREDERICK C. WINKLER Milwaukee, Wisconsin.
Caries N. Potter . 3 3 Cheyenne, Wyoming.

Some of the above-named members of the Committee
found themselves unable to serve, and new appointments
were made, as follows: U. M. Rose of Little Rock, Ar-
kansas, instead of Ben T. Du Vat of the same city; A. E.
MavyHew of Wallace, Idaho, instead of Bamrorp A.
Ross of Boise, Idaho; Emirs McCain of Iowa City,
Iowa, instead of James C. Davis of Keokuk, Iowa;
CHARLES F. Lipsy of Portland, Maine, instead of Hanni-
BAL E. Hamu of Ellsworth, Maine; Don M. Dicxin-
son of Detroit, Michigan, in place of ALFRED RUSSELL
of the same city; W1LLIAM SCALLON of Butte, Montana, in
place of JoHN W. CoTTER of the same city; JoHN W.
Griccs of Patterson, New Jersey, in place of R. WAYNE
ParKER of Newark, New Jersey; W. B. Swaney of
Chattanooga, Tennessee, in place of Ep. BAxTER of
Nashville, Tennessee, and Davin L. WiTHINGTON of the
Hawaiian Islands was added to the Committee.

At the twenty-fifth annual meeting of the American
Bar Association, held at Saratoga Springs in 1902, the
Committee on Louisiana Purchase Exposition reported
as follows:

To the American Bar Association:

The Special Committee on the Louisiana Purchase Exposition
respectfully reports:

Since the appointment of this Committee, pursuant to resolutions
of this Association adopted at its annual meeting in 1901, the author-
322 CONGRESS OF LAWYERS AND JURISTS

 

ities having in charge the celebration of the Louisiana Purchase at
St. Louis, Mo., have, with the consent and by the authority of the
Congress of the United States, postponed the holding of the Exposi-
tion to 1904.

Those having charge, accordingly, have postponed the holding of
the Universal Congress of Lawyers and Jurists until that year, and
have appointed a Committee, consisting of thirty representative law-
yers of the city of St. Louis, which, in connection with committees,
executive and special, of the Bar Associations of the city of St. Louis
and the States of Missouri and Kansas, and of this Association, are
now engaged in formulating the plan and programme of the proposed
Congress, and the outline plan thereof, so far as framed, is as follows:

OUTLINE PLAN OF UNIVERSAL CONGRESS OF LAWYERS AND JURISTS

1. The Congress shall be composed of not less than six hundred
Delegates, selected as follows:

(a) A stated number of Delegates, to be named by the govern-
ments of the world upon the recommendation of the highest courts
thereof, or of their departments of justice.

(b) Delegates to be appointed among the Bar Associations of the
United States and kindred associations of the other countries of the
world, and to be named by such associations.

(c) Delegates from the law universities and colleges of the world,
to be named by the faculties or constituted authorities thereof.

(d) Such eminent judges, jurists, and lawyers as may be specially
asked to be Delegates.

2. The American Bar Association, through its designated repre-
sentatives, to join in the invitation to the powers appointing the Dele-
gates, and to specially invited Delegates.

3. The Congress to meet at St. Louis in September, 1904, in a hall
to be provided by the Louisiana Purchase Exposition Company, and
to be in session from three to five days; the meetings to be open to
the public, save as the Congress may determine to have one or more
executive sessions.

4. The program of exercises to consist of addresses, papers, and
debates upon topics of jurisprudence to be prepared by a joint com-
mittee of the Louisiana Purchase Exposition Company, the American
Bar Association, and the Bar Associations of the city of St. Louis,
and of the States of Missouri and Kansas.
APPENDIX A 323

 

5. At the end of the session a banquet to be given to the members
by the Louisiana Purchase Exposition Company.

6. The proceedings of the Congress to be published in book form
by the Louisiana Purchase Exposition Company for distribution.

7. Should it be determined to hold a meeting of this Association
in St. Louis immediately preceding or following or concurrent with
the Congress, the Exposition authorities are to extend the same
privileges and courtesies to this Association as to the Congress.

For the information of this Association, we append hereto a list
of the committees above referred to other than those of this Associa-
tion.

We recommend to this Association the approval of this tentative
plan, and that this committee be continued and authorized to approve
such modifications thereof as may meet its judgment.

F James Hacerman, Chairman.
LovisiANA PuRCHASE ExposiTION CoMPANY’S SPECIAL COMMITTEE
ON UNIVERSAL CONGRESS OF LAWYERS AND JURISTS

F. W. Lehmann, Chairman; Jno. W. Noble, James Hagerman,
Gustavus A. Finkelnburg, R. H. Kern, J. E. McKeighan, Shepard
Barclay, John H. Overall, Franklin Ferriss, Leo Rassieur, Horatio
D. Wood, Given Campbell, James A. Seddon, Isaac H. Lionberger,
Eleneious Smith, Charles Claflin Allen, Henry T. Kent, John D. John-
son, Paul F. Coste, Richard B. Haughton, Thomas B. Harvey,
George W. Taussig, Arthur B. Shepley, Albert Arnstein, James L.
Blair, E. S. Robert, Valle Reyburn, Jacob Klein, Clinton Rowell.

St. Louis Bar ASSOCIATION
Executive Committee
Jacob Klein, Samuel H. West, George T. Weitzel, John F. Lee,
Henry S. Caulfield.

Special Committee on Universal Congress of Lawyers and Jurists.
A. M. Thayer, Chairman; E. B. Adams, S. P. Spencer, Wilbur F.
Boyle, A. G. Cochran, F. N. Jusdon, R. F. Walker, John F. Lee,
H. L. Christie.
324 CONGRESS OF LAWYERS AND JURISTS

 

Missourrt BAR ASSOCIATION
Executive Committee
Gardiner Lathrop, Moses Whybark, Selden P. Spencer, C. F.
Gallenkamp, Adiel Sherwood.

Special Committee on Universal Congress of Lawyers and Jurists

John F. Philips, Virgil Conkling, Ed. L. Scarritt, F. L. Schofield,
Gardiner Lathrop.

Kansas Bar ASSOCIATION
Executive Council
C. W. Smith, Chairman; Bennett R. Wheeler, J. W. Adams, T.
N. Sedgwick, Rezin Iams.

Special Committee on Universal Congress of Lawyers and Jurists

J. G. Slonecker, Chairman; Otto G. Eckstein, J. W. Green,
Charles Hayden, Winfield Freeman.

On motion the Association gave its approval of the
tentative plan set out in the above report, and the Com-
mittee was continued and authorized to make such modi-
fications thereof as it might deem proper.

At the twenty-sixth annual meeting of the American
Bar Association, held at Hot Springs, Virginia, in 1903,
the Committee on Louisiana Purchase Exposition re-
ported as follows:

To the American Bar Association:

Your Committee on Louisiana Purchase Exposition respectfully
reports that since the last annual meeting of this Association it has
been determined by the Committee of the Louisiana Purchase Ex-
position Company and the other local auxiliary committees and your
Committee, having in charge the holding of a Universal Congress of
lawyers and jurists, that said Congress shall be held in St. Louis,
Missouri, from September 28 to 30, 1904, inclusive, under the
auspices of the Exposition Company, and with the co-operation of
the American Bar Association, in substantial conformity to the out-
lined plan submitted by your Committee to this Association at its
APPENDIX A 325

 

last annual meeting, and by the Association approved, and which is
published with the proceedings of the last annual meeting.

The Congress is to consist of not less than six hundred Delegates,
to be composed of—

(a) Delegates named by the governments of the world.

(b) Delegates from bar associations of the United States and
kindred associations of other nations.

(c) Delegates from law universities, named by the constituted
authorities thereof.

(d) Such eminent judges, jurists, and lawyers as may be specially
appointed as Delegates.

And is to be followed by a banquet tendered by the Exposition
Company to the members of the Congress and of the American Bar
Association.

The proceedings of the Congress are to be published by the Ex-
position Company and distributed among the members of the Con-
gress and of the American Bar Association.

The committees in charge of the Congress, including your Com-
mittee, have under consideration, but have not yet finally determined
as to the apportionment of Delegates to the Congress, or the order of
business or programme of proceedings.

Three forms of invitations to the Congress have been practically
agreed upon, and are to be sent out jointly by the Louisiana Purchase
Exposition Company and this Association, through their respective
presidents. These invitations are:

1. To the governments of the world, inviting them to send Dele-
gates, which are to be transmitted by the Secretary of State through
the diplomatic officers to the respective governments, with the state-
ment that the Congress is an official part of the Universal Exposition,
which is to be held at St. Louis, Missouri, in 1904, under the auspices
of the United States Government, and that the object of the Con-
gress has the warm support of the cognate departments of the
Government.

2. To the bar associations of the United States and kindred asso-
ciations of other countries.

3. To such eminent judges and jurists throughout the world as
may be specially appointed as Delegates.

James Hacerman, Chairman.
326 CONGRESS OF LAWYERS AND JURISTS

 

The action of the Committee and the plan of the Con-
gress, as contained in the above report, were, on motion,
approved, and the Committee was continued with full
power to do all things necessary to carry out the purposes
for which it was constituted. Mr. HacErmAN, who had
been Chairman of the Committee since its organization,
having been elected President of the American Bar Asso-
ciation, retired from the Committee, and appointed in his
stead Jacos Kiem of St. Louis, as Chairman of the Com-
mittee. FREDERICK V. Brown of Minneapolis, Minne-
sota, was appointed a member of the Committee in place
of Hiram F. STEVENS, who was no longer able to serve.
Out of the general committee the following were named
by the Chairman as an Executive Committee: Simeon E.
Batpwin of Connecticut; Jupson Harmon of Ohio;
RALEIGH C. Minor of Virginia; WALTER S. LOGAN
of New York; and Witi1am A. KetcHam of Indiana.
Judge Kiem became ex officio Chairman of this Com-
mittee.

At the twenty-seventh annual meeting of the American
Bar Association, held in Festival Hall, on the grounds of
the Universal Exposition, St. Louis, in 1904, immediately
preceding the convening of the Congress, the Committee
on Louisiana Purchase Exposition reported as follows:

To the American Bar Association:

Your Committee on the Louisiana Purchase Exposition respect-
fully reports that since the last meeting of this Association it has been
active with the local committees appointed by the Louisiana Purchase
Exposition Company and the Bar Associations of St. Louis and of
Missouri in working out the details for the Universal Congress of
Lawyers and Jurists, to be held September 28th to 30th, inclusive, in
Festival Hall, on the Exposition grounds at St. Louis.

All that has been done in relation to the matter has been done in
co-operation with the Committee appointed by the Louisiana Pur-
APPENDIX A 327

 

chase Exposition Company, and the Committee appointed by
the Bar Association of St. Louis.

It was found necessary to organize one executive committee out
of these various committees, which has been designated the Com-
mittee on Plan and Scope, and this Committee has completed all
the arrangements for the Congress, and has secured the primary
speakers who are to read the principal papers to be presented to the
Congress and the secondary speakers, who, in the first instance, are
to discuss the several papers so read.

The Committee on Plan and Scope, so selected, consists of the
following gentlemen:

FREDERICK W. LEHMANN, of the St. Louis Bar, Chairman of
the Committee on Congresses of the Louisiana Purchase Exposition
Company.

Hon. Amos M. THAvyER, Judge of the United States Circuit
Court of Appeals, Eighth Circuit.

James HAGERMAN, President of the American Bar Association.

Jacos Kirin, Chairman of the Committee of the American Bar
Association on the Louisiana Purchase Exposition and President of
the Bar Association of St. Louis.

Epwarp S. Rospert, of the St. Louis Bar, and CHARLES
CLAFLIN ALLEN, of the St. Louis Bar.

V. Mott Porter, the Secretary of the Bar Association of St.
Louis, was appointed as the Secretary of the Committees having
charge of all matters relating to the Congress.

The Committee on Plan and Scope, so constituted, obtained the
consent of Hon. Davip J. BREwer, Associate Justice of the Su-
preme Court of the United States, Hon. Amos M. Tuayer, Judge
of the United States Circuit Court of Appeals, Eighth Circuit, and
of Hon. StmEon E. Batpwin, Judge of the Supreme Court of Er-
rors of Connecticut, to act as a Committee to formulate the rules
for the organization and procedure of the Congress and a pro-
gramme of the papers and discussions.

This work having been completed, was reported to the Committee
on Plan and Scope, and a printed copy thereof sent to all the members
of the Committee of this Association on the Louisiana Purchase Ex-
position for their comments and approval.

The members of our Committee having substantially approved
the proposed Rules, Regulations, and Programme, the entire matter
328 CONGRESS OF LAWYERS AND JURISTS

 

was then submitted to the Executive Committee of this Association
and to the Executive Committee previously appointed out of the
Committee of this Association on the Louisiana Purchase Exposition.

The Executive Committee of the Association and of this Com-
mittee held a joint meeting at the Southern Hotel, in the city of St.
Louis, on the tenth day of May, 1904, at which meeting the matter
was more carefully considered.

Subsequently, on May 11, 1904, there was a joint session held
at the chambers of Judge THAYER in St. Louis, of the two bodies
representing this Association and the Committee on Plan and Scope
above mentioned, and the Rules, Regulations, and Programme were
then finally approved, and the Committee on Plan and Scope given
full authority to complete all arrangements, and do whatever might
be necessary for the holding of the Congress.

Since that time your Committee has been active in completing
the arrangements and details for the holding of the Congress, which
is to be beld by special permission of the Exposition Company in
Festival Hall on the Exposition grounds.

It has been arranged that all the Delegates to the Congress shall
receive cards of admission to the Exposition grounds for the entire
week, beginning September 26th; that each Delegate shall receive a
medal indicating his membership, and arrangements have been made
by the local committees for the entertainment of the primary speakers
and foreign Delegates during the week.

A local committee of the St. Louis Bar and of the St. Louis
Bar Association has raised a fund to defray the expenses for the
entertainment of the Congress and of the members of the American
Bar Association, amounting in the aggregate to about five thousand
dollars.

The Bar Association of St. Louis has appropriated for the same
purpose the sum of one thousand dollars.

A banquet is to be tendered to the members of the American Bar
Association and the Delegates to the Universal Congress of Lawyers
and Jurists, by the Exposition Company on Wednesday even-
ing, September 28, 1904, at the Tyrolean Alps, in the Exposition
grounds.

Appended to this report is a printed copy of the Rules for the or-
ganization and procedure of the Congress, and of the Programme,
and a list of all the accredited Delegates to the Congress.
APPENDIX A 329

 

It is believed by your Committee that much good will result from
the meeting of this Congress, and that the participation of this Asso-
ciation therein, and in promoting the same, has assured the success
of the Congress, which is to begin immediately upon the close of the
meeting of this Association.

Your Committee desires to acknowledge the efficient services
rendered by the Committee on Programme, and by the Committee
on Plan and Scope, above mentioned, and especially the very efficient
services rendered by Mr. V. Mott Porter, the Secretary.

Your Executive Committee, at the solicitation of this Committee,
made an appropriation of Twenty-five Hundred ($2,500) Dollars
towards defraying the expenses of the Congress.

It is understood that the proceedings of the Congress will be printed
for distribution among the members of this Association, the Delegates
to the Congress, and the various governments participating therein.
as well as the bar associations and universities represented in the
Congress.

We recommend that a vote of thanks to the Exposition Company
be adopted by this Association for its efficient participation in per-
fecting the arrangements for the Congress, as well as for the generous
entertainment provided by it for this Association and the Congress.

Respectfully submitted,
JacoB KLEIN, Chairman.

In compliance with its promise, the Louisiana Purchase
Exposition Company appropriated out of the fund that
it had set aside for the several international congresses,
the sum of ten thousand dollars for the Universal Congress
of Lawyers and Jurists. This appropriation, together
with the contributions of the bar and of bar associations
already mentioned in the above reports, was used to
defray the preliminary expenses of the Congress, the
expenses connected with the holding of the Congress itself,
and, finally, the printing and distribution of the report of
the proceedings.

The local committees, formed from the members of the
St. Louis Bar, who contributed much toward the success
330 CONGRESS OF LAWYERS AND JURISTS

 

of the Congress by providing ways and means of enter-
tainment and looking after the comfort of the Delegates,
were composed as follows:

The Committee on Ways and Means

EDWARD CUNNINGHAM, JR., Chairman
I. H. LIONBERGER

Tuomas K. SKINKER

PauL BAKEWELL

James C. JONES

SAMUEL H. WEST

S. L. Swarts

The Committee on Entertainment
Warwick HoucH, Chairman
Henry T. KENT
LEO RASSIEUR
Joun F. SHEPLEY
PauL BAKEWELL

A Committee of Escort, composed of younger mem-
bers of the St. Louis Bar, who acted as guides to the
foreign Delegates and helped to make their visit agree-
able, had the following membership:

Escort Committee

Allen C. Orrick, Chairman; George T. Weitzel, E. H.
Angert, J. Clarence Taussig, Luther Ely Smith, Lee W.
Hagerman, Charles E. L. Thomas, George F. Beck, Sears
Lehmann, J. Lionberger Davis, John H. Holliday, E. M.
Grossman, S. W. Fordyce, Jr., H. Chouteau Dyer, W. M.
Tompkins, H. G. Cleaveland, Joseph W. Lewis, Thomas
G. Rutledge, W. Christy Bryan, William H. Cocke,
Charles Cummings Collins, Manton Davis, V. W. Gar-
APPENDIX A 331

esché, Claud D. Hall, W. Scott Hancock, R. A. Holland,
Jr., William G. Pettus, Griswold Smith, Myron Westover,
Daniel K. Catlin, George V. Reynolds, J. H. Grover,
Henry W. Blodgett, Edward D’Arcy, H. A. Baker, T. F.
Chaplin, A. E. Kammerer.
APPENDIX B

THE HAGUE CONFERENCES ON PRIVATE
INTERNATIONAL LAW

THE VARIOUS CONVENTIONS AND CONVENTION
PROJECTS

A, THE INTERNATIONAL LAW OF PROCEDURE
THE EXISTING TREATY:

CONVENTION

POUR ETABLIR DES REGLES COMMUNES CONCERNANT PLUSIEURS MA-
TIERES DE DROIT INTERNATIONAL PRIVE, SE RAPPORTANT A LA
PROCEDURE CIVILE.

SA MAJESTE LE ROI DES BELGES, SA MAJESTE
LE ROI D’ESPAGNE, ET EN SON NOM SA MAJESTE
LA REINE-REGENTE DE ROYAUME, LE PRESIDENT
DE LA REPUBLIQUE FRANCAISE, SA MAJESTE LE
ROI DITALIE, SON ALTESSE ROYALE LE GRAND-
DUC DE LUXEMBOURG, DUC DE NASSAU, SA MA-
JESTE LA REINE DES PAYS-BAS ET EN SON NOM
SA MAJESTE LA REINE-REGENTE DE ROYAUME, SA
MAJESTE LE ROI DE PORTUGAL ET DES ALGARVES,
ETC., ETC., ET LE CONSEIL FEDERAL SUISSE, désirant
établir des régles communes concernant plusieurs matiéres de droit
international privé, se rapportant 4 la procédure civile, ont résolu
de conclure un traité 4 cet effet.

a. Communication d’Actes Judiciaires ou Extra-Judiciaires

ARTICLE PREMIER
En matiére civile ou commerciale, les significations d’actes A
destination de l’étranger se feront dans les Etats contractants sur
la demande des officiers du ministére public ou des tribunaux d’un

332
APPENDIX B 333

 

de ces Etats, addressée & Vautorité compétente d’un autre de ces
Etats.

La transmission se fera par la voie diplomatique, 4 moins que la

Sana directe ne soit admise entre les autorités des deux
tats.

ART. 2

La signification sera faite par les soins de l’autorité requise.
Elle ne pourra étre refusée que si Etat, sur le territoire duquel elle
devrait étre faite, la juge de nature A porter atteinte A sa souveraineté
ou a sa sécurité.

ART. 3

Pour faire preuve de la signification, il suffira d’un récépissé daté
et légalisé ou d’une attestation de l’autorité requise, constatant le
fait et la date de la signification.

Le récépissé ou l’attestation sera transcrit sur l'un des doubles
de l’acte 4 signifier ou annexé 4 ce double, qui aurait été transmis
dans ce but.

ART. 4

Les dispositions des articles qui précédent ne s’opposent pas:

1. A la faculté d’addresser directement, par la voie de la poste,
des actes aux intéressés se trouvant 4 l’étranger.

2. A la faculté pour les intéressés de faire faire des significations
directement par les soins des officiers ministériels ou des fonctionnaires
compétents du pays de destination.

3. A la faculté pour chaque Etat de faire faire, par les soins de
ses agents diplomatiques ou consulaires, les significations destinées
a Pétranger.

Dans chacun de ces cas, la faculté prévue n’existe que si les lois
des Etats intéressés ou les conventions intervenues entre eux l’ad-
mettent.

b. Commissions Rogatoires

ART. 5
En matiére civile ou commerciale, l’autorité judiciaire d’un Etat
contractant pourra, conformément aux dispositions de sa. législation,
s’addresser par commission rogatoire 4 l’autorité compétente d’un
autre Etat contractant pour lui demander de faire, dans son ressort,
soit un acte d’instruction, soit d’autres actes judiciaires.
334 CONGRESS OF LAWYERS AND JURISTS

 

ArT. 6

La transmission des commissions rogatoires se fera par la voie
diplomatique, & moins que la communication directe ne soit admise
entre les autorités des deux Etats.

Si la commission rogatoire n’est pas rédigé dans la langue de
Vautorité requise, elle devra, sauf entente contraire, étre accompagnée
d’une traduction, faite dans la langue convenue entre les deux Etats
intéressés, et certifiée conforme.

ArT. 7

L’autorité judiciaire 4 laquelle la Commission est addressée sera
obligée.d’y satisfaire. Toutefois elle pourra se refuser 4 y donner
suite:

1. Si Pauthenticité du document n’ est pas établie;

2. Si, dans PEtat requis, l’execution de la Commission rogatoire
ne rentre pas dans les attributions du pouvoir judiciaire.

En outre, cette execution pourra étre refusée, si PEtat, sur le
territoire duquel elle devrait avoir lieu, la juge de nature a porter
atteinte 4 sa souveraineté ou 4 sa sécurité.

Art. 8
En cas d’incompétence de l’autorité requise, la Commission
rogatoire sera transmise d’office 4 l’autorité judiciaire compétente
du méme Etat, suivant les régles établies par la législation de celui-ci.

ART. 9

Dans tous les cas ot la Commission rogatoire n’est pas executée
par lautorité requise, celle-ci en informera immediatement l’autorité
requérante, en indiquant, dans le cas de article 7, les raisons pour
lesquelles Vexecution de la Commission rogatoire a été refusée et,
dans le cas de article 8, l’autorité 4 laquelle la Commission est
transmise.

ART. Io

L’autorité judiciaire, qui procéde a l’exécution d’une Commission
rogatoire, appliquera les lois de son pays, en ce qui concerne les
formes & suivre.

Toutefois, il sera déféré 4 la demande de l’autorité requérante,
tendant & ce qu’il soit procédé suivant une forme spéciale, méme non
prévue par la législation de Etat requis, pourvu que la forme dont
il s’agit ne soit pas prohibée par cette législation.
APPENDIX B 335

 

c. Caution ‘* Judicatum Solvi”

ART. II

Aucune caution ni dépét, sous quelque dénomination que ce soit,
ne peut étre imposé, 4 raison soit de leur qualité d’étrangers, soit du
défaut de domicile ou de résidence dans le pays, aux nationaux
d’un des Etats contractants, ayant leur domicile dans |’un de ces Etats,
qui seront demandeurs ou intervenants devant les tribunaux d’un
autre de ces Etats.

ART. 12
Les condamnations aux frais et dépens du procés, prononcées
dans un des Etats contractants contre le demandeur ou V’intervenant
dispensés de la caution ou du dépét, en vertu soit de l’article 11, soit
de la loi de l’Etat o& Vaction est intentée, seront rendues exécutoires
dans chacun des autres Etats contractants par l’autorité compétente,
d’aprés la loi du pays.
ART. 13

L’autorité compétente se bornera 4 examiner:

1. Si, d’aprés la loi du pays oi la condamnation a été prononcée
Vexpédition de la décision réunit les conditions nécessaires 4 son
authenticité;

2. Si, d’aprés la méme loi, la décision est passée en force de chose

jugée.
d. Assistance Judiciaire Gratuite

ART. 14

Les ressortissants de chacun des Etats contractants seront admis
dans tous les autres Etats contractants au bénéfice de l’assistance
judiciaire gratuite, comme les nationaux eux-mémes, en se confor-
mant A la législation de PEtat ot assistance judiciaire gratuite est
réclamée.

ART. 15
Dans tous les cas, le certificat ou la déclaration d’indigence doit
étre délivré ou recu par les autorités de la residence habituelle de
Vétranger, ou, & défaut de celle-ci, par les autorités de sa résidence
actuelle.
Si le requérant ne réside pas dans le pays ott la demande est
formée, le certificat ou la déclaration d’indigence sera légalisé gra-
336 CONGRESS OF LAWYERS AND JURISTS

 

tuitement par un agent diplomatique ou consulaire du pays ot le
document doit étre produit.

ART. 16

L’autorité compétente pour délivrer le certificat ou recevoir la
déclaration d’indigence pourra prendre des renseignments sur la situ-
ation de fortune du requérant auprés des autorités des autres Etats
contractants.

L’autorité chargée de statuer sur la demande d’assistance judi-
claire gratuite conserve, dans les limites de ses attributions, le droit
de contréler les certificates, déclarations et renseignments qui lui sont
fournis.

e. Contrainte par Corps

ART. 17

La contrainte par corps, soit comme moyen d’exécution, soit
comme mesure simplement conservatoire, ne pourra pas, en matiére
civile ou commerciale, étre appliquée aux étrangers appartenant A un
des Etats contractants dans les cas oii elle ne serait pas applicable aux
ressortissants du pays.

DISPOSITIONS FINALES

I. La présente Convention sera ratifiée. Les ratifications en
seront déposées 4 La Haye le plus tét possible.

II. Elle aura une durée de cinq ans A partir de la date du dépét
des ratifications.

III. Elle sera renouvelée tacitement de cing ans en cinq ans, sauf
dénonciation, dans un délai de six mois avant l’expiration de ce terme
par lune des Hautes Parties contractantes.

La denonciation ne produira son effet qu’A l’égard du ou des
pays qui l’auraient notifiée. La Convention restera exécutoire pour
les autres états.

IV. Le Protocole d’adhésion 4 la présente Convention pour les
Puissances qui ont pris part 4 la Conférence de La Haye de juin-
juillet 1894, restera ouvert jusqu’au 1% janvier, 1898.

EN FOI DE QUOI les Plénipotentiaires respectifs ont signé la
présente Convention et l’ont revétue de leurs sceaux.

Fait 4 La Haye, le 14 novembre 1896, en un seul exemplaire, qui
restera déposé dans les Archives du Gouvernement des Pays-Bas et
APPENDIX B 337

 

dont des copies, certifiées conformes, seront remises par voie diplo-
matique aux Etats signataires ou adhérents.

Ont adhéré successivement; la SUEDE et la NORVEGE (1°
février 1897), ’ALLEMAGNE (9 novembre 1897), VAUTRICHE-
HONGRIE (9 novembre 1897), le DANEMARK (18 décembre
1897), la ROUMANIE (19-31 décembre 1897), la RUSSIE (19-31
décembre 1897).

PROTOCOLE ADDITIONNEL

Les Gouvernements de FRANCE, de BELGIQUE, d’ES-
PAGNE, dITALIE, de LUXEMBOURG, des PAYS-BAS, de
PORTUGAL, de SUISSE, Etats signataires de la Convention de
droit international privé du 14 novembre 1896, et de SUEDE et de
NORVEGE, Etats adherents & cette Convention, ayant jugé opportun
de compléter ladite Convention, les soussignés, aprés s’étre commu-
niqué leurs pleins pouvoirs trouvés en bonne et due forme, sont con-
venus des dispositions suivantes:

ad Article rz

Il est bien entendu que les nationaux d’un des Etats contractants,
qui aurait conclu avec un autre de ces Etats une Convention spéciale
d’aprés laquelle la condition de domicile, contenue dans I’article 11,
ne serait pas requise, seront, dans les cas prévus par cette Convention
spéciale dispensés, dans VEtat avec lequel elle a été conclue, de la
caution et du dépét mentionnés 4 article 11, méme s’ils n’ont pas
leur domicile dans un des Etats contractants.

ad Articles I et II des Dispositions Finales

Le dépét des ratifications pourra avoir lieu dés que la majorité des
Hautes Parties contractantes sera en mesure de le faire et il en sera
dressé un procés-verbal, dont une copie, certifié conforme, sera remise
par la voie diplomatique 4 tous les Etats contractants.

La presente Convention entrera en vigueur quatre semaines aprés
la date dudit procés-verbal.

Le terme de cing ans visé @ l’article II commencera 4 courir de
cette date, méme pour les Puissances qui auront fait le dépét aprés
cette date.
338 CONGRESS OF LAWYERS AND JURISTS

 

ad Article III des Dispositions Finales

Les mots, ‘‘sauf dénonciation dans un délai de six mois avant
Vexpiration,” etc., seront entendus dans ce sens, que la dénonciation
doit avoir lieu au moins six mois avant expiration.

Le présent Protocole additionnel fera partie intégrante de la Con-
vention et sera ratifié en méme temps que celle-ci.

EN FOI DE QUOI, les Plenipotentiaires respectifs ont signé le
présent Protocole additionnel et l’ont revétu de leurs sceaux.

Fait 4 La Haye, le 22 mai 1897, en un seul exemplaire, qui restera
déposé dans les archives du Gouvernement des Pays-Bas et dont des
copies, certifiées conformes, seront remises par la voie diplomatique
aux états signataires ou adhérents.

L’Allemagne, |’Autriche-Hongrie, le Danemark, la Roumanie et
la Russie ont adhéré 4 ce Protocole additionnel comme 4a la convention
elle-méme.

B. INTERNATIONAL PRIVATE LAW
UPON MARRIAGE:

CONVENTION
POUR REGLER LES CONFLITS DE LOIS EN MATIERE DE MARIAGE

Sa Majesté ’Empereur d’Allemagne, Roi de Prusse, au nom de
Empire Allemand, Sa Majesté ’Empereur d’Autriche, Roi de
Bohéme, etc., etc., et Roi Apostolique de Hongrie, Sa Majesté le Roi
des Belges, Sa Majesté le Roi d’Espagne, le Président de la Répub-
lique Frangaise, Sa Majesté le Roi d’Italie, Son Altesse Royale le
Grand Duc de Luxembourg, Duc de Nassau, Sa Majesté la Reine
des Pays-Bas, Sa Majesté le Roi de Portugal et des Algarves, etc.,
etc., Sa Majesté le Roi de Roumanie, Sa Majesté le Roi de Suéde et
Norvége, au nom de la Suéde, et le Conseil Féderal Suisse:

Désirant établir des dispositions communes pour régler les con-
flits de lois concernant les conditions pour la validité du mariage,

Ont résolu de conclure une Convention a cet effet et ont nommé
pour leurs Plenipotentiaires, savoir . . . .
APPENDIX B 339

 

ARTICLE PREMIER

Le droit de contracter mariage est réglé par la loi nationale de
chacun des futurs époux, 4 moins qu’une disposition de cette loi ne
se référe expressément & une autre loi.

ART. 2

La loi du lieu de la celebration peut interdire le mariage des
étrangers qui serait contraire 4 ses dispositions, concernant:

1. Les degrés de parenté ou d’alliance pour lesquels il y a une
prohibition absolue;

2. La prohibition absolue de se marier, édictée contre les cou-
pables de l’adultére & raison duquel le mariage de ’un d’eux a été
dissous;

3. La prohibition absolue de se marier, édictée contre des per-
sonnes condamnées pour avoir, de concert, attenté & la vie du conjoint
de lune d’elles.

Le mariage célébré contrairement & une des prohibitions mention-
nées ci-dessus ne sera pas frappé de nullité, pourvu qu’il soit valable
d’aprés la loi indiquée par l’article premier.

Sous la réserve de l’application du premier alinéa article 6 de la
présente Convention, aucun Etat contractant ne s’oblige a faire
célébrer un mariage qui, 4 raison d’un mariage antérieur ou
d’obstacle d’ordre religieux, serait contraire 4 ses lois. La violation
d’un empéchement de cette nature ne pourrait pas entrainer la
nullité du mariage dans les pays autres que celui ot le mariage a été
célébré.

ART. 3

La loi du lieu de la célébration peut permettre le mariage des
étrangers nonobstant les prohibitions de la loi indiquée par l’article
premier, lorsque ces prohibitions sont exclusivement fondées sur des
motifs d’ordre religieux.

Les autres Etats ont le droit de ne pas reconnaitre comme valable
le mariage célébré dans ces circonstances.

ART. 4

Les étrangers doivent, pour se marier, établir qu’ils remplissent
les conditions nécessaires d’aprés la loi indiquée par l’article premier.
Cette justification se fera soit par un certificat des agents diplo-
matiques ou consulaires autorisés par V’Etat dont les contractants
340 CONGRESS OF LAWYERS AND JURISTS

 

sont les ressortissants, soit par tout autre mode de preuve, pourvu que
les Conventions internationales ou les autorités du pays de la célé-
bration reconnaissent la justification comme suffisante.

ART. 5

Sera reconnu partout valable, quant & la forme, le mariage célébré
suivant la loi du pays ot il a eu lieu.

Il est toutefois entendu que les pays dont la législation exige une
célébration religieuse pourront ne pas reconnaitre comme valables
les mariages contractés par leurs nationaux 4 l’étranger sans que
cette prescription ait été observée.

Les dispositions de la loi nationale, en matitre de publications
devront étre respectées; mais le défaut de ces publications ne pourra
pas entrainer la nullité du mariage dans les pays autres que celui
dont la loi aurait été violée.

Une copie authentique de l’acte de mariage sera transmise aux
autorités du pays de chacun des époux.

ArT. 6

Sera reconnu partout comme valable, quant 4 la forme, le mariage
célébré devant un agent diplomatique ou consulaire, conformément
a sa législation, si aucune des parties contractantes n’est ressortissante
de l’Etat ot le mariage a été célébré et si cet Etat ne s’y oppose pas.
Il ne peut pas s’y opposer quand il s’agit d’un mariage qui, 4 raison
d’un mariage antérieur ou d’un obstacle d’ordre religieux, serait
contraire 4 ses lois.

La réserve du second alinéa de Varticle 5 est applicable aux
mariages diplomatiques ou consulaires.

ART. 7
Le mariage, nul quant 4 la forme dans le pays ot il a été célébré,
pourra néanmoins étre reconnu comme valable dans les autres pays,
si la forme prescrite par la loi nationale de chacune des parties a été
observée.
o ArT. 8
La présente Convention ne s’applique qu’aux mariages célébrés
sur le territoire des Etats contractants entre personnes dont une au
moins est ressortissante d’un de ces Etats.
Aucun Etat ne s’oblige, par la présente Convention, & appliquer
une loi qui ne serait pas celle d’un Etat contractant.
APPENDIX B 341

 

ART. 9

La présente Convention, qui ne s’applique qu’aux territoires
européens des Etats contractants, sera ratifiée et les ratifications en
seront déposées 4 La Haye, dés que la majorité des Hautes Parties
contractantes sera en mesure de le faire.

Il sera dressé de ce dépét un procés-verbal, dont une copie,
certifiée conforme, sera remise par la voie diplomatique 4 chacun
des Etats contractants.

ART. 10

Les Etats non signataires qui ont été représentés a la troisitme
Conférence de droit international privé sont admis 4 adhérer pure-
ment et simplement 4 la présente Convention.

L’Etat qui desire adhérer notifiera, au plus tard le 31 décembre
1904, son intention par un acte qui sera déposé dans les archives du
Gouvernement des Pays-Bas. Celui-ci en enverra une copie,
certifiée conforme, par la voie diplomatique 4 chacun des Etats con-
tractants.

ART. II

La présente Convention entrera en vigueur le soixantiéme jour 4
partir du dépét des ratifications ou de la date de la notification des
adhésions.

ART. 12

La présente Convention aura une durée de cing ans 4 partir de
la date du dépét des ratifications.

Ce terme commencera & courir de cette date, méme pour les
Etats qui auront fait le dépét aprés cette date ou qui auraient adhéré
plus tard.

La Convention sera renouvelée tacitement de cinq ans en cing
ans, sauf dénonciation.

La dénonciation devra étre notifiée, au moins six mois avant
Vexpiration du terme visé aux alinéas précédents, au Gouvernement
des Pays-Bas, qui en donnera connaissance & tous les autres Etats.

La dénonciation ne produira son effet qu’a Pegard de Etat qui
Vaura notifiée. La Convention restera executoire pour les autres
Etats.

En foi de quoi les plénipotentiaires respectifs ont signé la presente
Convention et l’ont revétue de leurs sceaux.
342 CONGRESS OF LAWYERS AND JURISTS

 

Fait & La Haye, le douze juin mil neuf cent deux, en un seul
exemplaire, qui sera déposé dans les archives du Gouvernement des
Pays-Bas, et dont une copie, certifiée conforme, sera remise par la
voie diplomatique 4 chacun des Etats qui ont été representés 4 la
troisitme Conférence de droit international privé.

:

UPON DIVORCE:

CONVENTION

POUR REGLER LES CONFLITS DE LOIS ET DE JURIDICTIONS EN
MATIERE DE DIVORCE ET DE SEPARATION DE CORPS

Sa Majesté ’Empereur d’Allemagne, roi de Prusse, au nom de
Empire Allemand, Sa Majesté l’Empereur d’Autriche, Roi de
Bohéme, etc., etc., et Roi Apostolique de Hongrie, Sa Majesté le
Roi des Belges, Sa Majesté le Roi d’Espagne, le Président de la
République Francaise, Sa Majesté le Roi d’Italie, Son Altesse Royale
de Grand-Duc de Luxembourg, Duc de Nassau, Sa Majesté la
Reine des Pays-Bas, Sa Majesté le Roi de Portugal et des Algarves,
etc., etc., Sa Majesté le Roi de Roumaine, Sa Majesté le Roi de
Suéde et de Norvége, au nom de la Suéde, et le Conseil Fédéral Suisse;

Désirant établir des dispositions communes pour régler les con-
flits de lois et de juridictions en matiére de divorce et de séparation
de corps,

Ont résolu de conclure une Corivention & cet effet et ont nommé
pour Leurs Plenipotentiaires, savoir... .

ARTICLE PREMIER

Les époux ne peuvent former une demande en divorce que si
leur loi nationale et la loi du lieu ot la demande est formée admettent
le divorce l'une et autre.

Tl en est de méme de la séparation de corps.

ART. 2

Le divorce ne peut étre demandé que si, dans le cas dont il s’agit,
il est admis a la fois par la loi nationale des époux et par la loi du
lieu ot! la demande est formée, encore que ce soit pour des causes
différentes.

Tl en est de méme de la séparation de corps.
APPENDIX B 343

 

ART. 3
Nonobstant les dispositions des articles premier et 2, la loi nationale
sera seule observée, si la loi du lieu ott la demande est formée le
prescrit ou le permet

ART. 4
La loi nationale indiquée par les articles précédents ne peut étre
invoquée pour donner, 4 un fait qui s’est passé alors que les époux
ou l'un d’eux étaient d’une autre nationalité, le caractére d’une cause
de divorce ou de séparation de corps.

ART. 5

La demande en divorce ou en séparation de corps peut étre formée:

1. Devant la juridiction compétente d’aprés la loi nationale des
époux;

2. Devant la juridiction compétente du lieu ot les époux sont
domiciliés. Si, d’aprés leur législation nationale, les époux n’ont
pas le méme domicile, la juridiction compétente est celle du domicile
du défendeur. Dans le cas d’abandon et dans le cas d’un changement
de domicile opéré aprés que la cause de divorce ou de séparation est
intervenue, la demande peut aussi étre formée devant la juridiction
compétente du dernier domicile commun. Toutefois, la juridiction
nationale est reservée dans la mesure oi cette juridiction est seule
compétente pour la demande en divorce ou en séparation de corps.
La juridiction étrangére reste compétente pour un mariage qui ne
peut donner lieu 4 une demande en divorce ou en séparation de corps
devant Ja juridiction nationale compétente.

ART. 6

Dans le cas ot des époux ne sont pas autorisés 4 former une
demande en divorce ou en séparation de corps dans le pays ou ils
sont domiciliés, ils peuvent néanmoins l’un et l’autre s’addresser 4
la juridiction compétente de ce pays pour solliciter les mesures pro-
visoires que prévoit sa législation en vue de la cessation de la vie en
commun. Ces mesures seront maintenues si, dans le délai d’un an,
elles sont confirmées par la juridiction nationale; elles ne dureront
pas plus longtemps que ne le permet la loi du domicile.

ART. 7
Le divorce et la séparation de corps, prononcés par un tribunal
compétent aux termes de l’article 5, seront reconnus partout, sous la
344 CONGRESS OF LAWYERS AND JURISTS

 

condition que les clauses de la présente Convention aient été observées
et que, dans le cas oi la décision aurait été rendue par défaut, le
défendeur ait été cité conformément aux dispositions spéciales
exigées par sa loi nationale pour reconnaitre les jugements étrangers.

Seront reconnus également partout le divorce et la séparation
de corps prononcés par une juridiction administrative, si la loi de
chacun des époux reconnait ce divorce et cette séparation.

Art. 8

Si les €poux n’ont pas la méme nationalité, leur derniére législation
commune devra, pour l’application des articles précédents, étre con-
sidérée comme leur loi nationale.

ART. 9

La presente Convention ne s’applique qu’aux demandes en divorce
ou en séparation de corps formées dans l’un des Etats contractants,
si Pun des plaideurs au moins est ressortissant d’un de ces Etats.

Aucun Etat ne s’oblige, par la présente Convention, & appliquer
une loi qui ne serait pas celle d’un Etat contractant.

ART. Io

La presente Convention, qui ne s’applique qu’aux territoires
européens des Etats contractants, sera ratifiée et les ratifications en
seront déposées 4 La Haye, dés que la majorité des Hautes Parties
contractantes sera en mesure de le faire.

Tl sera dressé de ce depédt un procés-verbal, dont une copie,
certifiée conforme, sera remise par la voie diplomatique 4 chacun
des Etats contractants.

ART. II

Les Etats non signataires qui ont été représentés A la troisitme
Conférence de Droit International Privé sont admis A adhérer pure-
ment et simplement 4 la présente Convention.

L’Etat qui désire adhérer notifiera, au plus tard le 31 décembre
1904, son intention par un acte qui sera déposé dans les archives du
Gouvernement des Pays-Bas. Celui-ci en enverra une copie, cer-

tifiée conforme, par la voie diplomatique & chacun des Etats con-
tractants.
APPENDIX B 345

 

ART. 12

La présente Convention entrera en vigueur le soixantitme jour 4
partir du dépét des ratifications ou de la date de la notification des
adhésions.

ART. 13

La présente Convention aura une durée de cinq ans 4 partir de
la date du dépét des ratifications.

Ce terme commencera 4 courir de cette date, méme pour les
Etats qui auront fait le dépét apres cette date ou qui auraient adhéré
plus tard.

La Convention sera renouvelée tacitement de cing ans en cing
ans, sauf dénonciation.

La dénonciation devra étre notifiée, au moins six mois avant
Vexpiration du terme visé aux alinéas précédents, au Gouvernement
des Pays-Bas, qui en donnera connaissance 4 tous les autres Etats
contractants.

La dénonciation ne produira son effet qu’a l’égard de VEtat qui
Paura notifiée. La Convention restera exécutoire pour les autres
Etats.

En foi de quoi les Plenipotentiaires respectifs ont signé la présente
Convention et l’ont revétue de leurs sceaux.

Fait 4 La Haye, le douze juin mil neuf cent deux, en un seul
exemplaire, qui sera déposé dans les archives du Gouvernement des
Pays-Bas et dont une copie, certifiée conforme, sera remise par la
voie diplomatique 4 chacun des Etats qui ont été représentés 4 la
troisieme Conférence de Droit International Privé.

UPON THE GUARDIANSHIP OF MINORS:

CONVENTION
POUR REGLER LA TUTELLE DES MINEURS

Sa Majesté l’Empereur d’Allemagne, Roi de Prusse, au nom
de Empire Allemand, Sa Majesté l’Empereur d’Autriche, Roi de
Bohéme, etc., etc., et Roi Apostolique de Hongrie, Sa Majesté le
Roi des Belges, Sa Majesté le Roi d’Espagne, le Président de la
République Frangaise, Sa Majesté le Roi d’Italie, Son Altesse Royale
346 CONGRESS OF LAWYERS AND JURISTS

 

le Grand-Duc de Luxembourg, Duc de Nassau, Sa Majesté la Reine
des Pays-Bas, Sa Majesté le Roi de Portugal et des Algarves, etc., etc.,
Sa Majesté le Roi de Roumanie, Sa Majesté le Roi de Suéde et de
Norvége, au nom de la Suede, et le Conseil Fédéral Suisse;

Désirant établir des dispositions communes pour régler la tutelle
des mineurs ....

ARTICLE PREMIER

La tutelle d’un mineur est réglée par sa loi nationale.

ART. 2

Si Ja loi nationale n’organise pas la tutelle dans le pays du mineur
en vue du cas ot celui-ci aurait sa résidence habituelle a l’étranger,
Vagent diplomatique ou consulaire autorisé par Etat dont le mineur
est le ressortissant pourra y pourvoir, conformément & la loi de cet
Etat, si l’Etat de la residence habituelle du mineur ne s’y oppose pas.

ART. 3

Toutefois, la tutelle du mineur ayant sa résidence habituelle 4
létranger s’établit et s’exerce conformément 4 la loi du lieu, si elle
n’est pas ou si elle ne peut pas étre constituée conformément aux
dispositions de l’article premier ou de l’article 2.

ART. 4

L’existence de la tutelle établie conformément & la disposition de
article 3 n’empéche pas de constituer une nouvelle tutelle par
application de l’article premier ou de l'article 2.

Il sera, le plus tét possible, donné information de ce fait au
Gouvernement de l’Etat ov la tutelle a d’abord été organisée. Ce
Gouvernement en informera, soit l’autorité qui aurait institué la
tutelle, soit, si une telle autorité n’existe pas, le tuteur lui-rméme.

La législation de l’Etat od Pancienne tutelle était organisée décide
& quel moment cette tutelle cesse dans le cas prévu par le présent
article.

ART. 5

Dans tous les cas, la tutelle s’ouvre et prend fin aux époques et
pour les causes déterminées par la loi nationale du mineur.
APPENDIX B 347

 

ArT. 6
L’administration tutélaire s’étend & la personne et 4 l’ensemble
des biens du mineur, quel que soit le lieu de leur situation.
Cette régle peut recevoir exception quant aux immeubles placés
par la loi de leur situation sous un régime foncier spécial.

ART. 7

En attendant l’organisation de la tutelle, ainsi que dans tous les
cas d’urgence, les mesures nécessaires pour la protection de la personne
et des intéréts d’un mineur étranger pourront étre prises par les
autorités locales.

ArT. 8

Les autorités d’un Etat, sur le territoire duquel se trouvera un
mineur étranger dont il importera d’établir la tutelle, informeront
de cette situation, dés qu’elle sera connue, les autorités de l’Etat dont
le mineur est le ressortissant.

Les autorités ainsi informées feront connaitre le plus tét possible
aux autorités qui auront donné I’avis si la tutelle a été ou si elle sera
établie.

ART. 9

La présente Convention ne s’applique qu’a la tutelle des mineurs
ressortissants d’un des Etats contractants, qui ont leur résidence
habituelle sur le territoire d’un de ces Etats.

Toutefois, les articles 7 et 8 de la présente Convention s’appliquent
a tous les mineurs ressortissants des Etats contractants.

ART. I0

La présente Convention, qui ne s’applique qu’aux territoires
européens des Etats contractants, sera ratifiée et les ratifications en
seront déposées 4 La Haye, dés que la majorité des Hautes Parties
contractantes sera en mesure de le faire.

Tl sera dressé de ce dépét un procés-verbal dont une copie, certifiée
conforme, sera remise par la voie diplomatique 4 chacun des Etats
contractants.

ART. II

Les Etats non signataires qui ont été représentés a la troisitme
Conférence de droit international privé sont admis 4 adhérer purement
et simplement 4 la presente Convention.
348 CONGRESS OF LAWYERS AND JURISTS

 

L’Etat qui désire adhérer notifiera, au plus tard le 31 décembre
1904, son intention par un acte qui sera déposé dans les archives du
Gouvernement des Pays-Bas. Celui-ci enverra une copie, cer-
tifiée conforme, par la voie diplomatique, 4 chacun des Etats con-
tractants.

ART. 12

La présente Convention entrera en vigueur le soixantiéme jour 4
partir du dépét des ratifications ou de la date de la notification des
adhésions.

ART. 13

La présente Convention aura une durée de cinq ans 4 partir de
la date du dépét des ratifications.

Ce terme commencera 4 courir de cette date, méme pour les
Etats qui auront fait le dépét aprés cette date ou qui auraient adhéré
plus tard.

La Convention sera renouvelée tacitement de cinq ans en cinq
ans, sauf dénonciation.

La dénonciation devra étre notifiée, au moins six mois avant
Vexpiration du terme visé aux alinéas précédents, au Gouvernement
des Pays-Bas qui en donnera connaissance & tous les autres Etats.

La dénonciation ne produira son effet qu’a ’égard de Etat qui
oa notifiée. La Convention restera exécutoire pour les autres

tats.

En foi de quoi, les Plenipotentiaires respectifs ont signé la présente
Convention et ont revétue de leurs sceaux.

Fait & La Haye, le douze juin mil neuf cent deux, en un seul
exemplaire qui sera déposé dans les archives du Gouvernement des
Pays-Bas et dont une copie, certifiée conforme, sera remise par voie
diplomatique a chacun des Etats qui ont été représentés & la troisisme
Conférence de droit international privé.
APPENDIX B 349

 

UPON SUCCESSION:

PROJET D’UNE CONVENTION SUR LES CONFLITS DE

LOIS EN MATIERE DE SUCCESSIONS ET DE TESTA-
MENTS

Désirant établir des dispositions communes concernant les suc-
cessions et les testaments,

Ont résolu de conclure une Convention A cet effet et ont, en con-
séquence, nommeé pour leurs plenipotentiaires, savoir:

lesquels, aprés s’étre communiqué leurs pleins pouvoirs, trouvés en
bonne et dite forme, sont convenus des dispositions suivantes:

ARTICLE I

Les successions, en ce qui concerne la désignation des successibles
Vordre dans lequel ils sont appelés, les parts qui leur sont attribuées
les rapports, la quotité disponible et la reserve, sont soumises a la
loi nationale du défunt, quels que soient la nature des biens et le
pays oi ils se trouvent.

La méme régle s’applique 4 la validité intrinséque et aux effets
des dispositions testamentaires.

ARTICLE 2

Les biens héréditaires ne sont acquis VEtat sur le territoire
duquel ils se trouvent que il n’y a aucun ayant —droit testamentaire
ou, abstraction faite de PEtat étranger, aucun successible ab intestat
d’aprés la loi nationale du défunt.

ARTICLE 3

Les testaments sont valables, quant 4 la forme, s’ils satisfont aux
prescriptions, soit de la loi du lieu ot ils sont faits, soit de la loi du
pays auquel appartenait le défunt au moment oi il disposait.

Néanmoins, lorsque, pour le testament fait par une personne
hors de son pays, sa loi nationale exige ou défend une forme déter-
minée, l’inobservation de cette régle peut entrainer la nullité du tes-
tament dans le pays dont le testateur était le sujet, sans empécher,
d’ailleurs, si le testament est conforme 4 Ia loi du lieu od il a été fait,
que, 1A et dans les autres pays il soit valable.
350 CONGRESS OF LAWYERS AND JURISTS

 

Sont valables, quant & la forme, les testaments des étrangers, s’ils
ont été recus, conformément 4 leur loi nationale, par les agents
diplomatiques ou consulaires autorisés par Etat dont ces étrangers
étaient les ressortissants.

ARTICLE 4

Les régles de l'article 1°", alinéa 2, et de article 3, concernant
une disposition testamentaire, sont également applicables 4 la révo-
cation d’une pareille disposition.

ARTICLE 5

Les autorités de |’Etat sur le territoire duquel se trouvent des
biens appartenant 4 la succession pourront prendre les mesures
nécessaires pour en assurer la conversation, 4 moins qu’il n’y soit
pourvu, en vertu de conventions spéciales, par les agents diploma-
tiques ou consulaires autorisés par Etat dont le défunt était le
ressortissant.

ARTICLE 6

§ 1. Est réservée l’application des lois territoriales qui ont exclu-
sivement pour but d’empécher la division des propriétés rurales,
ainsi que Vapplication des lois relatives aux immeubles placés sous
un régime foncier spécial.

$2. Est également réservée, dans chaque Etat, Vapplication des
lois de cet Etat, d’une nature impérative ou prohibitive, concernant
les matiéres qui seront indiquées d’un commun accord par les Etats
contractants dans un protocole additionnel, destiné 4 étre ratifié en
méme temps que la présente Convention.

§ 3. Pour profiter de la réserve prévue dans les paragraphes précé-
dents, chaque Gouvernement doit communiquer au Gouvernement
des Pays-Bas l’énumération des dispositions de ses lois qui, par
dérogation aux régles de la présente Convention, seront applicables
& toutes les successions, méme & celles des ressortissants des autres
Etats contractants. Cette énumération pourra toujours, dans les
limites tracées aux paragraphes précédents, étre modifiée suivant
les convenances de chaque Gouvernement, qui fera également con-
naitre sa détermination au Gouvernement des Pays-Bas. Ce
Gouvernement transmettra, par la voie diplomatique, aux Etats
contractants les communications dont il s’agit, en indiquant la date
& laquelle il les aura recues.
APPENDIX B 351

 

$4. Les dispositions réservées par un Etat en vertu des regles
precedentes ne s’appliqueront qu’aux successions des ressortissants
des autres Etats contractants qui s’ouvriront soixante jours aprés la
communication faite au Gouvernement des Pays-Bas.

$5. Les dispositions des paragraphes précédents ne sauraient
autoriser un Etat contractant & soustraire 4 Vapplication de la loi
nationales du défunt les immeubles non compris parmi ceux qui sont
visés au paragraphe 1° ou a faire échec & l’application de l’article 7.

ARTICLE 7

A Pegard des matiéres visées dans l’article 1°", les étrangers ressor-
tissants de l'un des Etats contractants, sont entitrement assimilés
aux nationaux. Seront, par conséquent, sans application, dans les
rapports des Etats contractants, les dispositions instituant au profit
des ressortissants d’un Etat, sur les biens situés dans son territoire,
des droits de prélévement dont l’effet serait de modifier indirectement
les régles posées dans la présente Convention.

Les dits droits de prélévement seront au contraire maintenus, 4
titre de compensation, si, par suite de restrictions apportées au
principe de l’application de la loi nationale du défunt, les sujets d’un
Etat sont privés, quant aux biens situés dans les territoires d’un autre
Etat, de tout ou partie du bénéfice des droits héréditaires qu’ils
auraient eus d’aprés la loi nationale du défunt.

ARTICLE 8
Aussitét que possible aprés la signature de la présente Convention,
les Etats contractants établiront d’un commun accord les régles
concernant la compétence et la procédure en matiére de successions
et de testaments.
La Convention contenant ces régles sera ratifié en méme temps
que la présente Convention.

ARTICLE 9

La présente Convention ne s’applique que dans le cas ou le défunt,
au moment de son décés, appartenait & un des Etats contractants.

Chacun des Etats contractants conserve la faculté d’avoir avec un
Etat non-contractant une convention spéciale soumettant a une loi
autre que la loi nationale les successions de ses ressortissants.

Si la présente Convention se trouve étre, en tout ou en partie,
incompatible avec une convention spéciale de ce genre, celle-ci
352 CONGRESS OF LAWYERS AND JURISTS

 

s’appliquera entre les Etats qui l’auront conclue, sans qu’ils aient
a tenir compte de la présente Convention. De leur cété, les autres
Etats contractants pourront, dans ce cas, ne pas appliquer la présente
Convention dans la mesure oti elle se trouvera exclue par la conven-
tion spéciale.

ARTICLE 10

La présente Convention sera ratifiée et les ratifications en seront
déposées 4 La Haye, dés que cing des Hautes Parties contractantes
seront en mesure de le faire.

Il sera dressé de tout dépét de ratifications un procés-verbal, dont
une copie, certifigée conforme, sera remise par la voie diplomatique

A chacun des Etats contractants.

ARTICLE I1

La présente Convention s’applique de plein droit aux territoires
européens des Etats contractants.

Si un Etat contractant en désire la mise en vigueur dans ses
territoires, possessions ou colonies, situés hors de l’Europe, ou dans
ses circonscriptions consulaires judiciaires, il notifiera son intention
a cet effet par un acte, qui sera déposé dans les archives du Gouverne-
ment des Pays-Bas. Celui-ci en enverra, par la voie diplomatique,
une copie, certifiée conforme, 4 chacun des Etats contractants. La
Convention entrera en vigueur sans les rapports entre les Etats qui
répondront par une declaration affirmative A cette notification et les
territoires, possessions ou colonies, situés hors de l'Europe, et les
circonscriptions consulaires judiciaires, pour lesquels la notification
aura été faite. La déclaration affirmative sera déposée, de méme,
dans les archives du Gouvernement des Pays-Bas, qui en enverra,
par la voie diplomatique, une copie, certifiée conforme, & chacun des
Etats contractants.

ARTICLE 12

Les Etats représentés & la quatritme Conférence de droit inter-
national privé sont admis & signer la présente Convention jusqu’au
dépét des ratifications prévu par V’article 10, alinéa 1°.

Apres ce dépét, ils seront toujours admis 4 y adhérer purement et
simplement. L’Etat qui désire adhérer notifie son intention par un
acte qui sera déposé dans les archives du Gouvernement des Pays-Bas.
APPENDIX B 353

 

Celui-ci en enverra, par la voie diplomatique, une copie, certifiée
conforme, a chacun des Etats contractants.

ARTICLE 13

La présente Convention entrera en vigueur le soixanti¢me jour 4
partir du dépét des ratifications prévu par Varticle 10, alinéa 1°".

Dans le cas de l’article 11, alinéa 2, elle entrera en vigueur quatre
mois aprés la date de la déclaration affirmative et, dans le cas de
Particle 12, alinéa 2, le soixantiéme jour aprés la date de la notifica-
tion des adhésions.

Tl est entendu ‘que les notifications prévues par l’article 11, alinéa
2, ne pourront avoir lieu qu’aprés que la presente Convention aura
été mise en vigueur conformément a l’alinéa 1°" du présent article.

ARTICLE 14

La présente Convention aura une durée de 5 ans 4 partir de la
date indiquée dans I’article 13, alinéa 1°".

Ce terme commencera 4 courir de cette date, méme pour les
Etats qui auront adhéré postérieurement et aussi en ce qui concerne
les déclarations affirmatives faites en vertu de larticle 11, alinéa 2.

La Convention sera renouvelée tacitement de cing ans en cinq
ans, sauf dénonciation.

La dénonciation devra étre notifiée, au moins six mois avant
Vexpiration du terme visé aux alinéas 2 et 3, au Gouvernement des
Pays-Bas, qui en donnera connaissance & tous les autres Etats.

La dénonciation peut ne s’appliquer qu’aux territoires, possessions
ou colonies, situés hors de l’Europe, ou aussi aux circonscriptions con-
sulaires judiciaires, compris dans une notification faite en vertu de
Particle 11, alinéa 2.

La dénonciation ne produira son effet qu’a l’égard de l’état qui
Vaura notifiée. La Convention restera exécutoire pour les autres
états contractants.

[Fait 4 La Haye, le 7 juin, 1904.]
354 CONGRESS OF LAWYERS AND JURISTS

 

UPON THE EFFECTS OF MARRIAGE, UPON THE MU-
TUAL PERSONAL RIGHTS AND DUTIES OF THE
SPOUSES AND THEIR RIGHTS OF PROPERTY:

PROJET D’UNE CONVENTION CONCERNANT LES
CONFLITS DE LOIS RELATIFS AUX EFFETS DU
MARIAGE SUR LES DROITS ET LES DEVOIRS
DES EPOUX DANS LEURS RAPPORTS PERSONNELS
ET SUR LES BIENS DES EPOUX

Désirant établir les dispositions communes concernant les effets
du mariage sur les droits et les devoirs des époux dans leurs rapports
personnels et sur les biens des époux,

Ont résolu de conclure une Convention 4 cet effet et ont, en con-
séquence, nommé pour leurs plenipotentiaires, savoir:

lesquels, aprés s’étre communiqué leurs pleins pouvoirs, trouvés en
bonne et die forme, sont convenus des dispositions suivantes:

I. LES DROITS ET LES DEVOIRS DES EPOUX DANS
LEURS RAPPORTS PERSONNELS

ARTICLE I
Les droits et les devoirs des époux dans leurs rapports personnels
sont régis par leur loi nationale.
Toutefois, ces droits et ces devoirs ne peuvent étre sanctionnés
que par les moyens que permet également la loi du pays ou la sanction
est requise.

II. LES BIENS DES EPOUX

ARTICLE 2

En V’absence de contrat, les effets du mariage sur les biens des
époux, tant immeubles que meubles, sont régis par la loi nationale du
mari au moment de la célébration du mariage.

Le changement de nationalité des époux ou de l’un d’eux n’aura
pas d’influence sur le régime des biens.
APPENDIX B 355

 

ARTICLE 3
La capacité de chacun des futurs époux pour conclure un contrat
de mariage est déterminée par sa loi nationale au moment de la
célébration du mariage.

ARTICLE 4
La loi nationale des époux décide s’ils peuvent, au cours du
mariage, soit faire un contrat de mariage, soit résilier ou modifier
leurs conventions matrimoniales.
Le changement qui serait fait au régime des biens ne peut pas
avoir d’effet rétroactif au prejudice des tiers.

ARTICLE 5

La validité intrinséque d’un contrat de mariage et ses effets sont
régis par la loi nationale du mari au moment de la célébration du
mariage, ou, s’il a été conclu au cours du mariage, par la loi nationale
des époux au moment du contrat.

La méme loi décide si et dans quelle mesure les époux ont la
liberté de se référer 4 une autre loi; lorsqu’ils s’y sont référés, c’est
cette derniére loi qui détermine les effets du contrat de mariage.

ARTICLE 6
Le contrat de mariage est valable quant 4 la forme, s’il a été
conclu soit conformément & la loi du pays ov il a été fait, soit conformé-
ment 4 la loi nationale de chacun des futurs époux au moment de la
célébration du mariage, ou encore, s’il a été conclu au cours du
mariage, conformément 4 la loi nationale de chacun des époux.
Lorsque la loi nationale de l’un des futurs époux ou, si le contrat
est conclu au cours du mariage, la loi nationale de l’un des époux
exige comme condition de validité que le contrat, méme s’il est
conclu en pays étranger, ait une forme déterminée, ses dispositions
doivent étre observées. :
ARTICLE 7
Les dispositions de la présente Convention ne sont pas applicables
aux immeubles placés par la loi de leur situation sous un régime
foncier spécial.
ARTICLE 8
Chacun des Etats contractants se reserve:
'z, d@exiger des formalités spéciales pour que le régime des biens
puisse étre invoqué contre les tiers;
356 CONGRESS OF LAWYERS AND JURISTS

 

2. @appliquer des dispositions ayant pour but de protéger les
tiers dans leurs relations avec une femme mariée exercant une pro-
fession sur le territoire de cet Etat.

Les Etats contractants s’engagent & se communiquer les disposi-
tions légales applicables d’aprés le présent article.

Ill. DISPOSITIONS GENERALES

ARTICLE 9

Si les époux ont acquis, au cours du mariage, une nouvelle et
méme nationalité, c’est leur nouvelle loi nationale qui sera appliquée
dans les cas visés aux articles 1, 4 et 5.

S’il advient, au cours du mariage, que les époux n’aient pas la
méme nationalité, leur derniére législation commune devra, pour
Vapplication des articles précités, étre considérée comme leur loi
nationale.

ARTICLE 10

La présente Convention n’aura pas d’application lorsque, d’aprés
les articles précédents, la loi qui devrait étre appliquée ne serait pas
celle d’un Etat contractant.

IV. DISPOSITIONS FINALES

ARTICLE 11
La présente Convention sera ratifiée et les ratifications en seront
déposées 4 La Haye, dés que six des Hautes Parties contractantes
seront en mesure de le faire.
Il sera dressé de tout dépdt de ratifications un procés-verbal,
dont une copie, certifiée conforme, sera remise par la voie diploma-
tique 4 chacun des Etats contractants.

ARTICLE 12

La présente Convention s’applique de plein droit aux territoires
européens des Etats contractants.

Si un Etat contractant en désire la mise en vigueur dans ses
territoires, possessions, ou colonies, situés hors de |’Europe, ou dans
ses circonscriptions consulaires judiciaires, il notifiera son intention
a cet effet par un acte, qui sera déposé dans les archives du Gouverne-
ment des Pays-Bas. Celui-ci en enverra, par la voie diplomatique,
APPENDIX B 357

 

une copie, certifiée conforme, 4 chacun des Etats contractants. La
Convention entrera en vigueur dans les rapports entre les Etats qui
répondront par une déclaration affirmative a cette notification et les
territoires, possessions ou colonies, situés hors de 1’Europe, et les
circonscriptions consulaires judiciaires, pour lesquels la notification
aura été faite. La déclaration affirmative sera déposée, de méme,
dans les archives du Gouvernement des Pays-Bas, qui en enverra,
par la voie diplomatique, une copie, certifiée conforme, 4 chacun des
Etats contractants.
ARTICLE 13

Les Etats représentés 4 la quatriéme Conférence de droit inter-
national privé sont admis 4 signer la présente Convention jusqu’au
dépét des ratifications prévu par larticle 11, alinéa 1°.

Apres ce dépét, ils seront toujours admis 4 y adhérer purement et
simplement. L’Etat qui désire adhérer notifie son intention par un
acte qui sera déposé dans les archives du Gouvernement des Pays-
Bas. Celui-ci en enverra, par la voie diplomatique, une copie, certi-
fiée conforme, 4 chacun des Etats contractants.

ARTICLE 14

La présente Convention entrera en vigueur le soixantiéme jour
a partir du dépét des ratifications prévu par l’article 11, alinéa 1%

Dans le cas de l’article 12, alinéa 2, elle entrera en vigueur quatre
mois aprés la date de la déclaration affirmative et, dans le cas de
Particle 13, alinéa 2, le soixantitme jour aprés la date de la notifica-
tion des adhésions.

Tl est entendu que les notifications prévues par l’article 12, alinéa 2,
ne pourront avoir lieu qu’aprés que la présente Convention aura été
mise en vigueur conformément 4 l’alinéa 2 du présent article.

ARTICLE 15

La présente Convention aura une durée de 5 ans 4 partir de la
date indiquée dans l’article 14, alinéa 1°.

Ce terme commencera 4 courir de cette date, méme pour les Etats
qui auront adhéré postérieurement et aussi en ce qui concerne les
déclarations affirmatives faites en vertu de l’article 12, alinéa 2.

La Convention sera renouvelée tacitement de cing ans en cing
ans, sauf dénonciation.

La dénonciation devra étre notifiée, au moins six mois avant
358 CONGRESS OF LAWYERS AND JURISTS

 

Vexpiration du terme visé aux alinéas 2 et 3, au Gouvernement des
Pays-Bas, qui en donnera connaissance 4 tous les autres Etats.

La dénonciation peut ne s’appliquer qu’aux territoires, posses-
sions, ou colonies, situés hors de l’Europe, ou aussi aux circonscrip-
tions consulaires judiciaires, compris dans une notification faite en
vertu de Varticle 12, alinéa 2.

La dénonciation ne produire son effet qu’a ’égard de Etat qui
Yaura notifiée. La Convention restera exécutoire pour les autres
Etats contractants.

{Fait 4 La Haye le 7 janvier 1904.|

UPON THE GUARDIANSHIP OF MAJOR PERSONS:

IV. PROJET D’UNE CONVENTION CONCERNANT
LIINTERDICTION ET LES MESURES DE PROTEC-
TION ANALOGUES

Désirant établir des dispositions communes concernant l’inter-
diction et les mesures de protection analogues,

Ont résolu de conclure une Convention 4 cet effet et ont, en con-
séquence, nommé pour leurs plenipotentiaires, savoir:

lesquels, aprés s’étre communiqué leurs pleins pouvoirs, trouvés en
bonne et die forme, sont convenus des dispositions suivantes:

ARTICLE 1
Liinterdiction est réglé par la loi nationale de la personne 4
interdire, sauf les dérogations a cette régle contenues dans les articles
suivants.
ARTICLE 2
L’interdiction ne peut étre prononcée que par les autorités
compétentes de I’Etat auquel la personne 4 interdire appartient par
sa nationalité et la tutelle sera organisée selon la loi de cet Etat, sauf
les cas prévus aux articles suivants.

ARTICLE 3
Si, dans un des Etats contractants, un ressortissant d’un autre
de ces Etats se trouve dans les conditions requises pour l’interdiction
d’aprés sa loi nationales, toutes les mesures provisoires nécessaires
APPENDIX B 359

 

pour la protection de sa personne et de ses biens pourront étre prises
par les autorités locales.

Avis en sera donné au Gouvernement de Etat dont il est ressor-
tissant.

Ces mesures prendront fin dés que les autorités locales recevront
des autorités nationales l’avis que des mesures provisoires ont été
prises ou que la situation de l’individu dont il s’agit a été réglée par
un jugement.

ARTICLE 4

Les autorités de Etat, sur le territoire duquel un étranger dans
le cas d’étre interdit aura sa residence habituelle, informeront de
cette situation, dés qu’elle leur sera connue, les autorités de l’Etat
dont l’étranger est le ressortissant, en communiquant la demande en
interdiction dont elles seraient saisies et les mesures provisoires qui
auraient été prises.

ARTICLE 5

Les communications prévues aux articles 3 et 4 se feront par la

voie diplomatique 4 moins que la communication directe ne soit
admise entre les autorités respectives.

ARTICLE 6
Il sera sursis 4 toute mesure définitive dans le pays de la résidence
habituelle tant que les autorités nationales n’auront pas répondu 4
la communication prévue dans l’article 4. Si les autorités nationales
déclarent vouloir s’abstenir ou ne repondent pas dans le délai de six
mois, les autorités de la résidence habituelle auront 4 statuer sur
Vinterdiction en tenant compte des obstacles qui, d’aprés la réponse
des autorités nationales, empécheraient l’interdiction dans le pays
d’origine.
ARTICLE 7
Dans le cas o0 les autorités de la résidence habituelle sont compé-
tentes en vertu de l’article précédent, la demande en interdiction peut
étre formée par les personnes et pour les causes admises 4 la fois par
la loi nationale et par la loi de la résidence de l’étranger.

ARTICLE 8

Lorsque l’interdiction a été prononcée par les autorités de la
résidence habituelle, l’'administration de la personne et des biens de
360 CONGRESS OF LAWYERS AND JURISTS

 

Vinterdit sera organisée selon la loi locale, et les effets de l’interdiction
seront régis par la méme loi.

Si, néanmoins, la loi nationale de l’interdit dispose que sa sur-
veillance sera confiée de droit 4 une personne determinée, cette dispo-
sition sera respectée autant que possible.

ARTICLE 9

L’interdiction, prononcée par les autorités compétentes conformé-
ment aux dispositions qui précédent, produira, en ce qui concerne la
capacité de Vinterdit et sa tutelle, ses effets dans tous les Etats con-
tractants sans qu’il soit besoin d’un exéquatur.

Toutefois les mesures de publicité, prescrites par la loi locale
pour l’interdiction prononcée par les autorités du pays, pourront
étre déclarées par elle également applicables 4 Vinterdiction qui
aurait été prononcée par une autorité étrangére, ou remplacées par
mesures analogues. Les Etats contractants se communiqueront
reciproquement, par l’intermédiaire du Gouvernement néerlandais,
les dispositions qu’ils auraient prises 4 cet égard.

ARTICLE Io

L’existence d’une tutelle établie conformément 4 la article 8
n’empéche pas de constituer une nouvelle tutelle conformément 4
la loi nationale.

Il sera, le plus tét possible, donné avis de ce fait aux autorités de
Etat ot interdiction a été prononcée.

La loi de cet Etat décide 4 quel moment cesse la tutelle qui y
avait été organisée. A partir de ce moment les effets de l’interdiction
prononcée par les autorités seront régis par la loi nationale de l’in-
terdit.

ARTICLE II

L’interdiction, prononcée par les autorités de la résidence habi-
tuelle, pourra étre levée par les autorités nationales conformément &
leur loi.

Les autorités locales qui ont prononcé V’interdiction pourront
également la lever pour tous les motifs prévus par la loi nationale ou
par la loi locale. La demande peut étre formée par tous ceux qui y
sont autorisés par l’une ou par |’autre de ces lois.

Les décisions qui lévent l’interdiction auront de plein droit leurs
APPENDIX B 361

 

effets dans tous les Etats contractants sans qu’il soit besoin d’un
exéquatur.

ARTICLE 12

Les dispositions qui précédent recevront leur application sans
quwil y ait a distinguer entre les meubles et les immeubles de ]’inca-
pable, sauf exception quant aux immeubles placés par la loi de leur
situation sous un régime foncier spécial.

ARTICLE 13

Les régles contenues dans la présente Convention sont communes
4 Vinterdiction proprement dite, 4 l’institution d’une curatelle, 4 la
nomination d’un conseil judiciaire, ainsi qu’A toutes autres mesures
analogues en tant qu’elles entrainement une restriction de la capacité.

ARTICLE 14

La présente Convention ne s’applique qu’a l’interdiction de ressor-
tissants d’un des Etats contractants ayant leur résidence habituelle
sur le territoire d’un de ces Etats.

Toutefois l’article 3 de la présente Convention s’applique a tous
les ressortissants des Etats contractants.

ARTICLE 15

La présente Convention sera ratifiée et les ratifications en seront
déposées & La Haye, des que six des Hautes Parties contractantes
seront en mesure de le faire.

Tl sera dressé de tout dépét de ratifications un procés-verbal, dont
une copie, certifiée conforme, sera remise par la voie diplomatique 4
chacun des Etats contractants.

ARTICLE 16

La présente Convention s’applique de plein droit aux territories
européens des Etats contractants.

Si un Etat contractant en désire la mise un vigueur dans ces terri-
toires, possessions ou colonies, situés hors de l’Europe, ou dans ses cir-
conscriptions consulaires judiciaires, il notifiera son intention & cet effet
par un acte, qui sera déposé dans les archives du Gouvernement des
Pays-Bas. Celui-ci en enverra, par la voie diplomatique, une copie,
certifiée conforme, 4 chacun des Etats contractants. La Convention
entrera en vigueur dans les rapports entre les Etats qui répondront
362 CONGRESS OF LAWYERS AND JURISTS

 

par une déclaration affirmative 4 cette notification et les territoires,
possessions ou colonies, situés hors de l’Europe, et les circonscriptions
consulaires judiciaires, pour lesquels la notification aura été faite.
La déclaration affirmative sera déposée, de méme, dans les archives
du Gouvernement des Pays-Bas, qui en enverra, par la voie diplo-
matique, une copie, certifiée conforme, 4 chacun des Etats contrac-
tants.
ARTICLE 17

Les Etats représentée 4 la quatritme Conférence de droit interna-
tional privé sont admis 4 signer la présente Convention jusqu’au
dépét des ratifications prévu par article 15, alinéa 1°.

Aprés ce dépét, ils seront toujours admis 4 y adhérer purement et
simplement. L’Etat qui desire adhérer notifie son intention par un
acte qui sera déposé dans les archives du Gouvernement des Pays-
Bas. Celui-ci en enverra, par la voie diplomatique, une copie, cer-

tifiée conforme, 4 chacun des Etats contractants.

ARTICLE 18

La présente Convention entrera en vigueur le soixantiéme jour
a partir dépét des ratifications prévu par l’article 15, alinéa 1°.

Dans le cas de l’article 16, alinéa 2, elle entrera en vigueur quatre
mois aprés la date de la déclaration affirmative et, dans le cas de
article 17, alinéa 2, le soixantiéme jour aprés la date de la notifica-
tion des adhésions.

Il est entendu que les notifications prévues par Varticle 16, alinéa
2, ne pourront avoir lieu qu’aprés que la présente Convention aura
été mise en vigueur conformément 4 l’alinéa 2 du présent article.

ARTICLE 19

La présente Convention aura une durée de 5 ans a partir de la
date indiquée dans larticle 18, alinéa 1°.

Ce terme commencera A courir de cette date, méme pour les Etats
qui auront adhéré postérieurement et aussi en ce qui concerne les
déclarations affirmatives faites en vertu de article 16, alinéa 2.

La Convention sera renouvelée tacitement de cing ans, en cing
ans, sauf dénonciation.

La dénonciation devra étre notifiée, au moins six mois avant l’ex-
piration du terme visé aux alinéas 2 et 3, au Gouvernement des Pays-
Bas, qui en donnera connaissance & tous les autres Etats.
APPENDIX BOL 363

 

La dénonciation peut ne s’appliquer qu’aux territoires, possessions
ou colonies, situés hors de l’Europe, ou aussi aux circonscriptions con-
sulaires judiciaires, compris dans une notification faite en vertu de
Varticle 16, alinéa 2.

La dénonciation ne produira son effet qu’a Pégard de Etat qui
Vaura notifiée. La Convention restera exécutoire pour les autres
Etats contractants.

[Fait 4 La Haye le 7 juin 1904.]

C. THE INTERNATIONAL LAW OF BANKRUPTCY:

V. PROJET RELATIF A LA FAILLITE.'

ARTICLE 1
La déclaration de faillite d’un commergant, prononcée dans l’un
des Etats contractants par lautorité compétente aux termes de l’ar-
ticle 2, sera reconnue et produira ses effets dans les autres Etats con-
tractants de la maniére et dans la mesure déterminées par les articles
suivants.

ARTICLE 2

L’autorité seule compétente pour prononcer la déclaration de
faillite est celle de pays dans lequel le débiteur a son principal étab-
lissement commercial.

Pour une société, ’autorité seule compétente est celle du pays ot
elle & son siége social, & la condition qu’il ne soit ni frauduleux ni
fictif.

ARTICLE 3
Lorsque la faillite déclarée dans l’un des Etats contractants com-
prend une succursale ou un établissement dans un autre, les formal-
ités de publicité exigées par la legislation de ce dernier Etat sont, sans
préjudice des mesures conservatoires ou d’administration prévues 4
article 5, remplies A la diligence du syndic ou du curateur au lieu
de cette succursale ou de cet établissement.

1Ce texte ne doit pas étre considéré comme projet d’une convention génér-
ale, il pourra seylement servir de base & des conventions 4 conclure éventuelle-
ment d’Etat a Etat.
364 CONGRESS OF LAWYERS AND JURISTS

 

ARTICLE 4

La nomination et les pouvoirs des administrateurs de la faillite,
les formes 4 suivre dans la procédure de faillite, ’'admission des
créanciers, la formation du concordat et la distribution de l’actif
entre les créanciers, sont reglés par loi du lieu ou la faillite 4 été
déclarée.

ARTICLE 5

Les créanciers étrangers qui sont les ressortissants d’un des Etats
contractants sont entiérement assimilés aux créanciers nationaux.

ARTICLE 6

Sans qu’un exéquatur préalable soit necessaire, le syndic, cura-
teur ou autre administrateur de la faillite, dament nommé conformé-
ment & la loi de l’Etat ou la faillite a été declarée, peut, dans chaque
Etat contractant, prendre toutes mesures conservatoires ou d’admin-
istration concernant la faillite. Tl peut également tester en justice,
soit comme demandeur, soit comme défendeur, en qualité de repré-
sentant du failli ou de la masse.

Mais il ne procédera a des actes d’exécution qu’autant que la déci-
sion en vertu de laquelle il agira aura été revétue de l’exéquatur con-
formément & la loi de Etat ou ces actes doivent avoir lieu.

ARTICLE 7

L’exéquatur sera accordé, si le requérant établit:

1. que la faillite a été déclarée par l’autorité compétente d’aprés
Particle 2;

2. que la decision est exécutoire dans I’Etat ov elle a été rendue;

3. que l’expédition qui en est produite réunit, d’aprés la loi de
cet Etat, les conditions nécessaires & son authenticité;

4. que le débiteur a été daiment appelé, représenté ou déclaré
défaillant.

ARTICLE 8

La procédure d’exéquatur est réglée par la loi de ’Etat ou la
demande est formée.

L’exéquatur peut étre demandé, non seulement par l’administra-
teur de la faillite, mais encore par toute personne ayant qualité a cet
effet en vertu de la loi du pays oi la faillite a été déclarée.
APPENDIX B 365

 

ARTICLE 9

Le concordat postérieur & la déclaration de la faillite produira
de plein droit ses effets dans tous les Etats contractants, s'il a été
accordé par les créanciers et homologué par l’autorité compétente,
avec les formalités prescrites par la loi de Etat ot Ja faillite a été
ouverte.

ARTICLE 10

La présente Convention ne s’oppose pas & ce que les Etats con-
tractants appliquent les mesures édictées par leurs législations en
vue d’assurer la continuation d’un service public dont est chargée
une entreprise en faillite.

Elle ne s’applique pas non plus aux entreprises & propos desquelles
des mesures législatives ou réglémentaires speciales sont prises dans
Pinterét des créanciers.

[Fait 4 La Haye le 7 juin 1904.]

THE REVISORY PROJECT OF 1904

I. COMMUNICATION D’ACTES JUDICIAIRES ET EXTRA-
JUDICIAIRES

ARTICLE 1

En matiére civile ou commerciale, les significations d’actes 4 des-
tination de personnes se trouvant 4 l’étranger se feront, dans les
Etats contractants, sur une demande du consul de l’Etat requérant
addressée & Vautorité qui sera désignée par l’Etat requis. La de-
mande contenant l’indication de l’autorité de qui émane I’acte trans-
mis, le nom et la qualité des parties, l’addresse du destinataire, la
nature de l’acte dont il s’agit, doit étre rédigée dans la langue de
Pautorité requise. Cette autorité enverra au consul la piéce prouvant
la signification ou indiquant le fait qui ’'a empéchée.

Toutes les difficultés qui s’éléveraient 4 l’occasion de la demande
du consul seront réglées par la voie diplomatique.

Chaque Etat contractant peut déclarer, par une communication
addressée aux autres Etats contractants, qu’il entend que la de-
mande de signification 4 faire sur son territoire, contenant les mentions
indiquées 4 Valinéa 1°", lui soit addressée par la voie diplomatique.

Les dispositions qui précédent ne s’opposent pas & ce que deux
366 CONGRESS OF LAWYERS AND JURISTS

 

Etats contractants s’entendent pour admettre la communication
directe entre leurs autorités respectives.

ARTICLE 2

La signification se fera par les soins de l’autorité compétente de
PEtat requis. Cette autorité, sauf les cas prévus dans J’article 3,
pourra se borner A effectuer la signification par la remise de l’acte au
destinataire qui l’accepte volontairement.

ARTICLE 3

Si Pacte & signifier est rédigé, soit dans la langue de |’autorité
requise, soit dans la langue convenue entre les deux Etats interessés,
ou s'il est accompagné d’une traduction dans Pune de ces langues,
Vautorité requise, au cas oi le désir lui en serait exprimé dans la
demande, fera signifier ’acte dans la forme prescrite par sa législa-
tion intérieure pour l’execution de significations analogues, ou dans
une forme spéciale, pourvu qu’elle ne soit pas contraire a cette légis-
lation. Si un pareil désir n’est pas exprimé, l’autorité requise
cherchera d’abord & effectuer la remise dans les termes de l’article 2.

Sauf entente contraire, la traduction prévue dans l’alinéa précé-
dent sera certifiée conforme par l’agent diplomatique ou consulaire de
Etat requérant ou par un traducteur assermenté de PEtat requis.

ARTICLE 4
L’exécution de la signification prévue par Jes articles 1, 2 et 3 ne
pourra étre refusée que si l’Etat, sur le territoire duquel elle devrait
étre faite, la juge de nature a porter atteinte 4 sa souveraineté ou 4 sa
securité.
ARTICLE 5
La preuve de la signification se fera au moyen, soit d’un récé-
pissé daté et légalisé du destinataire, soit d’une attestation de l’auto-
rité de PEtat requis, constatant le fait, la forme et la date de la signifi-
cation.
Si Pacte & signifier a été transmis en double exemplaire, le récépissé
ou l’attestation doit se trouver sur l’un des doubles ou y étre annexé.

ARTICLE 6

Les dispositions des articles qui précédent ne s’opposent pas:
1. ala faculté d’adresser directement par la voie de la poste des
actes aux interessés se trouvant & l’étranger;
APPENDIX B 367

 

2. A la faculté pour les interessés de faire faire des significations
directement par les soins des officiers ministériels ou des fonction-
naires compétents du pays de destination;

3. ala faculté pour chaque Etat de faire faire directement, par les
soins de ses agents diplomatiques ou consulaires, les significations
destinées aux personnes se trouvant A l’étranger.

Dans chacun de ces cas, la faculté prévue n’existe que si des con-
ventions intervenues entre les Etats intéressés l’admettent ou si, a
défaut de conventions, l’Etat sur le territoire duquel la signification
doit étre faite ne s’y oppose pas. Cet Etat ne pourra s’y opposer
lorsque, dans le cas de V’alinéa 17, numero 3, Vacte doit étre signifié
sans contrainte & un ressortissant de l’Etat requérant.

ARTICLE 7

Les significations ne pourront donner lieu au remboursement de
taxe ou de frais de quelque nature que ce soit.

Toutefois, sauf entente contraire, Etat requis aura le droit
d’exiger de Etat réquerant le remboursement des frais occasionnés
par intervention d’un officier ministériel ou par l’emploi d’une
forme spéciale dans les cas de I’article 3.

II. COMMISSIONS ROGATOIRES
ARTICLE 8

En matiére civile ou commerciale, l’autorité judiciaire d’un Etat
contractant pourra, conformément aux dispositions de sa législation,
s’adresser par commission rogatoire 4 l’autorité compétente d’un
autre Etat contractant pour lui demander de faire, dans son ressort,

soit un acte d’instruction, soit d’autres actes judiciaires.

ARTICLE 9

Les commissions rogatoires seront transmises par le consul de
VEtat requérant 4 l’autorité qui sera désignée par Etat requis.
Cette autorité enverra au consul la piéce constatant l’exécution de la
commission rogatoire ou indiquant le fait qui en a empéché l’exécution.

Toutes les difficultés qui s’éléveraient 4 l’occasion de cette trans-
mission seront réglées par la voie diplomatique.

Chaque Etat contractant peut déclarer, par une communication
addressée aux autres Etats contractants, qu’il entend que les com-
368 CONGRESS OF LAWYERS AND JURISTS

 

missions rogatoires & exécuter sur son territoire lui soient transmises
par la voie diplomatique.

Les dispositions qui précédent ne s’opposent pas @ ce que deux
Etats contractants s’entendent pour admettre la transmission directe
des commissions rogatoires entre leurs autorités respectives.

ARTICLE 10

Sauf entente contraire, la commission rogatoire, doit étre rédigée
soit dans la langue de l’autorité requise, soit dans la langue convenue
entre les deux Etats intéressés, ou bien elle doit étre accompagnée
d’une traduction faite dans une de ces langues et certifiée conforme
par un agent diplomatique ou consulaire de Etat requérant ou par
une traducteur assermenté de I’Etat requis.

ARTICLE II

x

L’autorité judiciaire & laquelle la commission rogatoire est ad-
dressée sera obligée d’y satisfaire en usant des mémes moyens de con-
trainte que pour l’exécution d’une commission des autorités de VEtat
requis ou d’une demande formée 4 cet effet par une partie intéressée.
Ces moyens de contrainte ne sont pas nécessairement employés s’il
s’agit de la comparution de parties en cause.

L’autorité requérante sera, si elle le demande, informée de la date
et du lieu ou il sera procédé 4 la mesure sollicitée, afin que la partie
intéressée soit en Etat d’y assister.

L’exécution de la commission rogatoire ne pourra étre refusée
que:

1. si Pauthenticité du document n’est pas établie;

2. si, dans Etat requis, l’exécution de la commission rogatoire ne
rentre pas dans les attributions du pouvoir judiciaire;

3. si VEtat sur le territoire duquel l’exécution devrait avoir lieu
la juge de nature a porter atteinte 4 sa souveraineté ou & sa securité.

ARTICLE 12

En cas d’incompétence de l’autorité requise, la commission roga-
toire sera transmise d’office 4 l’autorité judiciaire compétente du
méme Etat, suivant les régles établies par la législation de celui-ci.

ARTICLE 13

Dans tous les cas ot la commission rogatoire n’est pas exécutée
par Vautorité requise, celle-ci en informera immédiatement l’autorité
APPENDIX B 369

 

requérante, en indiquant, dans le cas de I’article 11, les raisans pour
lesquelles Y’exécution de la commission rogatoire a été refusée et,
dans le cas de l'article 12, lautorité & laquelle la commission est
transmise.

ARTICLE 14
L’autorité judiciaire qui procéde & l’exécution d’une commission
rogatoire appliquera les lois de son pays, en ce qui concerne les formes
a suivre.
Toutefois, il sera déféré & la demande de V’autorité requérante,
tendant & ce qu’il soit procédé suivant une forme spéciale, pourvu que
cette forme ne soit pas contraire a la législation de Etat requis.

ARTICLE 15
Les dispositions des articles qui précédent n’excluent pas la fa-
culté pour chaque Etat de faire exécuter directement parses agents dip-
lomatiques ou consulaires les commissions rogatoires, si des conven-
tions intervenues entre les Etats intéressés l’admettent ou si I’Etat
sur le territoire duquel la commission rogatoire doit étre exécutée ne
s’y oppose pas.
ARTICLE 16

L’exécution des commissions rogatoires ne pourra donner lieu au
remboursement de taxes ou de frais de quelque nature que ce soit.

Toutefois, saufentente contraire, l’Etat requis aura le droit d’exiger
de l’Etat requérant le remboursement des indemnités payées aux
témoins ou aux experts, ainsi que des frais occasionnés par linter-
vention d’un officier ministériel, rendue nécessaire parce que les
témoins n’ont pas comparu volontairement, ou des frais résultant de
Vapplication éventuelle de l’article 14, alinéa 2.

Ill. CAUTION JUDICATUM SOLVI

ARTICLE 17
Aucune caution ni dépét, sous quelque dénomination que ce soit,
ne peut étre imposé, a raison soit de leur qualité d’étrangers, soit du
défaut de domicile ou de résidence dans le pays, aux nationaux d’un
des Etats contractants, ayant leur domicile dans l’un de ces Etats,
qui seront demandeurs ou intervenants devant les tribunaux d’un
autre de ces Etats.
370 CONGRESS OF LAWYERS AND JURISTS

 

La méme régle s’applique au versement qui serait exigé des de-
mandeurs ou intervenants pour garantir les frais judiciaires.

Les conventions par lesquelles des Etats contractants auraient
stipulé pour leurs ressortissants la dispense de la caution judicatum
solvi ou du versement des frais judiciaires sans condition de domicile
continueront a s’appliquer.

ARTICLE 18

Les condamnations aux frais et dépens du procés, prononcées
dans un des Etats contractants contre le demandeur ou V’intervenant
dispensés de la caution, du dépét ou du versement en vertu soit de
Particle 17, alinéas 1 et 2, soit de la loi de l’Etat ov I’action est in-
tentée, seront, sur une demande faite par la voie diplomatique,
rendues gratuitement exécutoires par Vautorité compétente dans
chacun des autres Etats contractants.

La méme régle s’applique aux décisions judiciaires par lesquelles
le montant des frais du proces est fixé ultérieurement.

Les dispositions qui précédent ne s’opposent pas 4 ce que deux
Etats contractants s’entendent pour permettre que la demande
d’exequatur soit aussi faite directement par la partie intéressée.

ARTICLE 19

Les décisions relatives aux frais et dépens seront déclarées exécu-
toires sans entendre les parties, mais sauf recours ultérieur de la
partie condamnée, conformément 8 la législation du pays of V’exécu-
tion est poursuivie.

L’autorité compétente pour statuer sur la demande d’exequatur
se bornera 4 examiner:

1. si, @aprés la loi du pays ot la condamnation a été prononcée,
Vexpédition de la décision réunit les conditions nécessaries 4 son
authenticité;

2. si, d’aprés la méme loi, la décision est passée en force de chose
jugée;

3. si le dispositif de la décision est rédigé, soit dans la langue de
Pautorité requise, soit dans la langue convenue entre les deux Etats
intéressés, ou bien s’il est accompagné d’une traduction, faite dans
une des langues et, sauf entente contraire, certifiée conforme par un
agent diplomatique ou consulaire de l’Etat requérant ou par un tra-
ducteur assermenté de l’Etat requis.
APPENDIX B 371

 

Pour satisfaire aux conditions prescrites par V’alinéa 2, numeros
1 et 2, il suffira d’une déclaration de l’autorité compétente de PEtat
requérant constatant que la décision est passée en force de chose
jugée. La compétence de cette autorité sera, sauf entente contraire,
certifiée par le plus haut foncionnaire préposé 4 l’administration de la
justice dans Etat requérant. La déclaration et le certificat dont il
vient d’étre parlé doivent étre rédigés ou traduits conformément A la
régle contenue dans l’alinéa 2, numero 3.

Iv. ASSISTANCE JUDICIAIRE GRATUITE

ARTICLE 20

Les ressortissants de chacun des Etats contractants seront admis
dans tous les autres Etats contractants au bénéfice de l’assistance
judiciaire gratuite, comme les nationaux eux-mémes, en se confor-
mant & la législation de l’Etat ou assistance judiciaire gratuite est
réclamée.

ARTICLE 21

Dans tous les cas, le certificat ou la déclaration d’indigence doit
étre délivré ou recue par les autoritiés de la résidence habituelle de
l’étranger, ou, 4 defaut de celle-ci, par les autorités de sa résidence
actuelle. Dans le cas ou ces derniéres autorités n’appartiendraient
pas 4 un Etat contractant et ne recevraient pasou ne délivreraient pas
des certificats ou des déclarations de cette nature, il suffira d’un cer-
tificat ou d’une déclaration, délivré ou regue par un agent diploma-
tique ou consulaire du pays auquel |’étranger appartient.

Si le requérant ne réside pas dans le paysotlademandeest formée,
le certificat ou Ja déclaration d’indigence sera légalisé gratuitement
par un agent diplomatique ou consulaire du pays ot le document
doit étre produit.

ARTICLE 22

L’autorité compétente pour délivrer le certificat ou recevoir la
déclaration d’indigence pourra prendre des renseignements sur la
situation de fortune du requérant auprés des autorités des autres
Etats contractants.

L’autorité chargée de statuer sur la demande d’assistance judi-
ciaire gratuite conserve, dans les limites de ses attributions, le droit de
contréler les certificats, déclarations et renseignements qui lui sont
fournis.
372 CONGRESS OF LAWYERS AND JURISTS

 

ARTICLE 23

Si le bénéfice de l’assistance judiciaire gratuite a été accordé au
ressortissant d’un des Etats contractants, les significations relatives
au méme procés qui seraient A faire dans un autre de ces Etats ne
pourront donner lieu qu’au remboursement par VEtat requérant
alEtat requis des frais occasionnés par l’emploi d’une forme spéciale
en vertu de l’article 3.

Dans le méme cas, l’exécution de commissions rogatoires ne don-
nera lieu qu’au remboursement par Etat requérant & Etat requis
des indemnités payées aux témoins ou aux experts, ainsi que des
frais nécessités par application éventuelle de l’article 14, alinéa 2.

V. CONTRAINTE PAR CORPS

ARTICLE 24

La contrainte par corps, soit comme moyen d’exécution, soit
comme mesure simplement conservatoire, ne pourra pas, en matiére
civile ou commerciale, étre appliquée aux étrangers appartenant 4
un des Etats contractants dans le cas ov elle ne serait pas applicable
aux ressortissants du pays. Un fait qui peut étre invoqué par un
ressortissant domicilié dans le pays, pour obtenir la levée de la con-
trainte par corps, doit produire le méme effet au profit du ressortissant
d’un Etat contractant, méme si ce fait s’est produit 4 l’étranger.

VI. DISPOSITIONS FINALES

ARTICLE 25

La présente Convention sera ratifiée et les ratifications en seront
déposées 4 La Haye, dés que six des Hautes Parties Contractantes
seront en mesure de le faire.

Il sera dressé de tout dépét de ratifications un procés-verbal, dont
une copie, certifiée conforme, sera remise par la voie diplomatique 4
chacun des Etats contractants.

ARTICLE 26
La présente Convention s’applique de plein droit aux territoires
européens des Etats contractants.
Si un Etat contractant en désire la mise en vigueur dans ses terri-
toires, possessions ou colonies, situés hors de l’Europe, ou dans ses
APPENDIX B 373

 

circonscriptions consulaires judiciaires, il notifiera son intention a
cet effet par un acte, qui sera déposé dans les archives du Gouverne-
ment des Pays-Bas. Celui-ci en enverra, par la voie diplomatique,
une copie, certifiée conforme, & chacun des Etats contractants. La
Convention entrera en vigueur dans les rapports entre les Etats qui
répondront par une déclaration affirmative A cette notification et les
territoires, possessions ou colonies, situés hors de l’Europe, et les cir-
conscriptions consulaires judiciaires, pour lesquels la notification
aura été faite. La déclaration affirmative sera déposée, de méme,
dans les archives du Gouvernement des Pays-Bas, qui en enverra,
par la voie diplomatique, une copie, certifiée conforme, 4 chacun des
Etats contractants.

ARTICLE 27

Les Etats représentée & la quatriéme Conference de droit interna-
tional privé sont admis 4 signer la présente Convention jusqu’au
dépét des ratifications prevu par l’article 25, alinéa 1°.

Apres ce dépét, ils seront toujours admis 4 y adhérer purement et
simplement. L’Etat qui désire adhérer notifie son intention par un
acte qui sera déposé dans les archives du Gouvernement des Pays-
Bas. Celui-ci en enverra, par la voie diplomatique, une copie, cer-
tifiée conforme, & chacun des Etats contractants.

ARTICLE 28

La présente Convention remplacera la Convention de droit inter-
national privé du 14 novembre 1896, et le Protocole Additionnel du
22 mai 1897.

Elle entrera en vigueur le soixantiéme jour 4 partir de la date ot
tous les Etats signataires ou adhérents de la Convention du 14 no-
vembre 1896, auront déposé leurs ratifications de la presente Con-
vention, et au plus tard le 27 avril 1909.

Dans le cas de l’article 26, alinéa 2, elle entrera en vigueur quatre
mois apres la date de la déclaration affirmative et, dans le cas de °
Varticle 27, alinéa 2, le soixantiéme jour aprés la date de la notifica-
tion des adhésions.

Tl est entendu que les notifications prévues par l’article 26, alinéa
2, ne pourront avoir lieu qu’aprés que la présente Convention aura
été mise en vigueur conformément 4 l’alinéa 2 du présent article.
374 CONGRESS OF LAWYERS AND JURISTS

ARTICLE 29

La présente Convention aura une durée de 5 ans a partir de la date
indiquée dans l’article 28, alinéa 2, pour sa mise en vigueur.

Ce terme commencera 4 courir de cette date, méme pour les Etats
qui auront fait le dépét aprés cette date au qui auront adhéré posteri-
eurement et aussi en ce qui concerne les déclarations affirmatives
faites en vertu de l’article 26, alinéa 2.

La Convention sera renouvelée tacitement de cing ans en cing
ans, sauf dénonciation.

La dénonciation devra étre notifiée, au moins six mois avant
Vexpiration du terme visé aux alinéas 2 et 3, au Gouvernement des
Pays-Bas, qui en donnera connaissance & tous les autres Etats.

La dénonciation peut ne s’appliquer qu’aux territoires, possessions
ou colonies, situés hors de |’Europe, ou aussi aux conscriptions con-
sulaires judiciaires, compris dans une notification faite en vertu de
Varticle 26, alinéa 2.

La dénonciation ne produira son effet qu’a l’egard de Etat qui
Vaura notifiée. La Convention restera exécutoire pour les autres
Etats contractants.

[Fait 4 La Haye, le 7 juin 1904.]
THE HAGUE CONFERENCES ON PRIVATE INTERNA-
TIONAL LAW (continued)

BIBLIOGRAPHY

(The following partial bibliography of what has been printed in
reference to The Hague Conferences for regulating different matters
of private international law has been prepared by Judge BALDwIN.]

1. Actes de la Conférence de La Haye, chargée de réglementer
Diverses Matiéres de Droit International Privé. La Haye, 1903.

2. Actes de la Deuxiéme Conférence dela Haye pour le Droit In-
ternational Privé. La Haye, 1894.

3. Actes de la Troisiéme Conférence de La Haye pour le Droit In-
ternational Privé. La Haye, 1900.

Martens, Recueil de Traités, xix, 424; xxi, 113; XXxili, 398; xxv,
217.

Supplément Général au Droit International, etc., pp. 97-114.
Paris, 1896. By Dr. CHartEes Catvo, Honorary Member of the
Institute of International Law, etc., etc.

La Conférence de La Haye relative au Droit International Privé.
By Professor Lainu.

Journal de Droit International Privé, 1895, No. v, vi, 465; vii-x,
734; 1904, No. v, vi, 746, etc.

Le Droit International Privé et la Conjérence de La Haye. By
Professor L. RENAULT, LL.D., Paris, 1894.

Les Conventions de La Haye [1896 et 1902] sur le Droit Interna-
tional Privé. By the same, Paris, 1903.

La Conférence de Droit International Privé de La Haye. By
Professor VILLA URRUTIA.

Revue @’ Histoire Diplomatique, No. 11, 1894.

La Conférence de Droit International Privé. By Dr. LEGRAND.

Séances et travaux de l Academie des Sciences Morales et Poli-
tiques (Institut de France) Compte rendu, etc., 1894. Premier
Semestre, 241.

Apuntes sobre la Conferencia celebrada en El Haya. Por el
Marqués DE HERRERA.

375
376 CONGRESS OF LAWYERS AND JURISTS

 

Boletin oficial del Ministerio de Estado. No. 2, Febr. 1894, 197.

La segunda Conjferencia de la Haya sobre el Derecho imterna-
cional privado. By the same.

Revista contempordnea, May, 1895.

La Conjerencia de El Haya. Por S. DE BUSTAMANTE.

Revista del Foro, Nums. 20-24, del afio 40. Havana, 1894.

Le Mariage en Droit International Privé et la Conférence de La
Haye. By Dr. Gurrtaume. Brussels, 1894.

La Conférence de La Haye, ou Codification du Droit international.
Par Professeur Apit BEY.

Bibliotheque de Droit. Constantinople, 1895.

De tweede Conferentie voor het Internationale Privaairecht. By
Dr. J. B. BREUKELMAN.

Themis, fasc. 55, Num. 4, 1895.

Der erste europiéische Staaten congress tiber internationalen Pri-
vatrechts. von Dr. Jur. F. Meili, O, O, Professor des internationalen
Privatrechts an der Universitat, Ziirich.

Allegemeine Osterreichische Gerichtszeitung, No. 21, 1894.

Das internationale Privatrecht und die Staaten Konferenzen im
Haag, Zurich, 1900. By the same.

Der Gegenstand und der Frag Weite der vier europiischen Staats
Konjerenzen iiber internationales Privatrecht. By the same.

Mitteilungen der Internationalen Vereinigung fiir vergleichende
Rechtswissenschaft und Volkwirtsschajtslehre, No. 24, Berlin, Jan-
uary, 19¢5.

Zweiter internationaler Kongress fiir internationaler Privatrecht
im Haag. By Dr. ‘Caun.

Zeitschrift fiir internationales Privat- und Strafrecht, 1895, 1.

Il diritto internazionale privato e la Conferenza diplomatica del
Aja. By Dr. Aucusto PrERANTONI, Professor of International
Law at the University of Rome.

La Rassegna agraria, industriale, commerciale, letteraria, politica,
artistica, 1895.

Le Mariage en Droit International Privé et la Conférence de La
Haye. Par Dr. Epmunp Marcwat. Secrétaire de ]’Academie
royale des Sciences, des Lettres et Sciences Sociétés et Politiques, et
des Beaux-arts de Belgique.

Bulletin de V Academie, No. 6, 1894.

Le chapitre du Divorce dans le protocole final de la Conférence
APPENDIX B 377

 

pour la Codification du Droit international privé, reunie en 1894
La Haye. By Dr. FLAISCHLEN.

Revue de Droit international, No. 3, 254, 1895.

Las Conferencias de Derecho internacional privado de El Haya.
By Dr. Manuet Torres Campos, Professor of Public and Private
International Law in the University of Granada; Member of the
Institute of International Law.

Revista General de Legislacién y Jurisprudencia, tomo 86, 533,
1895.

N. B.—Professor Torres Campos has also treated of The Hague
Conferences of 1893 and 1894 in his “Bases de una Legislacién sobre
Extraterritorialidad,’ Madrid, 1896, p. 196, and the first appendix
to it.

The Convention of The Hague of 14th November, 1896, especially
in connection with the Execution of Foreign Judgments. By Dr. C.
D. ASSER.

Report of the Twentieth Conference of the International Law As-
sociation [1901] 299.

The Desirability of the British Government Taking Part in the
Legal Conferences at The Hague on Private International Law, and
in a Conference for Securing Unity of Maritime Law. By Sir
Water Puitimore, Bart., D.C. L., Judge of the High Court of
Justice of England. Report of Twenty-first Conference of same
[1901], 80.

Quelques Réflexions sur les derniéres Conventions de La Haye,
concernant le mariage et la tutelle. By Mr. Louis OLiv1.

Revue de Droit International, etc., VI, Deuxiéme Série, 41.

Das Haager Abkommen iiber internationales Privatrecht. Von
Dr. Jur. Neumeyer.

Zeitschrift fir internationales Privat- und Strafrecht, etc., IX, 453.

La Codification du Droit International Privé. By Professor
T. M. C. Asser, Jur. Dr., Councilor of State, President of The
Hague Conferences.

Revue de Droit International, etc., Deuxitme Série. IV.

La Convention de La Haye du 14 Novembre 1896, relative a la
procédure civile. By the same. 1901.

La Codification du Droit International Privé. Quatriéme con-
jérence tenue 4 La Haye. By the same.

Revue de Droit International, etc. Deuxiéme Série. VI, 516.
378 CONGRESS OF LAWYERS AND JURISTS

The Beginnings of an Official European Code of Private Inter-
national Law. By Simeon E. Batpwin, LL.D., Associate Justice
of the Supreme Court of Errors of Connecticut. Professor of Private
International Law in Yale University. Yale Review, XII, 10. 1903.

The New Code of International Family Law. By the same.

Yale Law Journal. XII, 487. 1903.

The Hague Conference of z904 for the Advancement of Private
International Law. By the same.

Yale Law Journal, XIV, 1. 1904.
APPENDIX C
FOREIGN DECREES OF DIVORCE

Translation of Sig. Pavia’s Remarks on the subject:
“To What Extent Should Judicial Action by Courts of
a Foreign Nation be Recognized: Considered with
especial reference to the status of individuals as affected
by divorce or other decrees and the right to represent
the person or property of another.” (See p. 207 in
the body of the proceedings for the original in Italian.)

The divorce problem in Italy may be stated in these terms:
The august words of the King—upon an occasion when such a
statement becomes a binding promise—were: It is necessary to
regulate the marriage laws in order that the tyranny of perpetuating
discord in matrimony may be abolished.

This was said after a bill had been presented to Parliament in
force of which dissolution of marriage would be granted upon the
ground of conviction of crime, of incurable disease, of cruel and
inhuman treatment, and of desertion.

A statesman, whose death is mourned by the political and
juridical world, GrusEPPE ZANARDELLI, made himself champion of
this reform, but strong opposition from the church, so powerful in
Italy, succeeded in arresting the movement towards any modification
of the marriage laws.

To-day divorce still exists as a project of law in our parliamentary
records, but many years must pass before Italy shall count among
its civil laws the one which civilization demands, i. e., end to the
conjugal prison.

Meanwhile, to those oppressed by matrimonial infelicity only one
remedy appeared available. Between the love of country, which
constrains every one to remain citizen of the land which gave him
birth, and the bitter sorrow of unhappy domestic life, legal means
were found by which citizenship could be renounced in order to
obtain freedom from matrimonial bonds. Having obtained natural-

379
380 CONGRESS OF LAWYERS AND JURISTS

 

ization in a country where divorce is granted, the Italian could
return to his fatherland as a foreigner to ask the execution of a sen-
tence of divorce accorded to him in his land of adoption.

A fierce battle was waged around the newly discovered legal
means, both in. doctrine and in jurisprudence. The believers, the
timid, and the reactionists arose en masse to declare that a foreign
sentence could not be executed in the Kingdom, as it was merely a
subterfuge to enable the Italian magistrates to pronounce that
divorce which the Italian code declares to be against public order,
inasmuch as our legislation proclaims the indissolubility of matrimony.

On the other hand, the liberals and reformers held that the exequa-
tur of a fact not in jieri, but already accomplished in other countries,
was but a consequence of the respect owed to the laws of those coun-
tries. The jurists were divided into two camps, and while the courts
of Venice and Florence allowed the foreign sentences of divorce,
the Supreme Court of Turin—in a recent case which occasioned much
discussion among jurists—not only forbade the legalizing of foreign
divorces between former citizens of the Kingdom naturalized in other
countries, condemning the changed citizenship as jraus legis, but
also, always under the pretext of violation of public order, forbade
the recognition of divorce between foreigners. The last named
having always been foreigners had believed that Article 6 of Prelimi-
nary Dispositions in the Italian Code did not consist of vain words
when it stated that family relations are to be regulated by the laws
of the nation of which the foreigner is citizen.

Therefore, the decision of the Supreme Court of Turin is erroneous,
and as the denial of the said decision is of true international interest,
it behooves this Congress, here assembled for research looking to
the stability of justice in all civilized nations, to promulgate a resolu-
tion that in Italy—a land consecrated to justice—should not align
such a strange juridical error. All of you should be interested in
associating yourselves to combat this error.

Men come from every part of the world to enjoy the splendid
natural advantages, or to admire the beauty of the art which has
filled with gems the hundred cities of our Italy, and the attractiveness
of our environment draws many strangers to establish permanent
homes among us, some looking for rest and quiet on the shores of the
Bay of Naples, or in the golden shell of Palermo; others seeking more
wealth in the opulent cities of Lombardy. Now, if it be right that
APPENDIX C 381

 

these new citizens adapt themselves to the general laws, it is also just
that they should not lose all the privileges they enjoyed through the
laws of their former countries, i. e., the right to regulate their domestic
Telations, if necessary, by divorce.

I do not bring before you for discussion the question of former
Italian citizens who, having acquired foreign citizenship, may or
may not have the right to ask the Italian courts to acknowledge the
divorces obtained in their new country; I speak only for the for-
eigners’ right to the protection of our laws. I do not come to defend
a national right, I come to maintain with you and for you—our wel-
come guests from every far-away land, who come to Italy to enjoy the
stability of our climate, the warmth of our sun—that you may equally
enjoy the stability and the protection of our laws. Now, Article 3
of our Civil Code states that foreigners are admitted to share the
rights accorded to Italian citizens in Article 12, Preliminary Disposi-
tions, and by Article 941 of the Code of Civil Procedure, authorityis
bestowed upon foreign courts to pronounce upon cases relating to the
public laws of their respective states, and therefore we argue that the
tribunals of the Kingdom have the faculty of deciding upon cases which
regard the public laws of the other nations. According to Articles
105 and 106 of the Code of Procedure a foreigner can be summoned
before the tribunals of the Kingdom in any controversy whatsoever
non esclusa his status personal. It can be admitted up to a certain
point, that although being allowed to plead his rights before Italian
magistrates, a foreigner may not ask the declaration of divorce ab
origine in the Kingdom, but with the decree already obtained in the
foreign country, then nothing is asked but the acknowledgment in
Italy of the sovereignty of foreign practice in its own territory.

There is nothing contrary to our Public Laws in executing a
foreign decree of divorce, for the reason that it is simply giving recog-
nition of it as an act of foreign law. From the time the sentence is
pronounced in the foreign country between the parties pleading, they
have acquired their free status which is a true jus quesitum that
should be acknowledged by the Italian courts. This would not con-
stitute co-operation in the work of a foreign magistrate by an Italian
magistrate, as our opponents contend, but when an Italian judge is
called upon to establish a juridical act made and confirmed in a
foreign country, far from co-operating, he is simply acknowledging
the sovereignty of a foreign judgment, and does not concern himself
382 CONGRESS OF LAWYERS AND JURISTS

 

with the implied opposition to the national laws of public order in
Italy, nor does he constitute any point except the indirect effect of
the foreign sentence of divorce, and implying the acknowledgment
of the sovereignty of foreign justice.

Divorce being forbidden in Italy, and the indissolubility of mar-
riage proclaimed by reasons of public order, it follows as a legal
consequence that Italian magistrates cannot pronounce divorce,
whether asked by citizens or by foreigners, because, being a question
of public order, this law must be rigidly observed in the kingdom
regarding citizens as well as foreigners who are living under its laws,
but when it is a question of foreign divorce obtained by foreigners in
a foreign land, then it is not contrary to our laws of public order and
it cannot be forbidden to our magistrates to declare and to estimate
the juridical consequence of the status of the said foreigners which
has been legally constituted by competent foreign tribunal.

In this case the Italian magistrates have before them two for-
eigners who demand the acknowledgment of a fact which concerns
their personal status, the which is regulated by the laws of their
nation, and giving place to their request cannot disturb our public
order because it is a question of an act accomplished in their country
in conformity with the laws there in force.

It is said by our opponents that in pursuance of Article 12 of our
Preliminary Dispositions that foreign court sentences may not dis-
parage the prohibitory laws concerning persons, property, and acts or
the laws regarding in any manner whatsoever public order and
decency, but this is an error, inasmuch as a law of the Kingdom may
be derogated by a foreign sentence if it be authority respected by the
foreigner; but our laws have no such authority in what may concern
the status or the legal qualifications of the foreigners and their domestic
relations, because these are regulated by the laws of the nations to
which they belong, therefore the foreign decree of divorce pronounced
according to the personal status of the pair does not derogate the
Italian prohibitory laws.

Our opponents say, finally, that acknowledgment of a foreign
sentence of divorce is fraus legis, and that the Italian magistrates,
guardians and keepers of their country’s laws, must repulse any
offence whatsoever, in whatsoever manner it may be made to them.

The argument has no foundation in fact.

To plead an act fraus legis, it becomes necessary to show that
APPENDIX C 383

 

the agent is held under the law which he intends to elude. Now,
the actors in this case are and remain foreigners, either such ab
origine or become so by law, and if the law which regulates their
personal status be the foreign law and not the Italian law, it fol-
lows there cannot be jraus in availing themselves of a law which is
not one they would wish to elude.

Yesterday a German orator, sustaining with efficacy the thesis of
the immovable judge, named, in tones of admiration and reverence,
one renowned among Italian jurists, P. S. Mancini. Permit me,
to-day, to name in our honor, a German savant, Prof. WINDSCHRID,
the leader of the legion of Italian jurists who are bravely contending
in defense of our cause.

The jurisprudence of Germany, Switzerland, England, and your
own of the United States is in our favor, and I believe I am rendering
homage to the principle of solidarity when I invite you to sanction
upon this auspicious occasion, the principle that no authority may
touch the legal patrimony of foreigners in questions of personal
status, and therefore I propose to this Congress a motion which
voices these sentiments.

While in my quality of jurist I ardently desire to see in the land
of CESARE BECCARIA—one of the first among those who abolished the
death penalty—abolished the penalty of eternal marriage, which is
the moral death of all that is beautiful in family life, my heart feels
that the only indissolubility to which I can give my vote is the cult
of respect and of enthusiasm which I entertain for you—the powerful
priests of human justice.

I offer the following resolution:

Be it resolved by the Juridical Congress of Saint Louis, in conven-
tion assembled, through the res pect due the juridical personal patrimony
of foreigners in question of status, That in all nations in which strangers
enjoy civil rights, recognition shall be given their national sentences of
divorce.
APPENDIX D
EXTRADITION TREATIES

Observations submitted by his Excellency Senor Don
Manuel de Azpiroz in support of his resolution on the sub-
ject of extradition.

All progress in the path of law conduces to unfold and strengthen
the sentiment of human solidarity. The acquiescence in the feeling
that the punishment of grave offences against the social order becomes
a cause of common interest to all nations, is worthy of particular
consideration. This advanced step shows how desirable is the mutual
aid of governments in the operation of punitory justice, for the sake
of human solidarity.

The old prejudice that made one’s own country a shelter for
culprits from abroad, happily becomes less and less imperative.
The interest of men in the preservation of social order everywhere
increases whilst civilization approaches them favoring their inter-
course and expanding the field of their pacific ventures. Therefore,
the leaders of sovereign states are better disposed to deliver up
reciprocally refugees charged with or convicted of atrocious crimes,
and the legislators, in constitutional countries, to authorize the execu-
tive branch of government to take the proper action, by statutory
provisions or in virtue of diplomatic agreements, previously proclaimed
and enforced.

The treaties on extradition, that began by giving a short list of
crimes subject to the proceedings provided for, have gradually
engrossed the number of offences. Special regulations intended in
some states to facilitate the execution of extradition treaties or to fill
the lack of such conventions realize a parallel advancement.

Among the countries that excel in this exertion, Switzerland must
be mentioned first. Its legislative act on the subject includes all the
improvements attained to, till the close of the nineteenth century.
Mexico afterwards proclaimed, on May the roth, 1896, its Act on
extradition for both purposes above mentioned, namely, the com-
plement and the supplement of international stipulations on the

384
APPENDIX D 385

 

matter of extradition. The Mexican law followed in most points
the Swiss standard. 4y

A long experience had taught us how deficient is the system of
enumerating the offences which ought to cause the extradition of
their perpetrators. Serious difficulties, indeed, were soon arisen
from the task of adjusting the catalogue of crimes and the description
of the facts constituting some of them, in such a manner that they
should not dislike the names and definitions thereof given in the laws
of the contracting states. Often an offense is known under different
names; sometimes nominal identity does not imply an identical
ensemble of circumstances which determine the species of wrong-
doing, under the penal systems of several states. If a compound
vocabulary is introduced in order to obviate those discrepancies, the
natural unfitness in some particulars to the ideas and phraseology
accepted under the influence of customs and scholar theories which
are necessarily rather dissimilar to each other, shall prove likewise
annoying to both sides, thus doubling the obstructions which that
expedient was intended to remove. And in regard to this, it is
advisable not to forget that in the contentions sustained between the
parties interested in the proceedings on extradition, cunning lawyers
make use of all kinds of arguments, and that the conflict of penal
laws, confusion, and doubts therefrom arisen afford them a great
resource to defeat the salutary purposes set forth by the contracting
states in the very instrument governing the case in litigation. I
profess that to mathematically equalize the running of several watches
is less difficult than to obtain a perfect accord between definitions
given in laws of the independent states.

In order to apply these abstract considerations to concrete exam-
ples, let me, gentlemen, report only two cases really passed under
treaties concluded between Mexico and certain foreign states and
framed on the base of the usual list of some specially vexatious offences.

A Mexican court requested, through the diplomatic channel, the
extradition of the apparent author of an offence which is called
“‘ fraude’’ (fraud) in the penal code of the state where it took place.
To the request for the extradition of the accused, the respondent
government took exception to the fact that the wrong named fraud
was not found in the list of offences deserving extradition. The
prosecutor government replied that the corpus delicti, as it was shown
by the papers accompanying the requisition for the surrender of the
386 CONGRESS OF LAWYERS AND JURISTS

 

defrauder, was exactly the one contained in the definition of the
offense that in the treaty was termed ‘‘hurto, orobo sin violencia”’
(larceny), being therefore the ‘“‘fraude”’ consigned in the penal code
of the Mexican state and the larceny (hurto), registered in the con-
vention, synonymous terms. This argument, however, could not
convince the government requested, which went on to maintain
that the extradition was not authorized by the treaty, because it did
not include any offence under the name of ‘‘/raude”’ expressed in
the requisitory papers.

Another case. A theft of money was committed by means of
forged documents. According to the forum delicti’s law the forgery
of documents for the purpose of thieving does not constitute a specific
principal offence, but only an aggravation (circumstancia agravante)
of the wrong done or contemplated by its mean; whilst in the con-
cerning treaty, the list enumerates ‘‘Forgery, or the utterance of forged
papers” among the specific offences that can cause extradition.
By that reasoning the criminal proceedings were, according to the
law of the local jurisdiction, instituted for the offence of theft
(robo), and in the diplomatic requisition made for the surrender of the
accused as its author, care was taken to give warning as to a set
of forged papers through which the theft was fulfilled, as it was evi-
denced in the depositions upon which the warrant for his arrest was
issued and which were accompanying the requisition. This reasoning
was of no avail. The government to whom the demand was addressed
decided that, notwithstanding the evidence of the forgery produced,
the matter of the trial was not a forgery, but a theft (robo), whilst the
requisition, rather differently, expressed as the special matter of the
extradition proceedings a theft through a forgery, and that in the
treaty this offence was unknown, therein being found “Larceny,
defined to be the theft of . . . . money, etc.,” a species different from
‘Forgery or the utterance of forged papers.” This narrow judgment
formed under the influence of a casuistical jurisprudence pre-
vailed, and the thief and forger was released and his impunity pro-
tected by the authorities of the state wherein he got a refuge.

Some more and similar cases could be reported; but it is not
necessary to fatigue your kind attention by their narrative, being,
furthermore, easy to you to recollect other ones, perhaps met by you
in your practice, or to frame them in your minds according to the
premises.
APPENDIX D 387

 

To overcome such discrepancies the Mexican law introduced a
system that seems to be entirely satisfactory. It is carried out in
the few articles that I beg to translate here:

“Article 2. Extradition can only be granted by virtue of pun-
ishable offences of an ordinary nature, in their four degrees of at-
tempted, initiated, frustrated, and consummated offence as defined
in the penal code of the Federal District of Mexico, and which may
not be comprised within the following exceptions:

“T. Acts which are not punishable in the state requesting the
extradition.

“TI. Acts which can only be punishable by fine, or by imprison-
ment not above one year, in the Federal District of Mexico.

“TIT. Acts which, in conformity with the internal law of the state
requesting the extradition, deserve no greater punishment than a
fine, exile, or imprisonment for a term of one year.

“TV. Acts which in the Federal District of Mexico cannot be
prosecuted unless by a private complainant, if such a part does not
initiate the prosecution.

“VY, Acts which are no longer punishable, owing to prescription
of the action or of the punishment, in conformity with the penal
code of said District, or with the internal law of the state making
the requisition.

“VI. Acts which have been the matter of acquittal, pardon,
amnesty, or complete expiation on behalf of the accused.

“VII. Offences committed within the jurisdiction of the Republic.

“Article 4.—Section I. The state making the requisition must
prove:

“A. That the offences enumerated in Section II of this article,
their motives or purposes, even if considered as aggravating circum-
stances, shall not be the subject-matter of the prosecution proceed-
ings, unless the defendant shall voluntarily consent to be tried for
such offences, or if, having remained within the territory of said
state for more than two consecutive months, in perfect liberty to
leave it, he should not avail himself of that right.

“Section II. The offences to which the paragraph A refers are:

“A. Acts committed prior to the extradition, omitted in the
requisition or having no connection with those therein specified.

‘““B. Offences of a religious, political, or military nature, and
388 CONGRESS OF LAWYERS AND JURISTS

 

those constituting smuggling, even though connected with the com-
mon offence that may have given rise to the extradition; it being
understood that smuggling consists of the importation, exportation,
or traffic of merchandise in contravention of fiscal laws.

“Article 10. I. The extradition of criminals who may have been
slaves in the country where they have committed the offense charged
with shall not be granted.

“TI. No Mexican shall be surrendered to a foreign state, save
in cases deemed exceptional by the Executive of the Union.

“JIT. Persons naturalized in the Republic shall be surrendered
to a foreign government claiming them, if their extradition is asked
within two years after the time when they became naturalized.”

These rules being comprehensive enough and properly safe-
guarded by exceptions, they answer on one side to the requirements
of equity and politics, and comply on the other side with the praise-
worthy purpose of offering no asylum to fugitives from justice of
foreign countries, whose courts claim the right to try the accused
as a warning against crimes and offences. Those rules and their
exceptions solve doubts which often arise on the classification, dis-
crimination, or elimination of facts contemplated by the plenipo-
tentiaries and enumerated in the usual catalogue of the extradition
treaties.

As it has been stated, the Mexican system is characterized:

I. By the omission of particular denominations of offences; II. By
measuring the interest for extradition through the importance of
penalties inflicted upon the offenders.

Soon after the passage of the Mexican law on extradition the
Kingdom of Italy invited the Republic of Mexico to negotiate a treaty
on the same subject. My government expressed its earnest willing-
ness, and suggested to the representative of the Italian government
the introduction, in the project of the convention, of synthetical
rules similar to those in the Mexican law. After careful consideration,
the government of His Majesty, King Humbert received with favor
the principle and the essential features of the Mexican system, and
at the end of three years after its legal sanction, the Republic of
Mexico was highly gratified by the indorsement of such a reform
by a state where science of law has been masterly cultivated since
more than twenty centuries in all its branches, but chiefly in criminol-
APPENDIX D 389

 

ogy and in international law during the last period by many wise
men of worthy reputation.

The treaty on extradition between my country and Italy was
signed at the City of Mexico on the 22d of May, 1899, and was pro-
claimed in the Republic on the 13th of October in the same year.
Its articles bearing on my theme are as follows:

‘Article IT. Extradition will take place on account of common
offences excepting those that are indicated in Article IV. and which,
according to the laws of the two contracting states in force at the time
of the requisition, should have been or shall be punishable by inflicting
a penalty restricting personal liberty for more than one year.

“Extradition will also take place in cases of attempt to commit,
or of complicity in, such offences, whenever the attempt and the
complicity are punishable by imprisonment for more than one year
in conformity with the laws of the two countries.

“Article III. Extradition can be granted, at discretion of the
requested state, even on account of offences not included in the
preceding article, if the laws of both the contracting states, in force
at the date of the demand, allow it.

“Article IV. Extradition cannot be granted on account of:

‘“‘1, Unintentional offences.

“2. Printed libels.

“3. Offences of a religious or military character.

“a. Political offences, or deeds connected with the same.

“Extradition, notwithstanding, shall be granted, even when the
accused pleads a political cause or purpose, if the fact which is the
basis of the demand constitutes in itself a common offence.

“It is not deemed a political crime nor a crime connected with
it when an attempt is made against the life of the chief or sovereign
of any of the contracting states, or against members of their respec-
tive families, or against ministers of state, when the attempt con-
stitutes a punishable manslaughter or poisoning in any degree
whatever.”

Let me, gentlemen, be joined by you all in the hope that the
valuable example set by the nation which is rightly proud of having
inherited, cultivated, and increased the treasury of the Roman juris-
prudence, may be followed by the other prominent powers, when
390 CONGRESS OF LAWYERS AND JURISTS

they enter into negotiations either to adjust anew or to modify existing
treaties for extradition on the system introduced by Mexico in its
legislation for designating criminal facts that shall afford ground for
the surrender of their perpetrators seeking asylum in foreign coun-
tries, to their natural judges, for the sake of justice.

You, wise jurists, statesmen, and counselors to governments, if
you esteem the new system worthy of your influential commendation,
you will render to the administration of international justice a help,
deserving remembrance forever.
APPENDIX E

PLEA FOR AN INTERNATIONAL FORM OF ARTICLES
OF ASSOCIATION FOR JOINT STOCK
COMPANIES

De la necessite de faire adopter par tous les états
d’Europe et d’Amérique un meme principe fondamental,
international, pour la souscription du capital social et le
versement effectif, dans les sociétés par actions.

By M. LOICQ DE LOBEL, PARIS, FRANCE

La question de la réforme de la loi sur les sociétés par actions est
Vobjet d’une constante préoccupation chez les législateurs des dif-
férentes nations et particulitrement en Amérique.

Mais, soit qu’on recule devant l’importance de la tache & accom-
plir, soit qu’on redoute une obstruction systématique de la part de
certains états, qui considérent avoir donné aux sociétés le summum
des libertés permises, aucun pays n’a voulu prendre jusqu’ici l’ini-
tiative de la réforme radicale qui s’impose aujourd’hui.

Il y a en effet, des inégalités flagrantes entre les lois des divers
états americains, comme entre les lois des autres états d’Europe;
et cependant toutes ces lois s’appliquent dans chacun de ces états
aux mémes industries, qu’elles ont le devoir de seconder, sans pour
cela, donner aux sociétés qui subissent des régles plus sévéres ou de
plus lourdes charges, dans leur formation, des avantages supérieurs
a ceux dont jouissent ces mémes sociétés, quand elles vont se fonder
dans un autre état.

Sans vouloir faire la critique des lois en usage dans chacun des
états de |’Amérique, je puis aisément démontrer le préjudice con-
siderable que cette inégalité de régles cause aux Sociétés des divers
pays et j’espeére établir, par 14, lutilité de la réforme que je propose
au Congrés.

Nous avons en Europe, comme en Amérique, des états oi la loi
impose aux sociétés commerciales par actions, pour étre valablement
constituées, d’avoir la totalité de leur capital souscrit et une partie

391
392 CONGRESS OF LAWYERS AND JURISTS

 

de ce capital versée en espéces. En France la loi exige la totalité du
capital souscrite et le quart versé. En Belgique, c’est le dixigme
seulement qu’il faut verser en espéces, tandis que d’autres états
comme |’Angleterre et certains états de l’Amérique, permettent la
constitution des sociétés 4 un capital ‘‘actions” méme trés con-
siderable, sans imposer l’obligation d’avoir une partie des fonds
versés.

Il en résulte, comme nous le voyons trés souvent en France, que
les Sociétés, dont la souscription du capital peut rencontrer de
sérieuses difficultés, vont tout simplement se constituer en Belgique
ou en Angleterre pour venir ensuite proposer leurs actions sur le
marché frangais. Je suppose qu’il en est de méme aux Etats-Unis.

Je tiens 4 dire qu’il n’entre pas dans ma pensée de critiquer
les principes de la loi belge, dont la loi frangaise devrait, 4 mon sens
se rapprocher d’avantage; car elle me parait plus liberalement édictée
en vue de favoriser toutes les industries et le commerce.

Mais, je puis déplorer qu’é cété des régles sévéres, imposées par
notre loi frangaise aux Sociétés par actions, nous soyons forcés
d’accepter les libertés de la loi anglaise, 4 laquelle ont trop souvent
récours les fondateurs de Sociétés dont l’objet ne repose souvent
que sur des probabilités et parfois sur des chiméres.

Car, en effet, moyennant un léger droit de timbre, payé au Trésor
frangais, les sociétés étrangéres peuvent negocier leurs titres dans
les mémes conditions que les nétres. Elles offrent au public la méme
garantie, quant a la légalité de leur constitution et trés souvent les
-apparences de méme sécurité, selon l’habileté des lanceurs de l’affaire.
Mais elles ont surtout la faculté de majorer les apports, sans limite
d’aucune sorte et c’est 14 surtout que reside le danger pour l’épargne
nationale.

Nous avons subi les conséquences de ce facheux état de choses
dans plusieurs circonstances et je ne veux rappeler ici que le dernier
krach des mines d’or du Transvaal, da autant & l’énorme majoration
des apports qu’a la mauvaise foi de certains fondateurs.

Le premier contrecoup de cette anomalie c’est vous, Americains,
qui le subissez forcément; car nous attribuons aux actions de vos
sociétés les mémes risques qu’aux actions des sociétés anglaises et
votre papier n’a pas encore trouvé chez nous la faveur qu’il mérite,
par suite de l’alea qui reste attaché & cette inégalité d’obligations
dans la constitution. Et cependant vos actions de chemins de fer,
APPENDIX E 303

 

comme beaucoup d’autres, peuvent rivaliser, comme sécurité, avec
les ndtres et sont de celles qu’un pére de famille peut mettre en
portefeuille.

Par conséquent, le jour ot un systéme d’égalité dans les obliga-
tions sera établi dans chacun des états d’Europe et d’Amérique,
nous aurons une répartition plus équitable de Ja valeur du titre de
chacune des Sociétés; et le sécurité que réclame l’acheteur ne reposera
plus cette fois dans la forme de la Société ou sa nationalité, ou méme
dans la solvabilité des fondateurs, mais dans la valeur intrinstque
de l’entreprise et dans les résultats de son exploitation.

Je ne viens pas reclamer une restriction aux libertés des lois
anglaises, belges, ou americaines; mais je propose au Congres
d’étudier la possibilité de la formation d’une commission inter-
nationale, qui, apres examen, soumettrait aux divers états d’Europe
et d’Amérique l’adoption d’un méme principe fondamental inter-
national pour les obligations relatives 4 la souscription du Capital et
aux versements effectifs 4 opérer dans les Sociétés par actions.

Il m’a paru qu’il appartenait au Congrés de St. Louis de prendre
cette initiative pour le plus grand bien de tous les états. Je ne me
dissimule pas les difficultés de la tache qu’aura 4 accomplir cette
commission internationale; mais il faut qu’elle suive le progrés de
notre siécle et qu’elle fasse comprendre aux nations la necessité
d’avoir des lois identiques pour les emissions de valeurs industrielles
ou commerciales et la facilité de leur negociation sur tous les marchés
de l’étranger.

En agissant ainsi nous sauvegarderons en méme temps ’Epargne
publique.

Si ma proposition est prise en considération par le Congrés,
jaurai plus tard l’occasion de developper plusieurs clauses addition-
nelles et relatives: 1. 4 la reduction des Apports au quart du capital,
comme maximum; et 2. 4 l’autorization 4 donner aux organisateurs
d’une Société, & prélever sur les premiers fonds versés, une somme,
pouvant varier de 5 4 10 % pour faire face aux nécessités de l’organisa-
tion et aux frais de constitution légale; mais, avec Vobligation de
deposer en Banque, au compte personnel de la future société le sur-
plus encaissé par eux. De la sorte, si les efforts des organisateurs ne
pouvaient aboutir, pour la constitution définitive de la Société et son
exploitation régulitre, les souscripteurs rentreraient sGrement en
possession d’au moins go% des sommes qu’ils auraient versées.
APPENDIX F

NOTES ON CHINESE LEGISLATIVE PROCEDURE

By C. M. LACEY SITES, Puz.D.
Professor of Political Science in Nanyang College, Shanghai, China

This study is designed to outline the process of legislation in the
Chinese Imperial Government, not as a matter of politics, but
purely as a matter of constitutional forms. It is based mainly on
casual reading of the Peking Gazette, the time-honored official
bulletin of the Imperial Court—a small, yellow-backed journal
which is at present supplied to subscribers under the more descriptive
name of Repository of Edicts and Memorials.

As a preliminary matter, and in order to get an idea of the kinds
of subjects to which imperial attention is given, we may note the
contents of a single issue of this daily gazette, taken at random.
(The items are not numbered in the original, but, in giving a trans-
lated abstract, it will be convenient to distinguish them so.) The
issue for the second day of the second month of the twenty-eighth
year of the Emperor Kuang Hsii (11th March, 1902) has the following:

1. Officials of the Board of Ceremonial Observances, of the
Imperial Clan Court, of the Imperial Board of Astronomy, and
others, were presented at imperial audience by the Board of Civil
Office.

2. The Provincial General-in-Chief of Chihli asked the Emperor’s
Commands.

 

Bi , preliminary to going to Shanghai, asked the Emperor’s
Commands.
4. Duke , having attended the oracles at , reported

 

 

the discharge of his commission.

5. Duke asked leave of absence for ten days.

6. and were summoned to an interview with the
Grand Council.

7. It is the Imperial Will that
of absence,
office.

8. An imperial decree:

 

 

 

 

, having been granted leave
be commanded to discharge the duties of his

 

 

, having asked leave of absence,
394
APPENDIX F 305

 

 

the Board of Civil Office will direct
that office in addition to his own.

g. An imperial decree of considerable length, ordering military
officials to correct abuses in the army, and ordering provincial
officials to recommend plans for systematic military instruction.

ro. An imperial decree chiding provincial officials for delay in
establishing provincial colleges as previously commanded.

11. A memorial from high officials at Canton, reporting the
results of an inspection of a government school in which modern
languages are taught, and recommending successful graduates to
official rank. (‘‘Let the proper Board consult and memorialize.”)

12. A memorial respecting administrative details in Manchuria.
(‘‘ Notice taken.”’)

13. A memorial from the Viceroy of Fuhkien and Chekiang
provinces respecting the appointment of a district magistrate. (“Let
the Board of Civil Office consult and memorialize.”’)

14. A memorial from the same Viceroy, reporting upon the work
of his subordinates.

15. A memorial from the Governor of Chekiang province.

We may observe that these fifteen items fall into four groups:
a. Items 1 to 6 are mere matters of court routine; b. Item 7 is an
informal expression of the imperial will; c. Items 8 to 10 are formal
expressions of imperial commands; and, d. Items 11 to 15 are repre-
sentations from high officials, to which are attached, in most instances,
indorsements showing action taken upon them by the throne. We
are now concerned with such forms and processes as are exemplified
in groups ¢ and d.

It must also be observed, however, that none of these items
appear to bear a distinctively legislative character. They all have
rather an administrative tone; and this will be found true of almost
all pronouncements of the throne. It is doubtful whether any dis-
tinction is drawn by Chinese officials between the two species of
acts. In clearly legislative acts, as will be seen later, the forms
employed are the same as in properly administrative acts. As to
the real nature of the act, the ambiguity is common enough outside
of China. For example, French usage permits the President to
perform acts, by decree, which, in America, would be reserved to the
Legislature. The distinction becomes less significant in practice in
a state, like China, in which the chief executive is also the supreme

to assume the duties of
396 CONGRESS OF LAWYERS AND JURISTS

 

legislative authority. In the interest of distinctness, however, we
may call formal administrative acts decrees, while the term edict may
be reserved to those acts of a monarch which are more properly
legislative.

In modern constitutional governments there may generally be
distinguished three stages in legislation: (1) The initiative, or pro-
posal of a project of law; (2) the passing or adoption of the
project by act of a legislative body; (3) the sanction and promulga-
tion of this act, as law, by the executive.

In a monarchic state, like China, these functions may, of course,
be completely merged. But although the Chinese monarchy is
autocratic in form, the government is aristocratic in practice, and,
in the ultimate facts of local self-regulation, the state has many of
the elements of democracy. So far as imperial legislation is con-
cerned, the established procedure bears a certain analogy to that
observed in parliamentary governments. Any of the high officials,
at Peking or in the provinces, may introduce a project of law by
memorial to the throne. The memorial goes through regular chan-
nels whereby the throne obtains the advice (and, practically, the
consent) of legally constituted organs of government. The final
enactment, the edict, is in form the act of one supreme will; but in
fact, like the assent of the King of England to an act of Parliament,
it is more automatic than autocratic. In this sense, and as respects
the dominance of established usage, the Chinese Government may
be said, in all its branches, to be under the restraints of constitutional
limitations, as the British Government is—but the analogy must not
be pressed too far.

A Memorial opens with the name, rank, and official title (in re-
verse order to that here given) of the memorialist, who “worshipfully
sets forth that,” etc., and reverently invokes the august notice and
action upon the matter set forth. It closes with a similar invocation,
sometimes in more specific terms. A common form, at the present
time, is to invoke expressly both Their Imperial Majesties, by title,
the Empress Dowager being first named, then the Emperor.

The memorial, when officially published, usually carries an
indorsement indicating what action has been taken upon it by the
throne. There are a few formulas which constantly recur in this
connection, such as those cited in items 11, 12, and 13 above. Some-
APPENDIX F 397

 

times the formula may amount to an enacting clause. For example,
a memorial of last year (29th Kuang hsii, 12th month, 23d day),
presented by three chief ministers at Peking, praying the establishment
of a general superintendency of education, had for indorsement the
word Chih, “It is our will.” More frequently, however, memorials
embodying projects of legislation are referred to one of the “six
Boards” or other ministries of state, or to two or more ministries
jointly. A common formula is, “‘Let the Board of ..........----
consult speedily and frame a memorial on the matter.’ In such a
case, if the project, when reported back by this Board, is considered
suitable for legislative action, it is likely to be made the subject of a
subsequent formal edict.

An imperial edict is always introduced with two words, Shang Yu,
the first meaning “high” or “‘supreme,” the second word meaning an
utterance or proclamation, the two together being regularly under-
stood to signify a pronouncement of the throne. With this simple
introduction, the edict proceeds directly to the subject matter. In
all important enactments, however, it is customary to enter upon the
subject matter with a considerable preamble, which often recites one
or more memorials in which the project has been proposed either
by way of initiative or by way of report from a ministry to which the
initiatory memorial had been referred. In any case, it is necessary
to have a “whereas” or two. The Chinese mind is nothing if not
reasonable—arguing from its own premises. Argumentative matter
frequently occupies large space in the introduction of an edict, or
even in the body of it. This practice suggests a considerable regard,
on the part of the law-giver, for public sentiment. It may also com-
port with a patriarchal conception of government — the father of a
great people calling his children to come and reason together—even
though the conclusion of the matter be predetermined.

An edict often puts forth an important project of legislation in
terms of general policy only, and concludes by calling upon certain
ministries or officials, or upon officials generally, to memorialize the
throne with detailed propositions for the working out of the scheme.
A notable example of such legislation is found in the famous edict
of 27th Kuang Hsii, 7th month, 16th day (1901), which abolished
the traditional scheme of tests in civil service examinations and
introduced tests on modern subjects. This essentially revolutionary
398 CONGRESS OF LAWYERS AND JURISTS

 

edict, as promulgated, occupied only about eighteen lines of twenty-
two characters each. About six lines consist of preamble, setting
forth the abuses of the old system and the new demands of the
times; about eleven consist of legislation proper, directing what
classes of subjects should thereafter be made the basis of the exam-
inations and outlining the principles to be observed in judging papers;
while one line is occupied with a command to the Board of Ceremonial
Observances and the special Commission on Government Affairs,
jointly, to consult together and report a detailed plan for carrying
out the law. Here the original enactment, general in its terms, may
be regarded as legislation proper. The detailed plan for working
out this general policy, when later reported, approved, and duly
promulgated, might rather be regarded as an administrative decree.

An edict often ends with the formula, ‘‘Let this be proclaimed
abroad for information.” After the formula, or after the conclusion
of the edict proper, if no formula be used, two words always appear,
which are commonly translated as “‘Respect this,’’ in which sense
they might be regarded as part of the imperial pronouncement.
Another rendering is, ‘‘Reverently received,” the formula being
understood as added in the office which receives the edict from the
Emperor for promulgation. However rendered, the effect is in the
sense of, ‘‘ This is the imperial will.”

In conclusion, it may be fitting to mention one organ of the
Chinese government which has a peculiar and suggestive function,
namely, the Censorate. The censors, to the number of half a hundred
or more, are scattered about in the provinces and at the capital. In
common with other high officials it is their prerogative to memorialize
the throne on any subject of importance to the state, but it is their
peculiar duty to watch against abuses in government, against mal-
feasance of any sort, and to impeach high officials, or even the throne
itself, for transgression or dereliction. The official tenure of censors,
to be sure, like that of other officials, rests in the pleasure of the
sovereign. Nevertheless, censors often show boldness and indepen-
dence, even to the point of heroism, in their impeachments. Projects
of needed legislation, also, often come up first as memorials from
censors. The functions of the censors thus suggest, ina dim way,
some important functions of the American House of Representatives.
Like that body they are supposed to serve in a peculiar relation as
APPENDIX F 309

guardians of the interests of the people and of the traditions of the
state. A brilliant Chinese official, educated in Europe, has said to
me, “The censors are to China what the House of Commons is to
England.” At least we may regard the Censorate as one of those
excellent institutions of the Chinese state which give promise that
many of its ancient forms may yet be vitalized into beneficent facts.
INDEX
INDEX

 

(Names of speakers in small capitals.)

 

Abbott, B. F., 285.

Abbott, Nathan, 304.

Acheson, Marcus W., 277.

Adams, Elbridge L., 297.

Adams, Elmer B., 282, 323.

Adams, Samuel, 306.

Administrators and Executors, For-
eign (see Executors).

Ailshie, James F., 283.

Aiken, E. C., 297.

Alabama State Bar Association, List of
Delegates from, 290.

Alaskan Boundary Commission, The,
33-

Alfani, Alberto, 276.

Allen, Charles Claflin, xiii, 280, 315,
323) 327-

Allen, E. T., 308.

Alvey, Richard H., 277.

Ambler, B. Mason, 308, 321.

American Bar Association, references
to, 1, 6, 107, 172, 176, 235, 236, 256-
260, 263, 264; various proposed
resolutions sent to, to be transmitted
to a subsequent Congress, 266-267;
list of ex-presidents of, 279; list of
Delegates from, arranged by States
and Territories, 285; reports of
Committee on Louisiana Purchase
Exposition, 318, ef seg.; appropria-
tion by, for the purposes of the
Congress, 329.

Ames, C. B., 299.

Ames, James Bart, 307.

Amphictyonic Council of the Greek
States, Io.

Amsterdam, Delegate from the Fac-
ulty of Law of the University of, 276.

Anderson, William A., 302.

Andrews, A. B., Jr., 298.

Andrews, James DeWitt, 280.

Andrews, Lorrin, 279.

Angert, E. H., 330.

Appel, W. N., 308.

Appendix, 313.

Arbitration (see International Arbitra-
tion).

Archambault, H., 271.

Arellano, Cayetano, 279, 300.

Argentine Republic, Delegate from,
270.

Arizona, Bar Association of, List of
Delegates from, 290.

Arkansas, Bar Association of, List of
Delegates from, 290.

Arkansas, University of, Delegate from
the Law Department of, 304.

Armistead, H. M., 290.

Arnold, C. W. H., 297.

Arnstein, Albert, 309, 323.

Articles of Association (see Joint Stock
Companies).

Asp, Henry E., 288.

Association of American Law Schools,
List of Delegates from, 304.

Austria, List of Delegates from, 270.

Auten, Voris, 299.

Avery, Lincoln, 295.

Aylesworth, Allen Bristol, 271.

Babb, James E., 303; communication
from, concerning international ex-
change of law publications, 233;
resolution based thereon adopted,
234.

Babbitt, Kurnel R., 285.

Baer, George F., 300.

Baker, Benjamin S., 296.

403
404

INDEX

 

Baker, Charles S., 292.

Baker, H. A., 331.

Baker, Rhodes S., 301.

Bakewell, Paul, 287, 330.

Baldwin, Clark E., 295.

BALDWIN, SIMEON E., xvi, 279, 320, 3273
elected a Vice-President, 8; moves
the election of Moorfield Storey as a
member of the Committee of Na-
tions, 114; remarks of, upon the four
Hague Conferences for the advance-
ment of private international law,
172; presides in the absence of Pres.
Brewer, 184; remarks of, as Acting
President, 185, 207, 227, 229, 231,
233) 235-

Ball, Dan H., 295.

Bane, Charles H., 290.

Bankruptcy, The Hague draft treaty
upon, discussed, 129, 157; text of
the treaty, 363; the recognition to be
accorded judicial action by courts of
a foreign nation im re bankruptcy
matters, 204.

Bannon, J. W., 298.

Banquet, 63.

Bar Association of St. Louis (see St.
Louis).

Barclay, Shepard, 309, 323.

Barnard, Joe, 284.

Barnes, Charles A., 309.

Barnes, William H., 290.

Barrett, William E., 302.

Bartch, George W., 283.

Bartlett, Edmund M., 287.

Barton, R. M., Jr., 301.

Bate, J. Pawley, 274.

Battle, B. B., 283.

Baxter, Ed., 301, 320, 321.

Baxter, Irving F., 287.

Bayless, S. O., 298.

Beale, Joseph H., Jr., 304, 305.

Bean, R. S., 283, 320.

Beard, W. D., 283, 301.

Beaty, A. L., 301.

Beck, George F., 330.

Becker, Tracy C., 297.

Belgian system of procedure in trial of
civil actions, 95.

Belgium, List of Delegates from, 270.

Belser, W. G., 300.

Benedict, Robert D., 288.

Benedict, Wm. S., 294.

Bennett, R. B., 271.

Bergen, James J., 287, 296.

Berndes, R., 273.

Bibliography of The Hague Confer-
ences on Private International Law,
375:

Bicksler, W. S., 309.

Biggar, Oliver M., 271.

Biggs, J. Crawford, 298.

Bingham, Edward F., 284.

Bispham, George Tucker, 280.

Bissell, Julius B., 291.

Black, Alfred L., 302.

Black, Charles, C., 296.

Black, J. C. C., 291.

Blair, Henry P., 291.

Blair, James L., 323.

Blake, S. R., 3or.

Blanchard, L. C., 293.

Blodgett, Henry W., 331.

BLONDEL, GEORGES, 273; elected a
member of the Committee of Na-
tions, 61; speaker at banquet, 63.

Blount, William A., 285.

Board of Lady Managers of the
Louisiana Purchase Exposition, Re-
ception by the, to the Delegates and
ladies, 268.

Boddaert, Henri, 270.

Bonaparte, Charles, J., 280.

Bonnefield, M. S., 304.

Bonner, J. W., 301.

Booth, Henry J., 298.

Borah, W. E., 303.

Bordeaux, Delegate from the Univer-
sity of, 273.

Boston University Law School, Dele-
gate from, 307.

Boudeman, Dallas, 295.

Boyd, James E., 298.

Boyle, Wilbur F., 280, 323.
INDEX

Bradford, J. C., 301.

Bradwell, James B., 291.

Brainerd, Cephas, 297.

Branham, Joel, 291.

Brannon, W. W., 309.

Braxton, A. C., 289.

Brazil, Vice-President from, elected,
185; Delegate from, 271.

BREAUX, JOSEPH A., 283; remarks of,
229.

Breckenredge, Ralph W., 296.

Breckons, Robert W., 291. .

Breen, William P., 280.

Brennan, Michael, 295.

Brewer, DAVID J., xv, xvii, 277, 3273
President of the Congress, 000, 000;
inaugural remarks of, 4; remarks of,
as presiding officer, 8, 45, 52, 60, 61;
speaker at the banquet, 63; remarks
of, as presiding officer, 90, 95, 99,
100, 102, II4, 116, 134, 172}; re-
marks of, on The Hague Confer-
ences, 177; as presiding officer, 181;
temporarily resigns the chair, 184;
resumes the chair, 268; remarks of,
closing the Congress, 268.

Brewster, James H., 307.

Bridgers, John L., 288.

Brifaut, Valentin, 61, 270.

Brill, Hascal R., 295.

Briscoe, John P., 283.

British Columbia, Delegates from the
Law Society of, 271.

Bromberg, Frederick G., 290.

Brown, Frederick V., 309.

Brown, George H., 298.

Brown, H. B., 277.

Brown, J. Hay, 299.

Brown, James F., 309.

Brown, Rome G., 287.

Brown, T. J., 283.

Brown, W. Jethro, 275.

Browne, A. B., 280, 320.

Bruce, Andrew A., 288.

Brunialti, A., 273, 275.

Brussels, Order of Advocates of, Dele-
gates from, 270.

405

Bryan, W. Christy, 330.

Buckler, William Hepburn, 274.

Bunn, Henry G., 283.

Burford, John H., 284.

Burgess, William H., 301.

Burkett, Harlan F., 298.

Burleigh, Clarence, 300.

Burns, A. D., 296.

Burroughs, J. B., 298.

Burwell, B. F., 284.

BusBEE, Faprus H., 309, 320; offers a
resolution in regard to illness of
George F. Hoar, 64; moves suspen-
sion of rules, 232.

Butler, Charles Henry, 280; illness of,
necessitates a substitute as a_pri-
mary speaker, 238.

Butler, Hugh, 309, 318, 320.

Button, Frederick H., 309, 321.

Byers, Lawrence M., 306.

Cabinet, The lawyers of, Delegates to
the Congress, 278.

Cadwalader, John, 288.

California State Bar Association, List
of Delegates from, 290.

Cambridge University, Delegates from
the Law Faculty of, 274.

Campbell, Given, 323.

Canada, List of Delegates from, 271.

Carey, Charles H., 288.

Carey, Martin, 297.

Carlisle, John G., 280.

Carmichael, J. H., 304.

Carney, J. L., 293.

Carr, George H., 309.

Carr, Lewis E., 297.

Carson, Hampton L., 288.

Carter, H. C., 301.

Carter, James C., 279.

Cary, Alfred L., 302.

Castle, William R., 291.

Catania, Italy, Delegates from the
Order of Advocates of, 275.

Catlin, Daniel K., 331.

Catron, Thomas B., 288, 320.

Caulfield, Henry S., 323.
406

Ceylon, List of Delegates from, 272;
Delegate from the Law Society of,
272.

Chaplin, Hugh R., 294.

Chaplin, T. F., 331.

Chase, Arthur H., 296.

Cheney, A. E., 304.

Chicago, University of, Delegates from
the Law School of the, 305.

China, List of Delegates from, 272.

Chinese Legislative Procedure, Notes
on, a paper by C. M. L. Sites, 395.

Chinese method of procedure in trial of
civil actions, remarks upon, by
Chow Tszchi, 115.

Choate, Joseph H., 280.

Cuow TSzcuI, xv, 272; elected a Vice-
President, 8; speaker at the banquet,
63; remarks of, on methods of civil
procedure in China, 115.

Christie, Harvey, L., 323.

Christy, George D., 290.

Church, Melville, 285.

Ciancico, Francesco, 275.

Civil actions (see Trial of).

Civil Law Methods of Trial (see Trial
of Civil Actions).

Civil Procedure, Treaty upon (1896),
discussed, 121, 139; text of the
Treaty, Appendix, 332.

Clabaugh, Henry M., 277.

Clark, Washington, 300.

Clarke, John F., 297.

Clayton, Henry D., 278.

Clearwater, Alphonso T., 297.

Cleaveland, H. G., 330.

Clement, L. H., 298.

Clifford, Charles W., 287.

Cochran, Alexander G., 287, 323.

Cocke, William H., 330.

Cockrell, Francis M., 278.

Code Napoleon (see Trial of Civil
Actions).

Cohn, M. M., 309.

Colahan, John B., Jr., 299.

Cote, C. C., 293, 306; remarks of, 108,
Itt.

INDEX

Cole, Clarence L., 296.

Colegio de Abogados de Filipinas,
Delegates from, 300.

Colgrove, Phillip T., 295.

Colie, E. M., 296.

Coller, Julius, 295.

Collins, Charles Cummings, 330.

Colorado Bar Association, List of
Delegates from, 291.

Colorado, University of, Delegate from
the School of Law of the, 305.

Colt, Le Baron B., 277.

Columbia University, Delegates from
the School of Law of, 307.

Columbian University (The George
Washington University), Delegates
from the Dept. of Law of, 305.

Committee of Nations, The, election
of, 60; first meeting of, 61; report of,
102; notice of meeting, 114; vacancy
filled, 114; report of, 178; member
from Brazil added, 185; report of,
233; report on proposed interna-
tional bar association, 255; report
on various resolutions, 264-267.

Committees: On Plan and Scope, xiii,
327; Exposition Committee, 323;
American Bar Association Com-
mittee on Louisiana Purchase Ex-
position, 319; Committee on Pro-
gramme and Rules, 327; on Ways
and Means, 330; on Entertainment,
330; Escort Committee, 330.

Common Law method of trial (see
Trial of Civil Actions).

Comparison of methods of procedure
in trial of civil actions (see Trial of
Civil Actions).

Conant, Ernest B., 306.

Congress of American Republics
(City of Mexico, 1902), 15.

Congress of the United States, List of
the Government Delegates taken
from, 278.

Conjugal relations, The Hague draft
treaty upon, discussed, 128; text of
the draft treaty, 354.
 

INDEX 407
Conkling, Virgil, 324. De Armond, David A., 278.
Conrad, Holmes, 280. DE Azprrroz, MANUEL, xvi, 276;

Conventions and Convention Projects,
Text of the Various Hague, 332.

Cook, W. W., 307.

Cooper, Lawrence, 290.

Cornell University, College of Law,
Delegate from, 308.

Cornish, Leslie C., 294.

Coste, Paul F., 309, 323.

Cotter, John W., 320, 321.

Coudert, Frederick R., Jr., 280.

Cozier, R. V., 303.

Crain, John H., 293.

Crane, Frederick E., 297.

Crawford, Coe I., 289.

Crawford, W. L., 301.

CrosBy, J. O., 293; remarks of, 262.

Cummins, A. B., 286.

Cunningham, Edward, Jr., 309, 330-

Cunningham, George A., 292.

Cunningham, Henry C., 291.

Cunningham, S. M., 299.

Curran, William R., 292.

Curtis, William S., 307.

Cuthbert, L. M., 291.

Czar of Russia, Rescript of (1898),
15, 18.

Dabney, Lewis S., 303.
Dale, H. F., 306.
Dalzell, John, 278.
Daniel, John W., 278.
Daniels, Edward, 293.
Danish System of Civil Trial (see
Trial of Civil Actions).
D’Arcy, Edward, 331.
Davidson, Samuel P., 296.
Davis, E. P., 271.
Davis, Frank D. N., 295.
Davis, Henry E., 285.
Davis, James C., 320, 321.
Davis, J. Lionberger, 330.
Davis, Manton, 330.
Davis, Theodore P., 292.
Day, William R., 277.
De Andreis, Victor, 275.

elected a Vice-President, 8; speaker
at the banquet, 63; resolution
offered by, 231; argument in sup-
port of resolution, 384; resolution
reported, 266; referred to American
Bar Association, 267.

De Daninos, Arnoldo, 276.

Deemer, H. E., 283.

de Graffenried, Edward, 290.

De La Garza, Emeterio, 276; elected
member of the Committee of Na-
tions, 61.

Delegates-at-Large (U.S.), List of,
308.

Delegates, List of, 270.

DE Lopez, Loice, 273; resolution
offered by, 266; argument of, 391.

del Rosario, Tomas G., 300.

Dennis, William Cullen, 304.

Denver, University of, Delegates from
the School of Law of, 305.

De Sadeleer, Louis, 270.

Dessau, Washington, 291.

Deutsch, Henry, 295.

Dewey, Henry S., 287.

De Wiart, L. Carton, 272.

Dickinson, Don M., 280, 321.

Dickinson, J. M., 33, 280; elected a
member of the Committee of Na-
tions, 61; departure of, from the
Congress, causes a vacancy, in™the
Committee, 114.

Dickinson, M. F., 280.

Dickson, Samuel, 280.

Dietrich, F. S., 303.

Dillard, F. C., 309, 318, 321.

Ditton, Joun F., 279; remarks of,
103; defence of the jury system,
107.

Diplomatic agents, im re Police Regu-
lations, g. v.

Director of Congresses of the Univer-
sal Exposition, xiii.

District of Columbia, Bar Association
of the, List of Delegates from, 291.
408

INDEX

 

Diven, George M., 297.

Divorce, The Hague treaty upon, dis-
cussed, 125, 151; text of the treaty,
342; foreign divorce decrees, the
recognition to be accorded, discussed,
198, 207, 220, 379.

Doan, Fletcher M., 284.

Doertenbach, Paul, 273; elected a
member of the Committee of Na-
tions, 61.

Dole, Sanford B., 279.

Donalson, J. E., 291.

Doolan, J. C., 294.

Douglas, Albert, 298.

Douglas, Edward W., 297.

Dovetas, RoBERT M., 283; remarks
of, 230.

Doyle, John H., 298.

Drake University (Iowa College of
Law), Delegates from, 306.

Drouin, F. X., 271.

DryDEN, JOHN N., 296; remarks of,
263.

Dudley, C. A., 306.

Dunbar, James R., 303.

Dundy, Charles L., 309.

Durand, Lorenzo T., 295.

Du Relle, George, 309.

Du Val, Ben T., 320.

Dyer, H. Chouteau, 330.

Earnest, John P., 305.

Eastman, Samuel C., 309, 320.

Eaton, Amasa M., 280.

Eckstein, Otto G., 293, 324.

Eddy, Arthur J., 292.

Edinburg, Delegate from the Univer-
sity of, 274.

Edings, W. S., 284.

Edson, Joseph R., 309; resolutions
offered by, 184; resolution of, on
harmonization of patent laws,
adopted, 233; resolution on estab-
lishment of a bureau of criminology,
referred to American Bar Associa-
tion, 266, 267.

Edward VII., King, 44.

Egypt, List of Delegates from, 272.

Egypt, Methods of Trial in, 109.

Eicher, H. M., 293.

Elder, Samuel J., 303.

Eliot, Edward C., 287.

Ellinwood, Everett E., 285.

Elliott, Charles B., 295.

Ellis, A. C., 309.

Ellis, Wade H., 208.

Ellison, Thomas E., 293.

Emety, Lucilius A., 283.

England, Delegates from the General
Council of the Bar of, 274.

English Common Law Method of
Trial (see Trial of Civil Actions).

Estabrook, Henry D., 288.

Evans, E. B., 306.

Evans, H. K., 293.

Evans, Montgomery, 299.

Evans, Walter, 282.

Ewing, John G., 309.

Ewing, Nathaniel, 299.

Ex-Attorneys General of the United
States, Living (1904), 278.

Ex-Presidents of the American Bar
Association, Living (1904), 279.

Exposition, St. Louis (see Louisiana
Purchase Exposition Company).

Executors and Administrators, Status
of foreign, discussed, 202.

Extradition of fugitives from justice,
resolution touching treaties upon,
offered by Sr. de Azpiroz, 231; argu-
ment in support thereof, 384; re-
ported by Committee of Nations,
266; referred to American Bar Asso-
ciation, 267.

FAuLcranTz, G. E., xvi, 276; elected
a Vice-President, 8; elected a mem-
ber of the Committee of Nations,
61; paper by, 64-90; supplementary
remarks of, 100.

Fairbanks, Charles W., 278.

Farrington, E. S., 304.

Faulkner, Charles J., 302.

Faurest, L. A., 294.
INDEX

409

 

Federal Judges (U. S.) who accepted
invitations to become members of
the Congress, 282.

Fell, D. Newlin, 283.

FERNANDEZ, José V., xv, 270; elected
a Vice-President, 8; member of the
Committee of Nations, 60; motion
offered by, 62; argument in support
of motion, 182; report on motion,
by Committee of Nations, 182.

Ferrara, Order of Advocates of, Dele-
gate from, 275.

Ferraris, Carlo Francesco, 275; elected
a member of the Committee of Na-
tions, 61.

Ferriss, Franklin, 309, 323.

Field, Frank Harvey, 297.

Fiero, J. Newton, 297.

FINKELNBURG, G. A., 280, 323; motion
offered by, im re laws of maritime
warfare, 62; report on motion of, by
Committee of Nations, 180; paper
by, 237-245; resolution of, recom-
mended to be presented to the next
Hague Conference, 265.

Finlay, Sir R. B., 274.

Fish, Daniel, 295.

Fish, Frederick P., 287.

Fisher, D. D., 295.

FitzGerald, Justice, 271.

Fleischmann, Simon, 298.

Fleming, John D., 305.

Fletcher, John, 285.

Florance, Emest T., 309.

Florida, Delegate from, appointed by
the Supreme Court, 303.

Follansbee, George A., 286.

Follett, A. D., 309.

Fotitetr, Martin D., 309; motion
offered by, 237; remarks of, 255,
261.

Fordyce, S. W., Jr., 330-

Foreign Decrees of Divorce, Remarks
of Sig. Pavia on, 207 (English
Translation), 379.

Foreign Delegates, List of, 270.

Foreign Possessions of the United
States, Government Delegates from,
279.

Forney, J. H., 303.

Forster, George M., 309, 321.

Fortunato, Ernesto, 275.

Foster, JoHN W., 280;
9-45.

Fowler, David, 283.

Fox, Austen, G., 288.

Fox, Edward J., 299.

Fox, James D., 283.

Fox, John Scott, 274.

France, List of Delegates from, 272.

Francis, D. R., President of the Ex-
position, xiii; address of welcome by,
2; approves memorial, 317.

FRANCOTTE, GUSTAVE, Secretary of
State of Belgium, speaker at the
banquet, 63.

Franklin, Thomas H., 3o1.

Frazer, Robert S., 300.

Freeman, Henry V., 292.

Freeman, W. P., 292.

Freeman, Winfield, 293, 324.

French system of civil procedure (see
Trial of Civil Actions).

Frost, Edward W., 309.

Fuller, Melville W., 277.

Fur Seal Arbitration at Paris, (1893)

31.

paper by,

Gaglio, Cologero, 275.

Galbraith, C. A., 284.

Gallencamp, C. F., 324.

Galt, Smith P., 309.

Gans, Edgar H., 294.

Gantt, James B., 283.

Garesché, V. W., 330.

Garneau, Leon, 271.

Garnett, Theodore S., 280, 302.

Gast, Charles E., 291.

General Council of the Bar of Eng-
land, Delegates from the, 274.

Geneva Arbitration, The, 12, 27, 31,

53:
410

INDEX

 

George Washington University, The
(see Columbian University).

Georgia Bar Association, List of Dele-
gates from, 291.

Georgia, University of, Delegates from,
305.

German civil procedure (see Trial of
Civil Actions).

Ghent, Order of Advocates of, Dele-
gate from, 270.

Gere, George W., 292.

Germany, List of Delegates from, 273.

Gibbs, Hunter A., 300.

Gibson, N. A., 292.

Gilbert, Barry, 306.

Gilbert, William B., 277.

Gill, Joseph A., 284.

Gillette, F. E., 284.

Gilmore, E. A., 308.

Giordana, P., 276.

Glasgow, William A., Jr., 289.

Glenn, James Morrison, 271.

Geotchius, H. R., 291.

Goff, Nathan, 277.

Gongalves, Lopes, xv, 271; elected a
Vice-President and member of the
Committee of Nations, 185.

Goodrich, Ben, 2go.

Gose, John T., 305.

Government Delegates from the
United States, List of, 277-281.

Grace, H. H., 302.

Graham, Samuel C., 302.

Grant, Alexander, 274.

Grant, Claudius B., 283.

Graves, Carroll B., 302.

Gray, George, 309, 320.

Great Britain and Ireland, List of
Delegates from, 274.

Greeley, Louis May, 306.

Green, J. W., 293, 324.

Gregory, Charles Noble, 306.

Gregory, Stephen S., 286.

Grey, Norman, 296.

Griffin, Samuel, 302.

Griggs, John W., 278, 321.

Gross, William L., 292.

Grosscup, Peter S., 282.

Grossman, E. M., 330.

Grover, J. H., 331.

Grubb, Ignatius C., 283.

Guardianship of Minors, The Hague
Treaty upon, discussed, 126, 154;
text of the treaty, 345; status of,
foreign judgments affecting, dis-
cussed, 203, 225.

Guthrie, George W., 288.

Guthrie, William D., 280.

Hadley, Hiram E., 283.

Hager, John F., 294.

Hagerman, Frank, 287.

HAGERMAN, JAMES, xiii, 280; speaker
at the banquet, 63; remarks of, 256;
Am. Bar Association Committee,
317, 319) 323) 325) 327-

Hagerman, Lee W., 330.

Hague Conferences on Private Inter-
national Law, The (see International
Lau', Private).

Hague Conventions and Convention
Projects, Text of the, 332.

Hague Peace Conference, The, 11-60;
the American Delegates, 17; dis-
tinction between different confer-
ences at The Hague, 135; resolution
welcoming a new peace conference,
179.

Hague Tribunal, The, 9-60.

Haight, Albert, 283.

Hainer, Bayard T., 284, 320.

Haiti, Delegate from, 275.

Hall, Claud D., 331.

Hale, John C., 299.

Hall, James Parker, 305.

Hall, Walker C., 294.

Hamill, Charles H., 292.

Hamilton, Alexander, 289.

Hamlin, Hannibal E., 286, 320, 321.

Hammond, Edwin P., 292.

Hammond, Eli Shelby, 282.

Hammond, W. M., zor.

Hancock, W. Scott, 331.

Haney, Dick, 283.
INDEX

4I1

 

Hanford, Cornelius H., 282.

Hanford, Solomon, 297.

Hardin, John R., 296.

Hargest, Wm. M., 299.

Haring, Cornelius I., 303.

Harker, Oliver A., 292, 306.

Harlan, James S., 309.

Harlan, John M., 277.

Harlan, John Maynard, 292.

Harmon, Judson, 278, 320.

Harnish, M. M., 309.

Harriman, Edward A., 307.

Harriman, Edward Avery, 285.

Harris, Addison, C., 293.

Harris, S. H., 299.

Harris, W. O., 286.

Harrison, George P., 290.

Hart, W. O., 309.

HARTMANN, ADOLF, xv, 273; elected a
Vice-President, 8; speaker at the
banquet, 63; remarks of, 91, 110.

Hartshorne, Charles H., 296.

Harvard Law School, Delegates from,
307.

Harvey, Thomas B., 310, 323.

Harwood, Thomas E., 310.

Hastings, William G., 296.

Haughton, R. B., 310, 323.

Hawaii, Bar Association of, List of
Delegates from, 291.

Hawkins, John J., 290.

Hawkins, W. A., 296.

Hay, John, 278.

Hayes, Samuel, 306.

Hayes, William S., 274.

Hearne, David, 272.

Heiskell, F. H., 301.

Helm, Lynn, 310.

Hemenway, Alfred, 280, 320.

Henderson, David B., 286.

Henderson, D. S., 300.

Heney, Francis, J., 280.

Henning, D. C., 299.

Hensel, W. U., 288, 320.

Hepburn, Charles M., 288, 306.

Herbert, C. L., 292.

Hereford, F. H., 290.

Herndon, J. C., 310, 319.

Hessberg, Albert, 298.

Higgins, Frank M., 310.

High Seas, Protection to private prop-
erty on the, in time of war (see
Private Property).

Hill, B. H., 291.

Hill, David B., 297.

Hill, James E., 301.

Hill, Joseph M., 290.

Hill, Walter B., 305.

Hills, W. J., 310, 319.

Hinkley, John, 280.

Hinton, Edward W., 307.

History of the Organization of the
Congress, 315.

Hoar, George F., 278; resolution in
regard to illness of, presented, 64;
resolutions on the death of, pre-
sented, 332; referred to Committee
of Nations, 233; reported favorably,
264; adopted, 265.

Hoar, Rockwood, 303.

Hobgood, F. P., Jr., 298.

Hodges, William V., 291, 305.

Hoffman, William, 293.

Hogate, Enoch G., 306.

Hogg, J. S., 302.

Hogsett, T. H., 299.

Holdom, Jesse, 291.

Holland, R. A., Jr., 331.

Holliday, John H., 330.

Holmes, J. T., 298.

Holmes, Oliver Wendell, 277.

Holt, William H., 284.

Hook, William C., 282.

Hopkins, E. H., 299.

Hornblower, William B., 280.

Horner, H. R., 300.

Hough, Warwick, 295, 330.

House, J. W., 290.

Howe, William Wirt, 279, 294, 320.

Howry, Charles B., 282.

Hoyt, Henry M., 278.

Hoyt, James H., 280.

Hoyt, Lucius W., 285, 305.

Hubbell, Charles Bulkly, 297.
412

Huberich, Charles H., 308.

Hudson, J. H., 300.

Hurraker, F. M., 304; remarks of,
262.

Huffcut, Ernest W., 297, 304, 308.

Hughes, Allen, 290.

Hundley, Oscar R., 285.

Hungary, Delegate from, 275.

Hunsaker, William J., 290.

Hunt, William H., 279.

Hunter, Gordon, 271.

Hunter, William R., 292.

Hurley, M. A., 302.

Husband and wife, the rights and
duties of, The Hague draft treaty
upon, discussed, 128; text of the
draft treaty, 354.

Hutchins, Edward, W., 303.

Idaho, Delegates from, appointed by
the Supreme Court, 303.

Illinois College of Law (Dearborn
University), Delegates from, 305.
Illinois State Bar Association, List of

Delegates from, 291, 292.

Illinois, University of, Delegates from,
306.

Incorporated Law Society of the
United Kingdom, Delegate from the,
274.

Indian Territory Bar Association, List
of Delegates from, 292.

Indiana Bar Association, List of Dele-
gates from, 292, 293.

Indiana University, Delegates from
the Law School of, 306.

Ingalsbe, Grenville M., 297.

Ingersoll, Henry H., 289.

Interchange of law publications, Reso-
lution favoring, 234.

International Arbitration, discussed,
by J. W. Foster and others, 9-60;
Washington Conference on, 26, 28,
39, 42; proposed resolution on,
180; disposition of resolution, 179.
(See also Hague Peace Conjer-
ences.)

INDEX

International Bar Association: Organ-
ization of one proposed, 113; report
on, by Committee of Nations, 234;
resolution offered by Committee of
Nations, 235; remarks of Sir W. R.
Kennedy, 236; vote on resolution
deferred, 237; debate upon, 255-264;
Committee’s resolution adopted,
264.

International Civil Procedure, The
Hague Treaty upon, discussed, 139;
text of the treaty, 332.

International Controversies, The pro-
motion of the settlement of, whether
by resort to The Hague Tribunal or
reference to special commissions:
paper by John W. Foster, 9; dis-
cussion by Emilio Velasco, 45; J. H.
Ralston, 52.

International Law, Private, A review
of the Four Hague Conferences on,
The object of the Conferences and
probable results: paper by D. J.
Jitta, 117; paper by F. Meili, 135;
remarks of Judge Baldwin, 172;
President Brewer, 177; text of The
Hague Treaties on, 332; bibliog-
raphy, 375.

International Law Association, Refer-
ences to, 142, 143, 162, 185, 187,
194, 196, 236, 256-263; Delegate
from, 274.

International Private Law, The Hague
Treaty upon, discussed, 144; text of
the treaty, 338.

Internationale Vereinigung fir Ver-
gleichende Rechtswissenschaft und
Volkswirthschaftslehre zu Berlin,
Delegates from, 273.

Interparliamentary Union, Resolution
touching the work of the, in behalf
of Peace, 178. (See also Peace
Congress.)

Iowa College of Law (Drake Univer-
sity), Delegates from, 306.

Iowa State Bar Association, List of
Delegates from, 293.
INDEX

413

 

Iowa, State University of, Delegates
from the College of Law of, 306.
Treland, Delegate from the Incorpor-

ated Law Society of, 274. (See
also Great Britain and Ireland.)
Irving, Aemilius, 271.
Italy, Attitude of, im re foreign decrees
of divorce, 207; list of Delegates
from, 275.

Jackson, A. A., 302.

Jackson, Clifford, L., 310, 320.

Jacobs, Thomas P., 302.

James, Edmund, 273.

James, Francis B., 288.

January, William L., 287.

Jenkins, James G., 277.

Jenkins, John J., 278.

Jenkins, Theodore F., 300.

Jennings, Andrew J., 303.

Jennings, Robert, W., 285.

Jewett, Charles L., 293.

Jirra, D. J., xvi, 276; elected a Vice-
President, 8; elected a member of
the Committee of Nations, 61;
paper by, 117-134.

Johnson, Frank Asbury, 291.

Johnson, John D., 310, 323.

Johnson, John G., 280.

Johnston, W. A., 283.

Joint stock companies, desirability of
an international form of articles
of association for, Resolution touch-
ing the, 266; argument by L. de
Lobel, 391; referred to Am. Bar
Association, 267.

Joline, Adrian H., 288.

Jones, A. A., 296.

Jones, Burr W., 289.

Jones, James C., 330.

Jones, W. Martin, 297.

Jonson, Jep C., 294.

Jordan, David Starr, 304.

Jordan, John H., 299.

Judd, J. W., 301.

Judges, Federal (U. S.), Delegates to
the Congress, 282.

Judges, State Supreme, Delegates to
the Congress, 283.

Judgments, Foreign, 7” personam, 191,
215, 228; in rem, 197, 219; affecting
status, 198; touching marriage and
divorce, 198, 207, 220; recognition
of foreign administrators and execu-
tors, 202; foreign guardians and
curators, 203, 225; bankruptcy, 204;
the Italian attitude toward foreign
decrees of divorce, 207; excess of
jurisdiction, 216; want of notice to
defendant, 216; fraud, 217. (See
Judicial Action, etc.)

Judicial action by courts of a foreign
nation, Extent of recognition to be
accorded: paper by Sir W. R. Ken-
nedy, 186; discussed by A. Pavia,
207; W. Nesbitt, 213; E. Q. Keas-
bey, 227; Jos. A. Breaux, 229;
R. M. Douglas, 230. (See Judg-
ments, Foreign.)

Judiciary, Delegates from the Ameri-
can, 282.

Jupson, FREDERICK N., 287, 3233
remarks of, 103, 104.

Jury (see Trial by Jury).

Kales Albert Martin, 306.

Kammerer, A. E., 331.

Kane, M. J., 299.

Kansas, Bar Association of the State
of, List of Delegates from, 293;
committees of, 324.

Kerassey, Epwarp Q., 281; remarks
of, 227.

Keeling, J. H., 274.

Keller, Benj. F., 282.

Kelley, John S., 294.

Kellogg, F. H., 292.

Kellogg, Frank B., 280.

Kellogg, Ralph, 297.

Kelly, Joseph L., 302.

Kemp, Wyndham, 301, 310.

KENNEDY, Sir WILLIAM R., xv, 274;
elected a Vice-President, 8; speaker
at the banquet, 63; paper by, 186-
414

207; remarks of, 236; presides in
absence of Pres. Brewer, 184; re-
marks of, as Acting President, 237,
245, 247, 251, 253, 255, 264, 265,
268.

Kent, Edward, 279.

Kent, Henry T., 310, 323, 330.

Kentucky State Bar Association, List
of Delegates from, 294.

Kern, R. H., 310, 323.

Kernan, Thomas J., 286.

Ketcham, William A., 310, 317, 320.

Keysor, William W., 307.

Kibler, Edward, 299.

King, Edmund B., 299.

Kirchwey, George W., 304, 307.

Kittredge, Alfred B., 278.

Klein, Jacob, xiii, 281, 323, 327, 329

Knowles, Hiram, 282.

Knox, P. C., 278.

Koon, M. B., 295.

Kruttschnitt, Emest B., 281, 294.

Labastida, Luis G., Jr., 276.

Ladd, Sanford B., 295.

Ladd, Scott M., 293.

La Fontaine, Henri, 270.

Lamm, Henry, 295.

Larnaude, F., xv, 272; elected a Vice-
President, 8.

Lathrop, Gardiner, 310, 324.

Law Publications and Statutes, Reso-
lution favoring the international
exchange of, 234.

Lawrence, W. R., 284.

Law Schools, American, List of those
sending Delegates, 304.

Law Societies (see geographical
names).

Lawson, John D., 310.

Lawson, Thomas G., 291.

Laylin, L. C., 298.

Lee, John F., 310, 323.

Leger, J. N., 275.

LeHMANN, F. W., xiii, 281, 323,
327; remarks of, in opening the
Congress, 1; speaker at the banquet,

INDEX

63; moves the election of a Vice
President from Brazil, 185.

Lehmann, Sears, 330.

Leland Stanford Junior University,
Delegates from, 304.

Letton, G. B., 296.

Levi, T. Arthur, 275.

Lewis, William Draper, 308.

Lewis, Joseph W., 330.

Libby, Charles F., 281, 318, 321.

Library of Congress, Exchange bureau
of, 234.

Liddon, Benjamin S., 310, 320.

Lindsley, Smith M., 297.

Lionberger, Isaac H., 281, 323, 330.

List of Delegates accredited to the
Congress, 270.

Little, Gilbert F. 284.

Littlefield, Charles E., 278.

Locan, WALTER S., 281, 317, 320}
resolution offered by, thanking the
Exposition Company and various
bar associations for their hospitality
to the Delegates, 184; remarks of,
258; resolution of, adopted, 267.

Lorente, P. Tomas, 308.

Lougheed, J. A., 271.

Louisiana Bar Association, List of
Delegates from, 294.

Louisiana Purchase, 1, 108.

Louisiana Purchase Exposition Co.,
Memorial from, to the American
Bar Association, inviting participa-
tion in organization of the Congress,
315; meeting place of Congress, 1;
greeting from, 2; banquet given by,
63; vote of thanks to, 267; references
to, 256 318-326; appropriation
made by, for the purposes of the
Congress, 329.

Louvain University, Delegate from,
270.

Ludwig, John C., 302.

Lunacy, The Hague draft treaty upon,
discussed, 128, 154; text of the
treaty, 358.

Lurton, Horace H., 277.
INDEX

415

 

McAlister, W. K., 283.

McAlvay, Aaron V., 295.

McBride, Henry, 310.

McCain, W. S., 310.

McClain, Emlin, 283, 321.

McClellan, Thomas N., 319.

McClench, William W., 303.

McClung, William H., 300.

McComas, L. E., 310, 320.

McCormick, Marshall, 302.

McCreary, Alvin J., 281.

McDermott, E. J., 294.

McDonald, J. E., 300.

Macdonnell, Sir John, 274.

McDonough, John T., 300.

McFie, John R., 284.

McHenry, W. H., 306.

Mack, Julian William, 305.

McKeehan, Joseph P., 299.

McKeighan, J. E., 310, 323.

McKenna, Joseph, 277.

McKenney, Frederic D., 291.

Mackey, Paul F., 299.

McLean, Donald, 298, 310.

Macmaster, D., 271.

McNulty, George F., 292.

McPherson, Smith, 282.

McQuown, Lewis, 294.

MacVeagh, Wayne, 278.

Madden, Joseph, 296.

Magruder, Benjamin, D., 283.

Maine State Bar Association, List of
Delegates from, 294.

Maine, The University of, Delegates
from the School of Law of, 307.

Maiorana, Gaetano, 275.

Malone, J. H., 301.

Manchester (see
sity.)

MANDERSON, CHARLES F., 280, 320;
speaker at the banquet, 63.

Manila, University of Sto. Tomds of,
Delegate from, 308.

Manly, Clement, 298.

Mansen, Edward W. D., 274.

Mapa, Victoriano, 300.

Marbury, Wm. L.,; 294.

Victoria Univer-

Marriage, The Hague Convention
upon, discussed, 122, 145, 147;
text of the treaty upon, 338; foreign
judgments touching marriage, dis-
cussed, 198, 220.

Marshall, Louis, 297.

Martin, J. Norman, 299.

Martin, T. B., 290.

Maryland State Bar Association, List
of Delegates from, 294.

Marvin, U. L., 298.

Mason, Henry F., 283.

Massachusetts, Delegates from, ap-
pointed by the Supreme Court, 303-
304.

Matheny, James H., 292.

Mattingly, William F., 291.

Maury, William A., 305.

Maxwell, Lawrence, Jr., 288.

Mayhew, A. E., 310, 321.

Mert, F., xvi, 276; elected a Vice-
President, 8; elected a member of
the Committee of Nations, 61;
paper by, 135; appendix containing
the text of the various Hague con-
ventions and convention projects,
332-

Meldrim, P. W., 281.

Members, List of, 270.

Mercur, Rodney A., 281.

Mestrezat, Leslie S., 283.

Metcalf, C. W., 301.

Mexican Mixed Claim Commission
(1869), 545 56.

Mexico, List of Delegates
276.

Michigan State Bar Association. List
of Delegates from, 295.

Michigan, University of, Delegates
from the Dept. of Law of. 307.

Mikell, William E., 308.

Milburn, John G., 297.

Miller, John S., 292.

Miller, T. S., 289.

Miller, W. H. H., 278.

Milliken, J. D., 293.

Mills, W. J., 284, 296.

from,
416

INDEX

 

Minnesota State Bar Association, List
of Delegates from, 295.

Minor, Raleigh C., 310, 321.

Missouri Bar Association, List of
Delegates from, 295-296; vote of
thanks to, 267.

Missouri, University of, Delegates
from the Law Dept. of, 307.

Mollohan, Wesley, 302.

Monroe, Charles, 310, 320.

Montgomery, M. A., 310, 320.

Monti-Guarnieri, Stanislao, 275.

Montpellier, Delegate from the Uni-
versity of, 273.

Montreal, Delegates from the Junior
Bar Association of, 271.

Moody, Wm. H., 278.

Moore, C. F., 302.

Moore, J. M., 310.

Moore, J. W., 301.

Moore, John Bassett, 281.

Moore, Joseph B., 283.

Moores, Merrill, 286.

Moot, Adalbert, 297.

Mordecai, T. Moultrie, 310, 320.

Morgan, John T., 278.

Morling, Edgar A., 293.

Morrill, John A., 294.

Morris, John, 286.

Morris, Martin F., 284.

Morris, Sylvanus, 305.

Morris, Thomas J., 282.

Morrow, William W., 282.

Morton, J. R., 294.

Moses, Adolph, 292, 318, 320.

Mosman, C. A., 295.

Moulton, Henry P., 303.

Munger, Wm. H., 282.

Nagel, Charles, 281.

Naples, Order of Advocates of, Dele-
gates from, 275.

Nash, L. J., 302.

Nebraska State Bar Association, List
of Delegates from, 296.

Nebraska, University of, Delegate
from the College of Law of, 307.

NERINCX, ALFRED, Xv, 270; elected a
Vice-President, 8; remarks of, 95.
NESBITT, WALLACE, 272; elected mem-
ber of Committee of Nations, 61; as
chairman of Committee, reports,
Io02, 178; speech on the recognition
of foreign judgments, 214; presents
report of Committee of Nations,

233, 255, 264-267.

Netherlands, Delegate from, 276.

Nevada, Delegates from, appointed by
the Supreme Court, 304.

New Hampshire, Bar Association of
the State of, List of Delegates from,
296.

New Jersey State Bar Association,
List of Delegates from, 296.

Newman, Jared T., 297.

Newman, William T., 282.

New Mexico Bar Association, List of
Delegates from, 296.

New York State Bar Association,
References to, 29, 43; list of Dele-
gates from, 297-298.

Nicholson, John R., 283.

Nichols, H. S. Prentiss, 299.

Nields, Benjamin, 285.

Niles, Alfred S., 294.

Niles, Henry C., 299; resolutions
offered by, on death of George F.
Hoar, 232.

Niles, William H., 303.

Noble, John W., 281, 323.

North Carolina Bar Association, List
of Delegates from, 298.

Northwest Territories, Delegates from
the Law Societies of the, 271.

Northwestern University, Delegates
from the Law School of, 306.

Norton, J. K. M., 302.

Norwegian System of Civil Trials
(see Trial of Civil Actions).

Notes on Chinese Legislative Proce-
dure: a paper by C. M. L. Sites, 395.

Nott, Charles C., 277.

Nova Scotia (see Canada).

Noyes, George H., 303.
INDEX

407

 

Obeyesekere, D., 272.

O’Brien, Denis, 283.

O’Brien, Thomas J., 287.

O’Donnell, Thomas J., 285.

Officers of the Congress, oo.

Ogden, Howard N., 305.

Oglesby, Ira D., 310.

Ohio State Bar Association, List of
Delegates from, 298.

Oklahoma Bar Association, List of
Delegates from, 299.

Oldham, Willis D., 296.

Olin, John M., 303.

Olney, Richard, 278.

Orendorf, Alfred, 292.

Organization of the Congress, xiii;
history of, 315.

Orlady, George B., 299.

Orrick, Allen C., 330.

Ostrander, Russell C., 295.

Overall, John H., 323.

Oxford University, Delegates from the
Law Faculty of, 274.

Padua University, Delegate from the
Faculty of Law of, 275.

Page, George T., 292.

Page, Howard W., 299.

Palmer, Henry W., 278.

Palmer, Truman F., 286.

Pancoast, J. L., 284.

Papers read: J. W. Foster, 9; G. E.
Fahlcrantz, 64; D. J. Jitta, 117;
F. Meili, 135; Sir W. R. Kennedy,
186; G. A. Finkelnburg, 237.

Pardee, Don A., 277.

Park, O. A., 291.

Parker, Cortlandt, 279.

Parker, R. Wayne, 287, 296, 320, 321.

Parker, Samuel, 293.

Patent laws, Resolution favoring the
harmonization of, in different coun-
tries, 233.

Patterson, Lindsay, 298.

Patterson, Thomas, 281.

Patteson, S. S. P., 289.

Pattison, E. W., 310.

Pavia, ANGELO, xvi, 276; elected a
Vice-President, 8; speaker at the
banquet, 63; remarks of, on foreign
decrees of divorce, 207; resolution
offered by, 213; English translation
of remarks by, 279.

Peace Conference (see Hague Peace
Conference).

Peace Congress, The (1904), 45, 178.
(See Interparliamentary Union.)

Pearce, James A., 283.

Peck, George R., 281.

Peckham, Rufus W., 277.

Peckham, Wheeler H., 281.

Peele, Stanton C., 305.

Pennsylvania Bar Association, List of
Delegates from, 299, 300.

Pennsylvania, University of, Delegates
from the Dept. of Law of, 308.

Pennypacker, Samuel W., 299.

Pereles, James M., 303.

Perkins, Robert J., 294.

Permanent Court of Arbitration (see
Hague Tribunal).

Permanent organization (see Inter-
national Bar Association).

Perry, Charles W., 295.

Peter, Arthur, 305.

Pettus, William G., 331.

Philippine Bar Association, List of
Delegates from, 300.

Philips, John F., 282, 324.

Phillimore, George G., 274.

Pickens, Samuel O., 293.

Pickle, G. W., 301.

Pieris, R. E., 272.

Piguit, M., 273.

Pilcher, J. S., 301.

Pious Fund Case, The, 32-60.

Pittman, Key, 304.

Pleadings, under various systems of
law (see Trial of Civil Actions).
Police Regulations, Infraction of, by
diplomatic agents, resolution touch-
ing presented and referred to Com-
mittee of Nations, 232; reported

unfavorably, 266.
418

INDEX

 

Pollock, John C., 282.

Pope, William H., 279

PorTER, V. M., iii, vii, xiii, xvi, 60-64,
184, 267, 310, 327, 329; chosen
Secretary of the Congress, xvii;
articles by, as Editor of the Report,
v, 63, 315-

Potter, Charles N., 283, 321.

Potter, William P., 283.

Pound, Roscoe, 296.

Powers, Llewellyn, 294.

Prankerd, Archibald A., 274.

Priest, H. S., 295.

Prince Edward Island, Delegate from

~ the Law Society of the Province of,
271.

Private Property on the High Seas in
Time of War, The Protection which
should be accorded to; paper by
G. A. Finkelnburg, 237; discussed
by A. von Stibral, 245; E. P.
Wheeler, 247; Moorfield Storey,
251; G.S. Robertson, 253.

Proceedings of the Congress, first day,
1; second day, morning session, 64;
afternoon session, 114; third day,
morning session, 185; afternoon
session, 237.

Provosty, Oliver, O., 283.

Pruden, W. D., 298.

Quebec, Civil Trials in the Province
of, 111.

Quebec, Delegates from the General
Council of the Bar of the Province
of, 271.

Quinones, José Severo, 279.

Ralls, Joseph G., 286.

Ratston, J. H., 291; remarks of, 52.

Ralston, Robert, 299.

Rassieur, Leo, 310, 323, 330.

RAWLE, FRANCIS, 280; nomination of
Vice-Presidents by, 8; announce-
ment by, 63; resolution offered by,
232; resolution of, referred to Ameri-
can Bar Association, 266-267. “

Rawlins, W. Donaldson, 274.

Rawlinson, J. F. P., 274.

Raymond, Charles W., 284.

Read, J. F., 290.

Read, W. H. A., 298.

Real y Pontificia Universidad de Sto.
Tomds de Manila, The, Delegate
from, 308.

Redwine, R. B., 298.

Reed, James H., 281.

Renkin, Jules, 270.

Rescript of the Emperor of Russia
(1898), 15, 18.

Resolutions adopted: welcoming an-
nouncement of Pres. Roosevelt that
he will call a new peace conference,
179; on desired harmony of patent
laws in different countries, 233; on
international exchange of law pub-
lications, 234; requesting Am. Bar
Association to organize an inter-
national bar association, 264; on the
death of Geo. F. Hoar, 265; recom-
mending the consideration by the
next Hague Conference of a pro-
posed change in the laws of mari-
time warfare, 265; other resolutions
referred to Am. Bar Association to
be transmitted to a subsequent
congress, 266, 267; vote of thanks,
267.

Reyburn, Valle, 311, 323.

Reynolds, George V., 331.

Reynolds, Ross, 300.

Rice, Charles E., 299.

Rice, J. Kearny, 296.

Rice, W. G., 300.

Richards, H. S., 304, 308.

Richards, John K., 281.

Riddell, William Renwick, 271.

Riggs, James M., 292.

Right of Search of neutral vessels,
Resolution touching, presented, 232;
reported by Committee of Nations
and referred to Am. Bar Associa-
tion, 266, 267.

Robb, Bamford, A., 320, 321.
INDEX

419

 

Robert, Edward S., xiii, 281, 323, 327.

Roberts, Vasco H., 307.

Robertson, George, 296.

ROBERTSON, GEORGE S., 274; remarks
of, 253.

Rodenbeck, Adolph J., 297.

Rogers, Henry T., 291.

Rogers, Howard J., Director of Con-
gresses, xiii.

Rogers, James T., 297.

Rogers, John H., 282.

Rogers, Platt, 281.

Rogers, William P., 304.

Rolapp, H. H., 311.

Rollitt, Sir Albert K., 274.

Roman methods of trial of civil actions
compared with modern methods
(see Trial of Civil Actions).

Rome, Order of Advocates of, Dele-
gates from, 275.

Ronan, E. D., 297.

Roosevelt, President, references to,
V, 32-34, 44, 51, 62, 63, 179, 244.

Root, Elihu, 281.

Rose, George B., 281.

Rose, James H., 293.

Rose, U. M., 280, 321.

Rosendale, Simon W., 297.

Roulhac, Thomas R., 290.

Rouse, John D., 294.

Rowe, L. S., 273.

Rowell, Clinton, 311, 323.

Roy, R. F., 296.

Rudd, William Platt, 288.

Ruhl, C. H., 300.

Rules of Organization and Procedure,
xvii.

Runnells, John S., 286.

Russell, Alfred, 320, 321.

Russell, Henry M., 302.

Russell, J. J., 296.

Rutledge, Benjamin H., 311.

Rutledge, Thomas G., 330.

St. John, C. J., 301-
St. Louis, Bar Association of, its part
in the organization of the Congress,

V, 322, 326, 327, 328; membership
of Committees, 323; appropriation
by, for purposes of the Congress,
328.

St. Louis, Bar of, luncheons given by
the, to the Delegates, 113, 237;
contribution toward the expenses of
the Congress, 328; committees of,
329 339-

St. Louis Exposition (see Louisiana
Purchase Exposition Company).

St. Louis Law School (Law Dept. of
Washington University), Delegates
from, 307.

Salazar, Ygnacio Perez, 276.

Sanborn, Walter, H., 277.

Sanders, Wilbur F., 287.

Saner, R. E. L., 3o0r.

Sanford, E. T., 301.

Sawyer, Alfred P., 303.

Sayler, Samuel M., 293.

Scallon, William, 311, 321.

Scarritt, Ed. L., 311, 324.

Schaller, Albert, 295.

Schnabel, Charles J., 311.

Schofield, F. L., 311, 324.

Schofield, Henry, 306.

Schofield, William, 287.

Schroers, John, 317.

Scialoia, Vittorio, 275.

Scott, James B., 307.

Scott, William, 300.

Searcey, W. W., 301.

Searle, Alonzo T., 299.

Sears, W. G., 301.

Seddon, James A., 311, 323.

Sexton, Pliny T., 297.

Shack, Ferdinand, 281; motion offered
by, 62; motion of, reported by Com-
mittee of Nations, 178; motion
superseded by Committee’s motion,
179.

Shackleford, Thomas M., 283.

Sharp, George M., 281.

Sharp, J. F., 292.

Shaw, L. M., 278.

Sheldon, Edward W., 297.
420

INDEX

 

Shepard, Charles E., 289.
Shepard, Edward M., 297.
Shepard, Seth, 284.
Shepard, Theodore F., 295.
Shepley, Arthur B., 311, 323.
Shepley, John F., 330.
Sherwood, Adiel, 311, 324.
Sherwood, Thomas A., 295.
Shields, George H., 311.
Shippen, Joseph, 302.
Short, James, 271.
Siddons, F. L., 311.
Simmons, W. E., 291.
Simms, Dan W., 293.
Simon, J. A., 274.
Simpson, Alexander, Jr., 288.
Sires, C. M. Lacey, 272; paper by,
395-
Skinker, Thomas K., 311, 330.
Slocum, Edward T., 303.
Slocum, Winfield S., 304.
Slonecker, J. G., 293, 324-
Smith, Alfred Percival, 311.
Smith, Burton, 311, 318, 320.
Smith, Charles Blood, 311, 320.
Smith, Edwin Burritt, 286.
Smith, Eleneious, 311, 323.
Smith, Fred Dumont, 293.
Smith, Griswold, 331.
Smith, Harvey F., 311.
Smith, Luther Ely, 330.
Smith, Lyndon A., 295.
Smith, Monroe, 273.
Smith, Walter, G., 288.
Smith, William R., 284.

Société de Législation Comparée de
Paris, Delegate from the, 273.
Solicitor General, The (U. S.), 278.

Soper, P. L., 284.

South Carolina Bar Association, List
of Delegates from, 300.

South Dakota Bar Association, List
of Delegates from, 300.

Southard, Louis C., 307.

Spear, William T., 284, 298.

Spalding, Burleigh F., 311, 320.

Speed, Horace, 311.

Speer, Emory, 282.

Spencer, O. M., 295.

Spencer, Selden P., 287, 323, 324.

Spilman, E. G., 311.

Spooner, John C., 278.

Spoonts, M. A., zor.

Spurlock, Frank, zor.

Squire, Andrew, 288.

Staake, William H., 299.

Stanley, William L., 291.

State Bar Associations, List of, with
names of Delegates from, 290.

State Supreme Court Judges who
accepted invitations to become mem-
bers of the Congress, 283.

Statutes (see Law Publications).

Stayton, Joseph M., 290.

Steele, Robert W., 284.

Sterling, Thomas, 300.

Stevens, Hiram F., 317, 319, 320.

Stevens, John S., 292.

Stewart, John, 300.

Stewart, Russell C., 300.

Stiness, John H., 284.

Stocklager, Charles O., 284.

Stone, Charles W., 300.

StoREY, MoorFIELD, 279; elected a
member of the Committee of Na-
tions, 114; resolution offered by, in
reference to international arbitra-
tion, 180; remarks of, 251.

Sto. Tomas de Manila, University of,
Delegate from, 308.

Strawn, Lester H., 292.

Street, Robert G., 302, 311; resolution
offered by, in reference to the forma-
tion of an international bar associa-
tion, 114; report on resolution of, by
Committee of Nations, 234.

Streeter, Frank S., 287.

Succession, The Hague treaty upon,
discussed, 128, 155; text of the
treaty, 349. (See also Executors.)

Sulzbacher, Louis, 284.

Summary of Delegates, Numerical,
312.

Sumner, Edward A., 297.
INDEX

421

 

Sumulong, Juan, 300.

Sun Sze Yee, 272; elected member of
the Committee of Nations, 61.

Supreme Court of the United States,
Justices of, 277.

SURVEYER, E. FABRE, 271; remarks
of, 111.

Sutro, Oscar, 300.

Sutro, THEODORE, 311; remarks of,
110.

Swaney, W. B., 311, 321.

Swarts, S. L., 330.

Sweden, Delegates from, 276.

Swedish civil procedure (see Trial of
Civil Actions).

Sweeney, John P., 304.

Sweet, Willis, 279.

Switzerland, Delegate from, 276.

Symonds, Joseph W., 294.

Syracuse University, Delegate from the
College of Law of, 308.

Taft, Elihu B., 289.

Taft, Wm. H., 278.

Tarrant, W. D., 303.

Taussig, George W., 311, 323.

Taussig, J. Clarence, 330.

Taylor, Hannis, 274.

Taylor, R.S., 311.

Taylor, William L., 293.

Teasdale, W. B., 295.

Tennessee, Bar Association of, List of
Delegates from, 301.

Territorial Judges (U. S.) who ac-
cepted invitations to become mem-
bers of the Congress, 284.

Terry, J. W., 289.

Texas Bar Association, List of Dele-
gates from, 301, 302.

Texas, University of, Delegate from
the Dept. of Law of, 308.

Tuayver, Amos M., xiii, 282, 323, 327;
nominates the members of the Com-
mittee of Nations, 60; paper of,
before Am. Bar Association, re-
ferred to by Judge Dillon, 108.

The Hague (see Hague).

Thomas, Charles E. L., 330.

Thomas, W. G. M., 3o1.

Thomas, William H., 290.

Thompson, Albert C., 282.

Thompson, R. H., 287.

Thompson, Seymour D., Tribute to
by G. E. Fahlcrantz, 65.

Thompson, Will H., 302.

Thornton, D. L., 294.

Thurman, B. G., 296.

Tichenor, Charles O., 287.

Tillinghast, James, 311, 320.

Tompkins, W. M., 330.

Toulmin, Harry T., 282.

Towner, H. M., 293.

Trabue, Edmund F., 311, 320.

Tracy, Benj. F., 281.

Treaty of Washington of 1871, 12, 27.

Treaty on International Civil Proce-
dure discussed, 139; text of the
Treaty, Appendix, 332.

Trezevant, M. B., 301.

Trial by jury, in civil actions, con-
demned, A. Nerincx, 96; defended,
John F. Dillon, 103.

Trial of Civil Actions with respect to
Pleading and Evidence, The pref-
erable method of regulating: paper
by G. E. Fahlcrantz, 65; discussion
by A. Hartmann, go, A. Nerincx, 95,
G. E. Fahlcrantz, 100, John F.
Dillon, 103, S. P. Tuck, 109,
T. Sutro, 110, A. Hartmann, 110,
E. F. Surveyer, 111.

Trieber, Jacob, 282.

Tripp, Bartlett, 300, 320.

Troy, Alexander, 290.

Tuck, Philemon, H., 294.

Tuck, SOMERVILLE P., 272; speaker
at the banquet, 63; remarks by, 109.

Tucker, Henry Sv. G., 281; speaker
at the banquet, 63.

Tunstall, Richard B., 302.

Turner, George, 281.

Turner, R. W., 293.

Turner, W. J., 311.

Tuthill, Henry B., 293.
422

INDEX

 

United Kingdom, Delegate from the
Incorporated Law Society of the,
274 (see also Great Britain and
Ireland).

United States Circuit Court of Ap-
peals, The Presiding Judges of, 277.

United States of America, List of Dele-
gates from, 277.

Universal Exposition, St. Louis (see
Louisiana: Purchase Exposition
Company).

Universities, Foreign (see particular
countries); American (see Law
Schools).

Upper Canada, Delegates from the
Law Society of, 271.

Valery, Jules, 273.

Valyi, Gabriel, 275.

Van Bibber, George L., 294.

Van Cise, Edwin, 285.

Van Cuylenberg, Hector, 272.

Van Deman, John N., 298.

Vander Velde, Emile, 270.

VANDERVOORT, J. W., 302; remarks
of, 110.

Van Devanter, Willis, 282.

Vann, C. S., 298.

Vann, Irving G., 284.

Van Orsdel, Josiah A., 289.

Van Winkle, W. W., 289.

Varian, Charles S., 289.

VELASCO, EMILIO, 276; remarks of, 45;
motion offered by, 51, 61, 62; re-
port on motion of, by Committee of
Nations, 179.

Venable, Richard M., 286.

Venezuela Boundary Arbitration, 30,
et seq.

Vertrees, J. J., 301.

Vesey, William J., 293.

Vice-Presidents, xv; election of, 8, 185.

Victoria University of Manchester,
Delegate from the Law Faculty of
the, 274.

Vienna, University of, Delegate from
the, 270.

Virginia State Bar Association, List
of Delegates from the, 302.

Voigt, John F., Jr., 292.

von Briesen, Arthur, 281.

von Philippovich, Eugen, 270.

VON STIBRAL, ADALBERT, XV, 270;
elected a Vice-President, 8; mem-
ber of the Committee of Nations, 60;
speaker at banquet, 63; remarks of,
245.

Voorhees, J. H., 300.

Vorys, A. S., 298.

Wadhams, Frederick E., 281.

Waggener, Balie P., 286.

Wahrmund, Dr., 273.

Wakeley, E., 311.

Wales, Delegates from the University
of, 275.

Walker, Bradley, 311.

Walker, Robert F., 312, 323.

Wallace, William J., 277.

Walz, William E., 307.

Wanty, George P., 282.

War, Protection to private property
on high seas in time of (see Private
Property).

Warren, Everett, 299.

Warren, Winslow, 304.

Warriner, H. C., 301.

Warvelle, George W., 305.

Washburn College, Delegate from the
School of Law of, 306.

Washburn, Jed L., 295.

Washington State Bar Association,
List of Delegates from, 302.

Washington University, Delegates from
the Law Dept. of, 307.

Waterman, Charles W., 285.

Waters, Louis L., 308.

Watson, David T., 281.

Weakley, Samuel D., 290.

Weatherly, James, 290.

Weaver, S. M., 293.

Webb, James H., 305.

Webster, John L., 296.

Weitzel, George T., 323, 330.
INDEX

423

 

West, Samuel H., 323, 330.

West Virginia Bar Association, List
of Delegates from, 302.

Westover, Myron, 331.

Wetmore, Edmund, 280.

WHEELER, EVERETT P., 281; motion
offered by, 62; report on motion of,
by Committee of Nations, 102; re-
marks of, 247, 261.

Wheeler, S. S., 298.

Whitaker, Edward G., 297.

White, Edward D., 277.

White, Robert, 312.

Whitfield, Albert H., 284.

Whitelock, George, 286; resolution
offered by, 232.

Whitson, Edward, 302.

Whybark, Moses, 324.

Wickersham, James, 279.

Wigmore, John H., 286.

Wilcox, Ansley, 288.

Wilcox, Elmer A., 306.

Wilfley, L. R., 279.

Wilgus, Horace L., 307.

Wilkinson, A. E., 301.

Willard, Charles, 300.

Williams, E. P., 292.

Williams, Ferdinand, 294.

Williams, George H., 278.

Williams, James, 274.

Williams, John Sharp, 278.

Williams, P. L., 312, 321.

Williams, Robert W., 303.

Williams, Stevenson A., 286.

Williams, W. M., 295.

Willis, L. C., 294.

Williston, Samuel, 307.

Wilson, Nathaniel, 285, 291.

Winkler, Frederick C., 289, 321.

Wisconsin, State Bar Association of,
List of Delegates from, 302-303.

Wisconsin, University of, Delegates
from the College of Law of, 308.

Withington, David L., 285, 321.

Wolverton, Charles E., 284.

Wood, Benson, 292.

Wood, Horatio D., 312, 323.

Woodard, Fred A., 298.

Woods, Charles A., 284, 289.

Woods, William W., 286.

Woodson, A. M., 295.

Woolworth, James M., 279.

Worthington, A. S., 281.

Wright, Luke, 279.

Wrigley, W. C., 296.

Yale University, Delegate from the
Law Dept. of, 305.
Yancey, David Walker, 289, 312, 320.

Zahn, Dr., 273.
Zeisler, Sigmund, 292.
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