riage is required or offered to be proved before any court, evidence of the admission of such fact by the party against whom the process is instituted, or of general repute, or of cohabitation as married persons, or any other circumstantial or presumptive evidence from which the fact may be inferred, shall be competent."

In England, since Lord Hardewicke's act passed in 1753, there are minute regulations, the omission of which in some cases was absolutely fatal. The marriage, however, of an Englishman in Scotland, where, before Lord Brougham's bill passed in 1846, neither a matrimonial domicile nor the presence of a priest or of a civil officer was required, was recognized in all the English tribunals. The English law always conformed to the principle that in the marriage of Englishmen abroad, the only question that could arise in a litigation, was the conformity of the marriage with the country of its celebration. The royal commission of 1860 proposed the substitution to the several laws of England, Ireland and Scotland of one general law for the United Kingdom. According to the proposed bill no marriage, legal in other respects, celebrated in the presence of a minister of religion duly authorized or of any civil officer (registrar) could be declared null for the non-observance of the conditions intended to prevent clandestine or illegal marriages. The preliminary conditons relative to residence or consent of parents to the declarations required of the parties were only to be directory. The infraction of these provisions by a minister of religion or civil officer of the State or any other person, was to be a misdemeanor, not a felony. Parliament has done nothing to carry out this proposed legislation.

The articles of the French code relative to the consent and advice of parents, actes respectueux, are expressly based upon the edict of Henry II of 1556 and the ordinance of Louis XIII of 1639, and they even go beyond them, for the old French tribunals exercised the power of dispensing a favor of minors of the consent of parents, if they refused it from bad temper and the injustice of the refusal was evident. Such is now the rule everywhere else on the continent of Europe, where the consent of parents is required, except in Belgium, and it is only in France and Belgium that the actes respectueux are required. In these two countries there is no way of contracting a marriage against the will or caprice of a father by a male under twenty-five years of age or by a female under twenty-one. Since the abolition of civil death for crime in France, the veto has been reserved to a criminal condemned to hard labor for life (travaux forcés), although this is the only civil act that remains to him.

To obviate the inconvenience of foreign legislations in the case of marriage, notwithstanding the principle that a State cannot exercise any jurisdiction, civil or criminal, in the territory of another State, some States have provided the means of celebrating marriage even in monogamous countries through the intervention of consuls and diplomatic agents. As to marriages in countries not christian, where the exterritoriality of the Francs is recognized, the validity of such acts is unquestionable. It is to such exceptional cases that the consular act of the United States fully applies, and such, in principle, should be the rule as to marriages in similar acts of other countries.

In the report of the commissioners of 1866 on marriage, several cases are cited where, according to the

English consular act of 1849 (the act which provides for marriage between British subjects in christian countries, where marriages between Protestants cannot be celebrated), have been regarded as null, especially is it so in Spain, in Belgium and in France. Even when the two parties are British subjects, according to our colleague, Westlake, citing the decision of an English court, “These marriages have only the validity of a collateral contract of marriage which they derive before the English tribunals from the sanction that parliament has given them." Although the Code Napoleon has provided for marriages celebrated in foreign countries, according to the forms used in those countries, provided the provisions of the Code are not contravened, the French consuls basing themselves on the general provisions of the 48th article of the Code respecting the reception of all acts of the etat civil of Frenchmen in foreign countries, claim the right of celebrating marriages, when both the parties are French.

It has also been attempted to base the celebration of marriage on the supposed right of exterritoriality of ambassadors and foreign legations, and notwithstanding the repeated decrees of the tribunals that this exterritoriality does not extend beyond the members of the legation nor to matters which do not affect the minister's functions, we see every day announced marriages at the English and American legations in Paris. The instructions of Mr. Cass, issued while he was Secretary of State, have never been revoked. They are found not only in Lawrence's Wheaton, but also in the spurious edition by Dana, who has borrowed them, as well as his other annotations, from our work.

By these instructions American ministers are directed that "although the principle of exemption from the government of the country, where a foreign minister is accredited, protects his person and his domicile from all interruption, it does not carry with it the power to exercise any authority civil or criminal, and an obligation contracted at the residence of the minister of the United States at Paris, contrary to the laws of France, cannot become valid, when the parties are found in the United States. It will scarcely be maintained that the laws of each of the States and Territories are operative in the residences of all our ministers abroad, whatever position may be taken as to the laws of the United States or to any portion of them. If this be so, it is difficult to perceive whence a foreign minister derives the power to celebrate a marriage, which shall not only be valid in each of the States, but which shall be free from any doubts as to the rights conferred by it, whatever State legislation may exist on the subject; nor why his interference with marriages stops at their celebration and does not extend to their dissolution, legislation in both cases being equally wanting."

Mr. Cass had already indicated his convictions on this subject at the time of his residence, as minister at Paris, on the occasion of the marriage of his own daughter with the American secretary of legation. The secretary having been appointed by the president, with the consent of the senate, enjoyed in his own right all the immunities of a foreign minister, and it could not be doubted that the daughter of the minister was one of his own family. Nevertheless Mr. Cass did not consider the marriage of these two persons in his own hotel. as sufficient, but after taking, as we have been informed, the advice of the most emi

nent French lawyers, he obliged them to be married at the mayoralty and to fulfill all the formalities required of a French citizen by the Code Napoleon.

In the appendix to the report of the royal commission on marriage, of which we have spoken, are to be found several instructions of the English government to its ambassadors in Paris, concerning marriages celebrated in the hotels of its ministers. The ambassadors are instructed to advise the persons who might desire to celebrate their marriages at the embassy to be married previously according to the forms legally authorized in France, and by a circular of the foreign office, of the 28th of February, 1867, instructions were given to the English diplomatic agents to inform the persons who desired to marry at the embassies that marriages thus contracted were not necessarily valid beyond the possessions of Her Majesty.

We find the following evidence of Mr. Hammond, under secretary of State, in the same report: "I understand," said he, "that when a Russian lady and gentleman are married in London, in whatever form the marriage takes place, the precaution is taken of getting the registrar to be present. This is certain that no marriage ever took place in the French ambassador's chapel or in any of the French consul's offices. The Prussian secretary said to me that these ambassadorial marriages had the countenance of the law of England, but there was no such thing known on the continent as ambassadorial marriages. Strangers who come to England comply with the lex loci."

There is a motive for the English to marry at the hotel of their embassy which does not exist as to Americans. There are no restrictions in any of the United States, unless it be for incest or analogous causes which would make a marriage there, however irregular, void. There is nothing in the English act of 1823 which can prevent the two parties going to the English embassy and there being married without any questions being asked or any proof of their right to contract marriage. And it is for this reason that the English who, since the act of 1856 in relation to Scotland has put an end to Gretna Green marriages, cannot fulfill the conditions of their own marriage act nor comply with the laws of France, have recourse to the embassies.

I have only to add a single word as to the other means sometimes vainly resorted to, especially by Americans, to obviate the inconvenience of following the laws of the country where the marriage is celebrated. Sometimes, a priest or minister of religion, who happens to be in Europe, without regard even to the minister or consul, celebrates the marriage of his compatriots, or it may be of an American with a foreigner, giving them the nuptial benediction according to the usages of his own country.

In all cases the marriage ceremony, or any other act performed in violation of the sovereignty of a country is void. But, if a marriage is celebrated in France or Belgium, contrary to law, the ecclesiastic is exposed to severe penalties.

The penal code of France punishes for the first act by a fine, for a repetition of it by imprisonment from two to five years, and in case of a further offense, every minister of religion, who shall perform the ceremonies of a religious marriage without being thereto authorized by an act of marriage, previously received by the officers of the etat civil, shall be condemned to detention, that is to say, to confinement in a military prison from five to twenty years.

The return to the ancient law of Europe, as it existed before the council of Trent, which regards marriage as a civil contract, not affected by religious ceremonies, has done a great deal to remove the obstacles to the assimilation of the legislations of different countries, and to induce all the nations to recognize contracts of marriage wherever made, as obligatory everywhere. In all the principal States of Europe, civil marriage has been made optional, and in Prussia, as well as in France, and the countries which have adopted the principles of its Code, it is obligatory.

The German Reichsrath has invited the chancellor to propose a law which would make civil marriage in all cases obligatory throughout the empire. With civil marriage the disabilities arising from inequalities of rank have disappeared. In France, marriage, if the prescribed conditions, sufficiently difficult it is true to fulfill, are followed, is alike open to all citizens. The law of the confederation of Northern Germany, passed in 1868, makes us acquainted with the impediments which, till that time, existed to marriage in consequence of the systems then in force in the different States, and it may well be supposed that it was these regulations that so frequently induced the substitution of a prolonged "Verlöbniss" to a regular marriage. A Prussian law of 1869 removed the prohibition of marriage for inequality of rank, and rendered valid the marriages forbidden by the Landrecht, without requiring them to be celebrated anew.

I have never expected that a Code of International Law, providing for all the contingencies of peace and war, could be at once and instantaneously created. I have always been of opinion with Savigny, who opposed, in 1814, the projet of Thibault to make a general Code for Germany, that much preliminary work was necessarily required for a Code which should reconcile different systems of jurisprudence. Savigny maintained that the special role of his epoch was to collect the materials of which posterity might avail itself. We have now in the Codes of United Germany the fruits of these studies.

Such were not only my views when I took part with Twiss, Westlake and other eminent,publicists in 1869, in the meetings of the committee, named by the British National Association for Social Science, to prepare a Code of International Law, and which then appeared to receive the general assent; but I expressed myself in the same sense in my answer to the proposition, made to me to unite in the invitation, addressed through the medium of the secretary of the late Peace Society to the publicists of Europe, to meet at Brussels last year.

The fate of the "three rules" may well justify my reserve. Every international rule should first be preceded by the conformity respecting it of the legislation of different States, and be sanctioned by international conventions. When that end is attained, to proclaim such a Code would not be to make new laws, but to announce those which exist already.

I am not ignorant of the advantages which the civilized world has derived from the works of the learned jurists, who are regarded as the authors of the International Code, as well as from those of Pothier and his predecessors, without which it would have been impossible to compile the Napoleon Code. I should, also, be very ungrateful if I did not refer to the works of the English philanthropist, Jeremy Bentham, whose intimate acquaintance I enjoyed during my residence in London, and who did me the honor, more than

forty years ago, to enroll me among his disciples. No one has done more than Bentham to advance the cause of codification, by exposing defects arising from the existence of an unwritten law, which makes the judges the real legislators of a country, instead of confining them to their judicial functions of expounding existing laws.

The works of Bentham are an inexhaustible source of jurisprudence, and Romilly, Brougham, and the reformers, who succeeded them, have all acknowledged their obligations to him.

Bentham, the first jurist of his time, proposed alike to the Emperor of Russia, to the President of the United States, and to other American officials gratuitously to make a Code for the use of their respective countries. The proposition, however, though respectfully received was never accepted. If such was the case as regards a Code prepared by Bentham, assuredly no living publicist can have reason to be offended, because a minute study of his work is required, before substituting it for the laws in existence from the most remote antiquity.

We have reason to be surprised that the treaties, concluded from 1868 to 1874 by the United States, with the German States, Belgium, England, Austria, Hungary, Sweden and Norway, and other countries to induce the recognition of the right to change one's nationality have not provided for the means of legislating marriages between citizens of different countries marriages, the number of which must increase in consequence of the very cosmopolitan principles, which these treaties establish and of which the abolition of the droit d' arebaine appears to be almost an inevitable consequence.

We are not ignorant of these difficulties of forming a uniform Code entirely based on systems so different as to those to which the English common law and the ancient Roman law have given rise; but is it not possible to render the laws of marriage and succession the object of treaties similar to those respecting naturalization, which have been the recent subject of discussion?

A few years ago, the attention of the department of State was directed to the regulation of marriages by convention with some of the German States, but failed at the time the projet of convention was prepared by the experienced statesman (Mr. Bancroft Davis), to whom the interests of the United States at the court of Berlin have recently been confided, from his talents and industry we may expect results in this matter, most beneficial both to Germany and the United States. Accept, my dear and honored colleague, the renewed assurances of my highest regard and esteem,

NOTE.

W. B. LAWRENCE.

Since the date of the preceding letter, the point as to marriages at American legations would seem to be settled, so far as the Department of State is concerned, by the "personal instructions to diplomatic agents of the United States in foreign countries," which have been (December, 1874) recently revised.

In these instructions, the minister in case of an application to have a marriage performed in the legation and in his presence, is directed "to inform the parties making the application that it is the opinion of the Department that a ceremony of marriage, performed within the precincts of a legation, may, nevertheless, be deemed to be performed in the country within which the legation is situated, and, therefore, ought in all respects to comply with the requirements of the laws of that country, in order to insure its validity. Whenever any application is made for the use of the lega

tion for such a purpose, it will be the duty of the principal diplomatic representative to inquire whether the parties may lawfully marry according to the laws of the country in which the legation is situated; and whether the proper steps have been taken to enable the marriage ceremony to be legally performed according to such laws. If either of these inquiries should be answered in the negative, it will be his duty to inform the applicants that he cannot permit the ceremony to be performed in the legation and to explain to them that there might be grave doubts respecting its validity, even though it should be performed within the precincts of the legation."

Referring to the statute, which provides for the authentication of marriages before American consuls, "between persons who would be authorized to marry if residing in the District of Columbia," the instructions add: "But if the applicant may lawfully marry according to the laws of the country, and if the proper steps have been taken to enable the ceremony to be legally performed, then the diplomatic representative should inform them that if they desire to have the ceremony performed also under the laws of the United States, it would be necessary to have the principal consular officer of the United States present, and he should give them an opportunity to have such officer present, if they desire it."

A decree has been issued in Spain suspending the jury system. The Chicago Bar Association held its first annual dinner on the evening of the 30th ult.; and from the reports of it that we have received, we believe it to have been an unusually happy affair. Ledru Rollin, whose death recently occurred in Paris, was known on this side of the ocean chiefly as a communist and journalist; but he was beside these an advocate of considerable character at the French Bar. In 1830, and only two years after his admission to the Bar, he won a considerable reputation by a paper on the proclamation of martial law in Paris, and he became the principal advocate of most of the Republican conspirators prosecuted under Louis Philippe. In 1837 he assumed the editorship of the Journal du Palais, a leading law journal, and occupied that position for ten years. He also superintended the publication of several works on jurisprudence, and afterward filled the position of chief editor of Le Droit, a daily law journal. In 1846 he abandoned the law for politics

A curious incident is recorded in the Gazette des Tribunaux as having occurred at the sitting of the Assize Court of the Seine, France, on the 27th ult. The jury brought in a verdict of guilty with extenuating circumstances against a prisoner charged with indecent assault. This result was obviously wholly unexpected by his counsel (M. Daniel), who manifested great astonishment, and forthwith wrote out, read and deposited in the office of the court a paper, in which he stated that the charge having been abandoned by the public prosecutor, he, as the prisoner's counsel, had not thought it necessary to do more than address a very few words to the jury; that under these circumstances the prisoner had not been properly defended, and he concluded by praying the court to make a declaration to this effect. The judges retired to consider the question, but speedily returned into court, and the president said that doubtless the prisoner's counsel had presented all the observations which he thought necessary in the interest of his client, and the court must decline to assent to a motion founded solely on the inadequacy of a defense to which every latitude had been given. The prisoner was then sentenced to two years' imprisonment.

All communications intended for publication in the LAW

JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, JANUARY 16, 1875.

CURRENT TOPICS.

It seems that the degree of Doctor of Laws in Great Britain is no more a legal degree than it is in this country. And for the great majority of those who receive this degree, a doctorate of science or literature would be more appropriate. The degree of Bachelor of Laws in Great Britain has even less significance than it has here. No one is admitted to the examination for that degree unless he has taken a degree in arts. The consequence is that very few students apply for the degree of Bachelor of Laws. It is now proposed to institute another degree in the British universities - the degree of B. L. or Bachelor of Law which shall be purely a legal degree. Of course, a certain amount of knowledge is necessary as condition precedent. An examination must be passed in Latin, and in Greek or a modern language, in mathematics, logic, and moral philosophy. Academic degrees, as a rule, have little importance in this country and most men who possess them are either above them or below them - they either are great enough to regard their degrees as trifles or are small enough to look on their degrees as steppingstones. But so long as they are conferred by our institutions of learning, we insist that they should be conferred with some attention to propriety. And we believe that some substitute ought to be had for the doctorate of laws, and that no person should receive this degree until he is thoroughly conversant with law as a science. Universities and colleges without a law faculty ought not to be allowed to confer the degree of LL. D. Let them, instead, bestow their doctorates of science, of literature, of philology, of medicine, of divinity.

The Bar Association of New York city held its annual election on Tuesday evening, and re-elected Mr. Evarts, President of the Association. Among the vice-presidents we notice Governor Tilden. The corresponding secretary is William Allen Butler. The first work of the Association in entering on the new year was to adopt a resolution instructing the committee on law amendments to see that the amendments to the law of evidence in relation to disputed writings, suggested by the association, be brought to the attention of the legislature. This association has great possibilities, and by virtue of its location, numbers, and professional standing, VOL. 11.- No. 3.

ought to exercise a vast influence on the professional interests of the country. The past action of the Association is not such as to make us sanThere seems to guine as to its future usefulness.

be a lack of unity of purpose, of compact organization, of enthusiasm, of earnest endeavor toward reform. If this body intends to perpetuate its existence it should arouse to the demands of the times and furnish better guaranties, than ever before, of its earnest and wide endeavors to secure, not only professional organization, but also legal reform. The Association cannot, consistently with its selfrespect, descend to such petty action as was attempted to be foisted on it at its last meeting, in relation to the Supreme Court Reports. It cannot afford to be made the tool of disappointed committee-men and publishers.

A writer in the American Law Review, in treating of the "Proposed Codification and Reform of the International Law," states that "no appreciable effect for good or for evil would be produced upon nations or their populations" by the formation of a Code. The writer denies "that the Code would have the slightest tendency to alter the existing relations of States with each other, to restrain their ambitions, to lessen the occasions or diminish the evils of war, or to introduce an era of universal peace." This is only another illustration of the exceeding diversity of the views which are held upon this stupendous subject. We apprehend, however, that the writer of the article referred to does not take into consideration the force which written or codified law possesses, when it is the true expression of the unwritten law. It is admitted, on all sides, that if an international Code or complete treaty does not express the true international legal conditions, nothing of consequence would result. But it is an axiom of legal philosophy that when the indefinite and vague rules of law are gathered up and expressed in positive form, then there attaches an additional force and authority. We deem it incontrovertible that if the unwritten international law could be truly and exactly expressed in the form of a Code, that the relations of nations would be largely and perceptibly influenced thereby. The great question for solution is as to the method of codification.

The article on the Codification of the International Law in the American Law Review, upholds the position of the United States with reference to the Brussels conference and also condemns the action of the International Code committee in New York, in adopting resolutions urging our government to take part in the proposed congress at St. Petersburg. Mr. Lawrence in his letter to the institute at Ghent, published in this journal last week seems to think our government acted wisely in abstaining from the Brussels congress.

It seems, however, that our

The

government declined ostensibly on the ground that Russia's invitation came too late. We cannot consider that it would do any harm for our government to be represented at the next congress-if it is invited. If war cannot be entirely prevented - and we do not believe it can be abrogated at the present we should, at least, endeavor to mitigate its rigors and enter heartily into any bona fide schemes for the codification of the rules of warfare. sentiment of the world in reference to a modification of warfare must find some organ of expression. If governments can be induced to take action in the matter and put the official seal on the reform, we must affirm that substantial and permanent good will be accomplished. The idea that nothing should be done until we can absolutely abolish warfare, is contrary to all history of progress, and is a destructive principle in reform. On general grounds, we would say, let our government lend its sanction to the congress at St. Petersburg, if practicable.

On the 24th day of November last, the Justices of the Supreme Court met in Convention in the city of Albany, and revised the rules of court pursuant to the statute. Mr. Justice Miller, recently elected by the Democrats to the Court of Appeals, was the chairman of the meeting, and to him the MS. of the revision was intrusted. We suppose that in the ordinary course of well-conducted human events the amendments would have been filed at once, or speedily, in the office of the Secretary of State, but it has so fallen out that they have come (probably on their way to the Secretary's office) into the hands of a Democratic politician, who is also a law book publisher, and who has printed them in a pamphlet and has them on sale. It is proverbially good to have a "friend at court" and it seems also to be at times desirable to have a friend in court. We are bound to say, however, that the aforesaid publisher has produced a very creditable edition of the rules, the only thing lacking being a reference to the later cases; for instance, under rule 85, Banks v. Banks, 2 N. Y. Sup. 483, is not cited, nor under rule 73 is a reference made to White v. Coulter, 3 N. Y. Sup. 608.

The amendments are neither numerous nor important. The rules as to admissions to the bar are made to conform to the rules and regulations prescribed by the Court of Appeals; a clause has been added to rule 6, requiring a copy of the rule to be indorsed upon an order of arrest before its delivery to the sheriff; by rule 7 the papers used on non-enumerated motions are to be specified in the order; by rule 8 attorneys are not to be sureties on bonds or bail; by rule 15 an attorney may be changed upon application of the client; by rule 23 one not a sheriff serving a summons is required in his affidavit of service, to state "his age or that he is

more than twenty-one years of age, when, and at what particular place, and in what manner he served the same;" by rule 26 "letter-press" copies of papers are tabooed; waivers are not to apply to papers for the court and attorneys are to mark in the copy of pleading, furnished for the court on a trial, the parts claimed to be admitted or controverted by the succeeding pleading; by rule 29 on making a motion the service and filing of an affidavit of merit must be shown by affidavit; by rule 30 affidavits to obtain extension of time to answer or demur must state previous extensions, and the date of issue is placed at twenty days from service of complaint; by rule 31 it is made a contempt to apply, on the same facts, for an order once refused; by rule 41 the testimony taken by an official stenographic reporter may be inserted as evidence in the case subject to amendment. Rules 43 and 44 are somewhat amended; rule 45 is new and provides for the dismissal of complaints, in the first district, on motion of defendant when younger issues are first tried. By rule 47 agreed cases submitted under § 372 of the Code and appeals from final orders and decrees of surrogates are added to enumerated motions; by rule 48 appeals in non-enumerated motions are to be placed separately and to be first called; by rule 50 the parties are required to furnish five copies of the papers to the court; the plaintiff is to furnish the necessary papers on an agreed case; on non-enumerated motions printed copies of the papers and points are to be furnished the clerk, and to be exchanged by the parties; by rule 52 the cases and points are required to be uniform in size. On appeals from orders and non-enumerated motions but one counsel on a side is to be heard, and that only for a half hour, except on special order. There are also two or three amendments relating to references in actions for divorce. In connection with the rule on cases and points, we should have been glad of a rule requiring attorneys to always insert the title of cases cited, and to adopt a uniform and civilized method of citation of reports.

Judge Bedle, of New Jersey, has taken his final leave of the bar of Hudson county, preparatory to his inauguration on the 19th inst., as Governor. This excellent judge passes from the juridical bench to the gubernatorial chair with the mingled regrets and congratulations of the profession. The canvas was conducted with great moderation by Governor Bedle, and was a remarkable instance of the possibilities of combining the candidacy for a political office with the tenure of a judicial office. Had he resigned his judgeship on receiving the nomination for Governor the ends of propriety would have been subserved. But in his own estimation and that of his friends it was better to hold on to one office until he was sure of another,