Gaornell Law Schon! Library
Cornell University Library

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HOME LAW SCHOOL SERIES No. 12

 

A Short Treatise on
Public International Law

OR

THE LAW OF NATIONS
CONTAINING ALSO

SOME REMARKS ON LEGAL ETHICS
AND PRACTICAL SUGGESTIONS
TO YOUNG LAWYERS

BY

CHARLES E. CHADMAN, LL.M.

AUTHOR oF “THE HOME LAW SCHOOL SERIES”
AND MEMBER OF THE OHIO BAR

CHICAGO

Freperick J. DRAKE & Co.
Publishers
CopyRicHT, 1906
By Freperick J. DRAKE & Co.
CHICAGO.
PREFACE.

 

In the early part of the year 1899, the first book of
The Home Law School Series was published by the
author with considerable trepidation as to its reception
by the public, and more fear and doubt as to the feasi-
bility of thoroughly encompassing the field of juris-
prudence in the twelve volumes contemplated to form
such Series. Now that the last of the twelve volumes
is about to go to press, and looking backward, the
task which at first seemed so arduous and doubtful,
seems neither difficult nor unpromising.

It has been argued that no one but a lawyer, or one
expecting to be a lawyer would read a book, or series
of books, devoted to the principles of legal science.
The kindly reception of the Home Law School Series
by the general public, regardless of the present calling
of the readers, indicates that there is a demand for
such books outside of the field of professional instruc-
tion, and that if the subject of jurisprudence is made
presentable and freed from the unnecessary verbiage
and circumlocution of the average legal text-book,
that there are many people, aside from students and
lawyers, who will gladly give some time to the con-
sideration of this branch of education.

There are various reasons why a series of books de-
voted to stating and explaining the elements and basic
principles of American law should be well received
iv PREFACE

to-day, especially, if they are not stuffed with endless
matters which are of little use except to take up space.
Thus, there never was a time when there were more
young, ambitious and aspiring minds, who like Lin-
coln, desire to climb to higher spheres of usefulness by
educating their minds, and who must do this, if at all,
along with other labors by utilizing spare moments.
Again, there is more need under our scheme of govern-
ment, in which the organization and conduct of the
government rests primarily upon the whole people, for
each citizen to know something of the history of the
iaws and fundamental regulations upon which all civil-
ized states and governments, as well as societies, are
Lased. We believe, therefore, that there cannot be a
more useful and essential course of reading and in-
struction to fit a man for the active duties of life than
that which covers the field of jurisprudence.
Having now completed the presentation of the rules
and general principles of the various branches of law,
it is the author’s present intention, as soon as prac-
ticable, to supplement the present series of books by
a number of ‘Case Books,” which will seek to show
the application of the principles of law to actual ccn-
troversies, as exemplified in the leading cases as de-
cided by the highest courts in America and England.
When this task shall have been completed, it is be-
lieved that most any person with the ability to read,
may at slight cost secure a fair understanding of legal
science. Charles E. Chadsman,
Conneaut, Ohio, June 9, 1906.
PUBLIC INTERNATIONAL LAW.

CHAPTER If.
EARLY HISTORY AND WRITERS ON INTERNATIONAL LAW.

Sec. 1950.* GREEKS KNEW NOTHING OF IN-
TERNATIONAL LAW.—Notwithstanding the ad-
vanced civilization of the Greeks in the arts and sciences
they contributed little or nothing to the subject of
international law. In their dealings with other nations
they were typical barbarians. Captives taken in their
wars were either killed or made slaves. Piracy was a
regular, if not an honorable profession. They had
some notion of international rules as they would not
make war unheralded, that is, without giving notice.
Among themselves that had a league called the Am-
phyctionic Council, the purpose of which was to affect
the peaceful settlement of difficulties arising among
its members. But neither Plato in his “Republic,”
not Aristotle in “Politics,” give any space or thought
to the subject now known as international law.

Sec. 1951. INTERNATIONAL LAW UNDER
THE ROMANS.—tThe early Romans were-as great
foes to civilization as the Greeks. Slave dealers travel-

 

*This book is No. 12 of The Home Law School Series, the
former 1,949 sections comprise the first eleven books of the

Series.
2 PUBLIC INTERNATIONAL LAW

ed with the victorious armies; and all foreigners com-
ing into the Roman Forum were, under the theory of
the law, slaves, and had no method of protection
against any grievances which befell them.

Later the Romans developed in their Jus Gentium
(Law of Nations) something akin to international law.
The Jus Gentium was the law applicable to contro-
versies between Romans proper and the citizens of
Latium, or surrounding tribes or nations, wnen tried
in Rome. And the same sort of an inter-tribal law
developed among the German tribes, called the Jus
Commune Germanica.

The Romans also had a law governing the arrange-
ments for making war, called the Jus Feciaic, and a
Fecial College, composed of a certain number who
were to investigate and decide whether war should
be declared or not, and their procedure was governed
by certain rules. If war was made it was always
heralded.

The Roman law proper was called the Jus Civile
(Civil Law) and has had considerable influence on the
present international law, by reason of being spread
over Europe at the fall of the Roman Empire, and be-
coming a part of the law of every modern nation.
The Civil Law was adopted by the ecclesiastical courts
and admiralty courts in England, and enters as a factor
in equity and commercial law. It is also the basis of
the law in the State of Louisiana.

Sec. 1952. EXPLANATION OF THE ROMAN
CIVIL LAW.—The Roman Civil Law originated with
PUBLIC INTERNATIONAL LAW 3

the XII Tables as early as 449 B. C., and these were
supposed to have been framed by legislators who went
abroad and selected the best laws from the various
nations and put them into a very simple and concise
system.

By the time of Emperor Augustus the body of the
law had developed greatly and was composed of three
classes or factors. These were: 1. Responsae Pru-
dentum, or the replies or decisions of learned men,
which had been collected and formed a part of the
law. 2. Decrees of the Senate, it being one of the
law making powers, its decrees had the force of public
laws. 3. Plebiscita, or common statutory law, or
private law. In addition to these there was the laws
of the Praetor, who on being elected published an edict
in regard to the laws. These becoming very volumin-
ous were happily summed up by a Praetor in the reign
of Emperor Hadrian, and this edict was followed after-
wards. In the year 169, The Institutes of Gaius in
four books was published, the first law book. In the
reign of Constantine, 306, the decrees of the Emperor
were laws, and these decrees were codified in the
Theodosian Code in 438.

Early in the reign of Justinian, about 527, he ap-
pointed a commission to revise the laws and make a
new edition of them in more compact form. The re-
sult of this was the Codex, a codification of imperial
decrees; The Pandects or Digest in fifty books, being
a digest of the great law writers or law-givers found
in over two thousand other books. For the use of
4 PUBLIC INTERNATIONAL LAW

students an abridgement of these books was made,
called Justinian’s Institutes in four books.

It is this classical law, developed by the experience
of centuries and polished by the intellects of countless
sages, that spread itself over Europe at the fall of the
Roman Empire, with its leading savants to inculcate
it. No wonder then, that its influence is felt: in the
legal system of every European nation.*

Sec. 1953. CONDITIONS IN THE MIDDLE
AGES.—From the fifth to the tenth century _ little
progress was made in international law; war was
waged without governing rules; hostages were slain;
and shipwrecked mariners were killed or made slaves.
Thus Richard Cour de Lion returning from the Cru-
sades was imprisoned in Austria. It was a time of
lawlessness and brutality; piratic expeditions were
fitted out to plunder defenceless cities, and this was
one of the reasons that persons shipwrecked were dealt
with so harshly, as they were considered as pirates who
would burn and murder if they had the power.

Sec. 1954. AMELIORATING INFLUENCES
FROM THE TENTH TO THE SIXTEENTH
CENTURY.—From the tenth to the sixteenth century
there were certain ameliorating influences making for
the advancement of law and order between nations.
These were:

1. Chivalry. This was based upon an advanced

*See, Maine’s Ancient Law; Gibbon, Dec. & Fall, Chap-
ter 44.
PUBLIC INTERNATIONAL LAW 5

system of morals and conduct. All knights were in
duty bound to be devout or religious; to be humane
towards prisoners; never to commit slaughter in cold
blood; to be faithful to their word of honor; and to
recognize every member of their order as a brother
regardless of nationality. From this sprang the cus-
tom of paroling prisoners, the declaration of war by
heralds, and sometimes even the fixing of the time and
place of battle.

2. The unity of Christian Europe caused by the
Crusades. By Christian Europe at that time was meant
all of Europe save Russia and Turkey. The Crusades
were a series of wars started by the so-called Chris-
tian nations to rescue the birth place of Christ from
the Mohammodans, who were regarded as heathens.
Prior to the Crusades the various nations were con-
tinually at war, but their co-operation in the Crusades
for a time put an end to these and caused their work-
ing together for a common end. Instead of being ene-
mies, they began to look upon each other as brothers,
allies and equals.

3. The treaties and commercial relations ensuing
from their close connection. Prior to the Crusades
the treaties were commonly broken, but during their
continuance they were usually respected, and this paved
the way for further commercial treaties and relations.
The feudal lords were poor in money and had to bor-
row from the Italian bankers. So the shipping for the
Crusaders was furnished by the maratime cities, and
in these various ways commercial intercourse was stim-
6 PUBLIC INTERNATIONAL LAW

ulated, and international rules and regulations began to
appear.

4. The humane influence of Christianity and the
restraining influence of the clergy over the kings and
princes of Europe. The church and clergy used their
influence to get the various potentates not to battle on
Sunday, and then to refrain from war for certain
periods of time. These restraints were only operative
as against Christian nations, the infidels, or heathen
nations were under a ban, and it was considered illegal
to make an alliance with them even for a good pur-
pose,—a view shared by Lord Coke, and Grotius and
others.

5. The centralization of power in the Pope and
in the Emperor, or head of the so-called Holy Roman
Empire. The Pope had the greatest of power, he
claimed to be the Vice-gerent of God on earth in
spiritual matters, while the Emperor of the Holy Ro-
man Empire was God’s Vice-gerent in temporal
matters. But frequently these brothers failed to agree
as to their respective spheres and each would try to
overthrow the other.* Sometimes one was in the
ascendant and sometimes the other. At times the Pope
was made the arbiter of questions arising between the
crusading nations, and at others these international
questions were submitted to the Emperor. As a re-
sult there was more or less concord between the Chris-

 

*One of the chief items of dissension between the Pope
and the Emperors was the right to appoint bishops. This
was settled by the concordat of Calyxtus.
PUBLIC INTERNATIONAL LAW 7

tian nations of Europe, with commercial relations and
treaties between them, and the arbitration of interna-
tional questions.**

Sec. 1955. STATUS OF INTERNATIONAL
LAW IN THE SIXTEENTH CENTURY.—In the
sixteenth century diplomatic relations, treaties, alli-
ances, and commercial codes were everywhere being
established. And the events tending to help along these
international relations were:

1. The strife between Francis I, of France, and
Charles V, of Germany, involving at times nearly all
of the nations of Europe.

2. The great commercial and maritime developments
in Spain, Holland, and England. It being a period of
discovery, exploration and colonization. In this period
Spain conquered Peru and Mexico and colonies were
being founded in India and America. In their dis-
coveries and explorations these rival nations came into
conflict with one another. These conflicts lead to
negotiations tending to settle points of difference, as
a result of which diplomacy became an art practiced
and fostered by all nations. To look after their various
interests ambassadors were sent, and resident min-
isters were appointed at each of the principal courts.
Whether the honor of sending the first minister belongs
to Spain or France is in dispute. International rela-
tions and intercourse in a modern sense of the term
may be said to date from the sixteenth century.

 

**See Bryce’s “Holy Roman Empire,” Ch. 15; Hallam’s
Middle Ages, Part 2, Ch. 7.
8 PUBLIC INTERNATIONAL LAW

Sec. 1956. IN 1625 THE FIRST WORK ON IN-
TERNATIONAL MATTERS APPEARED, CALL-
ED “PEACE AND WAR” BY GROTIUS.—In 1625
Hugo de Groot, a native of Holland, and later a
diplomat to England, and by reason of political and
religious views an exile, having escaped from prison
to France, wrote his great work entitled “De Jure
Belli et Pacis,” (The Law of Peace and War). This
book is regarded as the foundation of the science of
international law. Grotius, which is the latinized form
of his name “Groot,” while living in France was ap-
pointed ambassador to Paris by the Swedish queen.
It being customary to appoint accomplished men of
other nations as such representatives.

About this time Europe was worn out with wars
and the people were becoming awakened to the problem
as to the necessity and justice of waging war. Some
persons came to the conclusion that wars were never
justifiable under any conditions, and the sect known
as Quakers resulted. Grotius started out to ascertain
whether or not war was justifiable in any case, and
in doing so he went back to the dawn of histoty to
find out if the good men of all ages had been in favor
of war, and finding that they were, he concluded that
war must be justifiable in certain cases. That the lack
of humanity exhibited in war was unjustifiable, and
aimed to get certain general rules for the regulations
of nations in times of war. His work, coming as it
did, produced a profound impression, and did much to
pave the way for the adoption of better rules for the
PUBLIC INTERNATIONAL LAW 9

conduct of wars between nations. About the same time
Albertus Gentius in Italy, and a Spaniard by the name
of Suarer were writing along the same lines.

The only criticism on Grotius’ work was the assump-
tion that what was justified in the past should be so
in the preseni, not making sufficient allowance for the
moral and ethical growth of. people under an upward
civilization. But his work was a great advance and
was welcomed by the people generally as containing
many wholesome truths which few dared to utter, and
justifies his being styled the “father of international
law.”

Sec. 1957. OTHER WRITERS ON INTERNA-
TIONAL LAW.—Among the conspicuous writers on
the subject of International Law, or Law of Nations
as it was formerly called, may be mentioned the fol-
lowing :

Puffendorf, a professor of Heidelberg, who lived
from 1631 to 1694, wrote a work, treating of the law
as it ought to be rather than as it was.

Vattel’s work was used in the days of the Ameri-
can Revolution, the author was a Swiss by birth and
engaged in the service of the king of Saxony as a
diplomat. His work was written in French, he lived
from 1714 to 1767.

Bynkershoek, a writer living between 1673 and
1743, upheld the rights of neutrals on the sea against
the claims of Great Britain. The first volume of
Kent’s Commentaries on American Law, written from
10 PUBLIC INTERNATIONAL LAW

1826 to 1830, deals with the subject of International
Law.

Prof. Heffter, of Berlin, is the author of a volume
on the subject which is considered a very high au-
thority.

Jeremy Bentham, and Phillimore are Englishmen
who have written books treating of the subject of In-
ternational Law. The latter was an English admi-
ralty judge, and cites many historical illustrations
in his work. Sir Vernon Harcourt also wrote a num-
ber of pamphlets on the subject during the American
Civil war, discussing the English point of view. Other
English writers are—Mannin’s work on the Law of
Nations; Prof. Bernard, of Oxford, who was one of
the commissioners to negotiate the Alabama treaty;
Traverse Twiss’ Law of Peace and War; and Prof.
Lorimer, of Edinburgh. A recent work by W. E.
Hall, an Admirality lawyer, is an excellent work.

The French writers on the subject are Ortolan
and Hortefeuille, who contend for the rights of neu-
trals on the sea as against the claims of Great
Britain.

Calvo’s work on International Law, is in three vol-
umes, and was written in French, though the author
is a South American from Peru.

Of the American writers, Chancellor Kent’s first
volume comes first; Judge Story’s Conflict of Laws,
deals with the subject somewhat; Henry Wheaton’s
History of International Law, and Text-book on In-
ternational Law are standard works, which have been
PUBLIC INTERNATIONAL LAW II

translated into Chinese and Japanese. Wheaton was
an American diplomat. There are several editions of
Wheaton’s work, and it has the widest circulation of
any book since that of Grotius. Dr. Woolsey, of Yale
College, has also written a text-book on the subject.
Gen. Halleck is another American who wrote on the
subject of the law of war during our Rebellion. Prof.
Lieber, of the University of South Carolina, drafted
a code of rules at the request of President Lincoln to
be used in the Civil War. David Dudley Field, the
author of the New York Code, also undertook to cod-
ify the rules of international law.

Sec. 1958. OF THE PLAN FOLLOWED BY
THE WRITERS ON INTERNATIONAL LAW.
—The earlier writers on international law, save Gro-
tius, were inclined to deduct law from principle of
natural or general justice rather than by an inquiry
as to what the law really was. Most of the later
writers, on the other hand, have sought to ascertain
what the law is in practice, as sanctioned by usage,
without stopping to inquire what justice would re-
quire the law to be. Phillimore and Woolsey in
their treatises aim to combine the two méthods.

The subject of international law is colored by the
different spirit prevailing in different countries as to
the rights of the nations on the sea, and the rights of
neutrals, the works in each country reflecting the
spirit there prevailing.

The decisions of French courts are not usually
12 PUBLIC INTERNATIONAL LAW

given the weight of precedents; while in England
and America a case once decided is regarded as a pre-
cedent and has great weight in deciding future cases.
PUBLIC INTERNATIONAL LAW 13

CHAPTER II.

_ OF THE NATURE AND SOURCES OF INTERNATIONAL LAW.

Sec. 1959. GENERAL PROPOSITIONS AC-
CEPTED BY ALL NATIONS.—As a rule, all civ—
ilized nations recognize a state or nation as having
certain rights and properties. These are: 1. The
right to exist. 2. As being moral persons, and having
a moral personality and qualities the same as an in-
dividual. 3. Having the right to exist, they have cer-
tain rights essential to existence, and each is under
obligations to recognize these rights in others; hence
each state has rights and obligations. 4. Being rec-
ognized as moral persons they have duties to per-
form, as well as rights to claim. 5. Being in rela-
tions of intercourse with each other from motives of
convenience and expedience they adopt certain rules
and regulations to govern such intercourse. 6. The
usages more or less completely conform to the above
claimed rights and obligations. And the conditions
congenial to the existence of states which have grown
up are by agreement, express or implied, recognized
as having a certain binding force upon them. 7. As
a result, we have, therefore, a basis for the exposition
of the principles of international law in the assent of
all civilized nations to the following principles:
14 PUBLIC INTERNATIONAL LAW

(a) That states have the right to exist, and there-
fore have dual rights and obligations.

(b) States are moral persons, and therefore have
duties and claims.

, (c) States for mutual convenience agree as to
certain regulations governing their intercourse.

(d) The usages approved by nations generally
for the regulation of conduct towards each other have
‘binding force.

Hence it may be said that international law is
based on those moral principles which the meral sense
of nations recognize as binding on them in their mu-
tual relations. This may be said to be the ethical
foundation of the subject, and includes all those
rules and customs which the nations have agreed upon
in the application of moral principles.

Sec. 1960. OF THE OBJECTIONS TO THE
TERM “INTERNATIONAL LAW.”’—Prof. Aus-
tin’s objections to the term “international law” lies
in the fact that the word “law,” according to his
school of thought, designates a rule laid down for the
guidance of an intelligent being, by an intelligent
being having power over him to enforce it. As in-
ternational rules and usages have not this binding
force of positive law laid down by a sovereign power,
the term is not a happy one.* The historical school
of writers reject Austin’s definition of law, and claim
that law results from the moral principles and needs

 

*Austin’s Jurisprudence, Vol. 1, page 38.
PUBLIC INTERNATIONAL LAW 15

of a people, and is not imposed upon them by a sov-
ereign authority, but the people select the law and the
sovereign power simply ratifies the laws which the
people have selected, or which have grown up by long
usage and custom. They claim that law is nothing
but custom; its form may be original but its substance
is made up of usages from time immemorial. Thus,
the common law is claimed to be thus made up.**

Fitz James Stephens, the English author on Crim-
inal Law, thinks the term international law inexact
since it applies to two kinds of law, statutory law
and usages, and hence is ambiguous. Lord Coleridge
thinks the term “law” thus used inexact because there
is no tribunal to coerce the rules laid down, and hence
there is no legal sanction which is the case in a law
properly so-called. To these objections is the gen-
eral one that there is no definite sanction or penalties
prescribed for a violation of international laws, there-
fore the term “international law” is said to be inap-
propriate.

Sec. 1961. SAME SUBJECT—WHAT SANC-
TIONS EXIST FOR INTERNATIONAL LAW.
—While it is true in a general sense that there is no
tribunal to enforce by pains and penalties the rules
of international law, and no determinate authority or
executive to see to their enforcement, yet there are
certain sanctions to international law which may

 

**Sir Henry Maine’s Ancient Law.
16 PUBLIC INTERNATIONAL LAW

prove quite as effectual as those prescribed for the
enforcement of municipal laws. These are:

1. The self-reproach of the offending nation;
that is, the punishment coming from a guilty con-
science for the wilful violation of rules of right and
justice.

2. The risk of being attacked by the nations
whose reciprocal rights have been transgressed.

3. The punishment by Divine Providence, or the |
self-vindicating providence of moral laws, which all
nations profess to believe. That is, that the persever-
ence in a policy of injustice will be eventually un-
profitable and result disastrously.

4. To some extent the usages of international
law are enforced by determinate tribunals, and even
enforced by statutes. Thus in the case of vessels
captured at sea, tried in the admirality courts, the
usages of nations are followed; and in the courts of
arbitration which from time to time have been agreed
upon to arbitrate certain matters between nations.

Sec. 1962. SAME SUBJECT—OTHER NAMES
USED TO DESIGNATE THE SUBJECT.—The
criticism of the term “international law” has resulted
in other terms being used or suggested to designate
the subject. Thus the subject during the last cen-
tury was known as the “law of nations ;” Austin sug-
gested the term “international morality,” and the term
“international usages” has been employed, but at pres-
ent the use of the term “international law’ to describe
PUBLIC INTERNATIONAL LAW 17

the subject is well settled. The term was first used
by Bentham.

Sec. 1963. INTERNATIONAL LAW CON-
SISTS OF TWO BRANCHES, PUBLIC AND
PRIVATE INTERNATIONAL LAW.—Interna-
tional law consists of two branches; public and pri-
vate. Public international law governs the mutual
relations of states with respect to their rights and
duties, as in peace and war. Private international
law, also styled “conflict of laws,’ has to do with
human rights in general, and those private relations
which states recognize to belong to persons not sub-
ject to their authority. Thus the effect of a contract
of marriage made in a foreign country, or of a will,
deed, and the like, are topics of private international
law. Where the laws of different states or nations
conflict in these matters it has been referred to under
the appropriate subject in the various books of The
Home Law School Series. We are now concerned
solely with the subject of Public International Law.

Sec. 1964. INTERNATIONAL LAW DISTIN-
GUISHED FROM THE MUNICIPAL LAW OF A
STATE.—International law differs from snunicipal
law in that it has no single executive charged with its
administration, and that it is enforced by direct and
positive pains and penalties. But many principles of
international 'aw are embodied in the municipal laws
of the various nations. Thus, it is forbidden by statute
18 PUBLIC INTERNATIONAL LAW

for persons to enlist in times of peace to fight against
another country. The common law of England and
the United States recognizes the international law, and
the Constitution of the United States expressly pro-
vides that Congress shall have power to punish offences
against the laws of nations. In 1818 Congress passed
an act specifically forbidding the enlistment of our
citizens to fight against nations with whom we were at
peace. But regardless of statute, it is the duty of a
nation to uphold the rules and regulations of interna-
tional law, so that a nation’s responsibility may be
broader than is indicated by its statutes, as was the
case with England in our civil war allowing vessels to
be fitted out in her ports to prey upon our commerce.

Sec. 1965. THE CODE OF INTERNATIONAL
LAW IS PROGRESSIVE AND IS CONSTANTLY
INCREASING.—The code or body of international
law is generated in the intercourse, friendly or hostile,
between the various nations, and is constantly chang-
ing or being enlarged. It is said that every great war
writes some new statute or rules on the book of in-
ternational law. Thus prior to the Crimean war in
1854, privateering had been allowed, in the treaty of
Paris, thirty-eight nations of the world agreed to abol-
ish privateering in time of war. Since that time none
of the contracting parties could lawfully allow priva-
teering. So in times of peace as a result of investi-
gation the rules of international law may be changed
or added to. Thus when coal began to be used on
PUBLIC INTERNATIONAL LAW 19

steam boats it was added to the list of contraband
articles which could not be furnished by neutrals to the
belligerent nations without risk of being seized as con-
traband. When two nations have agreed by arbitration
or treaty to settle a question between them, they may
submit the points so settled to the other nations for
acceptance, and if accepted they then become a part
of the code of international law.

Sec. 1966. WHAT IS ITERNATIONAL LAW,
AND WHEREIS IT FOUND ?—The rules of inter-
national law consist of, or are derived from the fol-
lowing sources:

1. Treaties or compacts between independent
nations. But such a treaty between two nations does
not affect other nations unless they choose to come in
and assent to the terms of the treaty, or unless the
signers of the treaty announce the general rule for
themselves in relation to all other nations. The treaty
is in effect a contract between the nations which are
parties to it. And like a contract, a treaty which has
been obtained under duress or contrary to all justice,
may have no binding effect thereafter. Thus when
Napoleon got possession of Ferdinand VII, of Spain,
and made him renounce his right to the crown, it was
subsequently held to be of no validity as being a species
of highway robbery. But a treaty obtained fairly as
the result of a war is valid.

The silence of a modern treaty concerning a doc-
trine previously acquiesced in, may indicate, not that
20 PUBLIC INTERNATIONAL LAW

the doctrine is abandoned, but that it is so generally
recognized that a re-statement of it is no longer neces-
sary. Thus it would be utterly unnecessary to re-state
in a treaty that captives in war should not be treated as
slaves.

The chief treaties of importance are those since the
treaty of Westphalia in 1648, and are about thirty in
number. These are considered as the great epoch or
milestone treaties in international law.*

The treaty of Westphalia is, by common consent,
the origin of the modern relations of the European
states. It was the beginning of a group of treaties to
sum up the end of the thirty years war, and has set-
tled the disputes of a number of states to the present
day, especially as to religious matters. These treaties
were agreed to by all the leading powers of Europe,
and settled the vexed questions of religion and terri-
torial boundaries. For precedents in internatiunal law
we seldom go back of the treaty of Westphalia.

Sec. 1967. SAME SUBJECT—2. MANIFES-
TOES AT CUTBREAK OF WAR.—Another source
of international law is the manifestoes issued by nations
at the outbreak of war, and the dispatches of secre-
taries of war, and the like. These manifestoes or
proclamations are statements of their ideas and con-
clusions as to the principles of international law, and
the rules governing them as to their conduct towards
neutrals. Thus in the Civil war, when we declared a

 

*See Woolsey Int. Law. Appendix.
PUBLIC INTERNATIONAL LAW al

blockade, we issued a declaration as to blockades and
the relations of neutral nations thereto.

Sec. 1968. SAME SUBJECT—3. DIPLO-
MATIC CORRESPONDENCE.—A third source of
international law is the diplomatic correspondence
published by the various governments. It is a com-
mon custom now for the principal governments to
publish a volume of this correspondence each year.
In England this publication is called the “blue book.”
In the United States, these volumes are bound in red
and called the “red book.” The German government’s
publication is called the “white book.” These books
of correspondence indicate the stand taken by the re-
spective governments on questions of international
law.

Sec. 1969. SAME SUBJECT—4. DECISIONS
OF PRIZE COURTS AND INTERNATIONAL
TRIBUNALS.—Another source of international law
is the decisions of prize courts and _ international
tribunals.

Prize courts are courts set up in time of war to pass
on captures at sea. They are, like the admiralty
courts, obliged to follow the international law on the
subject.

International Tribunals are those which the vari-
ous nations have agreed to have established for the
decisions of matters of controversy. Thus such a
tribunal was established to settle the Alabama affair ;
and the Behring Sea controversy. A permanent trib-
22 PUBLIC INTERNATIONAL LAW

unal has long been talked of, and conferences to
this end have been held. The Hague Arbitration
Tribunal has passed on many important questions.
The decisions of international tribunals are regarded
as of the highest authority as likely to be free from
prejudice.

Sec. 1970. SAME SUBJECT—s5. AUTHORI-
TATIVE WRITERS, MARINE CODES, ETC.—
Other sources of international law, are the accepted
authors who have written text-books on the subject,
and those writers who have been appointed to give
their opinions on disputed points for the guidance of
a government. So the history of the various wars
and the negotiations incident thereto, afford prece-
dents indicating what the international law on various
questions is. So the marine codes, and usages, and
ordinances and instructions issued to prize courts
indicate what is accepted as international law. The
marine codes are of very ancient origin and have
changed but slightly. Thus the law of Rhodes, or
Rhodian Code, used by the Romans, is very similar to
modern codes. Among the Mediterranean provinces
a number of marine codes sprang up, and were rec-
ognized as binding. One of these early codes was
known as the law of Oleron; another the code of
Wisby, another the “consulatus del mare.” From all
of these codes was drawn up the Ordinance of Louis
XIV, of France, in 1641, which is the foundation of
PUBLIC INTERNATIONAL LAW 23

all modern codes. These Marine Codes contained pro-
visions for the protection of sailors, passengers, regu-
‘lations of pilots, and the like, some of which are
much similar to modern provisions.*

 

*Story’s Miscellaneous Writings, Page 102; Pardessus His-
tory of Commerce, Vol. I.
PUBLIC INTERNATIONAL LAW 25

CHAPTER III.

STATES AND THEIR RELATIONS IN TIMES OF PEACE.

Sec. 1971. MEANING OF A STATE.—A state
is explained to be a society of men seeking political
ends, professedly by means which are in accordance
with justice, having a stable and responsible organiza-
tion and occupying fixed territory.

A society of men for religious purposes is not a
state, it must be for political purposes. And associa-
tions aiming to accomplish their ends by immoral or
unjust means are not states, however complete their
organization. Thus pirates banded together, with
government, and rulers, are nevertheless not to be re-
garded as a state.

So a corporation, which may perform some of
the functions of a state is not to be considered a state.
Thus the East India Company, which had a wide
range of powers, was not a state. They do not con-
trol matters of state, and are not independent in the
sense of a nation. So nomadic or wandering tribes with
no fixed and prescribed territory are not regarded
as forming a state. This is the modern doctrine, but
perhaps was not true in the middle ages, when tribes
wandered from place to place, but were still regarded
as a nation. The present idea of fixed territory being
26. PUBLIC INTERNATIONAL LAW

necessary to the existence of a state is a development
from feudalism, when everything depended on the
possession of land.

No particular number of persons are necessary to
constitute a state. It is sufficient if it meets the re-
sponsibilities of a state, though its population is some-
what limited. Thus Texas was a separate state at
one time ; and the Hawaians constituted a state though
of a very limited population. Montenegro, with an
army of eighty men, was nevertheless regarded as an
independent state.

The distinction usually made between a state and
nation is this: A nation is a family or race having
a common origin, common customs, and generally,
a common language, and may be scattered through
several states. Thus the German nation, the Hebrews,
and the like.

A state may be made up like Austria, of a num-
’ ber of distinct peoples. It is the organized political
society, or entity, which is the state, or artificial per-
son recognized in international law. But a nation or
common race may get together and form a single
state. The words are sometimes used as synonymous.

The word state has a limited sense in our federal
Union, as one of the component parts of the United
States.

Sec. 1972. INTERNATIONAL LAW RECOG-
NIZES THE INDEPENDENCE AND EQUAL-
ITY OF STATES.—International law, at the out-
PUBLIC INTERNATIONAL LAW 27

set, recognizes: First, the independence; and second,
‘the equality of states.*

Sec. 1973. WHAT THE INDEPENDENCE
OF A STATE IMPLIES.—The Independence of a
state implies the following things: 1. The right of
territorial inviolability. 2. The right of choosing its
own government. 3. The right of self-protection. 4.
The right of acquiring territory. 5. The right of
administering its domestic affairs. 6. The right of
commercial development. These will now be consid-
ered briefly.

Sec. 1974. SAME SUBJECT—TERRITORIAL
INVIOLABILITY.—The right of territorial inviola-
bility implies the right of jurisdiction over the water
and land within its boundaries, and for certain pur-
poses, over the sea to the distance of a league from
shore, and over ships on the sea.

The Marine Belt. The distance of a league from
shore over which a state has jurisdiction for certain
purposes is known as the marine belt. This is a sur-
vival of a right to the sea which anciently prevailed
and which was of much larger extent. The principle
on which it rests is that this belt is necessary for the
protection of the coast, the property and lives on
shore, and the collection of customs.

Two questions arose in determining the marine
belt: 1. What is to be regarded as the coast line from
which to measure the marine belt. 2. What shall be

 

*Kent’s Com. Vol. i, 165; Phillimore Int. Law, 162.
28 PUBLIC INTERNATIONAL LAW

the width of the marine belt? For the coast line
the Romans took the extreme high water mark. Some
modern writers maintain that the land extends to where
the water is navigable; others suggested a movable
line changing with the tide. In modern fisheries trea-
ties the low water mark is usually taken as the coast
line. German authorities contend that the shore line
should extend only as far as batteries can be erected
to defend the coast. As regards the width of the
marine belt, in the middle ages the ideas as to this
strip were varied. By some it was as far as a hammer
could be thrown, or an arrow shot; again, it was as
far as the human voice would carry; as far as the
horizon could be seen; then it was sixty miles, or a
day’s sail of a galley. This latter distance came to
be observed and was later extended to a distance of
one hundred miles, and was asserted by Russia in
1821 in regard to Alaska.

Vattel claimed that so much of the sea as was
necessary for the safety of the shore might be owned
by the state.

The doctrine accepted in modern times was first
suggested by Bynkershoek, this was a marine league,
or as far as a cannon ball could be fired. Modern
cannon will carry many times three miles but the dis-
tance has not been correspondingly increased. Chan-
cellor Kent made the claim that the United States
could control the sea inside of a line drawn from
promontory to promontory, as from Key West to
PUBLIC INTERNATIONAL LAW 29

the Mississippi, but this has been abandoned, and the
three mile limit is generally accepted.

Inside of this marine belt a nation has the right
to protect the collection of its revenues, and enforce
pilot regulations. And by treaty with England we
can overhaul vessels four miles from shore. It is a
nation’s right and duty to enforce the neutrality of
its marine belt by preventing hostilities between for-
eign vessels therein. Within this belt the nation con-
trolling the shore has the exclusive control of fish-
eries. Foreign ships have the right of innocent navi-
gation within the marine belt, and it is an open ques-
tion whether offences committed on board foreign
ships passing through the marine belt are within the
jurisdiction of the state controlling such waters.

High Seas. The high seas are not a part of the
territory of any state, but are regarded as open and
free to all nations. The reasons given are on account
of the vast expanse of the sea; on account of its
fluidity; and on account of the inability of any one
nation to reduce the whole of it to possession and
control.

It was not always admitted that the high seas
were open and free to all. From the thirteenth to
the eighteenth centuries many claims to the control of
parts of the ocean were asserted, some of these were
based on the authority of a grant by the Pope to
certain favored nations. Thus Pope Alexander VI,
divided the entire sea between Spain and Portugal
by a special decree to that effect. Other nations paid
30 PUBLIC INTERNATIONAL LAW

no attention to these preposterous claims. In some
cases the claim to the control of the sea was: based on
the right of discovery. In others on account of
owning the adjoining coast, and protecting the waters
from pirates. Thus Portugal claimed a path to India
by right of discovery ; Spain claimed the Pacific Ocean
by right of Balboa’s discovery; Russia claimed the
North Pacific Ocean on the ground of contiguity ;
Denmark claimed the North Sea, and England claimed
all the seas around her shores. Venice claimed the
Adriatic on the ground of protecting it from pirates.
These ancient claims were all abandoned long ago,
and the high seas are indisputably open to all nations.
But no nation has a right to do wanton mischief on
the high seas, as to put wrecks in the path of vessels,
or kill great numbers of fish by unusual means.

Gulfs and bays of the larger sort like the Gulf
of Mexico, and the Bay of Biscay, are treated as part
of the high seas and open to all nations. Small bays
and road-steads are territorial. The tendency is to
consider bays of less than ten miles in width territorial,
and wider ones as part of the high seas. So where
a larger bay runs far inland like Delaware and Chesa-
peake Bays they are considered as being territorial.
There is no absolute rule to this effect but this is the
tendency.

So straits more than six miles wide, or of less
width where they connect navigable waters or seas
are open to all nations. The riparian nation or na-
PUBLIC INTERNATIONAL LAW 31

tions may protect the shores, but not so as to inter-
rupt navigation. Thus Gibralter could not be closed
if less than six miles; and many other straights and
channels are open to all though much less ‘than six
miles in width. England has had to give up control
over waters around the British Isles, and foreign ves-
sels no longer need to dip their colors in the English
Channel.

Denmark from an early date levied sound dues on
vessels passing through the straight between Den-
mark and Sweden. This was challenged by the
United States in 1853; in 1857 the European states
bought off the claim of Denmark for a cash sum, but
the United States did not join in the treaty, and later
made a special treaty with Denmark, paying $393,000
for the right of free navigation of the sound. In the
treaty the United States did not recognize the right
of the claim, but paid the money rather to assist the
King of Denmark to keep up light houses and buoys.

So the Dardanelles and Bosphorus have long been a
matter of international controversy. The channel is
narrow and Turkey controls both shores, and claimed
the right to control the waters. But within the straits
is the Black Sea, a large navigable body of water
which would be closed to Russia if it could not use the
straits. It is now settled that these straits are to
be open to merchant vessels at all times, and to war
vessels in times of peace with the consent of Turkey.
This stipulation was somewhat stretched by Russia in
her late war with Japan.
32 PUBLIC INTERNATIONAL LAW

Sec. 1975. SAME SUBJECT—THE RIGHT OF
A. STATE TO CONTROL RIVERS.—Rivers that
are wholly within a state are lawfully under its con-
trol, but are generally open to commerce as a matter of
fact. This rule originated with the Romans, whose
rivers were open to all nations. In the middle ages the
rivers were closed to commerce. Thus on the Rhine
many castles were built for the purpose of levying
tolls and plundering the people using that water course.
Grotius, who was imbued with the principles of the
Roman law, in 1625 advocated the innocent use of
rivers, maintaining that so long as no damage was
done to the riparian owners the other nations had a
right to navigate rivers. Vattel followed the same line
of reasoning and the doctrine came to prevail as the
feudal system fell into decay and the robber barons
were destroyed. This innocent navigation was subject
to some restrictions imposed by the riparians, and rea-
sonable tolls were collected down to the Napoleonic
era. But quite generally now the great rivers of the
world, as the Amazon, Po, Congo, and the like are
open to the free navigation of the various powers, by
proclamations and treaties. The state through whose
country the river flows retains the right to close the
river at any time, and may do so since it controls both
banks and the river is within its territory, and only
opened to free commerce by comity.

Where the river flows through two or more states,
two questions arise: 1. May each riparian state exclude
other 1iparians? 2. May each exciude the world from
PUBLIC INTERNATIONAL LAW 33

the navigation of such river? Thus the Danube, the
Rhine, the St. Lawrence and other rivers flowing
through two or more states, might be rendered useless
if one of the siparians had the right to close it to the
others or to the world. Hence, there is a strong ten-
dency to answer both questions in the negative, though
there is hardly a full and complete recognition of the
principle. The difficulty arises in deciding the matter
that the compulsory free navigation of such rivers in-
terferes with the right of a state to control its internal
affairs and regulate its territory, and if such rivers may
be closed it interferes with the rights of commerce.
The liberal view as to such rivers being kept open is
gaining ground.

At the downfall of Napoleon the great nations who
were combined against him decided in the Congresses
of Paris and Vienna, in 1814 and 1815, while remodel-
ing the relations existing between them, that many of
the smaller rivers, as the Elbe, Rhine and the like,
should be open to general commerce. But many re-
strictions have been placed on such open navigation
by the riparians, which practically exclude foreign na-
tions. Thus in the navigation of the Rhine, the Cap-
tain must be a German, the boat must be made in a cer-
tain manner, and the like. The Danube, while practi-
cally open in its lower part, is subject to control of ri-
parians in its upper part.

The United States had some dispute with Spain as
to the navigation of the Mississippi and with England
as to the St. Lawrence. Louisiana belonged to Spain
34 PUBLIC INTERNATIONAL LAW

from 1762 to 1800, and to France from 1800 to 1803,
when the United States purchased it from Napoleon.
In 1763 by treaty Spain gave Great Britain the right
to navigate the Mississippi. By the treaty recognizing
the Independence of the United States in 1783, Great
Britain granted to us and kept for herself this right.
In 1784 Spain protested against our use of the Mis-
sissippi, on the ground that Great Britain had no power
to transfer what had been granted to her. The Con-
federation Congress, led by John Jay, decided to make
a treaty with Spain, by which we would secure trade
relations on the Mediterranean and waive our claim to
navigate the Mississippi for a period of twenty-five
years. The west was unsettled and of little importance,
and it was feared that our country might become too
diversified by opening up the Mississippi. So we were
unprepared for a war with Spain, This treaty was only
ratified by seven of the states, and nine were required
under the articles of confederation. The whole matter
was settled by our purchase of Louisiana.*

In the treaty of Ghent made at the close of the war
of 18.2, the right of Great Britain to navigate the Mis-
sissippi was not mentioned, and it was contended that
she no longer had the right. But this contention has
been abandoned and Great Britain has the right to use
the Mississippi.

Before the era of railroad construction the St. Law-
rence river was considered of great importance and

*Curtis’ Hist. of Constitution, Vol. 1, 312; McMaster’s Hist.
U. S. Vol. 1, Ch. 4.
PUBLIC INTERNATIONAL LAW 35

the same questions were involved as in the case of the
Mississippi. The United States repeated the argument
to Great Britain, which the latter had made to Spain
during the Mississippi controversy, and further claimed
that the St. Lawrence was in the nature of a straight
connecting the ocean and the great lakes, or two large
bodies of navigable water, and that it was in accord-
ance with the trend of the times to recognize the right
of other nations to use similarly situated rivers, as was
the case in Europe by the treaties of 1814 and 1815.
Great Britain replied that the European rivers were
opened on the ground of general convenience, which
did not apply with the like effect to the St. Lawrence.
The controversy was finally settled by the treaty of
Washington in 1871-1872, which concluded the arbi-
tration of the Alabama claims, in favor of the United
States, which obtained the free use of the St. Law-
rence forever. At the same time the United States
agreed the: Lake Michigan, which is wholly within our
territory, should be open to Great Britain, but might
be closed on giving two years’ notice. These treaties
or agreements were special as between the contracting
parties and do not affect the general question of the
freedom of rivers. Great Britain also obtained the
right to navigate three rivers in Alaska.

The principle of open navigation of rivers has not
been fully acknowledged for the reasons that it may
be necessary for a state to close such rivers in order
to fulfill its destiny ; and the riparians claim a commun-
ity of property in the river. But it is generally agreed
36 PUBLIC INTERNATIONAL LAW

that the same control may be exercised over a river
running through two states as a single state exercises
over a river wholly within its territory. Although this
principle has not reached the stage of being interna-
tional law.

A river which forms the frontier between the two
countries, as the Rio Grande is open to equal naviga-
tion by the countries whose boundaries it forms, and
unless otherwise defined, the boundary line is the mid-
dle line of the main channel. If islands are formed on
either side of the channel, or accretions added to the
banks of the river, they belong to the state on whose
side they appear. Where the main channel of the river
gradually changes, the boundary changes with it; but
this is not the case where a great flood causes a phe-
nomenal and extraordinary change.*

Sec. 1976, SAME SUBJECT—RIGHTS OF
STATE OVER ITS CANALS.—Canals are subject
to the control of the state in whose territory they lie.
And this is true of inter-oceanic canals. But by comity
such canvis are, and probably will be open to commerce
and to war vessels in time of peace. This does not
mean open to free use, and tolls are charged to pay for
the construction and maintenance of such canals.

The Suez Canal is owned largely by Great Britain
and its use is a matter of international agreement. This
agreement of the European powers, made in 1888,
opened the canal in war and in peace to all vessels. But

 

*Woolsey’s Int. Law, Sec. 62.
PUBLIC INTERNATIONAL LAW 37

no nation can have more than two war vessels in the
canal at once. The use of the word “neutralized” was
avoided in this agreement, as its use would prohibit
war vesse’s from using it.

By treaty with England in 1850, called the Clayton-
Bulwer treaty, the United States and Great Britain
agreed to guard the neutrality and peace and security
of any canal that might be built across the isthmus of
Darien, and each nation was to keep from the exclu-
sive control of such a canal. This stipulation was con-
trary to our general policy, which aims to keep exclu-
sive contrcl of matters in this hemisphere, and the Uni-
ted States has been trying ever since to get around it.

Sec, 1977. SAME SUBJECT—RIGHTS OF A
STATE OVER SHIPS ON THE HIGH SEAS.—
It is often stated that ships are territory of the country
to which they belong. The rule being, that every ves-
sel, public or private, while on the high seas, is subject
to the exclusive jurisdiction of the nation to which it
belongs.* A state may enforce its municipal’ laws
against the officers, crew and passengers on ships on
the sea the same as on land; and the sovereignty of a
nation is as much violated by interfering with its ships
on the high seas as by attacking its territory, since the
ship represents the territory of the state to which it
belongs.

In foreign ports private ships are subject te the lo-

=

*#Dana’s Wheaton’s Int. Law, Sec. 106; 1 Kent Com. 26;
150 U. S. 249.
38 PUBLIC INTERNATIONAL LAW

cal jurisdiction, and this is perhaps true while they
are in the marine belt. But there is a tendency to fol-
low the French custom and make a distinction between
offences committed against members of the crew, and
those committed against the laws and order of the har-
bor, leaving it to the nation represented by the ship
to punish the former.**

Public vessels, including not only war vessels, but
troop ships, mail packets and the like, are exempt from
the jurisdiction of the foreign state within whose
waters they may be, though they are under the obliga-
tion to respect the laws and regulations of such foreign
country. The remedy for a violation of such laws is
by a complaint to the state to which such vessels be-
long. Perhaps neither civil nor criminal process can
be served upon a person on board a foreign ship of war
in a United States port.* A war vessel carries the jur-
isdiction of its country everywhere.

Much indulgence is granted to American vessels in
Spanish American waters and ports in the case of po-
litical refugees from such countries. When our ships
have these refugees aboard and touch at a port of the
country to which the refugees belong, our government
has insisted that the refugees cannot be taken from the
vessel, but this applies only to political refugees and
not to persons guilty of private crimes.

Acts of piracy may be punished by any nation which
may capture the offender, irrespective of the nationality

 

**g2 U. S. 520; 7 Cranch, 144; 120 U. S. 1.
*7 Op. Atty.-Gen. 122.
PUBLIC INTERNATIONAL LAW 39°

of the vessel on which the offence is committed, or on
which the pirates are found.

Sec. 1978. SAME SUBJECT—2.—RIGHT OF
A STATE TO CHOOSE ITS OWN GOVERN-
MENT.—Every state has a right to choose its own
government. But this does not exempt it from fulfil!-
ing the obligations already assumed under some other
form of government, and this is so though the state
comes to an end by absorption into some other state, as
was the case when Texas came into the Union. All the
debts contracted by Texas, an independent state, had to
be paid by the United States. And France, through all
of her changes of government, has had to pay former
obligations. The life of a state is a continuous one, an:l
it cannot by a change in the form of government shake
off its obligations.

So the right of a state to choose its own government
has not prevented certain states being interfered with
on grounds of humanity, where the government has
become so oppressive as to be unendurable. Cromwell
interfered in the case of the Savoy government; and
in 1837 Greece was rescued by England and France
from Turkey. But this plea of interference on the
ground of humanity is sometimes made the excuse for
an illegal and arbitrary interference. :

Perhaps the integrity of a state could be interfered
with in-Europe under the “balance of power” theory,
by which if one nation in Europe becomes so powerful
as to threaten or menace the others, they may all unite
to put a check on the domineering nation. The coali-
40 PUBLIC INTERNATIONAL LAW

tion of the powers against Napoleon was of this na-
ture, as were the wars of the French Revolutionary
pericd. Many of the rumors of wars in Europe are
grounded on this balance of power theory.

The state’s right to choose its government does not
prevent its being interfered with to suppress danger-
ous revolutions, though this doctrine is sometimes an-
tagonized by England and the United States. Russia
once invaded Hungary to stop a revolution, fearing
that the democratic movement there would be a men-
ace to her own autocratic government. It is needless to
say that Russia will likely have her hands full in the
future with her own revolutionists, and not be inclined
to meddle with other nations.

While the interference of other states in behalf of
insurgents has not been generally sanctioned by in-
ternational law, on a few occasions, sympathy, if not
active aid, has been tendered insurgents battling in a
just cause'against an oppressive government, as was
the case of Garibaldi in Italy.

In 1861 Spain made a proposition to France and the
United States to enter Mexico and make reprisals for
the payment of debts due these nations. This is a
common form of collecting debts against a weaker
nation, and is practiced quite frequently on the South
American Republics, and is sanctioned by interna-
tional law. The United States refused to take part in
the matter, and France and Spain went forward them-
selves. Spain and England later feared that France
had formed a design to found a great Latin nation in
PUBLIC INTERNATIONAL LAW 4!

America, and wanted to get a foothold in Mexico. By
the influence of France a monarchical government of
the old style was set up in Mexico with Maximilian,
of Austria, as the reigning monarch. There was no
one to oppose Napoleon III, in making this unjustifia-
ble attack on the government of Mexico, as the United
States was in the throes of the civil war. Later the
Mexicans arose and overthrew the government of
Maximilian, and he was shot, putting an end to Napol-
eon’s scheme.

Sec. 1979. SAME SUBJECT—3. THE RIGHT
OF SELF-PRESERVATION, OR SELF-PROTEC-
TECTION.—The right of self-protection extends to
entitle a state to invade another’s territory if an at-
tack is threatened, and such an invasion for the pur-
pose of meeting or quelling a threatened attack is not
making war on the nation invaded. This is a well-
settled principle. Thus in 1837 there was a disturbance
in Canada approaching to a rebellion, and the govern-
ment of Canada feared help would be sent in from
the United States. Near Niagara Falls the insurgents
did get some help from the American side, and were
using a small steamboat named the “Cadillac”; the
Canadian government organized an expedition, and
coming on American territory attacked the boat and
after killing a man, let the boat loose and it went over
the Falls. The matter was. taken up by our govern-
ment, but on investigation it was decided by Webster,
who was Secretary of State, that the seizure of the
42 PUBLIC INTERNATIONAL LAW

boat was justifiable and that under the rules of inter-
national law we could not complain.

Sec. 1980. SAME SUBJECT—4. THE RIGHT
OF ACQUIRING TERRITORY.—Territory may be
acquired by a state by occupation of land previously
unoccupied by any civilized state; and it is now gen-
erally agreed that discovery of new territory must be
followed by occupation to give title to the discovered
territory, and such occupation must be continuous.

Territory may be acquired through cession by one
state to another, The cession may be the result of
amicable negotiation and agreement, or be the result
of a war and the conditions of making peace by the
victor against the vanquished. Thus the United States
secured the Philippine Islands from Spain; and Japan
certain concessions from Russia as a result of war.
Territory may also be acquired by prescription and
accretion.*

Sec. 1981. SAME SUBJECT—s. RIGHT OF
ADMINISTERING DOMESTIC AFFAIRS. —
Within its territorial boundaries a state has absolute
and. exclusive jurisdiction over persons and things,
and of controlling its domestic affairs, and is not to be
interfered with so long as it answers its duties and ob-
ligations imposed by international law.

Sec. 1982. SAME SUBJECT—6. THE RIGHT
OF COMMERCIAL DEVELOPMENT.—Interna-

 

*Hall on Int. Law (4th ed.), Sec. 36; Phillimore on Int.
Law, Secs, 238-240; Bluntschli Int. Law, 295-299.
PUBLIC INTERNATIONAL LAW 43

tional law recognizes the right of a state to commercial
development. And under modern international law
there is a tendency to allow civilized nations to form
protectorates over semi-civilized people without mak-
ing the territory occupied by such people an integral
part of the protecting state.* So the civilized nations
by agreement, in cases, between two or more of them,
recognize certain territory as being within the “sphere
of influence” of a certain nation, who thereby secures
the privilege, so far as the agreeing nations are con-
cerned, to extend its commercial or political power
within the sphere so designated.**

Sec. 1983. OF THE EQUALITY OF STATES.
—The equality of a state implies the same rights as
other states have of making treaties and compacts; of
obtaining justice and recognition from other states of
its subjects and rights, and equal recognition as others
of its general government. While all states are equal,
the equality is a legal one and not an equal political
equality in the sense that they would have the same
weight in international matters. In Europe, for in-
stance, while the smaller states are recognized as being
equal in a legal sense, their affairs are to a considerable
extent controlled by the large powers, who determine
largely their boundaries, and general relations. The
equality of a state in a legal sense, is also governed
and qualified by the conditions already stated as to its

 

*Hall on Int. Law, Sec. 38.
**Lawrence on Int. Law, Sec. 103.
44 PUBLIC INTERNATIONAL LAW

inability to throw off obligations already assumed, and
the possibility of its being interfered with by other na-
tions for a failure to meet its manifest duties and ob-
ligations.

Sec. 1984. OF DEPENDENT AND PROTECT-
ED STATES.—There are certain states that are not
recognized as having full legal equality with the others.
These dependent or protected states are said to retain
only a portion of their sovereignty; their international
relations are governed by the states having supervision
over them, and in some cases even their domestic af-
fairs are managed by the superior state. Thus Turkey
has suzerainty over a number of small states, which
enjoy some sort of independence in internal affairs;
England has a protectorate over the states in Borneo,
which are governed by native rulers under the control
of England; Germany has a protectorate over a num-
ber of African states, and France over Madagascar.
China also had control formerly over a number of
states, as Corea, Anam, Siam and Burmah, which paid
tribute to the Emperor of China, but she has lost con-
trol over many of her tributaries. These partially in- .
dependent states are within the purview of interna-
tional law.

Sec. 1985. OF THE RECOGNITION AND AC-
KNOWLEDGEMENT OF A NEW STATE OR
GOVERNMENT.—New states generally come into

. existence by breaking away from an existing state; and
the question arises as to when they should be recog-
PUBLIC INTERNATIONAL LAW 45

nized and acknowledged as independent by the parent
country and by other states. A third power is not jus-
tified in giving such recognition until independence is
actually established, or while a substantial struggle to
subdue the new state is being made by the parent coun-
try, but recognition is proper when the efforts to re-
cover authority are so inadequate as to offer no rea-
sonable ground for supposing that success may ulti-
mately be obtained. Premature recognition may be
regarded as intervention and as grounds for war by
the parent country against the recognizing state. The
recognition may be by an express declaration addressed
to the new state, by negotiating a treaty with it, or by
the reception and recognition of its diplomatic agents.
Recognition is not equivalent to acknowledging the in-
dependence of such a state by the parent country.
Thus Portugal having revolted from Spain, was recog-
nized by England in 1641, but not acknowledged by
Spain until 1688. So the independence of the Nether-
lands was not acknowledged by Spain until seven years
after they had gained their independence and all na-
tions but Austria had recognized them. And the Uni-
ted States recognized the independence of the South
American States in 1822, though Spain did not ac-
knowledge them until much later.

International law recognizes the de facto govern-
ment of a state, that is, the one actually in power, and
the one that is able to and does redress wrongs and ful-
fill the obligations of the state. A new government
to justify recognition must be acknowledged by its
46 PUBLIC INTERNATIONAL LAW

subjects and have a reasonable prospect of meeting in-
ternational responsibilities. France recognized the in-
dependence of the American Colonies in 1777, though
England was pushing the war for their subjugation
vigorously, and England immediately declared war on
France.*

Sec. 1986. THE RECOGNITION OF THE
BELLIGERENT RIGHTS OF INSURGENTS
DOES NOT AMOUNT TO A RECOGNITION OF
THEIR INDEPENDENCE.—A state may recognize
the belligerent rigk*s of insurgents or revolutionists
without thereby recognizing their independence. In-
dependence results when the war has successfully ter-
minated, but the mere recognition of insurgents or rev-
olutionists by the parent state as belligerents, by ex-
changing prisoners, or the like, would not justify other
nations in recognizing their independence. The parent
state is responsible for all the damage caused neutral
nations by revolutionists prior to their recognition.

Sec, 1987. OF THE ORIGIN AND EFFECT
OF THE MONROE DOCTRINE.—The | so-called
“Monroe Doctrine” as a proposition declaring the atti-
tude of the United States towards other nations in re-
gard to the American continent originated from two
passages in President Monroe’s message to Congress

 

*Hall on Int. Law, Sec. 26; Wharton’s Dig. Int. Law, Sec.
70; Dana’s Wheaton’s Int. Law, note 16. The courts can-
rot treat a revolutionary party as a state until recognized by
the executive. 3 Wheat. 610; 13 Pet. 415.
PUBLIC INTERNATIONAL LAW 47

in 1823. At that time Russia claimed the territory to
the fifty-first degree north latitude; and it was the re-
ported purpose of Europe to interfere in the conflict
between the Spanish-American republics and Spain for
the purpose of stamping out the growth of the repub-
lican governments, and compelling their obedience to
their monarchical parent.

As to the first of these claims, Monroe said that the
whole continent was now occupied by civilized nations,
and that henceforth the American continent was not
to be considered as a subject for colonization by any
European power.

As to the possibility of the allied powers of Europe
interfering with the South American Republics as they
had crushed the popular uprisings in Piedmont, Presi-
dent Monroe said: “With the governments who have
declared their independence and maintained it, and
whose independence we have, on great consideration
and on just principles, acknowledged, we could not
view any interposition for the purpose of oppressing
them, or controlling in any other manner their destiny,
by any European power, in any other light than as the
manifestation of an unfriendly disposition towards the
United States.”

This statement was but an expression of the Ameri-
can view of things from Jefferson’s time. We main-
tained that we would not and did not interfere with the
politics of Europe, and that they, on their part, should
not attempt to apply old world systems to the condi-
tions existing in the new.
48 PUBLIC INTERNATIONAL LAW

The doctrine in its enunciation is simple enough
but in its application has been made to cover a wide
range of subjects, and is likely, at some time, to involve
the United States in difficulty with some or all of the
European powers.

In 1825 it was proposed in Congress to apply the
Monroe Doctrine by having the United States agree to
take up arms in behalf of the South American States,
but it was decided not to carry the proposition to the
extent of declaring in advance what should be done.

In 1845, during the presidency of James K. Polk,
the doctrine was asserted in regard to Texas, by stating
that the United States would not tolerate any European
nation intermeddling with the affairs of that republic.
During the same administration in 1848, it was pro-
posed to annex Yucatan to protect it from the en-
croachments of European powers. Considerable dis-
cussion followed, and Calhoun, who was a member of
Monroe’s cabinet, contended that the Monroe Doc-
trine did not mean that the United States should inter-
fere in every case, but that each case should be decided
as it arose and stand on its own merits. Cass, of Mich-
igan, claimed that the doctrine aimed to oppose all ac-
quisition of territory by foreign powers, whether by
settlement or colonization, or otherwise.*

The exact meaning and application of the Monroe
' Doctrine is still an open subject. Congress has never
undertaken to define, limit, or explain it, and it stands

 

*Calhoun’s Works, Vol. 4, page 454.
PUBLIC INTERNATIONAL LAW 49

as a principle or doctrine and not an act. It can be ap-
plied to any particular case when the United States
deems it for the best interests of this country to oppose
the aggrandizing plans of European powers. We are
not bound to recognize only republican forms of gov-
ernment in America, and in the past we have recog-
nized several empires on this continent.

The Monroe Doctrine may be said to be a principle
or tradition in harmony with our national system of
government and our historical development—that we
look with displeasure upon any interference of Euro-
pean powers with American governments, and that we
would doubtless go to arms to prevent such interference
if it was likely to result in the possession of American
territory by a European power.*

In 1865, the United States objected to the continua-
tion of the French troops in Mexico, under the Mon-
roe Doctrine, and as a result the government set up
under Maximillian came to an end. So the United
States was inclined to protest against the French gov-
ernment’s possession of the Panama Canal. But as
we have now purchased all of their rights, and assumed

 

*Woolsey’s Int. Law, Sec. 247; Wheaton’s Int. Law, 97.
It is perhaps true, that no European nation has ever indi-
cated an acceptance or acquiescence in the Monroe Doctrine,
and whatever force or effect it has is due to the wholesome
regard which European nations have for the ability of the
United States to enforce its ideas. So far we have been
moderate in our demands, and we have never been compelled
to go beyond a mild protest to the power that we judged was
about to infringe on the Monroe Doctrine.
50 PUBLIC INTERNATIONAL LAW

the government in the canal zone, there can be no fur-
ther difficulty in the matter. So quite frequently the
doctrine has to be invoked to protect the South Ameri-
can Republics from encroachments and unjust demands
of the European powers. And it is quite likely but for
the Monroe Doctrine, and the strength of the United
States back of it, that the South and Centra! American
Republics would long ago have been carved up as the
African states among various European powers.

Our purpose in asserting the Monroe Doctrine in-
cludes the protection of our commercial interests, and
political peace and safety in keeping European powers
from becoming entangled in American affairs. If
France had been allowed to remain in Mexico, we
would likely have become involved in numerous dis-
putes with her.

As a result of the Monroe Doctrine, we have as-
sumed a definite attitude towards Cuba, and while rec-
ognizing its independence we retain the right to pro-
tect it from the encroachments of all other powers. It
is likely that we would assume the same attitude to-
wards any other American country if it was about to
surrender itself to any foreign nation.

Sec. 1988. OF THE ESTABLISHMENT OF
EMBASSIES AND CONSULATES.—Since the con-
gress of Vienna in 1815, and Aix la Chapelle in 1818,
the diplomatic representatives of a state in a foreign
country have been classified. Such representatives had
been sent since 1648 but their order and rank was not
PUBLIC INTERNATIONAL LAW 51

regulated until the congress of the allied powers in
1815. As regulated by the powers in 1815, there are
four orders of ministers. These are:

1, Ambassadors, and, in Catholic countries, papal
legates and nuncios. The legates were always cardi-
nals, and were sent on the spiritual business of the
pope; the nuncios were the pope’s temporal ambassa-
dors, and in Catholic countries had considerable power,
and took precedence of all foreign ambassadors.

2. Envoys and Ministers Plenipotentiary. The
double term is used in practice. Thus the United States
uses both titles. Formerly there were ministers “or-
dinary” and “extraordinary”; the one being the usual
representative, and the other applying to a minister
sent upon some special mission.

3. Ministers Resident. These represent the affairs
of the sovereign, if not the sovereign himself.

These three orders bear commissions signed by the
sovereign or chief executive officer of the country, and
are regarded as the personal representative of the sov-
ereign. :

4. Charge d’ affaires. These are accredited by the
ministers or secretaries of foreign affairs to the minis-
ter or secretary of the foreign state, and not by the
sovereign or president.

The distinction between the first three as to powers
is largely in name. Until 1893 the United States did
not send ambassadors, and its ministers were limited to
the other classes. We have followed the practice of
sending the same order of minister to a country as they
52 PUBLIC INTERNATIONAL LAW

sent to us. By the Constitution the government may
send ambassadors, and the United States is now send-
ing ambassadors to the principal foreign nations. These
take precedence in rank on state occasions over minis-
ters plenipotentiary, and perhaps are entitled to be re-
ceived first by the foreign officials.

Nations are not obliged to send ministers or receive
them as a matter of law, the doing so is a matter of
comity and is universally followed. So that when na-
tions are on good terms, a suspension of diplomatic
relations is deemed an unfriendly act, though not suffi-
cient to justify the declaration of war.

Foreign ministers to this country cannot directly
address the president, but must communicate with him
through the secretary of state. They are not allowed
to meddle with the internal or domestic affairs of the
country to which they are accredited. Their purpose is
to represent the interests of their own country and peo-
ple at the foreign capitol, but may, when solicited, look
after the interests of another nation whose minister has
been withdrawn.

When an embassy is received, a particular person
may be refused. Thus if the person sent as minister is”
personally disagreeable to the executive or people to
whom he is sent he may be refused. So that it is a
general rule that the minister sent must be a “persona
grata” to the country to whom he is sent. The first
French ministers to the United States by their activity
against the neutrality assumed by Washington in the
conflict between France and England became distaste-
PUBLIC INTERNATIONAL LAW 53

ful to our government and they were recalled by re-
quest. And on numerous occasions we have had rea-
son for requesting the recall of foreign diplomats on
account of some line of conduct distasteful to us. And
a number of our ministers to foreign courts have been
recalled because of becoming in disfavor at such courts.

So a minister may be refused by a foreign state if
he is a subject of the sovereign to whom he is sent, and
especially where such minister is an exile from the
country to which he is sent. In such a case the alle-
giance of the minister would be divided between the
two sovereigns. But until recently the doctrine of ex-
patriation has been recognized, by which one may re-
nounce his citizenship to one country and become the
subject of another, The United States has refused to
receive an American as minister from Honduras; but
another time did receive a Mr. Burlingame, who had
been our minister to China, and later was sent to us to
represent China.

A minister may be refused also where his instruc-
tions conflict with the rights or laws of the govern-
ment to which he is accredited. But this sort of a case
has not arisen since the temporal power of the pope has
been destroyed.

Some authorities hold that a minister could not be
refused on the ground of sex or rank, and perhaps not
on account of his nationality or race. There have been
many instances in history of women acting as ambas-
sadors, but not since the time of Charles II.
54 PUBLIC INTERNATIONAL LAW

Sec. 1989. SAME SUBJECT—THE PRIVI-
LEGES OF MINISTERS.—The minister of a foreign
country, including his household and suite are inviola-
ble; that is, he is exempt from civil and criminal pro-
cess; from customs duties on his effects; from taxes
on his personalty; and from any interference on ac-
count of his religious worship at his hotel or residence
quarters.*

It was formerly contended that the diplomatic rep-
resentative of a nation while in a foreign country dwelt
on his own soil, under the theory of extra-territorial-
ity; but the better opinion now is that these immuni-
ties are extended to a minister as necessary to the dis-
charge of his duties and the securing of his independ-
ence.

In cases of crimes committed by a foreign minis-
ter, if dangerous or violent, he can be restrained, and
escorted to the frontier. The general policy is to ask
his country to recall him. They are usually dealt with
very leniently on account of the representative capac-
ity in which they act. Ifa minister was subject to ar-
rest, it would interfere with the transaction of his offi-
cial duties, and this is perhaps the reason of the rule.

The exemption of a minister from process in civil
matters is well settled, and in England and the United
States this exemption is secured by the municipal law,
so that a minister could not be legally obliged to pay
his creditors. The English statute upon the subject

 

*Hall on Int. Law, Sec. 50; Wharton’s Dig. Int. Law,
Secs. 92-96.
PUBLIC INTERNATIONAL LAW 55

dates from the time of Queen Anne, when considerable
agitation was caused by the arrest of the Russian min-
ister for debt, and his sovereign, Peter the Great, de-
manded the head of the English sheriff who caused the
arrest.

A minister may also refuse to testify in court, and
his exemption is based upon the same ground of inter-
ference with his official duty, and the fact that in cross-
examination he might be called upon for matters of
diplomacy and state secrets. This exemption not to
testify cannot be waived by a minister, as it is his duty
to his government not to divulge secrets.

The property of a minister which is exempt from
taxes and duties is his personal effects, and does not
extend to property embarked in trade or business. And
it being difficult to discriminate between the two class-
es of property it is not considered expedient for a min-
ister to engage in business in the country to which he
is delegated. And for the same reason ministers oughtto
be charyabout giving their names and influence to stock
companies in order to float the stock of the concern.

A minister’s residence, which is also called his hotel,
is sacred. But it must not be made a refuge for crimi-
nals; the minister may shelter persons in riotous times
from mobs, and the like, but cannot give shelter to
criminals who are amenable to legal process.

A foreign minister may conduct religious worship in
his own house in accordance with his belief. This has
become so well recognized as to be of little importance,
56 PUBLIC INTERNATIONAL LAW

but in the past, wher. religicus intolerance was upper-
most, it was of considerable significance.

The dispatches and couriers are protected while on
their way; this is necessary to secure a minister free-
dom of communication with his government, without
which he would be unable to transact his official duties.
This right is seldom interfered with now, but in the
past it had to be guarded and was of the utmost im-
portance. During a siege of a city the besieging army
may refuse to allow dispatches to be sent out by minis-
ters, as was the case in the siege of Paris by the Ger-
mans.

There is some dispute as to the right of a minister
to cross a third state in going to the state to which he
is accredited. According to Phillimore in times of
peace the minister is not to be molested; while in time
of war, to be secure he should have permission from
the third state.

Sec. 1990. SAME SUBJECT—OF CONSULS.
—The subject of consuls and consular offices is be-
coming more important each year, and their duties in
furthering the commercial interest of the country they
represent is receiving greater attention.

The consular office is a very old one, and a class quite
similar to our consuls were employed by the Greeks to
represent them at the various seaport towns. So in the
fifth century such officers were employed by nearly all
commercial nations where needed to look after the in-
terest of their traders. The immediate practice of
sending them to various places as at present was first
PUBLIC INTERNATIONAL LAW 57

adopted during the crusades. The Genoese and Vene-
tian trading concerns made settlements in the far East
and needed judges to preside in these settlements and
adjust controversies that arose from time to time. In
the sixteenth century the right was claimed by the vari-
ous states to make these appointments, and after the
peace of Westphalia, in 1648, consuls were sent to a!l
important ports, charged with the care of commercial!
interests. In some cases they retained their judicial
character as late as 1842. But their original function
of judges has been dropped now. The consular judges
elected by the guilds of merchants in the past were the
origin of commercial tribunals, and their usages and
procedure were regarded as having some judicial au-
thority. Some nations, as France, has established “‘tri-
bunals of commerce” presided over by experts in com-
mercial matters to decide disputes of a commercial na-
ture. A similar purpose was answered by the early
consular judges, when the municipal law did not ex-
tend to protect the various interests, as it does at pres-
ent.

States are under no obligation to receive consuls,
except as they have obligated themselves by treaty.
When consuls are accepted, the foreign sovereign or
executive recognizes or authorizes the exercise of au-
thority by the accredited consuls by issuing an exequa-
tur to each, which is a written authorization of his as-
suming his consular powers at the particular place.
Sometimes when a minister is recalled these documents
are withdrawn from the various consuls of that nation
58 PUBLIC INTERNATIONAL LAW

The immunities of consuls are few in number. They
may receive their personal effects duty free; have the
national arms over their door; and in most countries,
and especially if citizens of the country they represent,
they are free from duty as jurors, from military ser-
vice, and all duties inferior to their official work.

In the oriental countries consuls have been allowed
to assume almost diplomatic immunities, since their
duties cover a larger scope and their immunities must
be correspondingly enlarged.

A consul holds intercourse only with the foreign
local authorities. And can reach the foreign sovereign
only through the local authorities or through the min-
ister of his own government, from whom he gets his
exequatur. The consular office is an inferior one to
that of the regular diplomatic officers, and is more of
a business office.

A government may send one of its own citizens to
act as consul at a particular place, or it may commis-
sion its own citizen or a foreigner doing business in
the foreign country to act as its consular representa-
tive. But the tendency is to do away with the prac-
tice of commissioning merchant consuls, and sending
one direct instead.

Sec. 1991. SAME SUBJECT—DUTIES OF
CONSULS.—The duties of consuls are many and vari-
ous, Thus he acts as a notary in certifying invoices
of traders and importers; consignments of goods are
invoiced before being shipped, and the consul to whose
‘PUBLIC INTERNATIONAL LAW 59

country the merchandise is sent makes three copies of
the invoice which is sworn to by the importer, one of
which is sent to the consul’s home state to aid in the
collection of the customs.

He acts in a judicial capacity in settling disputes
between the officers and crews of ships from his coun-
try. These disputes are laid before him, and it is part
of his duty to see to their being settled. He is also to
protect and care for destitute seamen of his country.
Our government has provided for sending destitute
seamen to their homes. Another of the consul’s duties
is to gather information in regard to trade and com-
merce that will tend to assist in developing the com-
mercial relations of the country he represents, and this
information is communicated to his government in
regular and systematic reports,

In Oriental lands, as China, Corea, Siam, and the
like, the consuls have power to try civil cases, and issue
orders of arrest to examine citizens of their own coun-
try, and either punish them or send them home for
trial. The American consuls have considerable lati-
tude in these countries over American subjects. The
reason for this assumption of power is that our gov-
ernment will not allow our citizens in these countries
to be tried under the system prevailing there, as we
do not regard the oriental method of trying accused
persons to be in consonance with our ideas of securing
justice, We therefore provide a consular court for
the trial and punishment of our citizens domiciled in
these countries, and insist that they be recognized by
60 PUBLIC INTERNATIONAL LAW

the local jurisdiction. The trials before the consul are
not jury trials, but in the graver matters he calls other
citizens to sit with him; these are called “assessors.”
In Egypt the various nations have been allowed to es-
tablish a mixed court consisting of judges from the
various nations to try the citizens of those nations,
and the local jurisdiction has no authority over the
foreign residents,

Sec. 1992. SAME SUBJECT—CLASSES OF
CONSULAR OFFICES.—The United States main-
tains an Agent and Consular General at Cairo, Egypt,
with quasi-diplomatic functions. Then we have a
number of Consuls General, one in each of the import-
ant countries, who have general supervision over the
other consuls in that country, and all communications
come through these Consuls General. Of the regular
consuls there are two kinds: first, those who receive a
salary of $1,000 and more, who are not allowed to en-
gage in business for themselves; second, those who are
allowed to engage in business, and perhaps get a small
salary or certain fees for their services as consul. But
there is a tendency to do away with this class of con-
suls. The United States also has a class of commer-
cial representatives known as Commercial Agents, who
have the regular powers of consuls, but sometiraes are
refused recognition by foreign countries. We also
have Consular Agents or sub-consuls who represent
the smaller places and are under the control of a reg-
ular consul in the vicinity.

Under President Cleveland, a part of the consular
PUBLIC INTERNATIONAL LAW 61

service was put under civil service regulations, instead
of being appointed by the political party in power.
These include all those whose salaries are not more
than $2,500 and not less than $1,000, and are to be ap-
pointed from the service or qualified by examination.
Their fitness is determined by certain officers of the
Department of State. Perhaps the United States has
not given the same attention to its consular service as
other commercial nations, and there is considerable
agitation to provide a method of training young men
for the service so that they may be more capable to
fulfill the duties and requirements of the service.
PUBLIC INTERNATIONAL LAW 63

CHAPTER IV.

RIGHTS AND DUTIES OF STATES IN TIMES OF WAR.

Sec. 1993. MEASURES OF CONSTRAINT
SHORT OF WAR.—The regulations concern-
ing the obligations and duties of nations and the
rights of the respective belligerents and neutrals in
times of war constitute the larger part of international
law. There are certain measures to which a nation
may resort to show its displeasure with another, which
are short of war, and are regarded as a sort cf inter-
mediate measure between peace and war. These are:
1. Retorsion. 2. Reprisals. 3. Embargo and Non-In-
tercourse. 4. Pacific Blockade. 5. Retaliatory Acts.
6. Quasi or Limited War.

1. Retorsion. This is a term applied to the action
of a state in treating the subjects of another state in
substantially the same way in which the latter state has
treated the subjects of the state using the retorsion.
It is a sort of retaliation for lack of comity. Thus if
one nation puts restrictions on travelers’ passports, or
levies a differential tariff, or makes other regulations
to the prejudice of another nation, that nation may re-
taliate by adopting like measures against the other na-
tion, and this is called “retorsion.”’

2. Reprisals. By a “reprisal” is meant a seizure of
property of another state for the redress of an injury
64 PUBLIC INTERNATIONAL LAW

either to the citizens or the state making the reprisal.
It may also be used to compel another state to adopt
or relinquish a certain course of conduct. To justify
a reprisal justice must have been absolutely denied by
the courts and the sovereign of the country against
whom the reprisal is made. The injury must be an
important one. It is usually the property of the of-
fending nation or its citizens that is seized, and not
persons, except in times of war. Reprisals are the
common process of collecting an international debt
when milder proceedings have failed. The reprisal
should not be out of proportion to the injury to be re-
dressed, and the state using the process should be able
to show that it is just. It is a common proceeding for
a strong nation to take against a weaker one, and in
many cases leads to war.

3. Embargo and Non-Intercourse—An embargo
is a step nearer war than reprisals; it consists in the
seizure of property, as vessels in ports, in view of hos-
tilities, to be surrendered if the differences are settled
without war following ; if the dispute is not settled, the
war dates from the seizure. In modern times such a
practice is seldom resorted to, and foreign vessels are
usually given a certain time in which to depart after
the beginning of the war.* Another sort of embargo,
practiced several times by the United States, is the
preventing of its own vessels from going out of port
in order to protect them from capture by other na-

 

*Lawrence on Int. Law, Sec. 158.
PUBLIC INTERNATIONAL LAW 65

tions. This is a domestic affair and has no connection
with the international embargo which marks the begin-
ning of a war.

Non-Intercourse laws were passed by our country
to forbid trade with England and France as a means of
retaliating for their unjust treatment of our vessels.

4. Pacific Blockade. A blockade is a war meas-
ure, to be considered later, but of recent years it has
sometimes been set up in times of peace as a measure
of constraint. In such cases the tendency is to enforce
the blockade only against the vessels of the nation
whose ports are blockaded, leaving all other vessels
free to pass. This sort of pacific blockade is admitted
by publicists, but not when it is aimed to be enforced
against all vessels.*

5. Retaliatory Acts. These are more serious than
acts of retortion, as where the United States author-
ized the President to stop Canadian ships from enter-
ing our ports, and even to stop railroad traffic from
Canada, as a method of retaliation for seizing our fish-
ing vessels. This was during Cleveland’s administra-
tion, and the power was not exercised by him.

6. Quasi or Limited War. Instances of this lim-
ited war are to be found in our own dealings with
France in 1799. France had ravaged our commerce,
seized our vessels and almost ruined our commercial
trade, and our government authorized our ships to re-
sist seizure, and to recapture ships that had been cap-

 

*HJall on Int. Law, Sec. 121.
66 PUBLIC INTERNATIONAL LAW

tured. There was some fighting as a result, but war
was not declared.

Sec. 1994. ARBITRATION AND AMICABLE
SETTLEMENT OF DISPUTES.—Nations may also
decide instead of going to war to arbitrate their dif-
ferences by submitting the points in dispute to dis-
interested persons and agreeing to abide by their de-
cisions. Many matters of late years, as to boundaries
and the payment of claims are thus settled. The de-
cisions of such boards of arbitration are binding, and
the parties to the award are concluded, unless the
decision is too broad, or there is evident fraud or de-
nial of justice.*

It may become proper for a third state to offer its
good offices for the settlement of disputes between
other nations, before or after war has arisen, but the
refusal of such an offer is no cause of offense. Such
an offer may be made at the request of one or both
of the disputants, or upon the general grounds of
humanity and civilization. Several nations some-
times unite in making such an offer.

Sec. 1995. WAR DEFINED AND CLASSI-
FIED.—War is defined as a contest between nations
or states, or between parties in the same state, car-
ried on by force of arms. War is classified as “per-
fect,” and “imperfect.” A perfect war, meaning ‘one
in which an entire state or nation is at war with an-
other state or nation, so that all members of the one

 

*Wharton’s Dig. Int. Law, Sec. 316.
PUBLIC INTERNATIONAL LAW 67

are authorized to commit hostilities against all members
of the other. An imperfect war is one limited as to
place, persons and things.*

Sec. 1996. THE COMMENCEMENT OF WAR.
—While war is sometimes preceded by a declaration
or notice to the enemy, and this was the practice pre-
vious to the last century, it is not regarded as essential
and is frequently omitted. The war may be com-
menced by an ultimatum involving a demand, and the
request for an answer within a limited time, coupled
with the intimation that a failure to reply will be taken
as a desire for war. A nation usually issues a mani-
festo at the outbreak of war, or a proclamation an-
nouncing the war and seeking to justify its position in
the controversy, this may be addressed to its citizens
or to other nations, but this is not considered as a
notification to the enemy.

Sec. 1997. THE RECOGNITION OF BELLIG-
ERENCY.—Where a civil conflict exists within a
state, it becomes important to determine when other
nations shall recognize a state of war as existing.
Such a recognition of a state of war between a state
and insurgents, simply indicates their right, or the
fact that they are carrying on war, and has nothing
to do with a recognition of their independence. A
neutral nation decides this question with regard to its
own interests and the facts. But there are certain im-
portant conditions which ought to appear as a pre-

 

*Dana’s Wheaton’s Int. Law, Sec. 296.
68 PUBLIC INTERNATIONAL LAW

requisite. Thus, the insurgents should be strong and
numerous enough to make a state in case they were
successful; and they must be actually carrying on
war. If the insurgents have ships of war on the sea,
then their status is in more urgent.need of determina-
tion, since if they commit hostilities and are not re-
garded as belligerents they are pirates, therefore when-
ever there is, or there is reasonable expectation of
there being hostilities committed on the sea, recognition
of their belligerency is justified. There should be
some fair probability of success to justify the recog-
nition of the belligerency of the insurgents. Con-
tiguity of a nation to the seat of hostilities is an im-
portant factor in determining their justification in
recognizing a state of war to exist, since it may be-
come involved with the parties to the contest.

Sec. 1998. CONSEQUENCES OF RECOGNI-
TION OF BELLIGERENCY.—The consequences of
recognition are not always advantageous, as both the
contestants then have the right to stop vessels and
search them for contraband articles, which could not
be done if they were not recognized as being at war. So
the recognition releases the parent government from
its responsibility for the damage and depredations of
the insurgents to foreign nations. So where the rec-
ognition is premature, and the insurgents are quelled
the parent country may take offense on account of
such recognition of the insurgents. Tor these reasons,
and on grounds of humanity, a parent state may itself
recognize the belligerency of the insurgents, as was
PUBLIC INTERNATIONAL LAW 69

the case in our Civil War. If they are recognized as
belligerents they are to be treated as enemies and not
as rebels.*

Sec. 1999. EFFECT OF WAR ON TREATIES.
—The outbreak of war frequently has the effect of
putting an end to treaty stipulations existing between
the two countries. This is not necessarily the case,
and stipulations in treaties which refer to and con-
template a future war, or which are evidently in-
tended as a permanent condition regardless of future
war, are not broken. So all provisions which refer
to the method of carrying on war in case it should
arise, are of full force and effect and are to be put
into operation. So if the treaty is tripartite it is not
generally suspended by war between two parties.

Sec. 2000. EFFECT OF WAR ON THE RE-
LATIONS OF CITIZENS.—While a state of war
exists, all subjects of one belligerent state are enemies
of all the subjects of the other, and every kind of
trading is absolutely prohibited between citizens or
subjects of the contending countries, and all vessels
or other property engaged in the forbidden trade are
subject to condemnation when detected. The pur-
pose of the provision is to prevent aid and assistance
being given to the enemy.*

 

*Dana’s Wheaton’s Int. Law, note 15; Hall on Int. Law,
Sec. 5; 97 U. S. 504.

*1 Wheat. 46; 8 Cranch, 155; 8 Wall. 195. Permission or
license to engage in such trade may be given to individuals
70 PUBLIC INTERNATIONAL LAW

Sec. 2001. WHAT PERSONS MAY ENGAGE
IN THE WAR.—War can only be carried on by those
who have an express or implied authority from a state
which is one of the belligerents. The carrying on of
war is an act of the state and not of individuals. So
that “guerrillas” or “bushwhackers” are not recognized
as belligerents, or lawfully carrying on war, and such
method of warfare is forbidden by the rules of inter-
national law. Volunteer troops, however,.may be en-
rolled and become regular soldiers for the nation thev
volunteer to assist. Some of the powers who maintain
large standing armies have suggested that volunteer
soldiers should not be recognized, as this would aid to
some extent the nation with a large standing army, but
the suggestion has never been acted upon and doubt-
- less will not be.

Sec. 2002. CITIZENS OF ONE BELLIGER-
ENT IN THE TERRITORY OF THE OTHER
MAY BE ORDERED OUT ON THE OUTBREAK
OF WAR.—The citizens of one state in the territory
of another, are enemies of that state when war begins
between the two countries. They sometimes are al-
lowed to remain if they are quiet and orderly, but are
frequently given notice to leave the country within a
specified time. So the property of the enemy is in
strict law confiscable, but in practice this is not gener-
ally done, except where the confiscation is necessary
to reduce the supplies and munitions of the enemy.
Under our rules the mere declaration of war does not
PUBLIC INTERNATIONAL LAW 71

amount to a confiscation of the enemy’s property with-
in our territory; there must be an act of confiscation
passed.*

Sec. 2003. OF THE CONFISCATION OF THE
ENEMY’S PROPERTY.—Not only tangible proper-
ty but debts due by citizens of the one belligerent to
the other are confiscable. The debt is confiscated by
having the citizen pay it to the state, and this is de-
clared to be a bar to its collection again. The Con-
federate States practiced this method of confiscation,
and the United States passed an act authorizing the
confiscation of debts in 1862, but it was never put in
practice. Public debts are not confiscable; thus dur-
ing the Napoleonic wars the obligations between the
belligerents were discharged ; as was also the case dur-
ing the Crimean war. This is a matter perhaps of
comity, perhaps of necessity or expedience, since if
they failed to pay once they coula never borrow again.

Sec. 2004. EFFECT OF WAR ON COMMER-
CIAL RELATIONS.—Commerciai intercourse be-
tween citizens of the respective belligerents at once
ceases on the outbreak of war. And unless special
licenses are issued by the government, which is some-
times done, no trade or intercourse can be legally car-
ried on. All goods or property engaged in such trade
are confiscated in prize courts; partnerships with the
enemy are ended; policies of insurance and bills of
credit issued to the enemy are void. So all contracts

 

*8 Cranch, 253.
72 PUBLIC INTERNATIONAL LAW

made during the existence of the war are void. Con-
tracts made before the outbreak. of the war are not
generally extinguished, but the remedies thereon are
suspended until the close of the war, on account of the
inability of the alien enemy to sue or be sued, but part-
nership contracts are extinguished, since they would
involve commercial intercourse during the existence
of the war.*

Sec. 2005. OF PRIVATEERS.—A privateer is a
citizen who has obtained special authority from his na-
tion to prey upon the commerce of an enemy with his
privately owned vessels, and is allowed to retain a
part of the captures made as a reward. The commis-
sion of such a person is called a letter of “marque and
reprisal”, Privateering was generally allowed and
practised until 1856, when by the Declaration of Paris,
at the end of the Crimean War, most of the leading
nations in convention agreed not to use privateers in
future wars; the United States was not a party to this
convention and is not bound by it, but it is said to be
unlikely that we would ever again employ privateers.
The chief objections are that it is demoralizing, as it
appeals to the base motive of plunder rather than to
patriotism, and it is difficult to regulate such priva-
teersmen.*

 

*Kent’s Com. 66; Hall on Int. Law, Sec. 126; 93 U. S. 32;
5 Wall. 377; 49 N. Y. 12; 26 Gratt. (Va.) 145.

*Woolsey’s Int. Law, Sec. 190; Hall on Int. Law, Sec. 180.
Fhe seven nations party to the Declaration of Paris, in the
4th Article adopted several sections, the first of which re-
PUBLIC INTERNATIONAL LAW 73

Sec. 2006. WHAT MAY BE DONE IN WAR.
—Under the rules of modern warface, force is to be
used not to cause pain, but only such and so much as
to accomplish the end sought in the speediest way.
The advance of civilization and sentiments of human-
ity are tending to make war less cruel and barbarous,
and as long as it has to be allowed to put as many re-
strictions as possible on the methods to be employed.
It is unquestionably a relic of barbarism, and abso-
lutely unnecessary under modern civilization, and it is
only the criminal instincts of certain aggressive states
in trying to get what is not theirs by force that stands
in the way of doing away with war entirely. Ifa small
per cent of the money and property used and destroyed
in war could be used to create a peace fund to amicably
settle international disputes, it would more than suf-
fice to pay the most extravagant demands of bellicose
nations.

The use of hot shot and chain-shot,in war are some-

 

ferred to privateering, which was declared to be and remain
abolished; the 2d provided that a neutral flag covers the
cargo of the enemy except contraband of war; the 3d, that neu-
tral goods, except contraband, are not seizable under the enemy’s
flag; the 4th section referred to blockades. This article was
submitted to the rest of the nations to be adopted or rejected
as a whole. Some thirty-eight other nations acceded to the
terms of this convention, but the United States refused so to
do unless the article was changed so as to add a clause putting
an end to war on all private commerce on the high seas.
Many of the nations were willing to do this, but England ob-
jected, and we have never agreed to the terms of the Declara-
tion of Paris. -
74 PUBLIC INTERNATIONAL LAW

times allowed and sometimes said to be contrary to in-
ternational law. Hot shot is used for the purpose of
setting buildings on fire, and chain-shot to cut the
masts of vessels. They were both used in our civil
war. Explosive balls weighing less than four hun-
dred grams were excluded by the Congress of 1868 in
Europe, on the ground that their use caused needless
pain, as these balls explode after striking a man and
lacerate the flesh. Bomb shells are allowed, and tor-
pedoes are used by all nations in war, though certain
publicists claim that the use of means which make
death inevitable, or which are calculated to mow down
armies are not allowed.

The use of poisoned weapons, or those which tear
and lacerate, as glass, nails, jagged edged spears, and
the like are forbidden; but cannister shot comes pretty
close to this and yet is commonly used.

The destruction of public buildings and archives
are forbiddén, so the useless.and ruthless destruction
of property is not countenanced, though sometimes
done, as in the case of the burning of Washington by
the British. When the destruction of property is for
some military purpose, or in case of the siege of a
fortified town, the destruction of property is justified.
The poisoning of wells and water supplies, and the
sending of infectious clothing for the purpose of
spreading disease are also strictly forbidden.*

 

*Hall on Int. Law, Secs. 184-186; Wharton’s Dig. Int. Law,
Sec. 349.
PUBLIC. INTERNATIONAL LAW 75

Sec. 2007. SAME SUBJECT—THE USE OF
DECEIT AND STRATAGEMS.—Deception is al-
lowed in war. Thus one army may deceive the other
as to the number of their troops, or their situation, as
by making dummy cannon, false signal fires to indi-
cate a camp, fictitious telegrams, and the like. But
hospital flags, or flags of truce cannot be used for the
purpose of deception, and a vessel using the enemy’s
flag must raise its own before opening hostilities. And
soldiers using the uniform of the enemy in order to
deceive, must use some distinctive emblem before at-
tacking. So a promise is not to be broken, as where
a temporary truce is made, it must be kept.

Spies may be used for the purpose of procuring in-
formation from within the enemy’s lines, but persons
are liable to be put to death if caught. An attempt
was made by the Prussians in their war with France
to treat as spies persons coming within their lines in
balloons, but this is not regarded as tenable.

Sec. 2008. SAME SUBJECT—OBSTRUC-
TIONS IN HARBORS.—The placing of obstructions
in harbors as a means of preventing blockade runners,
and also as a means of preventing the enemy’s ships
from escaping is allowable. Though in some cases
protests have been entered by neutral nations, and
there is a limit to the extent to which a harbor may be
so obstructed, and it would hardly be justified to per-
manently destroy a harbor as this would affect the
rights of other nations; though this was done in the
76 PUBLIC INTERNATIONAL LAW

case of the harbor of Dunkirk, which was destroyed
under the terms of the treaty of Utrect.

Sec. 2009. SAME SUBJECT—PROPERTY
THAT MAY BE SEIZED ON LAND.—Public prop-
erty on Jand, except that used for charitable, religious,
and educational purposes, is seizable by the invading
belligerent.

Private property on land is generally exempt from
seizure, and if taken is to be paid for, or receipted for.
But there are numerous exceptions to this rule, and
these are sufficient to enable an invading army to us-
ually take what they want. Thus, property directly
useful in military operations may be taken, and this
might include domestic animals; property may be
taken as a compensation for military offences ; requisi-
tions for the support of the army may be made when
necessary, as an indemnity for keeping order; prop-
erty secured on the field of battle, ever since Roman
times, has been held to be seizable; so a levy may be
made on the whole mass of people to punish their ris-
ing against the invading army. So the devastation of
a country and the destruction of all property may be
done when it is deemed necessary as a military meas-
ure, but such a course is only justified in extreme
cases.

Sec. 2010. SAME SUBJECT—PROPERTY
THAT MAY BE SEIZED ON HIGH SEAS.—The
enemy’s property, both private and public, may be
seized on the high seas when found on the enemy’s
PUBLIC INTERNATIONAL LAW 77

ships. By the Declaration of Paris in 1856 property
of the enemy in neutral ships and not contraband is
not subject to capture, but the United States never
having acceded to this Declaration is not professedly
bound thereby, except as to Italy, with whom we have
made a treaty and abandoned the old rule as to the
right to take the enemy’s goods from neutral ships.
The reason for the distinction as to liability to capture
of private property on land and sea, is that on land
private property is spared on moral and humane
grounds, and the fact that unlimited seizure of private
property on land would demoralize an invading army.
Property on the high seas is more directly tributary to
the enemy, and its capture is more effective in destroy-
ing the commerce of the enemy, and as a rule, its seiz-
ure can be effected without cruelty or the sacrifice of
human life.

The modern tendency is to the exemption of pri-
vate property on sea as well as on land from capture,
and the United States has formally advocated that pri-
vate property be absolutely exempt from seizure on
the high seas, whether in neutral ships or not; this is
called the “Marcy Doctrine,” as it was proposed by
him at the time of the Declaration of Paris. But the
other nations have not acceded to this proposition,
and the old rule is still applicable. As the total aboli-
tion of the practice of seizing private property on the
sea would mcan that all warfare on the high seas be
conducted by warships against warships, this would
necessitate every nation having a large navy, and per-
78 PUBLIC INTERNATIONAL LAW

haps it would be better to let the old rule stand, as it
seems more humane to seize property in a harmless
way than to sacrifice human lives,

The vessels of fishermen are not usually captured
by either belligerent, as they are deemed to be such
humble and helpless characters as to enjoy immunity
from capture.

To secure a perfect title to enemy’s property cap-
tured at sea, the capture must not be effected in neu-
tral waters, as within the three mile limit. And the
title to the captured property is deemed to be in abey-
ance until the legality of the capture is passed upon
by a prize court, when if condemned it belongs to the
sovereign or state effecting the capture. It is only by
the provisions of the municipal law that any part of
the captured property goes to the individual captors;
though it is quite general for nations to allow the cap-
tors a share of the property seized as “‘prize money.”
Under the American law all vessels in sight or belong-
ing to one fleet share in the prize money, though the
capture was effected by but one ship. It is the duty of
a vessel making a capture on the high seas to send the
prize in to port at once, or if the vessel captured is un-
seaworthy, or the enemy is so close as to make a recap-
ture imminent, to destroy her. The question arose in
our civil war whether the captor had a right to de-
stroy a captured vessel because their home ports were
‘blockaded and it was impossible to send the prize into
port. The Confederates appointed Captain Semmes
PUBLIC INTERNATIONAL LAW 79

admiralty judge, and the captured vessels would be
adjudged prizes while at sea, and then ordered burned.

Sec. 2011. SAME SUBJECT—METHOD PUR-
SUED IN PRIZE COURTS.—The enemy have no
standing in a prize court. A prize court is for the pur-
pose of holding an inquest on captured vessels and
property on the high seas as to the regularity of the
capture with respect to the rights of neutrals. The
court aims to govern itself according to the terms of
international law, but its procedure is different from
that of courts of law generally. The United States
District Courts are the only courts that try prize cases,
but an appeal lies to the higher federal courts. In En-
gland a special commission is issued for the organi-
zation of prize courts.

Prize courts must be in the captor’s territory, or in
that of an ally, but the court may pass upon prizes
which are in foreign ports. A nation is not obliged to
abide by the decision of its prize courts. Neutral na-
tions do not generally allow captured vessels in their
ports, and only allow the war vessels of the belliger-
ents in port on account of stress of weather and when
mecessary to get provisions and supplies. When the
vessels of both belligerents come into a neutral port
they cannot leave within twenty-four hours of each
other. This regulation is designed to prevent a conflict
in neutral waters.

Sec. 2012. OF THE RIGHTS AND DUTIES
OF NEUTRAL STATES.—The word “neutral” is a
80 PUBLIC INTERNATIONAL LAW

modern term, as in ancient times there was no neu-
trality, and each nation took one side or the other in
war. There are three sorts of neutrality; strict, per-
manent and qualified.

Permanent neutrality is an exceptional form of
neutrality; since 1830, the European nations have
bound themselves by treaty not to enter upon the soil of
Switzerland or Belgium to carry on war. Qualified
neutrality can hardly be said to exist now; it allowed
another nation to furnish a belligerent state troops
and assistance without becoming involved in the war
as anally. The usual form of neutrality is that known
as strict neutrality. When a nation desires to remain
neutral in a conflict between other nations, it is bound
to guard its neutrality by municipal laws, and keep its
citizens from violating their provisions. Thus neutral
territory cannot be used for hostilities, and this ex-
tends to neutral waters, and it is the duty of the neu-
tral state to see to it that its territory is not so used.
This doctrine is carried so far as to prevent a vessel
of one belligerent to lie outside of neutral waters
ready to pounce upon the vessels of the other as they
emerge from neutral waters. For a violation of these
provisions the neutral nation is liable, and may then
recover its damages against the offending belligerent.

A neutral state is under the absolute obligation to
do nothing which will aid one belligerent to the in-
jury of the other. And it cannot now furnish armed
assistance as troops or munitions of war, though in
PUBLIC INTERNATIONAL LAW 81

former times this was possible under the idea of a
qualified neutrality.

The United States has a very creditable history in
the development of the principles of neutrality which
now prevail, and many of the principles which were
advocated and enforced by Washington, Jefferson and
Hamilton are now generally adopted.

There is some question as to whether a neutral state
can furnish assistance to another state in war on ac-
count of treaty stipulations so to do, the weight of au-
thority seems to be against the proposition. While a
neutral nation is bound not to furnish munitions of war
to a belligerent, it is under no obligation to prevent its
subjects from doing so, and such articles may be sold
to the belligerent subject to capture on the seas as con-
traband of war. A neutral state cannot make a loan
to a belligerent, but its subjects may do so.

Sec. 2013. SAME SUBJECT—NEUTRALITY
LAWS OF THE UNITED STATES.—By the neu-
trality laws of the United States, which have been
copied by many other nations, it is illegal for our citi-
zens to enlist in. foreign wars while in the United
States; and it is likewise illegal to hire or engage per-
sons to serve in foreign wars here, as by opening a
recruiting office for the purpose; it is also illegal to fit
out armed ships or privateers in our territory to aid a
foreign state. The doing of any of these acts is made
a high misdemeanor and subject to punishment, and
the United States can employ the militia to put down
any such organizations. We have adhered strictly to
82 PUBLIC INTERNATIONAL LAW

our neutrality laws, and have even forbade the ship-
ment of arms to Canada during war. The English
neutrality laws are now more stringent than our own,
but were not during our civil war, and as a result we
had a claim against them for allowing the Alabama to
be fitted out in their ports to operate against our com-
merce.

Sec. 2014. SAME SUBJECT—WHAT NEU-
TRALS MAY DO.—Several things are not forbidden
to neutrals; thus, a neutral state may give money to
suffering belligerents, or subscribe to public loans of
belligerents. But this is questioned by some publicists.
A neutral may furnish coal to war vessels of the bel-
ligerents casually arriving as other steamers, but can-
not maintain a regular coaling station for a belligerent.
So a government may sell arms to a belligerent in its
own territory, subject to capture as contraband while
on the way. The theory being, that a neutral nation’s
natural commerce is to be interfered with as little as
possible on account of the war existing between other
nations. After the close of our civil war we desired to
dispose of our arms, as they would soon be antiquated
and useless; we sold a large quantity to France during
the Franco-Prussian war. Germany raised the ques-
tion of our right to do so as neutrals. Some publicists
claimed that we violated the principles of international
law in so doing. The building and selling of an armed
vessel to a belligerent, provided she is not built with
the special intent to cruise against a friendly state, and
is not commissioned for such service, is permitted; but
PUBLIC INTERNATIONAL LAW 83

such vessel is subject to capture as contraband on the
way. This proposition is much discussed, as it is hard
to draw the line between a vessel which is built with or
without an immediate hostile purpose in view.*

Sec. 2015. SAME SUBJECT—NEUTRAL
PROPERTY—HOW DETERMINED.—The neu-
tral character of trade and property is determined by
that of the owner. The owner’s status depends upon
that of his domicile. Neutral trade is to be hindered
as little as possible without damaging the belligerents.
Prior to the Declaration of Paris there were two chief
principles applicable to neutral trade. These were: 1.
Enemy’s goods in neutral ships were subject to cap-
ture, but the neutral ship was paid the full freight. 2.
Neutral goods on the enemy’s ships were exempt from
capture, the captor to get the freight money on such
goods. In our treaties with South American states we
have held to the general principles of free ships and
free goods, and have advocated that all private prop-
erty on the high seas should be respected in war. But
in practice we still hold to the old English rule, that
is, the principles prevailing prior to the Declaration of
Paris, and put them into practice when necessity re-
quires.

Sec. 2016. SAME SUBJECT—RIGHTS OF

NEUTRALS UNDER THE DECLARATION OF
PARIS.—By the Declaration of Paris ;—Privateering

 

*Dana’s Wheaton’s Int. Law, page 536; 3 Dallas (U. S.),
307.
84 PUBLIC INTERNATIONAL LAW

is forbidden. 2. A neutral flag covers enemy’s goods
except contraband of war, and such goods are exempt
from seizure. 3. Neutral goods are not liable to cap-
ture under an enemy’s flag. These propositions were
accepted to by most of the nations, but a few nations
like the United States have never acceded to them.
Hence the following questions arise:—(i) If one of
the signers of the Declaration of Paris is at war with
the United States, can such nation take our property
out of the neutral vessels of other signers? (ii) If
two nations that are bound by the Declaration of Paris
are at war, can the one take the other’s goods out of
our vessels? While the European nations would have
the right to answer the above questions in the affirma-
tive, they have given us the benefit of the Declaration
of Paris without our signing it.

Sec. 2017. SAME SUBJECT—WHAT IS IN-
CLUDED IN CONTRABAND OF WAR.—AII arti-
cles fitted directly to aid the enemy in war are contra-
band and subject to capture. These include gunpow-
der, arms and ammunition, and the like. Articles of
ambiguous use, that is, such as may be used as well for
peaceful purposes as for war purposes, are to be treat-
ed as contraband if properly destined for military use.
Thus horses and saddles, naval stores, and ship tim-
bers may be contraband. The doctrine of contraband:
articles is a sort of compromise between the rights of
neutrals to free trade and free ships and the rights of
belligerents not to have aid and assistance furnished
PUBLIC INTERNATIONAL LAW 85

the enemy. Woolsey and the French publicists con-
tend that articles are not contraband unless intended
for direct use in war. So provisions, we contend, are
not contraband unless going directly to the army or
navy of one of the belligerents, and ought to be paid
for by the captor so that the neutral does not suffer.

The penalty of carrying contraband articles to the
enemy is the confiscation of such articles, as well as all
others on board the ship, and the ship itself, provided
these all belong to the same owner. The guilty own-
ership infects all of the owner’s property and makes
it subject to seizure. And in.case of fraud on the part
of the owner everything is condemned. We have mod-
ified these principles in our treaties with the South
American republics.

There is some contention that a government ought
to prohibit its citizens from selling or carrying contra-
band articles, as at present the entire burden of detec-
tion is imposed upon the belligerent, but this is not a
rule of international law.

The carrying of troops and hostile despatches of
belligerents is forbidden, and the penalty for so doing
is the forfeiture of the ship; and this has been enforced
even where the ship-master has been compelled to
carry the troops. During the civil war, one of our
vessels stopped a British mail steamer, the Trent, and
took by force, two Confederate representatives, Mason
and Slidell, who were on their way to Europe to pur-
chase supplies and ships for their government, and
while the seizure was in accordance with the principle
86 PUBLIC INTERNATIONAL LAW

just stated that neutral ships should not carry hostile
despatches of the enemy, yet Seward, the Secretary
of State, disavowed the act of seizure and ordered the
men returned. The seizure if upheld would possibly
have involved us in war with England, and we were
hardly in a position to undertake it at the time. Seward
placed his decision on our claim that a nation had no
right to take men out of a vessel on the high seas.
And this contention has been upheld, and a war vessel
is forbidden to take men off of a neutral ship on any
ground.

Sec. 2018. INTERNATIONAL LAW IN RE-
GARD TO BLOCKADE.—Under the fourth article
of the Declaration of Paris, a blockade must be effec-
tive, that is, sufficient to prevent access to the coast of
the enemy, and when it is thus effective neutrals are
bound to respect the blockade, whether it is commer-
cial or strategic, but not a mere paper blockade, or
one not enforced by a fleet sufficient to enforce it.
A commercial blockade is for the purpose of shutting
off commerce with a town to bring it to terms through
failure of supplies. While a strategic blockade is de-
signed to stop all trade with a country. The United
States in the civil war set up the most extensive block-
ade ever known, though previously we had been fuc-
tuating in regard to the right of a state to set up a
blockade.

That a blockade be effective or an actual b'ockade,
does not mean that it must be impossible for vessels
to run the blockade without detection, but one that
PUBLIC INTERNATIONAL LAW 87

makes it difficult or dangerous to do so. And the fact
that the ships of the blockading squadron are driven
to sea by storms and the blockade lifted does not de-
stroy the blockade.

The fact of the establishment of a blockade of the
enemy’s ports is made known to neutrals in either of
two ways. I. By a general proclamation of the gov-
ernment establishing the blockade, as was done by
Lincoln in our civil war. After such a proclamation is-
sues neutrals cannot legally sail for a port within the
blockaded district. 2, By a warning from the blockad-
ing vessels, and ships may not go into such ports after
notice given in either way. It is not necessary to
give both forms of notice. General notoriety is suffi-
cient notification to such ships as are in the blockaded
ports, and they are given a reasonable time to clear
and get away; in our civil war the time was fixed at
fifteen days. After the blockade is established it is an
imputation of guilt for neutral vessels to loiter about
the ports that are blockaded; and under the doctrine
of continuous voyages set up by England in colonial
days we held that neutral ships were subject to seizure
when their ultimate destination was a blockaded port,
as they had started the practice of sailing to the Ber-
mudas and there transshipping for the southern ports
to run the blockade.

The penalty of trying to break a blockade is the
confiscation of the ship and all the goods on board,
unless the owners of the goods can show that they did
not know where they were to be carried. The men on
88 PUBLIC INTERNATIONAL LAW

board are subject to no penalty, there being no personal
liability. The liability of the ship continues until she
has completed the return voyage. And each trip is
taken as a complete enterprise; the guilt of one enter-
prise is said to be “deposited” or overlooked when the
return voyage is completed, so that a vessel cannot be
seized for a past offense. And a ship is free when the
blockade ceases, though found in the blockaded port.
The, doctrine being that when the war ends the block-
ade ceases, and all ships not previously captured are
free.

Sec. 2019. OF THE RIGHT OF SEARCH.—
The right of search, which is the right of a belligerent
to stop a merchant vessel on the high seas and exam-
ine her papers and cargo, arose from the doctrine of
contraband goods and the endeavor to discover block-
ade runners. The right does not exist in times of peace
except by treaty. We had considerable controversy
with England over the matter, as she claimed the right
to stop vessels in times of peace to see if they were en-
gaged in the slave trade, and also to take out of our
ships and impress British seamen. We claimed that
engaging in the slave trade was not illegal except by
municipal law of England she could only stop and
search her own ships, but England claimed that she
could stop all ships to ascertain what was their na-
tionality. While England has never disavowed the
right to the impressment of seamen, it is never likely
to happen again, as men are secured by volunteering
now, and not by coercion,
PUBLIC INTERNATIONAL LAW 89

Sec, 2020. OF EXTRADITION.—The right of
one state to demand a fugitive from justice who has
fled to another state is of the greatest importance, and
is the subject of many treaty stipulations in modern
times.

The necessity for stipulations being made as to
extradition arises from the fact that one state has no
jurisdiction or sovereignty in the territory of another,
and could not pursue after or remove a person accused
of crime from the jurisdiction of another state with-
out the consent of that state, and there being more or
less jealousy between independent nations there was
little comity in this regard. But under modern civili-
zation it has become customary in the interest of jus-
tice for one nation to surrender persons accused of
certain crimes under provisions and safeguards which
protect both the accused person and the sovereignty of
the nation so surrendering the fugitive from justice.

The grounds upon which the doctrine of extradi-
tion is based are: that it is the duty of a nation to pro-
tect itself, as all criminals would flock to a nation
which refused to deliver them up to justice, and na-
tions generally recognize that they owe a duty to so-
ciety to protect it against criminals.

While extradition is general, it is not obligatory
upon a government to send back an escaped criminal
unless such a stipulation has been made in a treaty;
and it is not customary to ask it unless the case is cov-
ered by treaty stipulations. A nation may give up a
fugitive voluntarily, as we have done in cases.
90 PUBLIC INTERNATIONAL LAW

Extradition is a political and not a judicial act,
even where the matter is covered by treaty stipula-
tions. The courts that are called upon to examine as
to the legality of an extradition case, only report their
findings to the government and the executive does as
he sees fit in each case.

Most nations refuse to surrender persons accused
simply of political offenses, on the ground that the
meaning of a political offense varies in the different
states and there being no common ground upon which
they can agree it is best to let the person go free. Thus
a person may be imprisoned for life in Russia for what
our citizens customarily do every day and are applaud-
ed for, so that it would not be policy for us to surren-
der a person to suffer punishment which we do not
sanction. But assassins and murderers cannot claim
to be political offenders simply because they are band-
ed together to slay the heads of the various govern-
ments ; such persons are, and ought to be, extraditable.
We have made treaties to this effect. The destruction
of buildings by explosives, though intended to terror-
ize the government, is not to be regarded as a political
offense, and such offenders are extraditable.

We have had some controversy with England as to
whether a person extradited for one offense could then
be tried for another, under the terms of our treaty
with them. Since 1890 we have a new treaty with En-
gland governing the matter, which largely increases
the number of offences for which persons may be ex-
tradited and provides that an extradited person cannot
PUBLIC INTERNATIONAL LAW gI

be tried for another offense until he is first returned
to the country from which he was extradited. The of-
fences for which a person may be extradited include,
manslaughter, embezzlement, breach of trust, rape,
piracy, revolt on shipboard, and the like.*

 

\ i ae
*See Moore on Extradition and Interstate Rendition.
LEGAL ETHICS AND PRACTICAL
SUGGESTIONS TO YOUNG
LAWYERS.

 

CHAPTER I.
THE SUBJECT DEFINED AND CLASSIFIED.

Sec. 2021. MEANING OF ETHICS.—Ethics in
its general sense is the science of human duty, and may
be said to include two things, first, an investigation
into the nature and constitution of human character;
second, the formulated system of rules and principles
concerning duty, whether true or false, which generally
regulate human conduct. Ethics mean character,—
and, particularly, good character,—as distinguished
from intellect. Hence, ethics may be said to include
the sum or aggregate of the rules of duty, or right liv-
ing.

Ethics and morality are to be distinguished, since
morality represents existing facts, while ethics is rath-
er the scientific hypothesis for the explanation of ex-
isting facts.

In a more limited sense ethics is a particular sys-
tem of rules and principles concerning moral obliga-
tions and regard for the rights of others, whether true
or false; and when these rules are applied to a single
class or branch of human actions and duties, we have,
94 PRACTICAL SUGGESTIONS

for example, “social ethics, ‘“‘medical ethics,” and “le-
gal ethics.”

Sec. 2022. ETHICS NOT AN EXACT
SCIENCE.—While some philosophers, as Kant, dis-
tinguish between pure morals, or the science of the
necessary moral laws of a free will, and ethics prop-
erly so-called, which considers those laws as under the
influence of the sentiments and passions and subject to
the changes incident to the progressive ideals of civ-
ilized beings; yet, in practice and in fact, there are no
fixed and determinate or absolute rules of duty which
can be appealed to for the regulation of human con-
duct and actions under all circumstances. There is no
exact ethical code. And the subject of ethics, whether
as a matter of pure morals, or the general regula-
tion of human conduct, has never been the subject of
legislation or judicial action. The ethical code, so-
called, is a changeable one; though there may appear
to be underlying principles which seem to compel the
rule, and to which certain writers may point to indi-
cate the Divine order of human affairs, which makes
it impossible for mankind to mistake the right and
choose the wrong. The ultimate solution of this ques-
tion—as to the innateness of morals and rules of con-
duct—like the question of the natural or legislative
origin of laws, is one that may well be left to the
decision of each individual.*

 

*To the average morally educated man, the distinction be-
tween right and wrong as to everyday matters is so palpable
PRACTICAL SUGGESTIONS 95

Sec. 2023. LEGAL ETHICS DEFINED AND
EXPLAINED.—Legal ethics may be defined as that
branch of science which concerns itself with the moral

 

that he customarily reasons that his sense of right and wrong
must be innate rather than cultivated. But let us put a few
questions to this God-like creature with the Divine gift of
distinguishing right from wrong. Do you claim to have the
same or a better moral sense than the average citizen with
whom you associate? Do you claim to have the same or a
better gift of distinguishing right from wrong than the aver-
age individual of the last century? or of ten centuries ago?
If you have a better moral sense than your neighbors, or
those of the past, how do you account for it on the theory
that all moral sense is innate rather than developed? If
you have the same moral sense as others had in times past,
how do you account for the innumerable errors and atrocious
crimes committed in the name and by virtue of the morality
and conscience of the past? How do you account for the
fact that at the present time there is so little unanimity as
to important matters of morality and conduct between in-
dividuals and nations upon the same plane of development?
What does your Divine gift of distinguishing right from
wrong indicate to you as to the rule of right in your pos-
sessing a million dollars while thousands of your fellow
mortals are starving? in your devising laws and rules of
property which must inevitable segregate the necessities of
life into the hands of the few and make industrial slaves of
the many? in your claiming for yourself rights, privileges
and immunities which you will not and dare not extend to
others? When you have answered these questions to your
own satisfaction then decide for yourself whether ethics;
moral principles; your moral sense, or the moral sense of
mankind as expressed in the formulated principles and rules
of right living are not mere matters of opinion, changing with
time, place and circumstance; changing with the progress
and civilization of mankind—and with the ideals and habits
of the human race.
06 PRACTICAL SUGGESTIONS

duties and obligations growing out of the professional
relation existing between that class of men known as
“lawyers” and the rest of-society.

It is as true of this branch of ethics as any other,
that it is not an exact science. Professional conduct,
like other forms of ethical affirmation is largely a
matter of opinion, though here too there are underly-
ing principles that seem to compel the rule.

But as regards the moral duties and legal duties
there is this distinction which must always be borne in
mind: that positive, or declared law is always right,
though it may be or.seem iniquitous from the moral
viewpoint of the individual, or a class of individuals.
Obedience to the law is a higher moral duty in such
cases than obedience to what one may deem the law
ought to be. This is so not only because it is neces-
sary to the establishment of peace and order in society,
but also because it is clear that the internal mentor,
styled “conscience” is a very fallible guide, as the op-
pression, injustice, superstitions and crimes of his-
tory, based upon the dictates of conscience, abundantly
show.

Legal ethics refers simply to the professional con-
duct on the part of those who assume to practice law,
and may also be called professional ethics.

Sec. 2024. CLASSIFICATION OF PROFES-
SIONAL OBLIGATIONS.—The professional obli-
gations and rules of conduct governing a lawyer may
be classified or divided as follows: 1. Those
PRACTICAL SUGGESTIONS 97

which govern and concern his relations to the
public or state. 2. Those which concern and
regulate his conduct and relations with  suit-
ors or clients. 3. Those which govern and
regulate his conduct and demeanor towards
the court; that is, the judges and juries. 4. Those
which should control in his conduct and relations with
the bar, or his professional brethren. Each of these
divisions will be given some consideration herein.

Sec. 2025. EXTENT OF SUBJECT OF LEGAL
ETHICS.—It should not be understood from the clas-
sification of the subject in the preceding section that
the moral duties of the legal profession are to be limit-
ed in their scope to those which simply concern their
conduct in professional matters, and that if these are
scrupulously adhered to the morals of the lawyer in
other matters are immaterial. Thus it has been said:

“Public confidence in a lawyer makes up at least a
very large part of his capital stock. Of course this
public confidence reaches out into every element of
the lawyer’s makeup. It touches not only the moral
side of him, but the educational side of him as well,
and particularly his professional education. But the
public want to believe that the man into whose hands
they entrust the interests involved in a particular liti-
gation shall be a man in whom they can trust as one
who will be honest and faithful to them. Mr. Shars-
wood, of the Supreme Court of Pennsylvania, said
in his little work on ‘Legal Ethics:’ ‘Let it be re-
98 PRACTICAL SUGGESTIONS

membered and treasured in the heart of every student
that no man can be a truly great lawyer who is not
in every sense of the word a good man.’ Another has
said, ‘The lawyer must possess that chastity of honor
which feels a stain like a wound.’ ”*

Dr. Warren, the author of “Ten Thousand a
Year,’ “Law Studies,’ and “Duties of Attorneys,”
all valuable books for a law-student or lawyer, has
well said in regard to the responsibility of the law-
yer: “Whatever our talents or acquirements, what-
ever our tempers and dispositions, whether amiable
and yielding, or exacting, irritable or overbearing

we may have to take you into our confidence and
open to you the most secret recesses of our hearts.
Our honor, our life, our liberty, our property and
those of our friends are endangered or outraged, and
to you we must flee.” And it well said that there is
no class of men, unless it be those whose direct occu-
pation is the teaching of morals, who have a wider
influence upon the world at large than the members of
the legal profession, as to them are committed the
dearest interests of the public; and to them the peo-
ple turn not only for protection under the law, but to
see to it that the law keeps step with the progress of
the race in the protection and establishment of rights.

Sec. 2026. STANDING OF THE LEGAL PRO-
FESSION WITH THE GENERAL PUBLIC.—

 

*Lectures by Judge Lane to Law Students of University of
Michigan.
PRACTICAL SUGGESTIONS 99

“There are two attitudes which we may observe in
public opinion as to the profession of law. One of
them is not very commendatory, and our profession
has been the butt of as much ridicule and sarcasm as
any other profession. I do not think that this is the
general opinion of the public, but that it does prevail
to some extent there is no doubt. There are some
members of our profession who are black sheep and
consequently they are the ones most noticed and most
talked about. There are men who advertise as divorce
lawyers or who run to the county jail to solicit patron-
age as soon as a man is arrested, and such practice on
the part of members of our profession does give jus-
tification for criticism. But the body of the profes-
sion are not engaged in that sort of practice. Again:
people sometimes assail the bar because they feel
that the lawyer can take care of himself. The lawyer
is a public character, is supposed to be prepared for
all the shafts commonly aimed at a public character,
and so people recognize that he can take care of
himself.

“Tt is true, too, that the very nature of his work
—having an antagonist continually at him while he
is at work—is a condition which we must take into
consideration when we are thinking about this. When
a man is under that sort of pressure all the time, it
would be strange if criticism of his conduct did not
sometimes arise.

“But there is a better view of the profession. The
fact that people in general do have a more serious
100 PRACTICAL SUGGESTIONS

and just view of the profession than is indicated from
what I have just said, is true when we come to think
that they do really put those interests which are most
valuable to them into the hands of the lawyer almost
without reserve, and it is to the credit of our profes-
sion that it is very rarely indeed that we find that
trust betrayed.

“It is true that the legal profession has a high
standard of morals. There are individual exceptions,
but the profession as a profession certainly has a high
standard of morals. It is one of the requirements of
admission to the bar that some brother must certify
that the applicant is of good moral character. Its
literature is pure, too. It is very rarely indeed that
you can find anything in the literature of the law—
text-books, reports, periodicals—that will make you
ashamed of your profession.”*

Sec. 2027. STANDING OF THE BAR IN
AMERICA AS TO POLITICAL AND EDUCA-
TIONAL MATTERS.—From statistics compiled by
different persons in recent years as to the number and
percentage of lawyers who have held the prominent
political offices in the gift of our federal and state
governments, the following facts appear:

“That out of the 3,122 Senators in our national
legislature who had occupied that office 2,068 were
lawyers—more than 66 per cent. Out of 11,889 mem-
bers of the lower house, 5,832 were lawyers—about

 

*Lectures by Judge Lane.
PRACTICAL SUGGESTIONS 101

50. per cent. Out of 24 Presidents, 19, or 80 per cent,
had been lawyers. Of the cabinet officers, there were
in all 95 per cent lawyers—I think 218 out of 232. So
the investigation ran on, through the legislatures of
the several states and the higher offices of the states,
and while the proportion here was not so high, yet
when we come to consider the proportion of lawyers
to the general population it seems to be remarkable
and almost startling to find what a large percent of
members of these various bodies have been lawyers.”

In his “American Commonwealth,” Mr. Bryce
says, “In education the bar of the United States ranks
high. Most of the lawyers have had a college train-
ing and are by the necessities of their employment, per-
sons of mental cultivation. In the older towns they,
with the clergy, form the intellectual elite of the place,
and they worthily preserve the standard of the Roman,
English and Scotch bar. Fifty years ago the bar of
the United States had reached a power and social
consideration relatively greater than the bar has ever
held on the eastern side of the Atlantic.”

Sec. 2028. WHAT IS THE PURPOSE OF THE
LEGAL PROFESSION ?—A lawyer is an advocate,
and the essential principle of advocacy is said to con-
sist in the substitution of persons professing special
skill and learning in litigated matters for the actual
litigants, to do, on their behalf and in their stead, all
which they, if possessed of sufficient knowledge and
ability, might do for themselves with fairness to their
102 PRACTICAL SUGGESTIONS

opponents. Such advocates are also entitled to charge
and receive a reward for the rendition of such services,
as will justly compensate for their preparatory study
as well as the actual labor employed*

The fact that an advocate or lawyer is ready to
take either side of a litigation for hire, does not nec-
essarily show that he is venal, nor that his attitude
contravenes the principles of sound morality. It is
sometimes hard to say on which side right and justice
lies even after a careful litigation or investigation, and
hence it is evidently necessary that such an investiga-
tion be made before a decision on the merits of the
case is given. The lawyer is simply retained to advo-
cate or present his side of the controversy, and to
assist in providing and arranging the materials from
which his client’s side of the case is to be judged.

Sec. 2029. OF THE HISTORY AND DEVEL-
OPMENT OF THE LEGAL PROFESSION.—Our
American system. of advocacy is derived from the
English system, though we do not follow the divisions
of the profession into barristers, solicitors, etc., pre-
vailing in England and her colonies. The history of
advocacy in England may be traced back as far as
Alfred. The first licensed advocates were called “ser-
jeants.”

In Greece there was no position which correspond-
ed to that of the lawyer of to-day. Parties
acted for themselves. Later, however, there grew up

 

*See the first chapters of Warvelle’s “Legal Ethics.”
PRACTICAL SUGGESTIONS 103

a class of people who wrote speeches for their clients
and delivered them. In Rome the advocate, when first
he became known to the Roman state at all, was a man
more politician than advocate, and simply took the po-
sition to advance his political ambitions. It was really
a political office. “Patron” and “Client” are the terms
_ suggesting the relation of attorney and client under
_ this system. But it came afterward, under the code
of Justinian, to assimilate more closely to the rela-
tion of the lawyer, as we now know him. In France
the lawyer has for a long time held a very high posi-
tion in the public estimation. At one time the pro-
fession was a branch of the nobility, and it was very
difficult to become a lawyer. In England, while legal
education has not taken the same course as in this
country, yet membership in the bar there has always
required a long course of preparation. The English
bar has always occupied a very high standing, and
many of the liberties which we enjoy are the result of
the influence of the wise lawyers and judges of the
past.

Sec. 2030. OF THE AUTHORITIES OR
WRITERS ON LEGAL ETHICS.—The chief source
of legal ethics to the average lawyer are the cus-
toms and practices prevailing in his local jurisdic-
tion, in addition to what his own general knowledge
would indicate to him to be right and proper conduct
under the circumstances. It is to the credit of the
profession that it is seldom that a lawyer does wrong
104 PRACTICAL SUGGESTIONS

as to his professional conduct through ignorance upon
the subject.

Among the writers upon the subject of profes-
sional conduct may be mentioned Judge Sharswood,
whose work is entitled “Legal Ethics;” George W.
Warvelle, is also the author of a small book on “Legal
Ethics.” Pollock’s Essays on Jurisprudence contain
many valuable suggestions along the line of profes-
sional conduct; and so far as the rules regulating pro-
fessional conduct are enforced by positive law or regu-
lations, reference may be found to them in any of
the commentators on municipal law. In the develop-
ment of this subject, we have made frequent use of
the principles and suggestions laid down by Judge Vic-
tor H. Lane, in his lectures to the law classes of the
University of Michigan.
PRACTICAL SUGGESTIONS 105

CHAPTER II.

THE LAWYER'S DUTIES WITH RESPECT TO THE PUBLIC
OR STATE.

Sec. 2031. GENERAL NATURE OF A LAW-
YER’S DUTIES TO THE PUBLIC.—The duties
which one who has espoused the legal profession owes
to the public or state by reason of his profession are
of a more varied sort than those of the ordinary indi-
vidual. This results from the fact that he has em-
braced one of the learned professions, and one which
particularly concerns the political and social welfare
of the community. Our age is one of law, notwith-
standing the many lawless acts which are still com-
mitted which the statute law is powerless to ade-
quately prevent or punish. The lawyer being versed
in the doctrines of the law, knowing its strong and
weak places, becomes, naturally, one of the pillars of
the state in upholding the laws enacted, and in de-
vising others to meet the changing conditions of social,
commercial and industrial life. Hence the lawyer is
not only interested as are other citizens in formu-
lating and procuring wise and just laws to be enacted,
and seeing that they are faithfully administered, but
he should become a leader and educator in this re-
gard among his fellow men. Because of this a law-
yer, of the right kind, may have a superior claim to
106 PRACTICAL SUGGESTIONS

political preferment in times when important legisla-
tion is to be, or should be enacted. But nothing but
contempt can be expressed for the professional syco-
phants, who have sacrificed their high grade abili-
ties to gain the patronage of corporate interests, and
consent to run for office in order the better to pro-
tect their patrons from becoming subject to reasona-
ble legal regulation.

A lawyer is also directly in line for promotion to
all those official positions which none but those trained
in the law can expect to hold, including all the posi-
tions incident to the judicial branch of the federal and
state government; judgships, prosecuting attorneys,
and the like. In these positions the lawyers should
have not only high moral and intellectual endowments,
but also a courageous and progressive spirit to with-
stand alike the temptations of those who would directly
or indirectly use him to tamper with justice, and the
seductive allurments of an aspiring ambition.

The general public can never know how many decis-
ions of the courts, and how many ostentatious acts
of public prosecutors are made at the dictates of am-
bition, and even as the result of pique, pride, jealousy
and revenge. It is believed that there are not so many
decisions based upon other than legal grounds now
as in the past, but the love of money, and the desire
to secure political or social preferment regardless of
the means used is occasionally corrupting a judge or
official connected with the administration of justice,
and without an awakened public conscience to dis-
PRACTICAL SUGGESTIONS 107

approve the action of, as well as punish such offenders,
grave fears may be well entertained for the stability
of our institutions.

Sec. 2032. THE LAWYER’S RESPONSIBIL-
ITY TO THE PUBLIC IN THE ADMINISTRA-
TION OF THE LAW.—“The lawyer is usually a
member of the community whose influence is more
potent than is that of the average man, and so he
should be more careful of his conduct and the way in
which he discharges his duties as a citizen by reason
of this fact. It may be said that there is no branch
of our form of government more important than is
that of the administration of the law, and the lawyer
is primarily responsible for that. The measure of
responsibility upon him is very much beyond that of
other members of the community. The literature
which pertains to the administration of law is all his
own. The members of the judiciary who ad-
minister the law are chosen from our profes-
sion. So that we may be said to be responsi-
ble for the administration of the law in the
communities in which we live, as well as in
the country at large. We should have an understand-
ing and knowledge of the law, and knowing what the
law is, we should be careful to see that it is properly
and correctly declared. The lawyer who loses sight
of this duty of his to do what he can to see that the
law is properly declared has lost sight of one of his
most important duties. It is easy under some cir-
108 PRACTICAL SUGGESTIONS

cumstances to lose sight of these duties. There comes
a time in the practitioner’s life, and it is not infre-
quent either, when it is somewhat easy for him to
overlook this. He would bend the law in the interest
of the contention which he makes. He cannot afford
to do that and he ought to be always very careful that
he does not do that. One of the charges which are
oftenest brought against the administration of law is
that we have judge made law. If the judges make
law, it is ordinarily true that some man or men at the
bar are responsible for it. It is not often that a judge
makes a declaration of a proposition of law except he
makes it upon the invitation of some member of the
bar. You cannot shield yourself by saying that after
all this question was submitted to the court. You
have not discharged your duty when you have made
an argument to the court for the declaration of law
which you do not believe in, it is infinitely more im-
portant that there be a correct declaration of law than
that there be a failure of justice in a particular case.
“Temptations for the violation of this duty are verv
strong many times. They press upon us by reason
of practices which ought not to be permitted. Take
a lawyer who has put himself in a position of having
a large fee depend upon his success. He will lose
sight of these principles when trying to earn his con-
tingent fee.
“So it is true that he finds public opinion running
in a particular direction. He thinks if he can put
himself in the line of public opinion he.can gain some-
PRACTICAL SUGGESTIONS 109

thing for himself. He can never afford to sacrifice his
own conclusion as to what his duty as a lawyer is to
the clamor of public opinion. We ought to be strong
enough to stand in the face of public opinion where
duty calls us to stand.

“Many times our own friends appeal to us very
strongly in the administration of justice to do some-
thing which is not in the interest of justice and we
ought to be very careful under these circumstances.
The lawyer cannot for a moment forget, when we
think of it from the purely selfish side, that his busi-
ness is a life work. He is not practicing law for a
day, but he expects to make that his life work, and
looking at it from that point of view you cannot afford
to do less than your duty as a lawyer. So I want
to warn you against permitting yourselves to be used
when there is an opportunity for winning popular ac-
claim from the “hangers on.” ‘You will find that
there is sometimes a temptation to please these people
who are sitting around the court room. You ought
to lose sight of these people. Keep before you your
duty as lawyers and do not seek to gain notoriety by
permitting yourself in speech or manner to pander to
them; it is a weakness to do that. The only anchor
for the lawyer against a weakness of this sort is that
he attach himself to some well grounded principles and
build his life as a practitioner up to these.”*

 

*From Lectures to Law Students of Michigan University
by Judge Lane.
PRACTICAL SUGGESTIONS II

CHAPTER III.

THE RELATION AND CONDUCT OF THE LAWYER TO HIS
CLIENTS.

Sec. 2033. THE ETHICAL JUSTIFICATION
OF THE LAWYER WHO IS ON THE LOSING
SIDE OF A LEGAL CONTROVERSY.—While it
is true that a lawyer is not to constitute himself judge
of his client’s case in the first instance, but is rather
a helper in presenting the facts so that others may de-
cide, and at the same time to carefully scrutinize the
facts and acts of the other side so that no advantage
may be taken of his client, yet the question is fre-
quently raised as to the ethical justification of a law-
yer accepting a retainer on what is styled “the wrong
side of an action,’ whether civil or criminal. The
individuals who argue from the fact that a lawyer is
ready to be retained on either side of a controversy
that he is therefore indifferent to the right or wrong
in the matter, lose sight of the fact that it is one of
the fundamental principles of Anglo-Saxon civiliza-
tion in the rendition of justice, that every one is en-
titled to be heard and have his side presented—in
court—in the best possible light, and that so far from

_this policy resulting in making a travesty of justice,
it is deemed to be the only enlightened way to secure
the equal and exact administration of justice known
112 PRACTICAL SUGGESTIONS

to man. In this view it is not for the lawyer to de-
cide whether his client is in the right or wrong of the
controversy, though if he does find sufficient to con-
vince himself of the justice of his client’s side he will
be the more strenuous advocate. But we do not think
that it is a lawyer’s duty to decide for himself in the
first instance whether he has the right or wrong side,
whether considered from a legal or moral standpoint.
It is enough for him to know that his client is en-
gaged in a controversy, and that the other side will be,
or have the cqual right to be represented by a skilled
advocate, and that his services are necessary to prop-
erly present his client’s side of the matter to the trib-
unal authorized to decide the controversy. This
seems to be the only practical view to take, for if a
lawyer were to conclude that it was his ethical duty to
first decide whether his would-be client’s were in the
right or wrong he would be usurping the position of
judge-and jury and putting his own individual opin-
ion in the place of that of the authorized tribunal alone
entitled to decide. Again, suppose the lawyer should
conclude that the side presented to him was the
“wrong” side, then what appeal would the suitor have?
And he is legally entitled to an appeal. Other mem-
bers of the profession hearing that the case had been
offered to one of their number and refused, would be
likely to refuse it also, as a result of which the suitor
would be without the assistance of those whose pri-
mary purpose as well as duty is to assist suitors.
PRACTICAL SUGGESTIONS 113

Sec. 2034. SAME SUBJECT—ANOTHER
VIEW.—Another side of this controversy is that ad-
vocated by Judge Lane, who says: “It is true that
there is a wrong and a right side to every controversy
in court. The fact that the parties have come into
court shows that they have something that they cannot
agree to and ask the court to see which is in the right.
Now the question naturally suggests itself as to
whether the lawyer as a lawyer should determine this
question in advance. In other words, is he justified in
going into court when he is not satisfied in his own
mind that that which the client asks is that which the
client is entitled to. This is a question which has given
rise to a greal deal of discussion. I may say that it
is certainly not always true that you should refrain
from representing a client in such a case. An attor-
ney may be justified in making a contention for the
client, but he is not justified in making a contention
that he does not believe in. He may render very
valuable services to his client and never make a con-
tention that he does not believe in. It is his duty,
even though public opinion may be very seriously
against him, to stand for him and see that if he is
convicted that he is convicted according to forms of
law. If he goes outside of that and contends for
what he does not believe in he is out of his position.

“Occasionally we run across a controversy in which
there seems to be a little of equity on either side, but
as it finally develops we ordinarily find it to be true
that there is what we know as a right and a wrong
114 PRACTICAL SUGGESTIONS

side; but it does not follow because this is true that
the attorney who happens to be upon the wrong side
is out of his proper place. Not that the attorney is
justified in accepting a retainer from every person who
comes to him. He certainly is not. Particularly is
this true in civil cases, and in those civil cases where
a man is asked to inaugurate the litigation by begin-
ning the action. He is under no obligation to begin
that litigation simply because he is asked to.

“Neither do I mean to say that because he is
doubtful of the right he should decline a retainer of
that kind. The very fact that he is doubtful would
put him in a situation ordinarily where if the matter
in controversy were of importance to the man who
comes to him he would be very certainly justified in
accepting a retainer, that the issue might be tried and
the question investigated and the rights of the par-
ties determined. Again: the controversy may seem
too insignificant or may seem to be prompted by spite
against the defendant; these are considerations which
may always determine your employment.

“In many controversies there are two questions:
1. Is the plaintiff entitled to recover? 2. What
shall be the measure of his recovery? Frequently it
is conceded that the plaintiff is entitled to damages
and the only question is as to the amount of the dam-
ages. Here of course you are quite free to undertake
to defend against a wrong measure. of damages.’’*

 

*From Lectures to Law Students.
PRACTICAL SUGGESTIONS 115

Sec. 2035. SAME SUBJECT—IN CRIMINAL
CASES.—There is little controversy as to the right of
an attorney to defend a person accused of cfime irre-
spective of the question of guilt or innocence. In this
regard Judge Lane remarks: “Ordinarily such a
prosecution is to be instituted only by a public official.
And difficult questions do not arise there unless it be
where an attorney is called in by the state’s attorney
to assist in the prosecution. If you have conscien-
tious scruples against employment of that kind, do
not communicate them to the court in a public way, be-
cause that may operate to the prejudice of the accused,
but confide them to the court in private and leave it to
the court to decide whether you shall nevertheless act
for the state.

“When an attorney, however, is asked to defend
a criminal case he is in a somewhat different position
from an attorney who is asked to defend or institute
a civil suit. Here he is certainly justified in going
in and making such a defense for him as the client has
under the law. In a civil case a party undefended by
an attorney might be mulcted in a much larger sum
than he ought to pay, even though it is clear he ought
to pay something. Similarly of one charged with a
crime; here you may have very positive convictions as
to the guilt of the accused, but it does not follow from
that that you are not justified in making a defense ;
you may, and within such rules of law as are appli-
cable to cases of this sort. However, if you are con-
vinced the man is guilty, it is your duty to tell him

’
116 PRACTICAL SUGGESTIONS

so and let him know your attitude, as it is true that
a man with preconceived notions of that kind can
hardly have quite the zeal in defending his client that
he would otherwise have. And as a general rule the
attorney and client should understand each other quite
thoroughly, whatver the litigation.

“As to criminal cases, then, the rule may be stated
thus: Ifa person is charged with crime, you are jus-
tified in defending him and seeing to it that if he is
convicted he is of convicted in violation of some rule
of law.”

Sec. 2036. THE LAWYER’S DUTIES AS RE-
SPECTS GIVING ADVICE TO HIS CLIENTS.
—When a lawyer is simply asked for advice by a
client it is his duty to give it fairly and honestly as
he understands it, though such advice may be con-
trary to what the client desires and may be the means
of losing the giver of the advice a lucrative employ-
ment. Many clients desire to be upheld in their con-
tentions as to the law applicable to the facts, and are
willing to take chances on the result, but the lawyer
cannot afford to do this, his advice must be unbiased
and consistent with the law as he understands it. If
this practice is not followed, the lawyer will find that
his clients come to regard his counsel at what it is
really worth—nothing, and in time go elsewhere with
their business. This does not mean that if the suitor
has a case which he desires brought at all events, or
is defendant in an action and needs your services that
PRACTICAL SUGGESTIONS 117

you should refuse to assist him, because it is your best
judgment that his is not the meritorious side of the
litigation.

Judge Lane states that an attorney should “never
advise a client to go into a losing fight just because he
wants to be advised that way. And this prinicple con-
trols when we come to consider questions of review.
If you lose at nisi prius and you think there is reason
for taking the case to a higher court or obtaining a
new trial, you may, of course, advise your client, even
against his own conviction, that he should move for
this review; but do not, for the purpose of postpon-
ing an evil day which must come in the end, abide in
the trial just because your client wants to. If you be-
lieve that you were wrong in your advice to your client
under which you went into the nisi prius trial, confess
it and do not go further in the trial unless he posi-
tively insists.”

Sec. 2037. IT IS AN ATTORNEY’S LEGAL
RIGHT, IF NOT HIS DUTY, TO REFUSE RE-
TAINERS IN CERTAIN CIVIL CASES.—An at-
torney who acts with circumspection will not indis-
criminately accept retainers in all classes of cases
and from all persons. An attorney, like a magistrate,
may, if he so chooses, prevent by timely advice, the
bringing of many small and vexatious suits which can
only end in costs and ill-feeling. It is an attorney’s
unquestioned right to refuse a retainer in any civil
case in which his judgment and discretion indicate that
118 PRACTICAL SUGGESTIONS

it is best for his own interests not to be connected with.
It is not advisable for any attorney to be continually
on the wrong, or losing side, and he has a right to
select his cases with this fact in view. Again, by
bringing suits indiscriminately a lawyer may not only
get in bad repute in the community but also with his
professional brethren.

Sec. 2038. AN ATTORNEY CANNOT, PER-
HAPS, JUSTLY REFUSE TO REPRESENT A -
PERSON ACCUSED OF CRIME.—The right of an
attorney to select his cases and refuse employment is
said to be limited somewhat as respects criminal cases.
Here there is the gravest need of the defendant be-
ing represented by counsel, and it is the duty of an
attorney not to refuse employment by such person
without a good excuse. The question also arises where
the defendant is impecunious and unable to engage
counsel, and the court appoints some member of the
bar to defend him. In such cases the attorney ap-
pointed being an officer of the court cannot refuse to
act. But in practice the court seldom appoints any one
not willing to act for the accused.

Sec. 2039. WHEN A LAWYER IS ALREADY
RETAINED IN A CASE, HE SHOULD SO IN-
FORM AN APPLICANT FOR HIS SERVICES
IMMEDIATELY.—Where an attorney is engaged
generally or specially on one side of a litigation, and
is approached by the other litigant, it is his duty to
tell such litigant at once that he is acting for the other
PRACTICAL SUGGESTIONS 119

party, and not wait until he is informed of the facts
on the adverse side, before making known his pre-
vious employment. So, whenever for any reason the
interests of the attorney become adverse to those of
his client it is his duty to tell the client of the fact
and give up the employment, or refuse to accept it if
not already engaged in.

Sec. 2040. WITH HIS CLIENT AN ATTOR-
NEY SHOULD OBSERVE A JUDICIAL ATTI-
TUDE, AND NOT ADVISE ANYTHING CON-
TRARY TO LAW.—The lawyer, in his office, should
observe a judicial attitude to his clients, and different
from that which he may use in court, where he is
the advocate and defender of his client. It is not best
for the attorney to become the keeper of his client’s
conscience to the extent to persuade or allow the client
to do acts favorable to his side regardless of their
truthfulness or honesty. So an attorney is not gen-
erally justified in taking steps that are merely intended
to delay litigation, though such delay is in the inter-
ests of his client. But where such delay will eventu-
ally assist the client and also the other party such
measures may be justifiable.

Sec. 2041. SOME THINGS AN ATTORNEY
SHOULD NEVER DO FOR HIS CLIENT.—An
attorney is never justified in going direct to the op-
posing litigant and making a settlement with him
without consulting the opposing attorney. Such an
action is highly unprofessional, and cannot be jus-
120 PRACTICAL SUGGESTIONS

'

tified on the ground that it is in the best interests of
his client to do so. This is nothing more than taking
a mean and underhand advantage of the opposing
counsel, and one who practices it merits the contempt
of his fellow members of the bar. It might be said in
passing, that whenever a client is foolish enough to
thus treat with the other side for settlement in the
absence or without the knowledge of his attorney, he
usually gets mulcted as he deserves.

It hardly needs stating that an attorney cannot be
justified in sacrificing the interests of his client on
account of extraneous influences. Thus, the fact that
your side of the litigation is unpopular, or your client
is poor while the other side is rich and influential, and
your personal interests might be momentarily ad-
vanced by slighting your case, must not be allowed
to affect your conduct or efforts in your client’s be-
half. Your reputation depends upon your absolute
honesty and consistency in serving the interests of
your client under all circumstances.

It is likewise axiomatic that an attorney is never
justified in making a bad or erroneous use of the law
in order to win the suit for his client. It is unfor-
tunate that it is the practice of some attorneys to win
at all events, and if the rule can be twisted, or the
law subverted, they count themselves all the greater
advocates. It is undoubtedly true that certain rules
of law prevailing in some jurisdictions were thus es-
tablished, and perhaps will not be eradicated until the
legislature takes a hand at their demolition.
PRACTICAL SUGGESTIONS 121

An attorney is not justified in entering into a crim-
inal prosecution for the purpose of bolstering up a
civil action which he intends to bring when the crim-
inal matter has been disposed of. Where such course
is pursued by one who is acting in the position of pub-
lic prosecutor, it is all the more reprehensible, as it
makes such attorney personally interested in the event
of the action, and a partisan in every sense of the
word.*

Sec. 2042. OF THE RIGHT OF AN ATTOR-
NEY TO RECEIVE COMPENSATION FOR HIS
SERVICES.—At the beginning of the professional
avocations lawyers and physicians were not allowed
to charge for their services in the modern sense. They
had no legal claim, but had to depend upon gratuities.
But this has long since been changed, and the lawyer
and physician has the same right to charge and re-
cover for services rendered as any other laborer, agent,
or representative. In the past the services of an advo-
cate were rendered either for political reasons, or by
reason of relationship and the like. In modern times
the relationship between attorney and client as to
payment for services rendered by the attorney are re-
garded as other contract relations. When no com-
pensation is agreed upon, a reasonable one is implied,
and whether express or implied payment for such
services can, be enforced by legal process. But until

 

*Rush v. Kellogg, 2 Barr. (Pa. St.) 180.
122 PRACTICAL SUGGESTIONS

quite recent times, in some states the rule was other-
wise.

Sec. 2043. HOW THE AMOUNT WHICH AN
ATTORNEY MAY CHARGE FOR HIS SERV-
ICES IS DETERMINED.—As a general principle,
in the absence of extortion, the amount which the
attorney charges as his fee for legal services ren-
dered his clients raises no ethical question, and the
attorney is at liberty to charge according to his own
idea of the value of his services. Perhaps in no other
profession, except that of medicine, does the fee of in-
dividuals for the same class of work vary so much.
One lawyer may charge twenty-five dollars and con-
sider himself well paid, while another who is con-
sidered a little higher up the professional ladder will
receive one thousand dollars for a similar service.

When the question as to what is a reasonable com-
pensation for such service under the circumstances of
the particular case, is raised, as it sometimes is, then
the professional skill and standing of the person em-
ployed, his experience, the nature of the controversy,
both in regard to the amount involved and the char-
acter and nature of the questions raised in the case
—as well as the result—must all be taken into consid-
eration in fixing the value of the services rendered.*
In other words, an attorney has a right to measure his
compensation, having in view the responsibility which
he assumes, and that involves of course the magnitude

 

*Engstrom v. Boardman, 37 Mich. 14.
PRACTICAL SUGGESTIONS ’ 123

of the controversy, what it means to either of the
parties and as well the questions involved, whether
difficult of solution, new questions which require great
legal skill for correct determination, or whether they
are questions of an ordinary character; and then the
result of the controversy may properly be taken into
consideration.

Considerable criticism is made of the legal profes-
sion, and many jests made at the expense of the mem-
bers of the bar, because of so-called excessive charges
for services rendered. Perhaps because of this many
persons and agencies insist upon a written agreement
as to fees before the services are rendered, and we
have never heard of a lawyer who is not willing to
stipulate in advance as to what his charges will be.
It is likely that those responsible for these criticisms
and jests take but a superficial view of the services
rendered by the attorney in the case which they have
in mind as involving an excessive charge on the part
of an attorney. Such persons are apt to think that a
lawyer’s compensation, like the ordinary laborer ought
to be governed by the actual time employed in the
client’s behalf, and overlook entirely the fact that a
great deal of time has been employed by the attorney
in fitting himself to practice law, and that consider-
able capital and expense are also connected with his
calling, all of which must be taken into consideration
in estimating the reasonableness of his charges.

Sec. 2044. SAME SUBJECT—OF THE LIMI-
TATIONS IMPOSED UPON ATTORNEYS AS
124 PRACTICAL SUGGESTIONS

TO FEES.—While an attorney has considerable lati-
tude in the matter of his fees, he should never make
his charge excessive simply because his client can pay,
and perhaps will pay without protest. It is perhaps
but reasonable that those who are very poor should
be entitled to have their limited resources considered
in fixing the professional fee to be charged for serv-
ices rendered them, and, on the other hand, a law-
yer may sometimes be justified in asking those abund-
antly able to pay well for his services, more than
he would if their resources were limited. An attor-
ney, so long as he practices no fraud upon his client,
is free to make any agreement, however advant-
ageous to himself, as to his fees, that his client will
consent to. Thus he may accept a stipulated sum as
a general retainer for a specified time, or he may en-
ter into a special contract for his employment, and
such contract will determine his rights to compensa-
tion. Again, he may make a contract under which
he shall be paid a specific sum, or his contract may be
one without any compensation being mentioned but
the contract being such as to indicate that one is im-
plied. In the former case he may recover compensa-
tion on the contract; in the latter on a quantum mer-
uit. He may, too, make a contract by which his com-
pensation is contingent upon recovery of judgment
for his client. There are, however, various forms in
which this question of contingent fees may arise: an
attorney may contract that he shall have compen-
sation of say $1,000 if he recovers $10,000, and $500
PRACTICAL SUGGESTIONS 125

if he recovers less; or there may be a contract that he
shall recover a specific sum if he recovers judgment,
and nothing at all if he fails. Between these two lim-
itations the range may be indefinite.

The other sort of contingent fee is that where
the attorney is to accept compensation dependent upon
the amount of the judgment, the compensation to
come out of the judgment; for example, he is to get
50 per cent of the recovery. In a very few states he
may not make a contract which under the old com-
mon law would be champertous or maintenance.

Sec. 2045. OF THE OBJECTIONS TO CON-
TINGENT FEES.—While it is now not illegal for
an attorney to accept employment upon a contingent
fee, or stipulated interest or percentage in the judg-
ment or amount recovered, and many cases are taken
by reputable lawyers on such a basis, there are grave
objections to the practice. Some of these are pointed
out in the case of Ex Parte Flint,* where it is said,
that the attorney puts himself in a position of suspi-
cion when he consents to take a contingent fee. That
was true possibly more then than now. Contingent
fees are now permitted under the laws of at least
most of our states. The contingent fee is a fee where
the attorney consents to measure his compensation by
the size of the judgment which may be recovered.
If he recovers nothing, his fee is nothing. It prac-
tically puts the attorney in a position where he is a part-

 

*2 Wall. Jr. 454.
126 PRACTICAL SUGGESTIONS

ner with his client. He cannot represent his client
with the same freedom that he would if he -had not
that interest in the outcome of the litigation. The
objection to the contingent fee is just there. We are
in a position to take advantage of our client; we can
make him think that the controversy is a very much
more difficult one than we believe it to be. These
are the dangers¢ of the contingent fee, but it is not
an unlawful fee, it is dangerous because of the temp-
tations which it presents.

The only justification for the contingent fee is
that the client is, in many cases, either unable or un-
willing to employ counsel to go forward with the liti-
gation, since it may be of great length and involve con-
siderable expense, and will only consent to an action
being brought on the condition that he is only to
be liable for services rendered in the event of recovery,
and then only in a certain stipulated amount. If it
were illegal for an attorney to accept such condi-
tional or provisional compensation, it would in many
cases make it impossible for an impecunious suitor
to secure counsel to prosecute his just action for dam-
ages for personal injuries received through the negli-
gence of some person or corporation.
PRACTICAL SUGGESTIONS 127

CHAPTER IV.

OF THE ATTORNEY'S CONDUCT AND DEMEANOR TOWARDS
THE COURT.

Sec. 2046. THE ATTORNEY’S RELATIONS
WITH THE COURT IN GENERAL.—By the
“court” in this connection is meant the judge, or
judges, and jury who compose the court for the trial
of litigated matters. There are many fine points of
etiquette as regards the conduct of an attorney to-
wards the judge and jury which each one must de-
cide for himself, but as to the general conduct of the
lawyer to the court there can be no question as to
what it should be. The lawyer must not only demean
himself as a gentleman, but as an officer of the court,
and with all proper respect to the high official position
of the judge, and the presumed unprejudiced charac-
ter of the jury as judges of the facts in the litiga-
tion.

Sec. 2047. IN HIS RELATION WITH THE
JUDGE IT IS THE OFFICIAL POSITION
WHICH IS TO BE REGARDED RATHER THAN
THE MAN.—An attorney-at-law, is a sworn officer
of the court and as much bound to respect legal forms
and observe the spirit of justice in his professional
capacity in court as the judge. It is well to remember
that a lawyer is an officer of the court, and with the
128 PRACTICAL SUGGESTIONS

judge is engaged in the administration of law. He
is really an assistant to correct conclusions of the
court in the particular case in which he finds himseif
engaged. He must be faithful to the judge; not so
much so to the man as to the officer. There is some-
thing that we owe to him and that we should always
be regardful of. We cannot afford to put ourselves
in a position of showing lack of respect. You find
the bar of a particular court lacking in respect for
the officer who presides there and you will find a bar
which has not the respect of the community. I want
to distinguish between the judge and the man. It
is to be regretted that sometimes we may have little
respect for the man himself, but the office is the
same whether occupied by one man or another and
that we always ought to show regard for.

Sec. 2048. IT IS THE DUTY OF AN ATTOR-
NEY TO ALWAYS SHOW RESPECT TO THE
JUDGE.—It is the province of the court to decide the
legal points which arise in the progress of a litiga-
tion, and though sometimes unfit men are elevated to
the position of judge, and their decisions show their
unfitness, yet counsel are obliged to accept their rul-
ings with respect as coming from the bench.

One of the indications that a man is a strong at-
torney is his ability to accept an adverse decision of
the court. Here, particularly, if it is a controlling
question in your case and you believe you are right,
it takes a lot of grace to come to the decision that the
PRACTICAL SUGGESTIONS 129

court is right in that declaration. After you have gone
as far as you can reasonably and with dignity, ac-
cept the position of the court. It is very annoying
many times to find an attorney who seems to disre-
gard a decision of the court when made, which should
control all that line of propositions which may arise
by the presentation of other questions. I do not mean
to say that the attorney may not show that the court
has failed to appreciate the question before it. After
other evidence is in, so that the bearing of the ques-
tion may be better seen by the court, the attorney may
compel the same line of evidence to be introduced
again. Any attempt to take the court off his guard
and get in evidence which the court has said is not
competent is not proper practice for any one. Sup-
port the court in its rulings. It is your duty in the
interests of public justice.

The influence upon popular opinion as to courts
of justice by any lack of respect manifested by mem-
bers of the bar towards the judge in the court room
may be very serious; it may not only interfere with
the administration of justice in a particular case, but
affect the administration of the laws generally. As
a member of the bar it is the duty of every attorney
to see to it that all the formality and dignity cus-
tomarily shown to judicial proceedings shall be strictly
observed, and that the respect due to the high position
of the presiding officer shall never be forgotten.

Sec. 2049. OF THE RIGHT OF AN ATTOR-
NEY TO OPPOSE THE JUDGE.—It is your right
130 PRACTICAL SUGGESTIONS

and duty as an attorney to present your view of the
law to the court, and in so doing you will find your-
self in many cases where you must very earnestly
oppose the court. Your duty to your client sometimes
requires you to make opposition to the court, but you
can always do this and be respectful. This we should
always keep in mind. One of the greatest of judges
who has ever sat on the bench of the court of last re-
sort, said this: “Aside from matters of reference to
official duty, the judge is on a level with members
of the bar and his fellow-citizens; his title to distinc-
tion resting upon no other foundation than his virtues
and qualities as a man.””*

Sec. 2050. IT IS THE DUTY OF AN ATTOR-
NEY TO BE TRUTHFUL AND HONEST IN
MAKING STATEMENTS TO THE COURT.—It
is part of the obligation of the attorney as a sworn
officer of the court and an important factor in the
machinery of justice to be truthful and honest in his
dealings with the court. And independent of this
official obligation, it is our duty as members of the
bar, to be truthful and honest in all our statements
to the court.

If we make a statement of fact to the court, let
it be certain that it is the fact. If it is not made on
personal knowledge, let it be stated as on belief. We
can give our source of knowledge. We cannot afford
to let the court find out that we stated for a certainty

 

*Austin’s Case, 5 Rawle, 204.
PRACTICAL SUGGESTIONS 131

what we did not know to be a certainty. If we are
presenting papers to the court, let us not present them
unless we have confidence in them ourselves. If we
have prepared the papers, this is certainly true. If
they have been prepared by somebody else, we ought
to have confidence in the source from which they
come. We ought to bring to the court only that which
we believe the court is justified in acting upon.

Sec. 2051. AN ATTORNEY SHOULD NOT
FORGET THAT THE POSITION OF THE
JUDGE IS FREQUENTLY A TRYING ONE.—
Attorneys are apt to forget the flight of time in the
trial of a law-suit, and when reminded of
their tediousness by the court should not be-
come offended. As Judge Lane remarks, “the
position of a trial judge is a wearisome one,
particularly in what we may call our country
circuits. If he has any good measure of apprecia-
tion of the value of time spent in the court room, he
must be continually in opposition, more or less, to
those who are practicing before him. The attorney
who is interested in his case may not notice the pass-
ing of time. The court is better able to appreciate
that. In this way he may make himself disagreeable
sometimes to practitioners.”

Sec. 2052. OF THE CONDUCT OF THE LAW-
YER TO THE JURY.—It is the duty of the at-
torney, both as a member of an honorable profes-
sion, and as a sworn officer of a court of justice, not
132 PRACTICAL SUGGESTIONS

to attempt to influence in any direct way the opin-
ions of the jurymen. As an advocate, in court, in the
trial of the suit, it is his duty and privilege to make
his personality felt upon the jury, and to do his utmost
to have the judge and jury see the real merits
of his client’s side of the litigation, and accept his
view of the facts. But any underhand or unfair
means to secure their favorable action, as by patron-
age, flattery or special friendship, is unprofessional
conduct, and should merit the rebuke of the court, if
not be taken into consideration on motion for a new
trial.

Notwithstanding the evident impropriety, and ques-
tionable ethics of a fawning disposition towards the
jury, it is becoming a common habit with certain
members of the bar to depend upon winning their
cases by ingratiating themselves with the jury, or
selecting such persons whose friendship they can con-
fidently rely upon to make them favorably disposed
in the case, rather than submitting to an honest and
fair trial of the issues upon the facts. The same thing
may be said as to the judges being influenced by the
position and standing of certain lawyers, rather than
by the logic of their legal points. Perhaps nothing
but the censure of an enlightened public opinion can
put an end to such abuses, as it is said that a corrupt
bar indicates a corrupt and corrupting people and
community. Certain it is, that if a juryman, is honest,
and has a decent respect for his oath, he cannot but
PRACTICAL SUGGESTIONS 133

look with disfavor upon counsel who use such tactics
to gain his favorable action.

In his lectures to law students, Judge Lane says:
“Our influence, which is to be brought to bear upon
the jurors, should be brought through the open avenue
of the court. A lawyer who attempts to influence
the jury outside the court is not fit for our profes-
sion. Some courts go very much further than others
in their regulations and enforce strictly the rules
which they make in respect to the relation between
attorney and jurors. Jurors are not usually sum-
moned for a particular case but for a whole term of
court. They may be around the court house for sev-
eral weeks and a person may ingratiate himself into
the good graces of the jurors until he would have a
great influence when he came to the trial of his
case. This is entirely improper. You may not treat
the jurors as you treat others who come into court.
You not only should not deal with these as you would
with an ordinary citizen in the court room, but you
should keep yourself aloof from them. In any event,
we ought not to put ourselves out of the way to talk
to the jurors or invite them to our house or office.
These attempts upon the part of the attorneys to reach
the jurors for the purpose of putting themselves in a
position where they may be stronger is entirely out of
place. I have known cases where it seemed to me at-
torneys have sought to manufacture a favorable at-
mosphere about the court room by having their clien:
bring a number of his friends to the court room to talk
134 PRACTICAL SUGGESTIONS

favorably of his case. The attorney who would sug-
gest such a thing is entirely out of his place; the client
may not know any better. Even though this may be
attempted, it is not always successful. Jurors are
generally able to appreciate these things better than
we think and if they find out that such a thing is be-
ing done, they are very naturally oposed to it.”
PRACTICAL SUGGESTIONS 135

CHAPTER V.

LEGAL STATUS OF THE ATTORNEY AS A MEMBER OF THE
BAR.

Sec. 2053. OF THE RELATIONS OF THE
ATTORNEY WITH MEMBERS OF’ THE BAR.
—As a rule attorneys look upon their fellow members
of the bar as professional brethren, and a friendly,
rather than a strict code of professional etiquette gov-
erns their relations with one another. It sometimes
happens that one or more members of the bar forget
the courtesy and consideration due to their brother
attorneys, and whether the oversight shall be ignored
or met by retaliatory measures of the same kind and
degree depends upon the circumstances of the case,
as well as the temperament of the members slighted.
It is certainly true that where an attorney persists in
a line of objectionable conduct towards his fellow
members of the bar, he may sooner or later expect to
find that they will refuse to extend to him the fav-
ors customarily extended, and retaliate in some way
for his slighting the professional code.

There are many ways in which an attorney may
get in bad odor with his associates at the bar. Thus
an attorney who fails to keep his word when given
to another member of the bar in connection with a
litigated matter need not feel slighted if fellow mem-
36 PRACTICAL SUGGESTIONS

bers refuse to accept his promises thereafter. A mat-
ter which deserves professional rebuke, is the method
followed by some attorneys of getting cases indefin-
itely postponed after they are ready for trial, on one
or another excuse, even resorting to shamming in-
disposition in order to get a case continued. There
are attorneys who also take delight in securing de-
faults, or snap-judgments upon their fellows, at every
opportunity, although all the advantage that may be
gained is making the other side some trouble in hav-
ing it set aside. The conduct of an attorney in his
daily life and in court may be overbearing, exacting
and arbitrary to such an extent as to congeal all the
fellowship and friendly feeling which the most genial
hearted associate could have, and make the trial of a
case with him, or against him a thing to be dreaded.
Little is to be gained by any of these practices ex-
cept the dislike of your associates, a thing to be avoid-
ed in any profession.

Sec. 2054. AS AN OFFICER OF THE COURT
AN ATTORNEY IS SUBJECT TO CONTROL
BY THE COURT.—It is to be remembered that the
attorney is an officer of the court, and as such subject
to the order of the court. Not that there are no rights
of his which the court is bound to respect, and that
he must obey its orders whether or no. But generally
speaking he is subject to the order of the court as to
his conduct, particularly in the court. For official
misconduct—for misconduct of the attorney as such
PRACTICAL SUGGESTIONS 137

—he is subject to punishment, and this may be of sev-
eral kinds: a mere reprimand by the court; imprison-
ment, fine or even disbarment. Disbarment really is
not by way of punishment, however ; but the theory of
disbarment proceedings is that it is for the purifica-
tion of the bar itself; and we should not approach
these proceedings from the point of view that they
are for the punishment of the attorney. Of course it
does operate as punishment and very severe punish-
ment at that; but that is not the theory under which
the court assumes jurisdiction in such cases.

Sec. 2055. WHEN THE COURT IS AUTHOR-
IZED TO PUNISH AN ATTORNEY FOR IM-
PROPER CONDUCT.—It is stated by Judge Lane,
that: “Any conduct on the part of the attorney, show-
ing him to be morally unfit for the practice of the pro-
fession, will justify a court in administering punish-
ment upon him of one sort or another. Not that any-
thing he may do which is a breach of good moral
conduct would justify such a proceeding—indeed,
the general principle is more often stated that this con-
duct must touch him in his official character; but
then I think that is not a correct statement. The
theory I think which is adopted now is that, it being
necessary that the attorney should have a good moral
character, whenever it may be said that he has it not
—and that may be evidenced by his conduct in other
ways than as an attorney—it is ground for proceed-
138 PRACTICAL SUGGESTIONS

ings of this sort, which may result even in his being
disbarred from the profession.”*

Sec. 2056. OF THE NATURE OF A DISBAR-
MENT PROCEEDING.—The theory of a disbar-
ment proceeding against an attorney is, that it is not
to punish the offender for improper conduct, but to
purify the profession and protect the administration
of justice. It is therefore held, that while a convic-
tion of crime may support a disbarment proceeding,
it is not to be considered as a second punishment of
the offence within the Constitutional provision for-
bidding that a person be twice punished for the same
offence. The conviction establishing his guilt author-
izes the court to act in shutting him out from the bar,
even though he may have received all the punishment
which the law provides for that crime.

It rests in the sound discretion of the court, where
crime has been charged against one and _ disbar-
ment proceedings are on, whether it will await con-
viction of the crime. There is no legal obligation
to await even a criminal prosecution for that offence,
even though the court may control that prosecution
when it is brought to trial, and if the proper authori-
ties should fail to start that prosecution the court
should have it within its power to order that officer
to do so. Nevertheless, he need not await the exer-

 

*The right of the court to punish an attorney is discussed
in the following cases: Mills’ Case, 1 Mich. 398; Weare’s
Case, 2 Q. B. 439; Ex Parte Brownsall, 2 Cowper, 829.
PRACTICAL SUGGESTIONS 139

cise of that power: he may take up and hear proceed-
ings to disbar one upon the ground that he is guilty
of crime even though there be no prosecution or
though there be one pending. But of course the court
will ordinarily prefer to await the termination of the
prosecution.

These proceedings of course are very serious. If_
they result in shutting one out they disbar him as a
practitioner, and that may mean very much to him
beside stopping him from the practice of his pro-
fession. It stamps him with a bad character in what-
ever business he may afterward engage, and there-
fore should never be undertaken without strong rea-
son.* i

It has been held that the right to practice law is so
far considered as a property right, as to receive the
same legal protection as other property, and hence it
could not be taken away by statute, without the inter-
vention of due process of law.** And it is not gen-
erally allowed to disbar an attorney on proceedings
which are not commenced in some regular way, as
by sworn charges preferred by some one who has
knowledge.

But it has been held that where the conduct com-
plained of takes place in the immediate presence of
the court, the court may act upon the information
which comes to it in that way; but even here the court

 

*In re Robinson, 19 Wall. 505. _
**Ex Parte Garland, 4 Wall. 333.
140 PRACTICAL SUGGESTIONS

should hesitate before passing an order depriving one
of the privilege of practicing his profession without
giving him an opportunity to be heard. There are ©
almost always explanations of conduct which we do
not expect in a man, and he ought to be heard before
the court deals so seriously with him as to say he is
not to practice his profession. And so it would seem
the better practice, that even though the conduct takes
place in the presence of the court the lawyer should
be given an opportunity to answer charges formu-
lated to the court by someone else.

Sec. 2057. DISBARMENT PROCEEDINGS
ARE COMMONLY INSTITUTED BY THE LO-
CAL BAR ASSOCIATION.—Quite commonly pro-
ceedings of this sort are initiated by a committee or
officers of the bar association, and yet in the absence
of statute there is no legal duty upon the bar to com-
mence proceedings of this kind. Of course there may
be a moral obligation upon the bar to do so. It is a
delicate thing for the judge to begin disbarment pro-
ceedings, because he then sits as judge in the prosecu-
tion of a proceeding which he himself has started.

Sec. 2058. OF THE PLEADINGS IN A DIS-
BARMENT PROCEEDING.—The pleading ought
to be substantially that which we find in a criminal
prosecution: the setting out of definite charges against
an individual in order that he may come in and answer
specifically. Anything less than that seems to be not

 

*In re Wall, 107 U. S. 265.
PRACTICAL SUGGESTIONS 141

quite fair; not within the spirit of our common law
procedure.

This sort of showing being made, it is presented
to the court and the court passes its order to the effect
that a copy of this charge, with a copy of the order,
be served upon the respondent and he be required to
answer to these charges (usually in writing) at a
. day fixed in the order, at which time the respondent
must come in with his showing and file it with the
court; and upon the issue so made the hearing is had.*

The question is sometimes raised as to whether
an attorney in a disbarment proceeding is entitled to
a jury trial. As a rule it held that he is not entitled
to a jury trial unless the statute providing for dis-
barment proceedings specifies that method of trial of
the issue. By the weight of authority the Constitution
alone does not confer the right to jury trial in such
cases. The right to disbar an attorney for improper
conduct is inherent in the court as essential to its
proper regulation, and need not be given specifically
by statute.**

Sec. 2059. OF THE ACTS FOR WHICH AN
ATTORNEY MAY BE DISBARRED.—Among the
acts and improper conduct for which an attorney may
be disbarred, are the following: 1. Any conspiracy
to defeat justice; such as subornation of witnesses,
procuring of false affidavits, mutilation of records,

 

*State v. Kerr, 12 Fla. 278; 95 Am. Dec. 314 and note.
**Shepard’s Case, 109 Mich. 631.
142 PRACTICAL SUGGESTIONS

and the like. 2, Wilful disobedience of the court’s
orders, if it is such an order as the court had power
to make. 3. Threatening to chastise the judge. 4.
Improper and illegal advertising as to procure divorces
in a certain way, and the like. 5. Obtaining money
under false pretenses. 6. Committing any felonious
crime. 7. Appearing in court with a deadly weapon
with a design to use it. 8. A conspiracy to get an
opponent intoxicated. 9. The disclosure of profes-
sional secrets, and the like.*

Sec. 2060. DISBARMENT PROCEEDINGS
MAY BE REVIEWED ON ERROR.—In the state
courts disbarment proceedings may be reviewed on
error, but not in the federal courts. In the federal
courts a review is obtained by mandamus, upon the
theory that the court making the order of disbarment
never had authority in the premises.

An order of disbarment may be vacated and the
attorney re-admitted to practice in cases where the
misconduct has not been too flagrant.

Sec. 2061. AN ATTORNEY MAY ALSO BE
PUNISHED FOR CONTEMPT OF COURT.—A
court has the unquestioned right to punish an attorney
for disrespect or misconduct by fine or imprisonment
or both. As a rule contempt proceedings are regu-
lated by statute in the various states. A contempt
proceeding differs from a disbarment proceeding, as

 

*See Philbrook’s Case, 45 Am. St. Rep. 59 and note.
PRACTICAL SUGGESTIONS 143

its purpose is to punish for the disrespect, and not
merely to purify the bar.

Sec. 2062. AN ATTORNEY IS PRIVILEGED
FROM ARREST WHILE ATTENDING COURT.
—As an officer of court and connected with the ad-
ministration of justice, the statutes usually exempt an
attorney from arrest, and from being served with civil
process, while in attendance at court, or while going
to and returning from the trial of a cause. The pur-
pose of such exemptions being to save a client from
the loss of the services of his counsel when he is most
needed.

Sec. 2063. COMMUNICATIONS BY A CLIENT
TO AN ATTORNEY ARE REGARDED AS
PRIVILEGED COMMUNICATIONS.—It is one of
the rules of evidence that communications between
an attorney and his client are privileged, that is they
are not to be disclosed in court, or elsewhere, except
by the consent of the client, who may waive the privi-
lege. The waiving of the privilege by the client may
be done in various ways; thus, either by expressly
stating that he does waive it or by going on the stand
and testifying without objection. The attorney him-
self cannot waive it, because it is not his privilege.
Where the client has not waived it, it is the attorney’s
duty, when interrogated on this line, to ask the pro-
tection of the court as to its disclosure, and this pro-
tection will always be granted.

As to the application of the rule governing privi-
144 PRACTICAL SUGGESTIONS

_leged communications between attorney and client,
Judge Lane observes: “There. is some question as to
whether it is really essential to this privilege, so far
as the client is concerned, that the one to whom he
makes the communication—the one whom he consults
—should really be an attorney at law, or whether it is
enough that he is acting as such? I think the gen-
eral statement of the rule is that there must be that
actual status: the attorney: one who is not only prac-
ticing because he is permitted without objection to
practice, but he must be one who has the legal right
to practice his profession. A consultation with one
who might be trying cases in a justice’s court is not
a consultation within the protection of this rule.

“The cases are more difficult, however, when we
come to consider that condition where a person is be-
cause of deception believed by the client to be an at-
torney when as a matter of fact he is not. I think
it quite true that the general rule will put the client
upon inquiry as to whether the one whom he consults
as an attorney is really one or not; but if after using
reasonable diligence and inquiry he is then justified,
by reason of fradulent conduct on the part of the one
whom he consults, then the question is a more diffi-
cult one. I think the general statement of the rule
will be that where there are no positive steps taken
by the one who is consulted to deceive the person
who comes to him, the mere fact that the other be-
lieved him to be one will not put him where he may
claim the privilege.
PRACTICAL SUGGESTIONS 145

“You will find the rule stated generally that the
client must at his peril know whether the person to
whom he makes his communication is an attorney or
not.

“This rule extends to communications made 1n good
faith by the client to his attorney for the purpose of
securing advice, or in furtherance of the object for
which he is consulted—if the object is a lawful one.
Where it is very clear that the client could not have
had it in mind that the communication was essential to
the advice which he sought, he will not be protected.

“This privilege also extends to communications
made to third persons where that is necessary for the
making of the communication. It does not extend to
communications made in the presence of a third per-
son whose presence is not necessary to the making of
the communication. There is an exception to this
where the communication is made, for instance, in the
presence of a clerk or stenographer, whose presence is
necessary in the ordinary conduct of the business, as
where it is customary to have notes taken of such com-
munications, etc.

“Tf the communication is made in the presence of
both parties to the controversy, then there is no pro-
tection.”

Sec. 2064. THE FREEDOM OF SPEECH
VOUCHSAFED TO AN ATTORNEY IN THE
ARGUMENT OF A CASE IS VERY BROAD.—
The attorney is protected in the saying of things
146 PRACTICAL SUGGESTIONS

which may go to the question of another’s character,
where a person not an attorney must answer. An
attorney in the argument of a case to either the court
or jury may with impunity say things respecting others,
when if he spoke those things in his office or on the
street he must answer for them. But this rule of
privilege is not very clearly defined, though there are
certain general principles laid down.*

We may state the general rule to be that the ques-
tion in such cases is not whether the words spoken are
true or whether they are actionable in themselves, but
whether they are spoken in the court of judicial pro-
ceedings and whether they are relevant and pertinent
to the subject of inquiry. The court will regard his
conduct with some leniency, in view of the pressure
which is always upon the counsel when he is in the
heat of controversy. The limitation is this: The at-
torney shall not avail himself of his situation to
gratify private malice or utter slanderous expressions
which have no relation to the cause or subject-matter
of the inquiry.

If we show that even though the aomey was in
the heat of controversy the circumstances were such
as that a person, even under those conditions, ought
to have appreciated the fact that he was going outside
his province as an attorney, then he must answer, be-
cause that is evidence of malice.

Sec. 2065. EXTENT OF THE AUTHORITY OF

 

*Hoar v. Wood, 3 Metce. 197.
PRACTICAL SUGGESTIONS 147

AN ATTORNEY TO REPRESENT HIS CLIENT.
As to the authority of an attorney to act in matters
entrusted to him by his client, the rule is substan-
tially this: That an attorney may do all the things
which he deems to be necessary for the conduct of the
business entrusted to him and which go to the secur-
ing of the remedy and not the cause of action itself.
He cannot destroy, either in whole or in part, the
cause of action of his client, unless he be expressly
authorized to do that. Of course he may wipe out the
cause of action by taking all that the client claims;
but if he seeks to compromise litigation by accepting
less than his client claims, and has not express authority
to do that, he is answerable to his client for having
done it. He cannot, even after recovery of judgment,
discharge the judgment upon payment of less than the
whole. He must secure all that the client claims or
have special authority for accepting less. The de-
fendant will not be protected by such a settlement.

An attorney cannot accept service of summons for
his client unless he has authority. If his client has re-
tained him to appear, of course he may do that even
though the service has not been haa upon his client.
A general retainer does not go so far as to authorize
an appearance.

The duration of the attorney’s employment is con-
trolled by the circumstance of the particular case, in
the absence of express stipulations as to the time of
the employment. Whether under a general employ-
ment in a case to procure a judgment for his client an
148 s PRACTICAL SUGGESTIONS

attorney has authority to take the necessary steps to
secure a review in a higher court upon losing in the
lower court, would depend upon the circumstances,
and is sometimes incident to the general employment,
but it is the general practice for an attorney not to take
such steps without first consulting his client and get-
ting his consent to the further employment.

Sec. 2066. AS TO THE LIABILITY OF THE
ATTORNEY FOR COSTS INCURRED IN THE
CLIENT’S BEHALF.—lIs the attorney responsible
for costs incurred in a litigation? An attorney goes
into the clerk’s office and takes out process to be
served upon the defendant and upon witnesses: is the
attorney responsible for the expense of all this? The
general rule is that it must be understood that the
attorney, when he goes in there, is acting for his client
and that the clerk must look to the client for his fees
and costs.

Sec. 2067. OF THE OBLIGATION OF AN AT-
TORNEY TO USE DILIGENCE AND SKILL IN
THE HANDLING OF MATTERS ENTRUSTED
TO HIM.—It may generally be said that he is under
obligation to be reasonably diligent in the conduct of
the business entrusted to him and to bring to it that
skill which is common to members of the profession in
that community. For example, he would be an-
swerable to his client should he lay the cause
of action in the wrong venue, under condi-
tions where he could amend that, and_ the
PRACTICAL SUGGESTIONS 149

statute of limitations should run against him.
That illustrates the sort of diligence and care; as to the
skill, suppose that instead of being an ordinary prac-
titioner he holds himself out as a specialist: here he is
not only held to the skill which is common to prac-
titioners generally, but to the skill which is common to
those who are engaged in the same general line with
himself*

In general, it may be said that the attorney should
be acquainted with the rules of practice of his court
and with the general rules which are found in his
statutes. Of course he may be wrong as to the con-
struction of a statute; but if there is no question but
that if a particular statute exists it will control the
situation, then he must answer for ignorance of the
existence of the statute.

Sec. 2068. AN ATTORNEY MAY REPRESENT
A CLIENT BEFORE THE LEGISLATURE BUT
CANNOT MAKE A LEGAL CONTRACT TO
PROCURE SPECIFIC LEGISLATION.—An §at-
torney who makes a contract to procure specific legis-
lation is making a contract which the courts will not
enforce, and it may be true that he cannot do this
even though the legislation itself may not be harm-
ful. It does not follow that he may not be employed
to appear before the regular committees in the ordi-
nary way and do that which as an attorney he may
do if employed by the client in other business.

*Babbitt v. Bumpus, 73 Mich. 331.
150 PRACTICAL SUGGESTIONS

Sec. 2069. OF THE ATTORNEY’S RIGHT TO
A LIEN—RETAINING LIEN AND CHARGING
LIEN.—An attorney is given a lien upon the property
of his client connected with the litigation, to secure the
payment of his fees and charges in the case. These
liens are of two kinds:

1. A retaining lien. 2. A charging lien.

Sec. 2070. SAME SUBJECT—NATURE OF
THE RETAINING LIEN.—The retaining lien is
lien which the attorney has on all papers and docu-
ments and property which come into his hands by
virtue of his employment and not accidentally. This
lien is for professional services and not to secure a
general indebtedness which the client may owe to him.
The costs and charges which he may have incurred
while acting as attorney are within the provisions of
this lien. It extends not only to services on the par-
ticular litigation in which the papers, etc., may have
come into the hands of the attorney, but for all pro-
fessional services which he may have rendered in anv
controversy. Of course its lien would not attach for
anything beyond the interest which the attorney had
in the paper or property: the interest of third persons,
for instance. This lien is discharged by a voluntary
surrender of that which is the subject of the lien.

Sec. 2071. SAME SUBJECT—THE CHARG-
ING LIEN.—The charging lien is, on the other hand,
a lien on all funds recovered through his agency,
whether in court or elsewhere, and secures costs and
PRACTICAL SUGGESTIONS 151

advances. The difference between this and the re-
taining lien is that the one secures compensation for
all professional matters and for all costs and expenses
connected therewith, while the other is confined to
security for such services or such costs and expenses
as were incurred in the particular matter in which they
came to him. In some states the charging lien goes
further than this and is construed not only to secure
costs and advances, but as well the fees of the at-
torney. But it never reaches beyond the particular
transaction.

Sec. 2072. SAME SUBJECT—EXTENT OF
THE CHARGING LIEN, AND HOW IT IS DIS-
CHARGED.—A transferee of a judgment, or of
property upon which there is an attorney’s lien, who
takes with notice of the lien, holds such judgment or
property subject to the lien.

So, if the attorney desires to assert his lein it is
always a wise thing to notify the person against whom
the judgment is obtained, that he will insist upon his
lien upon the judgment, and so if there be payment
of it after a notice of that sort his payment will not
discharge the debtor so far as the amount of the at-
torney’s lien is concerned. There are statutes in some
of the states which control these liens, sometimes ex-
tending and sometimes limiting. them; so always
consult your own statute to discover whether there is a
lien such as I have been speaking of, and if so, what
its limitations are.
152 PRACTICAL SUGGESTIONS

The particular lien is discharged in the same manner
as the general lien—by a voluntary surrender of the
property or thing which is the subject of the lien.

Sec. 2073. SOME REMARKS ON THE AD-
VANTAGES AND DISADVANTAGES OF PART-
NERSHIPS BETWEEN ATTORNEYS IN THE
PRACTICE OF LAW.—There are advantages and
disadvantages in the formation of partnerships be-
tween attorneys for the practice of law. The personal
element being’ the most important factor in determin-
ing the advisability of such a step on the part of an
attorney.

As to the advantages: If you are able to make a con-
nection with one who has an established practice, this
does afford you an opportunity of getting at once into
business. It is quite desirable many times that a
young attorney shall be able to show the public whether
he is worthy of success or not, and he can gain the
opportunity more readily through a business connec-
tion with some attorney who has an established busi-
ness. And even if you do not make a connection of
that kind there are still advantages in partnerships com-
posed of young men of varying talents—for instance,
where one of them is better fitted to become a trial
lawyer, the other better suited to office work—consul-
tation, and the like. Two men thus supplementing
each other can have a wider field of business than
either could singly, in addition to the advantage which
every partnership has, of being able to take care of
PRACTICAL SUGGESTIONS 153

more business than a single individual can. But two
persons may also make an admirable partnership when
their talents are along similar lines. And then there is
this advantage to every partnership: that by talking
over a difficult legal proposition with someone else
you are certain to get new light upon it, even though
your partner be not as wise as yourself. In other
words, two heads are better than one even though one
of them is not sound. It is also sometimes an advan-
tage to have someone else share the expenses of the
business. And, of course, if your business connection
is with an old practitioner you at once have the benefit
of his experience and advice, which may be very valu-
able to you or, on the other hand, may be very detri-
mental.

As to the disadvantages of a legal partnership it is
said by Judge Lane: “If there is any element essen-
tial to the development of a practicing lawyer, it is
self-reliance, willingness and ability to assume respon-
sibility ; and this ability comes with the assumption of
responsibility, and there is nothing else to take the place
of this assumption; and the young lawyer, though he
have gifts which might well make him one of the first
in his profession, is quite apt, if he gets into the habit
of relying upon the judgment of someone else, to
carry that habit with him until he gets through with
the practice of the law, and he will not be very suc-
cessful when he gets through, either. Study the ques-
tions out for yourself: I wish I might make this em- ~
phatic. You never probably will forget the informa-
154 PRACTICAL SUGGESTIONS

tion which comes as the result of hard work or digging
for it. Again: it is true that the business relation of
partnership puts us in a situation where we must an-
swer (in law at least) for the conduct of our brethren
who are related to us, and it is a responsibility which
is often as effective upon you though you may not be
called upon to answer as a matter of law. The moral
responsibility for the conduct of your associate is quite
as important an element to you as is the legal respon-
sibility. If your partner is not careful of his integrity,
or is careless about the money he collects, the public
will generally blame you for it equally with him, and
in the latter case, of course, the firm is legally re-
sponsible.”
PRACTICAL SUGGESTIONS 155

CHAPTER VI.

OF THE ELEMENTS OF SUCCESS IN THE PRACTICE OF THE
LAW.

Sec. 2074. OF THE DESIRABILITY OF AIM-.
ING AT SUCCESS.—One of the essentials to success
is to have a healthy ambition to succeed. Such an am-
bition is often the most persistent stimulus to exertion
and perseverance, by which the young lawyer can
alone hope to win the laurel crown of success. No
one, in this age and day, can claim to be born success-
ful, or hope to discover any short cut or secret path-
way not obstructed with obstacles which must be sur-
mounted. There then must needs be, at the outset, an
expectation to meet difficulties, and a determined and
set purpose to overcome them. It is not in our power
to point out all the obstacles which each individual will
meet with in striving for success in the legal profes-
sion. Neither is it possible for us to indicate the
countless factors or elements which may be said to be
essential or necessary in the makeup of a successful
lawyer. Such suggestions as we do give have been
gleaned by experience or handed down by those who
have passed on before and have left footprints for the
guidance of others.

Sec. 2075. A LAWYER SHOULD AIM TO CUL-
TIVATE A PLEASING AND ATTRACTIVE
156 PRACTICAL SUGGESTIONS

MANNER AND APPEARANCE.—Frequently a
man creates a prejudice against himself by his man-
ner of action, of speech and the like. Frequently peo-
ple have to overcome something which has grown up
in their judgment of a man because of the first im-
pression they got of him from his conduct. A man who
comes into court with an air which repels everybody,
naturally antagonizes everyone in the courtroom. But
if you see a man come into the courtroom with a mod-
est air, not lacking in dignity, not asserting himself
by every motion which he makes, but seeming a man
out of whom you must call that which you will find
in him—then you have a man who, when he does speak,
has your confidence at once.

Even in your opposition to the court—because some-
times you will have to oppose the court—you may, of
course, have an attitude toward the court of one who
is complaining or criticizing the court, and in a sense
you may be justified in your criticism, and yet if you
look at it from the standpoint of mere policy, you can-
not afford to do that. You may with dignity main-
tain your position before the court and very court-
eously ask that you be heard upon the proposition and
very earnestly insist that the court should change its
views. But do this in the spirit of courtesy, not of
criticism or complaint.

You should have, so far as possible, a pleasing man-
ner of speech. There are some people you take pleas-
ure in listening to, and others you take no pleasure in
listening to, and it matters not that they use the same
PRACTICAL SUGGESTIONS 157

language. Now I do not mean to say that you ought tu
be orators. I would much rather see most of you
lawyers than orators. And so, if you have some graces
of speaking, do not rely upon them. You must have
something to say; that is quite true. And yet, on the
other hand, it is quite as true that it is worth some-
thing for us to be able to say well, with a pleasing
manner, that which we have to say.

The lawyer ought to have a reasonable command
of language. Most of us have a good English edu-
cation, but there are some of us who do not always
use good English. If we can improve ourselves in
that respect, we ought to do it, and it is coming to be
more and more true that the juryman who sits in the
box—even if he come from the plow—notices whether
you use good grammar or bad in the courtroom—and
those things affect the verdict.

The manner of saying a thing so that you evince a
confidence in that which you say also makes very much
difference many times in the effect of your speech upon
the person listening to it. If you say a thing as though
you were confident of what you are saying, you in-
spire confidence in somebody else, as you cannot if
you have not that confidence. So I say, be earnest
and show it.

The lawyer should have an outward appearance, as
he speaks to men, which is attractive. He ought to
have good power of expression. He ought to have
earnestness. He must have a knowledge of legal
principles. He ought to have a good share of learning
158 PRACTICAL SUGGESTIONS

and of knowledge of the common affairs of life. He
ought to have power to come to reasonably accurate
conclusions as to men, and he ought to have a fair
knowledge of himself—with his limitations. His judg-
ment ought to be good, and ought to have common
sense. These, with a good habit of industry and rea-
sonable natural acquirements, ought to make a suc-
cessful lawyer.

Sec. 2076. A LAWYER MAY BE A “TRIAL
LAWYER,” OR AN OFFICE LAWYER.—There
are two classes of lawyers—the one we know as a
“practicing,” “litigating,” or “trial lawyer”; and the
other we know as an “office lawyer.” There was a
time when a man was not thought to be a real lawyer
unless he was found in the courts. That time has
passed. Unquestionably the lawyer who is earning
most is not the man who is in the courts from day
to day—it is the man who is found in his office and
is doing his work as a lawyer there. But this course
to which we shall direct our attention will deal more
largely probably with the work of the trial lawyer.

It is true that the litigating lawyer is continually
in a position where he is desiring to draw men to his
own way of thinking. So that we can see at once that
he must keep himself in a position where he will not
antagonize but will naturally lead men to have con-
fidence in him and his way of thinking.

An attorney may also be engaged in the general
practice of the law, or have selected some branch of
PRACTICAL SUGGESTIONS 159

jurisprudence as his specialty. The general practi-
tioner—this is not so true of the specialist—is brought
into contact with every phase of life in the community.
where he practices. He will be called upon to deal
with all classes of persons, so that you can see that
it is very desirable that the lawyer should be a man
who is versatile so far as possible—able to adapt him-
self to conditions as they present themselves—able
to understand men and conduct and to come to con-
clusions as to men and the effect of their conduct.

So it is true that the practicing lawyer will scarcely
ever be called upon to give an opinion as a lawyer be-
fore he has gone out into some phase of life in which
he has not been specially trained. So that the prac-
titioner should be an observing man. He ought not
to go anywhere without having his eyes open to the
facts going on about him.

Sec. 2077. A LAWYER IN HIS ZEAL FOR
HIS CLIENTS SHOULD NOT FORGET THAT
HE MUST ALSO CULTIVATE FAIRNESS AND
CANDOR.—A sense of fairness is a trait which no
lawyer can afford to neglect.

Judge Lane, in urging law-students to cultivate can-
dor, says: “It is true that an attorney snay sometimes
gain a temporary advantage by failing to exercise can-
dor, but if we lack candor and continue to exercise our
calling without it, we shall soon find ourselves short
of the strength which otherwise we might have had.
There is a temptation which comes to the practicing
160 PRACTICAL SUGGESTIONS

lawyer and which comes scarcely so strong in any —
other field of human activity: a continual temptation to
carry his cause a little farther than the facts behind
him will justify. There is a pressure upon him to get
all he can out of the situation, and that is, of course, a
pressure which, if wisely guarded, can be made much
of; but if the lawyer does not master himself when
this pressure is upon him, so that he seeks to make
more of the situation than the facts justify him in
making, he will find himself contending in a way which
will not cause him to win in the way in which he de-
sires to win,

“For instance, in arguing before the jury the lawyer
is naturally desirous of making all he can out of the
facts, in the interest. of his client. That is well. So
far as he can, by all the power that is in him, it is his
duty to make all out of the facts that they will bear
in the interests of his client. But beyond that he never
can afford to go.. And yet sometimes, when he does
not even intend to do it—and more often, I might
say, than when the does intend to do it—
the lawyer, carried away by zeal for his
client, is going beyond this. It is com-
ing to be more and more true that the juries before
whom you practice are going to be able to appreciate
whether you are exaggerating in the contention which
you make. They will appreciate whether you have
stated the testimony of a witness a little stronger than
-you are entitled to state it. And this by reason of the
fact that the juries of to-day are more generally edu-
PRACTICAL SUGGESTIONS 161

cated, more generally trained than were the juries of
years ago. Once the lawyer establishes a reputation
for going farther than he has the right io go, he has
lost the most important element of strength he might
have.

“Now, true as all this is in regard to juries, the
jury is a changing body. You meet twelve men to-day
in the jury-box of whom you may never again meet a
single one. And if what I have said is true before
such a body, how much more so is it of your attitude
before the court. Here is the judge before whom you
are to practice probably year after year, and if you
once find yourself in such a position as that he may
say to himself, ‘I don’t know whether this contention
which is now being made before me is one upon which
I can rely as being his honest conviction or not,’ then
you are weak, and always must be, before that court.
I can assure you very positively indeed that when a
court has to say of a man who is making a legal argu-
ment before it, ‘I know that he believes in what he is
saying,’ that man is strong before the court, even
though he lacks the ability of another man who has not
that trait in his makeup.

“And a very important thing to be observed in this
connection is that the ordinary juror is a man who
thinks that he does not need the assistance of a lawyer
very seriously. You find them saying often among
themselves and to others about the court-room that
they know how that case ought to be determined, they
don’t care to hear the arguments of anybody; or they
162 PRACTICAL SUGGESTIONS

are continually complaining that the lawyer talks too
long. This is not true of all juries, but it is a senti-
ment which you will find prevailing about the court-
room very generally—the jury do not think that they
need the assistance of the attorney. So you can see
the importance of building up a reputation for entire
candor when you come to address a body so apt to be
prejudiced.”

Sec. 2078. EARNESTNESS IS AN ESSENTIAL
TO FORCEFULNESS IN A LAWYER.—The true
lawyer ought to be earnest. You cannot be forceful
unless you are earnest. One man may say the same
thing that another does, and be heard, while nobody
seems to know that the other has spoken; the differ-
ence being that the one has so spoken as to command
a hearing and the other has not. Now this earnest-
ness is ordinarily born of a conviction of the righteous-
ness of our contention—not righteousness necessarily
of our client’s claim so far as the final outcome is con-
cerned, but of the righteousness of the particular con-
tention we are making at that particular stage of the
trial. This earnestness may arise because you are im-
pressed with the importance of your case—its import-
ance to yourself personally, as regards your finances
cr your professional standing ; its importance to your
client—his life or his dearest interests may be at stake;
or its importance to the general public—the far-reach-
ing consequences of having the correct principle of
law proclaimed in that case.
PRACTICAL SUGGESTIONS 163

Now let me give you a caution: earnestness does
not mean that we should be boisterous. Be earnest
in a dignified way.

Sec. 2079. OF THE USE OF DIGNITY TO AN
ATTORNEY.—Some personal dignity is essential to
the make-up of a successful lawyer. Not that the
lawyer is never to unbend—sometimes he is most ef-
fective when he has laid aside his serious expression ;
but after all it does not follow that when he is mak-
ing light of his opponent he is lacking in dignity. He
may be dignified and do that. I mean that he may
make light of his opponent’s argument or position ; he
can never afford to make light of the personality of his
opponent, whoever he may be. But there is a measure
of dignity which ought always to have, and by that I
mean that he should always hold himself where, when
his day’s work is behind him and he can sit down by
himself, he can respect himself. He cannot afford +9
be boorish; he cannot afford to be low in his language
or in his conduct, but he must be able to so conduct
himself that he can have his seli-respect.

Now this dignity is born of an earnest desire to be
measured at one’s true worth. You should desire to
have put upon you neither a higher value than you
merit, nor a lower value; and it is more dangerous
to you for people to get an overestimate of your real
worth than an underestimate, because the time is cer-
tain to come when your real worth is discovered.

Avoid conduct and speech unbecoming a man who
164 PRACTICAL SUGGESTIONS

appreciates that he is an officer of justice, as the prac-
ticing lawyer always will be. Many a man has marked
himself, for good or ill, once and for all, by a
single story that he has told or by a single argument
that he has made.

Sec. 2080. A REASONABLE COMMAND OF
LANGUAGE IS NECESSARY TO THE LAW-
YER.—A lawyer should have a reasonable command
of language so as to express his ideas with clearness
and precision and without hesitancy. This does not
mean the use of mere ornate words, or figures of
speech. He must have something else; but he must be
able to express himself without always using exactly
the same words. He ought to have a reasonably wide
vocabulary, not of big words, but of the Anglo-Saxon
words—the words of which nobody mistakes the
meaning—the short, terse words. To acquire this
there is no better method than to familiarize oneself
with the masters of the English language and through
them absorb their vocabulary so far as he is able to do
so. This, of course, calls for what may be termed col-
lateral reading, and reading of this kind is always a
helpful exercise for the lawyer. Ifa man lacks forci-
ble expression, let him study Carlyle, and he cannot
help gathering something of the spirit of Carlyle,
something of the mode of expression of Carlyle. If he
lacks smoothness of diction, he can read some of the
writers of more polite literature; but this is not often
needed.
PRACTICAL SUGGESTIONS 165

Sec, 2081. THE LAWYER MUST DEVELOP
HIS REASONING POWERS, AND AIM TO
CULTIVATE THE FACULTY OF BEING. LOGI-
CAL AS WELL AS FORCEFUL.—The logical
faculty is nowhere more essential than in the practice
of the law. This is true whether we are trying to
establish conclusions of fact in the minds of the jury,
or conclusions of law in the mind of the court. -We
ought to be able to reason well. This involves as well
the synthetic as the analytic faculty. We
ought to be able to separate a proposition into the ele-
ments which, combined, lead to that conclusion; and
we ought, if we have those elements before us, to be
able to put them together and reach the proper conclu-
sion. We ought to be able to tell, when we have this
fact and the other fact, what must be the conclusion
from these, and then if we are to add another fact,
what different conclusion we are to arrive at because '
of that third fact. The question arises whether this
faculty can be acquired if we have it not. Now it is
true that some minds will have this faculty very much
more strongly developed than others, but it is also true
that all of us may have this faculty developed in some
good measure. We may train what elements we may
have of it so that we may have a stronger ability along
this line than we now have.

If I were to make any suggestions as to how we
might cultivate this faculty of the mind, I would
say: study some of the masters of reasoning. Study
some of the masterpieces of argument, with the idea
166 PRACTICAL SUGGESTIONS

of discovering where the strength lies. Take some of
the arguments of Webster or Erskine, or some of the
great opinions of Marshall, and see how it is they ar-
rive at their conclusion. Or study the methods of some
great lawyer in the courtroom whom you see making
himself strong with the court. You will find that he
generally does it by putting two and two together and
coming to a conclusion as to how much they will
make.

Sec. 2082, ALONG WITH HIS OTHER
LEARNING THE SUCCESSFUL LAWYER
SHOULD ACQUIRE A KNOWLEDGE OF MEN.
—Perhaps in no other profession will a knowledge of
human character and traits be of so much service as
in that of law. The judge, the jury, the clients, and
the witnesses all have to be studied and read by the
astute lawyer.

The lawyer should, so far as in him lies, have an
understanding knowledge of men. He is continually
dealing with men in such a way that the better he un-
derstands men the more successful he will be. I might
very nearly say that after you have been in the prac-
tice of the law for ten years, when you see a stranger
called to the witness stand and you see him walk to
the chair and take the oath and sit down, you ought
then already to have a pretty good idea of that witness,
as to whether he is a man in whom the jury ought to
trust or not. That may bea little too strong, but there
is a good measure of truth in it at least.
PRACTICAL SUGGESTIONS 167

Pope tells us that the foundation of knowledge is
to know ourselves, and so you will find it in this re-
gard. The first essential to knowing men is to thor-
oughly know yourself.

If a man finds that he is falling short of what he is
expected to accomplish in his profession, let him
study himself and try to find out where the
weakness lies. The trouble is that we do not give sys-
tematic study either to ourselves or to others; but we
ought to.

Now it is exceedingly desirable that we should be
able to understand the judge who tries our case, the
attorneys engaged in it, the witnesses and the jury.
After we have practiced a reasonably short time before
a judge we ought to understand the type of man he is,
what are his mental characteristics; how is an argu-
ment of this sort going to appeal to him; what is his
attitude of mind toward this class of cases generally?

Similarly with the attorney on the other side. You
ought to study your professional brethren, those with
whom you contend oftenest. You ought to determine
for yourself what they are going to do under these cir-
cumstances in this particular case. Hw is Smith going
to try this case? How is he going to meet this question
which is certain to come up?

Again: if you have a witness upon whose  tes-
timony a case hangs, you should be able to tell about
how he will give his testimony and about what impres-
sion he will create. And you ought to know about
how the attorney on the other side is going to handle
168 PRACTICAL SUGGESTIONS

him, because of what you have seen him do to wit-
nesses before. This is very important when you come
to think of the witness and the part he plays in the
trial of the case. Your own witness first: as you talk
your case over with him and hear about him from
others you ought to be making up your mind what sort
of a direct examination you ought to give him, and you
ought to have a reasonably accurate conclusion as to
what he is going to do and how he is going to appear.
If the witness is not your own and you see him
for the first time, there ought to be but little doubt
in your mind as to what you ought to do with that
man, as one who is to cross-examine or refrain from
cross-examining him. Sometimes a witness ought to
make it very clear to you that the safest thing to do is
to let that witness go without asking a single question.
In another case it may be very clear that a rigid cross-
examination of that witness is the proper course. But
you are scarcely if ever justified in cross-examining a
witness unless you have some very definite idea of why
it is that you are conducting that cross-examination.
And then you must train yourself to read the
jury. You are able to produce probably a stronger
impression upon the juror by an argument you may
make than upon the court. The court has had more
experience, as it were. It becomes very important that
you should understand these men who are to decide
the questions of fact involved in your case. You ought
to know the sort of homes out of which the jury come,
what kind of lives they have been leading, their sur-
PRACTICAL SUGGESTIONS 169

roundings past and present, and their habits so far as
possible.

Sec. 2083. THE ATTORNEY MUST NOT
STOP STUDYING THE PRINCIPLES OF LAW
BECAUSE HE IS ADMITTED TO THE BAR,
THIS IS A LIFE STUDY.—While a _ preliminary
knowledge of legal principles is necessary to obtain
admission to the bar, this is not the end of your studies
in this respect. A thorough knowledge of legal prin-
ciples includes a knowledge of the reason and spirit of
the rule. A knowledge which lacks this is not knowl-
edge which you can use with success. Mere ability to
repeat a string of legal propositions will be of little
use to you. You must be able to use your
knowledge and apply it to the conditions in hand,
to conditions which you have never before encoun-
tered or even read about, and you can never do that
unless you have an understanding of the principles
which you wish to apply. The acquirement of this, of
course, means labor—labor during your entire profes-
sional career. You will be seeking this knowledge as
long as you are engaged in the practice of the law.
The lawyer of to-day must keep abreast of his profes-
sion. There is a growth, a development, in the law
which will take all the time that you can give it, in
order that you may: be up-to-date.

Sec. 2084. OF THE ADVANTAGES OF GEN-
ERAL KNOWLEDGE TO THE LAWYER.—MR.
CHITTY HAS SAID: “The student should study the

1
170 PRACTICAL SUGGESTIONS

distinguishing temperaments and characters of man-
kind and biographical readings will greatly contribute
to the same.” And that is true.

Now in order to gain this knowledge of men we
ought to know not only the men but the things
in which they are interested as well. We
ought to be reasonably well conversant with know!-
edge of all sorts. Take the lawyer who is expecting
to try a litigation over a building contract. If he does
not know the cornice of a house from the sills, etc.,
he is quite likely to find himself in a situation where
he will be laughed at by the jury by reason of the mis-
takes he makes, and his force before them will be very
largely lost. Similarly with any other line of knowl-
edge. These bits of knowledge are lying all about us
as we go along. I do not mean to say that we must
make ourselves proficient in all branches of learning,
but it is true that we ought to have such a general ac-
quaintance with the more common branches of
learning as that when somebody else who does know
about them is talking we can understand what he
means. Even where we are dealing with highly spe-
cialized subjects we ought, by special preparation, to
know something about them when the trial begins.

A case never develops upon the trial just
as you saw it in your office. New ques-
tions of fact or of law are bound to arise after the
trial is begun, and we are not well able to contend
unless we have a general store of information. “Hence
PRACTICAL SUGGESTIONS 171

there should be no limit to the extended studies of a
barrister.”

Sec. 2085. THE SUCCESSFUL LAWYER
MUST ALSO BE INDUSTRIOUS, ENERGETIC,
TEMPERATE, PATIENT AND PERSEVERING.
—The lawyer’s calling is an industrious one. To be
successful he must be industrious . This does not mean
that he must be continually busy, or make unneces-
sary work, but without habits of industry he will
slight important matters and soon retrograde instead
of progress in his practice. The lawyer should be
methodical in his labors, and by planning and classify-
ing his work lessen it.

A lawyer must always be energetic and earnest in
his work. Every case and every problem must be
studied carefully with a view to master every detail.
A lawyer must not only understand what he has in
hand but must be able to make others understand; this
means a more careful and accurate comprehension on
his part. Superficiality will soon put an end to the
success of any attorney.

The necessity of being temperate is overlooked by
many lawyers, with great natural abilities and a fair
show of success they allow intemperate habits of per-
son and speech and manner to mar their otherwise use-
ful and honorable lives. A man who cannot govern
himself, cannot hope to govern or sway others, and yet
it is not uncommon to hear those who are allowing
their habits to unhorse them, contend that they are all
172 PRACTICAL SUGGESTIONS

the more capable to win their way with others by rea-
son of their intemperance. So easy is it for those who
have lost dominion over themselves to be deluded as to
their own condition.

The use of patience will be manifest to any one who
observes the busy lawyer in the intricacies of an im-
portant case. Patience alone will sometimes be found
to be the golden key which unravels the tangled skein
of facts which surrounds an important matter.

Without question the first and last important requi-
site to a successful career at the bar, or anywhere else,
is perseverance. Many persons who might have be-
come able lawyers, and attained both fame and fortune
in a vocation to which they were somewhat inclined,
have failed, or given up, through want of persever-
ance at some critical moment. It is likely that they
have, or will, also fail in other matters for the same
reason, Again, when you have been admitted to the
bar, and have been entrusted with a matter of litiga-
tion, whether of great or lesser importance, be perse-
vering in mastering every detail of your case. In this
way you will succeed while others fail. Perhaps you
may lose your case, as you undoubtedly will lose some
cases in your practice, but this should only stimulate
you to further efforts to make up that wherein you
find yourself to be lacking.
QUESTIONS.

 

The questions are numbered to correspond with the sections
in this book. The answers and references for further study
may be obtained by referring to the corresponding sections.

PUBLIC INTERNATIONAL LAW.

CHAPTER I.

1950. What may be said as to the existence of international
rules. with the Greeks? How were captives treated? Did the
Greek writers mention the subject of International Law?

Ig51. Explain the status of International Law under the
Romans. What was the Jus Gentium of the Romans? How
was war declared?

1952. What may be said as to the Roman Civil Law? How
was it made up?

1953. Describe the conditions existing in the middle ages
as to International Law.

1954. What were the ameliorating iffluences from the tenth
to the sixteenth century? Describe each fully.

1955. Explain the status of International Law in the six-
teenth century. What.events tended to assist the development
of internatiorial regulations?

1956. When was the first book on International Law writ-
ten? By whom was it written? Explain fully the method of
treating the subject in this great work.

1957. Mention the other well known writers on Interna-
tional Law. What Americans have written books on the
subject?

1988. What may be said as to the plan followed by the
earlier writers on International Law? What writers seek to
combine the earlier and modern methods?

CHAPTER II.

1959. What rights are recognized as belonging to a state
or nation? Resulting from these rights which are recognized
by civilized nations upon what propositions does International

173
‘

174 QUESTIONS

Law rest? Is this recognition of binding rules the result of
legal or moral principles?

1960. What are the objections to the term “International
Law”? What other terms have been suggested and used to
designate the subject?

1961. Upon what sanctions does International Law rest?

Describe fully.

1962. What other terms have been used to designate the
subject now known as International Law?

1963. Into what branches is International Law divided?
Describe each branch.

1964. How is International Law distinguished from the
Municipal Law? To what extent are the principles of Inter-
national Law recognized by the Municipal Law? What pro-
vision in the United States Constitution in this regard?

1965. What may be said as to the rules of International
Law expanding? How is such a change made?

1966. What are the sources of the rules of International
Law? Explain how International Law results from Treaties.
Since what date have Treaties come to be regarded as a
source of international law?

1967. What may be said of Manifestoes at the outbreak
of a war as a source of International Law?

1968. What may be said as to Diplomatic Correspondence
constituting a source of International Law? What are the
government publications called in the leading countries?

1969. What are prize courts, and how are they constituted ?
What may be said as to prize courts and International Tri-
bunals as a source of International Law? What may be said
as to the establishment of a permanent International Tribunal ?

1970. What other sources of International Law can you
mention and describe? What were some of the early marine
codes, and what effect have they had on modern marine codes ?

CHAPTER III.

1971. What is meant by a state? How does a state differ
from a religious society or a corporation? What number of
persons is necessary to constitute a state? What is the dis-
tinction between a state and a nation?

1972. What does international law recognize as to states?

1973. What is included in the recognition of the independ-
ence of a state?

1974. What is meant by territorial inviolability? Explain
fully what is meant by the “marine belt,” its extent, and the
PUBLIC INTERNATIONAL LAW 175

different claims that have been set up in regard to it. What
are the rights of a nation within its marine belt? Of other
nations? What is the doctrine of international law in regard
to the high seas? What is the rule as to gulfs, bays and
straits?

1975. Discuss the right of a state to control its rivers. What
questions arise where a river flows through two or more
states? How are the questions answered? What was the
controversy as to the navigation of the Mississippi and St.
Lawrence? How were these controversies settled?

1976. Discuss the rights of a state over its canals.

1977. What rights has a state over its ships on the high
seas, and what doctrine prevails as to ships on the high
seas? What distinction as to the nature of the offence is
made? What is the rule as to public vessels of a state within
a foreign harbor? Who may punish acts of piracy?

1978. Discuss the right of a state to choose its own govern-
ment. When a state changes its government may it repudiate
its former debts? When may a state be interfered with as
to its form of government? What is the theory of balance of
power between European states? Was the act of Spain and
France in setting up a government in Mexico justifiable ?

1979. What may be said of the right of a state to self-
preservation and protection? What steps may a state take to
repel invasion? What did Canada do in this regard in 1837?

1980. Discuss the right of a state to acquire territory. May
territory be ceded by one state to another?

1981. What may be said as to the right of a state to ad-
minister its domestic affairs?

1982. What may be said as to the right of a state to pro-
tect and extend its commercial development? What is meant
by territory being within the “sphere of influence” of another
state?

1983. Explain fully what is meant by the equality of states.

1984. Explain what is meant by dependent or protected
states, and give examples. /

1985. Explain fully how a new state or government may
be recognized. Illustrate by examples. What is meant by a
de facto government? When is a new goverment entitled to
be recognized by other states?

1986. What distinction between recognizing the belligerent
rights of insurgents and the recognition of their independence?
What effect does the recognition of insurgents have on the
liability of the parent state?.
176 QUESTIONS

1987. Explain and discuss the origin, effect and application
of the Monroe Doctrine, and what was claimed for it by the
various public men. Has the doctrine ever been defined by
Congress? Has it ever been expressly admitted or accepted
by other nations? What is the purpose of the United States
in asserting the Monroe Doctrine?

1988. What may be said as to the origin of the establish-
ment of embassies and consulates? Name and describe the
four orders of ministers. Is it imperative for a nation to
send ministers? What distinction as to powers in the various
orders of ministers? What is the method by which a minister
communicates with the President in this country? What may
be said as to the rights of a state to refuse to receive a par-
ticular person as minister or request his recall? Give examples-
‘illustrating this right. May women be ministers?

1989. What are the privileges and exemptions of ministers?
What is meant by the theory of extra-territoriality? If a
minister embarks in trade is such property exempt from
taxation? What is the reason for giving a minister special
immunities as to couriers and dispatches? What is the right
of a minister to cross a third state in going to the state to
which he is accredited?

1990. What is the importance of the consular bureaus at
present? Explain the origin of consulates. What was the
original functions of consuls? What is the obligation of a
state to receive consuls? What may be said as to the im-
munities of consuls? With whom does the consul hold com-
munication in the state to which he is sent? Who may act as
consul ?

1991. What are the duties of consuls? Describe fully.
What other powers do consuls have in some of the original
countries? Why? What may be said as to consular courts,
and how they are conducted ?

1992. What are the classes of consular offices maintained
by the United States? What salaries are paid to consuls?
eae classes of this service are under civil service regula-
tion £

CHAPTER IV.

1993. What are the measures or restraint short of war
which a state may adopt towards another state? Discuss and
explain what is meant by “retorsion.” By reprisals. What is
meant by embargo or non-intercourse? When did the United
States employ such acts towards other nations? Explain the
_ PUBLIC INTERNATIONAL LAW 177

meaning and purpose of a pacific blockade. What is the pur-
pose of retaliatory acts, and how may they be enforced? What
is mean by quasi or limited war?

1994. Explain how claims or controversies between nations
may be settled by arbitration or amicable settlement. When
may a third state offer its services in the settlement of dis-
putes between other nations?

1995. . Define war, and give the meaning of what may be
called the kinds of war.

1996. What may be said as to the commencement of a
war? Is a declaration or notice necessary to the commence-
ment of a war? What is meant by a manifesto? To whom is
it usually addressed?

1997. When is it proper for other nations to recognize the
belligerency of insurgents?

1998. Describe the effect and consequences under inter-
national law resulting from the recognition of the belligerency
of insurgents.

1999. What is the effect of war and hostilities on existing
treaties? What classes of treaties are not abrogated? ~

2000. What is the effect of war on the intercourse and
commercial relations between citizens of the contending states?

2001. Who may engage in the war? How may volunteer
troops be used?

2002. What rights have citizens of one country at war
with another in the territory of the latter? What may be
done with them at the outbreak of war? What becomes of
their property?

2003. What sorts of property belonging to the enemy may
be confiscated in war? How is this confiscation effected?
Are public debts confiscable? Why?

2004. What is the effect of war on the commercial rela-
tions of the contending states, and what is the effect upon
existing contracts? On contracts made during the existence
of the war?

2005. What is meant by a privateer? Explain to what
extent privateering has been abolished? Are we bound by the
principles of the Declaration of Paris?

2006. Discuss what acts and practices may be done in
carrying on war and what may not be done. When is the
destruction of property justified? What acts are considered
barbarous and inhuman in war?

2007. What may be said as to the use of deceit and strata-
178 QUESTIONS

gems in the conduct of war? What may not be done in this
respect ?

2008. What may be said as to the right to destroy or ob-
struct harbors in prosecuting a war?

2009. What classes of property may be seized on land in
war times? What classes of property are usually exempt from
seizure?

2010. What classes of property may be seized by the bel-
ligerents on the high seas? What change was made by the
Declaration of Paris in this regard? Is the United States
bound by this provision? What, was the doctrine advocated by
Mr. Marcy as to the exemption of neutral ships carrying
private property of the belligerents? How is title to property
at sea secured?

2011. What is the purpose of a prize court? What method
of procedure is followed by them? What standing has the
enemy in prize courts? Where may they be held? What is
the rule as to allowing captured vessels in neutral ports?

2012. Explain and discuss the rights and duties of neutral
states towards the belligerents in war. What is meant by
neutrality? By permanent neutrality? What regulations as
to the vessels of belligerents prevail under neutrality laws?
What may a neutral state do towards aiding a belligerent?
Towards furnishing arms and supplies? Making loans of
money ?

2013. What may be said as to the neutrality laws of the
United States, their extent and acceptance by other nations?

2014. What acts may neutral nations do in regard to assist-
ing suffering belligeremts? To what extent may they furnish
coal to war vessels, or sell arms and supplies? Sell or build
war vessels?

2015. What determines the neutral character of property?
What are the provisions of the Declaration of Paris as to
the protection of neutral commerce? What contention do we
make as to this?

2016. Discuss the rights of neutrals under the Declaration
of Paris. What questions arise from our not having agreed
to the provisions of the Declaration of Paris?

2017. What is included within the term contraband of war?
From what did the doctrine as to contraband articles result?
What is the penalty for a neutral ship carrying contraband
erticles to a belligerent? What is the penalty for carrying
trocps and hostile dispatches for a belligerent? Discuss the
Mason and Slidell incident in our civil war?
PRACTICAL SUGGESTIONS 179

2018. Explain the principles of international law in regard
to the establishment and maintainance of a blockade of the
ports of a belligerent. How is the fact of the blockade made
known? What may be done with ships running the blockade?
How far does the liability for running the blockade extend?
What is the effect of the end of the war on ships in the
blockaded ports?

2019. Explain and discuss the right of search. Did we ever
recognize the right to search for and impress seamen?

2020. What do you understand by extradition? On what
grounds is extradition of criminals based? Why do nations
refuse to surrender refugees accused of political crimes? Does
extradition prevail in the absence of treaty stipulations? When
a claim for extradition is made to what department of the
government is it referred?

PART II.

LEGAL ETHICS AND PRACTICAL SUGGES-
TIONS.TO YOUNG LAWYERS.

CHAPTER I.

2021. Discuss the meating of ethics, and distinguish be-
tween ethics and morality. Define ethics as used in a limited
sense.

2022. Why is ethics not an exact science? Is ethics a mat-
ter of pure morals and innate ideas or a process of develop-
ment ?

2023. Define legal ethics. Whose conduct is legal ethics
concerned? What pre-eminent claim to obey the law is made
upon all citizens? If ethics and the prescribed law seem to
conflict which must be obeyed? Why?

2024. What classification of professional obligations ‘may
be made?

2025. What may be said as to the full extent of legal
ethics? What is said by Judge Lane in this regard?

2026. What may be said as to the standing of the legal
profession with the general public?

2027. What may be said as to the standing of the bar in
America, in political and educational matters?

2028. What is meant by advocacy, and what is the purpose
of the legal profession?
180 QUESTIONS

2029. What may be said of the history and development of
the legal profession?

2030. What may be said as to the writers on legal ethics,
and the sources of professional ethics?

CHAPTER II.

2031. What peculiar responsibilities has the lawyer of to-
day to the general public?

2032. What responsibilities does the lawyer assume to the
public in the administration of the law? What is said by
Judge Lane in this regard?

CHAPTER III.

2033. How is the lawyer ethically to be justified for ad-
vocating the losing side in a legal controversy?

2034. What is Judge Lane’s view of this subject?

2035. What may be said as to the lawyer’s right and duty
to give his services to a person accused of crime?

2036. What rule should the lawyer follow in giving advice
to his clients?

2037. To what extent may a lawyer refuse to receive a re-
tainer in a civil case?

2038. May an attorney refuse to act for a person accused
of crime?

2039. What is the duty of a lawyer when already retained
in a case on being approached by the other side?

2040. What attitude should an attorney observe towards his
client out of court?

2041. Discuss what an attorney should refuse to do for his
client.

2042. What may be said as to the right of an attorney to
receive compensation for his services to his client?

2043. What may be taken into consideration in determining
the amount of compensation which an attorney shall receive
for his services?

2044. What limitations and obligations are imposed upon
an attorney in fixing the amount of his charges?

2045. What are some of the objections to contingent fees?
What is meant by a contingent fee?

CHAPTER IV.
2046. What is meant by the court? What is the general
rule as to the conduct of an attorney towards the court?

2047. What is the duty of the attorney to recognize the
official position of the court rather than the personal one?
PRACTICAL SUGGESTIONS 181

2048. What may be said as to the duty of an attorney to
show respect to the judge?

2049. How should an attorney conduct himself in opposing
the judge in matters in controversy?

2050. What rule should govern an attorney in making
statements of facts to the court?

2051. What may be said as to the position of the court
being a trying one?

2052. Discuss and explain what should govern and regulate
the conduct of the attorney towards the jury.

CHAPTER V.

2053. What may be said as to the relations of the attorney
to other members of the bar, and his profession in general?

2054. To what extent, and why is an attorney subject to
regulation by the court? What is meant by a disbarment pro-
ceeding ?

2055. When may the court punish an attorney for improper
conduct? What sort of conduct is to be observed in this re-
spect?

2056. Explain the nature of a disbarment proceeding, and
when it should be begun? May such proceedings be conducted
without due process of law?

2057. How are disbarment proceedings generally instituted ?

2058. How are the pleadings in a disbarment proceeding
commenced and made up? What sort of a trial is usually
had?

2059. For what acts may an attorney be disbarred? What
is_the effect of disbarment?

2060. May disbarment proceedings be reviewed on error?

2061. When may an attorney be punished for contempt of
court?

2062. What privilege from arrest does an attorney enjoy?
Why?.

2063. Discuss the rules governing the privilege in regard
to communications made to an attorney in his professional
character.

_ 2064. What is the extent of the privilege of speech enjoyed
by an attorney in the trial of a case in court?

2065. What is the general extent of the attorney to repre-
sent his client in the conduct of a case entrusted to him?

2066. What is the liability of the attorney for costs incurred
in the client’s behalf?
182 QUESTIONS

2067. What is the obligation of an attorney to use diligence
and skill in the conduct of his client’s case?

2068. To what extent may an attorney represent a client
before the legislature?

2069. What lien does an attorney have for the payment of
his services?

2070. What is the nature of the retaining lien?

2071. What is the nature of the charging lien?

2072. How is the charging lien lost or discharged?

2073. What may be said as to advantages and disadvantages
of partnerships for the practice of law?

CHAPTER VI.

2074. What may be said as to the desirability of a lawyer
aiming and striving for success?

2075. How may a lawyer be aided by cultivating a pleas-
ing and engaging appearance?

2076. Explain the distinction between a trial and office
lawyer.

2077. Why is candor and fairness essential to the lawyer?

2078. What may be said as to earnestness being an essen-
tial to success?

2079. Will dignity in his conduct aid an attorney?

2080. To what extent should a lawyer cultivate a command
of language?

2081. What benefit will a lawyer derive from force and
logic? :

2082. How is a lawyer benefitted by a knowledge of men?

2083. What may be said as to the law being a life study for
the attorney?

2084. How is general knowledge to the advantage of the
lawyer?

2085. What is the use of temperance, patience and per-
severance to the lawyer in gaining precedence on his pro-
fession?
LATIN TRANSLATIONS.

Juris precepta sunt hec, honeste vivere, alterum non ledere
suum cuique tribuere. Inst. 1. 1. 3—(The precepts of the law
are these: To live honestly; not to injure another and to ren-
der to everyone his own.)

In foro conscientie—(In the forum (or tribunal) of one’s
own conscience.)

Quod naturalis ratio inter omnes homines constituit, voca-
tur jus gentium.—(That which is natural and rational between
all men constitutes the ‘basis or foundation of) law amongst
nations.)

“Jus civile est quod quisque sibi popwulis constituit.”—(The
civil law is that which each people formulates (enact).

Such laws among the Romans were denominated privilegia,
or private laws, of which Cicero (de leg. 3, 19, and in his ora-
tion pro domo, 17,) thus speaks: “Vetant leges sacrate vetant
duodecim tabule, leges privatis hominibus irrogari; id enim
est privilegium. Nemo unquam tulit, nihil est crudelius, nihil
perniciosius, nihil quod minus hec civitas ferre, possit.”—(The
sacred laws forbid, the twelve tablets forbid that (retroactive)
laws should be enforced against private individuals. This is a
privilege (natural immunity). Nothing could be more cruel,
nothing more pernicious; nothing could reflect more discredit
upon the state.)

“Esse optime constitutam rempublicam que ex tribus gen-
eribus illis, regali, optimo, et populari, sit modice confusa.”—
(That is the best republic which is moderately composed of
these three basic principles.)

Cunctas nationes et urbes populus aut primores, aut sin-
guli regunt; delecta ex his et constituta republice forma lau-
dari facilius quam evenire, vel, si evenit, haud diuturna esse
potest.” Am. l. 4—(The people either through chief ones or
by the common people rule all nations and states; from this it
may be inferred that the form so constituted is more easily
lauded (praised) than effected, or if it does (eventuate) hap-
pen it will hardly long continue.)

183
184 LATIN TRANSLATIONS

7

Lex pure penalis obligat tantum ad paenam, non item ad
culpam: lex poenalis mixta et ad culpam obligat, et ad penam.
(Sanderson de conscient, obligat, prael, vii Sec. 17. 24.)—
(Pure penal law applies only to the penalty and not to the
fault (crime). The mixed penal law applies as well to the
fault as to the penalty.)

“Lex non exacte definit, sed arbitrio boni viri permuttit.”—-
(A law not exacting (oppressive) but arbitrary operates to
the best interest of the people.)

Lex non scripta.—(Law not (written) statute.)

Lex scripta—(Statute (written) law.)

. Leges non scripte.—(Laws not (written) statute.) as

Leges sola memoria et usu retinebant—(Laws known sole-
ly from memory and use.)

Jus non scriptum.—(A right (tacitly understood.)

“Tacito et illiterato hominum consensu et mortbus ex-
pressum.”—(Expressed by the tacit and unwritten consent of
men.)

“Omnibus qui republice presunt etiam atque etiam mano,
ut omnibus equos se prebeant judices, perinde ac in judicali
libro (Saxonice, dom-bec) scriptum habetur: nec quicquam
formident quin jus commune (Saxonice, rolcnihce) audacter
libereque dicant.”—(To all who are present in the Kingdom,
and more particularly to the people at large, so that the judges
may show themselves fair to all, hence it must be written in
the (Dom Book) the judicial Book. Nor should they fear
anything but the common law, and speak it fearlessly and
freely.)

Jus commune.—(Common law.)

“‘Viginti annorum lucubrationes.”’'—(Night work of 20
years.)

“Legibus patrie optime institutt”'—(Admirably enacted by
the laws of our country.)

“Si imperialis majestas causam cognitionaliter examina-
verit, et partibus, cominus constitutis sententian dixerit, omnes
omnino judices, qui sub nostro imperio sunt, sciant hanc esse
legem, non solum illi cause pro qua producta est, sed et in
omnibus similibus.” C. 1. 14. 12-—(If his imperial majesty
has taken judicial cognizance, and from the evidence adduced
given his sentence (decision) every judge who is under our
government shall know this to be the law, not only for the
special case which brought forth the decision; but for all
(subsequent) similar cases.)
LATIN TRANSLATIONS 185

“Quod principi placuit legis habet vigorem, cum populus ei
et in eum omne suum imperium et protestatem comferat.’—
(That shall have the force of law which pleases the prince,
when the people have conferred on him all its own supreme
authority and power.

“Imperator solus et conditor et interpres legis existimatur.”
—(The Emperor alone is deemed both the builder (enactor)
and interpreter of the law.)

“Sacrilegii instar est rescripto principis obviari.’—(It is a
resemblance of sacrilege to oppose the rescript of the prince.)

Lex mercatoria.—(Mercantile law.)

“Cuilibet in sua arte credendum est.”—(Belief must be
given to each one in his own domain.)

Id certum est, quod certum reddi potest—(That is certain
which can be proved.)

Decemviri(Ten men.)

Responsa prudentum.—(Replies of the learned.)

“Tam immensus aliarum super alias ascervatarum legum
cumulus.”—(Such an immense heap of laws piled up one upon
another.)

Corpus juris civilis—(Body of the civil law.)

Corcordia Discordantium Canonum.—(Agreement of dis-
senting canons (laws).)

Decretum Gratiani.—(Decree of Gratian.)

Decretalia Gregorii Noni—(Decree of Gregory IX.)

Sextus Decretalium.—(Sixth book of the Decretals.)

Extravagantes Joannis—(The wanderers of John.)

Extravagantes Communes.—(The common wanderers.)

Corpus juris canonici.—(The body of the canon law.)

Leges sub graviori lege-——(Laws under a more weighty
law.)
Articuli cleri—(Enactments for the clergy.)

Prerogativa regis—(The prerogatives of the King.)

Quia emptores—(Because buyers.)

Circumspecte agatis——(Deal cautiously.)

In perpetuum rei tetimonium.—(For a perpetual testimony
of the affair (thing).)

Ut res magis valeat, quam pereat—(That the thing may
prevail rather than perish.)

“Leges posteriores, priores contrarias abrogant.”—(Laws
more recent abrogate prior laws that contravene.)

“Quod populus postremum jussit, id jus ratum esto.”—
(That which the populace finally determines, let that be the
ratified law.)
186 LATIN TRANSLATIONS

Quoad hoc.—(As far as this is concerned.)

Sanctio justa, jubens honesta et prohibens contraria—(A
righteous sanction, ordering that which is honest, prohibiting
those things (against).)

Facultas ejus, quod cuique facere libet nisi quid vi aut jure
prohibetur. Inst: 1. 3. 1—(The opportunity which each one
has to do that which is not prevented by force or by law.)

Confrmatio cartarum.—(Certified by the tablets.)

Si aliquis mulierem pregnantum percusserit, vel et venenum
dederit, per quod fecerit abortivam; si puerperium jam for-
matum, fuerit, et maxime si fuerit animatum, facit homicidium.
Bracton, l. 3 c. 21.—(If anyone strikes a pregnant woman, or
administers poison to her, through means of which an abortion
occurs, if the foetus is already formed, and particularly if it be
animated, he commits murder.) :

Qui in utero sunt, in jure civili intelliguntur in rerum
natura esse, cum de eorum commodo agatur. Ff. 1. 5. 26.—
(Those things which are in the womb, are by civil law con-
sidered to be in the order of existing things when there is
question concerning their welfare.)

“Suspicio cujuslibet vani et meticulosi hominis, sed talis
qui possit cadera in virum constantem; talis enim debet esse
metus, qui in se contineat vite periculum, aut corporis crucia-
tum.”—(Not the suspicion of a vain and timid man; but such
as could befall a constant man: such should be the fear, which
has in itself danger to life, or injury to body.)

Ignoscitur ei qui sanguinem suum qualiter, qualiter redemp-
tum voluit.—(It is unknown to him what the value of his
blood (life) is, what the value of its price.)

“Destt esse miles seculi, qui factus est miles Christi; nec
beneficium pertinet ad eum qui non debet gerere officium.’—
(He ceases to be a soldier of this world: who becomes a sol-
dier of Christ: nor should a benefice attach to him who is not
obliged to discharge his duty.

“Nullus liber homo, aliquo modo destruatur, nisi per
legale judicum parium suorum aut per legem terre.” Aliquo
modo destruatur.’—(No free man shall be destroyed in any
fashion, save through the legal judgment of his peers, or by
the law of the land.)

“Dent operam consules, ne quid respublica detrimenti ca-
piat.”—(Let the consuls give their aid, so that the republic may
not suffer any detriment.)

Senatus consultum ultime necessitatis—(The opinion of
the senate for the utmost necessity.)
LATIN TRANSLATIONS 187

De talliagio non concedendo.—(Concerning aid that must
not be given.)

Nulli vendemus, nulli negabimus, aut differemus rectum vel
justitiam.—(We shall sell to no one for money, we shall deny
to no one, nor shall we put off right and justice.)

In bonis, in terris, vel persona.—(In goods, in lands or in
person. )
 

MISCELLANEOUS LATIN LEGAL
PHRASES.

Centained in Books Nos. 1 to 9.

 

A
Ab initio.—From the beginning.
Aliunde.—From outside.
Alter ego.—Another self.
Animo testandi.—The will to testify.
Animus revocandi.—The intention to recall or revoke.
Animus testandi.—The intention of testifying.
Ante mortem.—Before death.
Assumpsit—He takes on himself.

B
Bona fide.—In good faith.
Cc

Causa mortis.—In case of death.

Caveat emptor.—Buyer beware.
Certiorari.—To be made more certain.

Civiliter mortuus.—Dead in the eyes of the law.
Concilium privatum.—Privy council.
Contra.—Against.

Contra proferentum. —Against the one offering
Curia regis —King’s Court (bench).

Cy prés—(Old French) as near as.

D
De bene esse—Well being.
De bonis non.—Of the goods not yet, administered on.
De donis.—About (concerning) gifts.
De facto—From the fact; really; by one’s own authority.
De jure.—By right.
De non sane.—(French) not of sane (mind).
De son tort.—(French) of his own wrong.

189
190 LATIN LEGAL PHRASES

Delectus persone.—At pleasure of the person.

Delegatus delegare non potest—A delegate cannot delegate
his authority.

Descriptio persone.—Description of a person.

Descriptio personarum.—Description of persons.

Do ut des.—I give that you may go.

Donatio mortis causa.—Gift to be given in event of death.

E

E converso.—On the contrary.

Ex contractu.u—According to contract.

Ex delicto—From the crime.

Ex parte.—On one side only.

Ex post facto—Coming after the fact. After the deed is
done.

Expressio unius est exclusio alterius—The claim of one
excludes that of another. ;

Facio ut des—I do that you may give.
Facio ut facias—I do that you may do.
Feme sole—(Old Norman French) Single woman.
Féme covert—(Old Norman French) married woman.
Fructus industriales—Industrial products.
Fructus naturales—Natural products (fruits of the earth).
Habeus corpus.—To have the body.
I
In futuro.—tIn the future.
In loco parentis——In the place of a parent.
In personam.—Against the person.
In presenti—At the present time.
In re—In the matter of.
In rem.—Against the thing or property.
In solido.—In bulk.
In transitu—On the passage (in transit).
Inheres.—Within itself.
Inter vivos.—Among the living.
Ipso facto.—In the fact itself.,
Ipso facto et eo instante—By the act instanter.

Jura personarum.—Rights of persons.

Jura rerum.—Rights of things (or property).

Jura summi imperti—Laws of the supreme authority.
Jus despondi—Law of transfer.
LATIN LEGAL PHRASES 191

L
Lex domicilii—Law of habitation.
Lex rei site—Law of a stationary thing. The site of a
thing.
Locus panitentie—Place for repentance.

M

Malum in se.—Bad in itself.

Mandamus.—We command.

Municipium.—Municipality.

Ne exeat—Let him not depart.

Ne excat regnum.—Not to leave the Kingdom.

Nemo plus juris ad alium transferre potest quam ipse habet.
—wNo one can give more rights to another than he himself has.

Non compotes—Not competent.

Non compos mentis—Not of sound mind.

Non haec in federa veni.—These are not in the compact.

Nudum pactum—A mere agreement. Contract without
consideration and therefore void.

Nune pro tunc—Now for then.

O

Obiter dictum.—Anything said by the way, or in passing.
P

Per capita—By the head (according to or counted by

heads).
Per se.—By itself considered.
Per stirpes.—Through descent (posterity).
Per testes——By witnesses.
Post mortem.—After death.
Prima facie —On the first view.
Premunire.—To be forewarned.
Pro rata:—In proportion.
Pro tanto.—For so much.

Q
Quantum meruit—As much as he deserves.
Quasi.—As if.
Qui facit per alium facit per se—Who acts through another
acts for himself.
Qua warranto.—By what authority.
Quod non habet——What one has not.
192 LATIN LEGAL PHRASES

R

Rerum natura—Natural things. (Products of nature.)

Res geste.—Exploits. (History.)

Respondeat superior—Let the superior one reply.

S 4

Scire facias—Cause it to be known.

Se defendendo.—In self-defense.

Simplex commendatio non obligat.—An ordinary statement
»is not binding.

Statu quo.—The state in which (it was).

Status quo.—The state in which.

Sub anno.—In the year of.

Subpena—Under penalty.

Sui generis —Of its own kind.

Sui juris—In one’s own right.

Supra.—Above.

Supra protest—Above protest.

U
Ultra vires—Beyond the power.

Vv

 

Versus.—Against.
Vice versa.—The terms being exchanged. (reversed).
Viva voce——By oral testimony (human voice).
‘CONTENTS.

Page
(PR EL ACE: ~ Ss: craacau bach di Nake eattieehoee lea aan tn peeta siden: iii
PUBLIC INTERNATIONAL LAW.
CHAPTER I.

Early History and Writers of International Law.
Greeks knew nothing of International Law............. I
International Law under the Romans.................065 I
Explanation of the Roman Civil Law................0085 2
Conditions in the Middle Ages.............ccecceeeeees 4
Ameliorating Influences from the Tenth to the Sixteenth

CORLGRY asarecveaceieiecie oh tection stew ie ausemoanane sams 4
Status of International Law in the Sixteenth Century... 7
In 1625 the first work on International Law Appeared,

called “Peace and War’ by Grotius................. 8
Other Writers on International Law................--.- 9
Of the Plan followed by the Writers on International

Law? icicwitadcdsas shies sad deevnaiwe teas wha wieed eas II
CHAPTER II.

Of the Nature and Sources of International Law.
General Propositions Accepted by all Nations........... 13
Of the Objections to the Term International Law........ 4
Same Subject—What Sanctions Exist for International

Tea Wil. so nding gs vic seaisier augers Mgak Oa Wergettle x geass dam ierses 15
Same Subject—Other Names used to Designate the Sub- 5

COED cavers ayattsslaiouctves weaiageah de kcuewunaitya Soles Snare ive ra i covaleacayar nteiana lta euse I
International Law Consists of Two Branches, Public and

Private International Law...................-...-- 7
International Law Distinguished from the Municipal Law

Of a. Statescasencasvacsewssscaieenasiosssayeaersees 17
The Code of International Law is Progressive and is Con-

Stantly Increasing sox cenw sade sseeeeisciass Caeaeeeeas 18
What is International Law and Where is it Found?.... 19
Same Subject—2. Manifestoes at Outbreak of War.... 20

v
CONTENTS

Same Subject—3. Diplomatic Correspondence.......... ai
Same Subject—4. Decisions of Prize Courts and Interna-
tional Tribunals si <3 4 cases ness sc teeeee eee deen ed 21
Same Subject—5. Authoritative Writers, Marine Codes,
CLC. i Siwaers eens seme sss ge eae > e banee Rimeredee 22
CHAPTER III.

States and Their Relations in Times of Peace.
Meaning. of <a State: vssisdsasiccceesewerewwesesas eum es 25
International Law Recognizes the Independence and

Equality Of States: ssc sss Srdediee-<.dideaw tasesiea es caeauaanace.s 26
What the Independence of a State Implies............. 27
Same Subject—Territorial Inviolability................. 27
Same Subject—The Right of a State to Control Rivers.. 32
Same Subject—Rights of a State over its Canals........ 36
Same Subject—Rights of a State over Ships on the High

SC ASiiareaairatycnosssnt oie d maison anion atilneton ome nema ire 37
Same Subject—Right of a State to Choose its own Gov-

CMMENE,. es ces edi sas soma aes (aa eeeee te eee eRe. 39
Same Subject—The Right of Self-Preservation or Self-

Protection: 2092 s42 axieswvas 24 eassioeeax vids e aan es 41
Same Subject—The Right of Acquiring Territory....... 42

Same Subject—Right of Administering Domestic Affairs
Same Subject—The Right of Commercial Development... 42

Of the Equality of States. ........ 0... cee cece cee eens 43
Of Dependent and Protected States..............00005 44
Of the Recognition and Acknowledgement of a New State

Of GOVEENMERt 2252. suiwaiece vee oagivarsaw os case aie 44

The Recognition of the Belligerent Rights of Insurgents
does not amount to a Recognition of their Independ-

CTC ei cacao acces t Mniaederarsiala os sealer Riera eee Wate wots 46
Of the Origin and Effect of the Monroe Doctrine..... 46
Of the Establishment of Embassies and Consulates...... 50
Same Subject—The Privileges of Ministers............. 54
Same Subject—Of Consuls.............cc eee cee erences 56
Same Subject—Duties of Consuls .............0.ceee ees 58
Same Subject—Classes of Consular Offices.............. 60

CHAPTER IV.

Rights and Duties of States in Times of War.
Measures of Constraint Short of War.................. 63
Arbitration and Amicable Settlement of Disputes........ 66
War Defined and Classified.............cccceece cee eees 66
CONTENTS

 

The Commencement of War..........cccceececeseceees 67
The Recognition of Belligerency................0.0055 67
Consequences of Recognition of Belligerency 68
Effect of War on Treaties............... ccc ceeeeeeeeees 69
Effect of War on the Relation of Citizens.............. 69
What Persons May Engage in the War................. 70
Citizens of one Belligerent in the Territory of the other
may be Ordered out on the Outbreak of War........ 70
Of the Confiscation of the Enemy’s Property........... 71
Effect of War on Commercial Relations................. aI
OE Privateers: 6 cod sana ease nears souls Aaa a Nea ees 72
What may be Done in War............ 000 cc eccceeceeeee 93
Same Subject—The use of Deceit and Strategems....... 75
Same Subject—Obstructions in Harbors................ 75
Same Subject—Property that may be Seized on Land..... 76
Same Subject—Method Pursued in Prize Courts........ 79
Of the Rights and Duties of Neutral States............. 79
Same Subject—Neutrality Laws of the United States.... 81
Same Subject—What Neutrals May Do................ 82
Same Subject—Neutral Property How Determined....... 83
Same Subject—Rights of Neutrals under the Declaration

OF -ParisS: sane dsctesans ee sisceaeen e deseo ees ee 83
Same Subject—What is Included in Contraband of War 8,
International Law in Regard to Blockade.............. 86
Of the Right of Seach... ci. cc cscs ssc eas werwee neces 88
Of Extfadition. « cssisasecascescaynads wohemanys sgadiee ees _ 89

PART II.

LEGAL ETHICS AND PRACTICAL SUGGES-
TIONS TO YOUNG LAWYERS.

CHAPTER I.
The Subject Defined and Classified.
Meaning of Ethics... i. .scc0ds cee ui vann sseeGa serene eve s 93
Ethics not an Exact Science............ 00s eee ceee eee eee 94
Legal Ethics Defined and Explained.................... 95
Classification of Professional Obligations................ =

Extent of Subject of Legal Ethics.....................-
Standing of the Legal Profession with the General Public 08

vii
CONTENTS

Standing of the Bar in America as to Political and Edu-

cational, Matters ssi eas eaiscnaewee oo orinareee nan isc 100
What is the Purpose of the Legal Profession?....... .++ IOI
Of the History and Development of the Legal Profession 102
Of the Authorities or Writers on Legal Ethics......... 103

CHAPTER II.

The Lawyer’s Duties with Respect to the Public or State.
General Nature of a Lawyer’s Duties to the Public.... 105
The Lawyer’s Responsibility to the Public in the Admin-

istration of the Law... ......... ee eee eee cece nee e nee 107

CHAPTER III.

The Relation and Conduct of the Lawyer to His Clients.
The Ethical Justification of the Lawyer who is on the

Losing Side of a Legal Controversy .............. III
Same Subject—Another View..........ssecceeeceeees are TT)
Same Subject—In Criminal Cases...............eeeeeeee II5
The Lawyer’s Duty as Respects Giving Advice to His

Ghients: 45ccccdusiiee Seek 5 woereank aeemmea eatin. oose mae 116
It is an Attorney’s Legal Right, if not his Duty, to Refuse

Retainers in Certain Civil Cases..................5. 117
An Attorney Cannot, Perhaps, Justly Refuse to Represent

a Person Accused of Crime.............c0eeeeeeee 118

When a Lawyer is Already Retained in a Case, He should
so inform an Applicant for his Services Immediately 118
With His Client an Attorney should Observe a Judicial
Attitude, and not Advise Anything Contrary to Law 119
Some Things an Attorney should Never do for His Client 119
Of Right of an Attorney to Receive Compensation

for this: Services icaieeiaageuiinenies sie aseee oes Kaeo aes 121
How the Amount which an Attorney may charge
for His Services is Determined.................00 122
Same Subject—Of the Limitations Imposed upon Attor-
MEVS AS CO. HECS iia eves wipice « Setiee Ge a debienpeleee ged S csatads 123
Of the Objections to Contingent Fees..............20:: 125
‘ CHAPTER IV.

Of the Attorney's Conduct and Demeanor Towards the Court.

The Attorney’s Relations with the Court in General.... 127
In his Relations with the Judge it is the Official Position
which is to be Regarded Rather than the Man....... 127

viii
CONTENTS

It is the Duty of an Attorney to Always Show Respect

tos tthe. SUM Ge sau. sees Goiece ose scsiauesas Saya 2 eat wee 128
Of the Right of an Attorney to Oppose the Judge....... 129
It is the Duty of an Attorney to be Truthful and Honest

in Making Statements to the Court............... 130
An Attorney should not forget that the Position of the

Judge is frequently a Trying One..............22 131
Of the Conduct of the Lawyer to the Jury.............. 131

‘CHAPTER V.

Legal Status of the Attorney as a Member of the Bar.
Of the Relations of the Attorney with Members of the

Bae vas ayaizcamncs oon aes onaany yao wie arch eeda a ae seed gape asdtast 135
As an Officer of the Court an Attorney is Subject to Con-
trol. by the: ‘Court.oses). ..e25 aacaaws boss. ems aes ese 136
When the Court is Authorized to Punish an Attorney for
linproper (Conditet. acini snasetaenaceeedee natieneaie es 137
Of the Nature of a Disbarment Proceeding........... 138
Disbarment Proceedings are Commonly Instituted by the
Local Bar Association............c cece ceeeeeeeees 140
Of the Pleadings in a Disbarment Proceeding.......... 140
Of the Acts for which an Attorney may be Disbarred.... 141
Disbarment Proceedings may be Reviewed on Error.... 142
An Attorney may also be Punished for Contempt of
COUT Ease iss c25te ch aisud did ath ig 8 a labsiaece sess ah via Suataaena we nine 142
An Attorney is Privileged from Arrest while Attending
COUrt teccdicidaiiguesatoamicde ts sak tageeheseoueds 143
Communications by a Client to an Attorney are Regarded
as Privileged Communications................-.-05- 143
The Freedom of Speech Vouchsafed to an Attorney in
Argument of a Case is Very Broad................. 145
Extent of the Authority of an Attorney to Represent
FAIS: (CHEN Ee ied oo ec overen See maracas pay sare ahem ae aie 146
As to the Liability of the Attorney for Costs Incurred
in. thé Client's Behalf. cc os sodosa es gs ta nneue ns one vee 148

Of the Obligation of an Attorney to use Diligence and
Skill in the Handling of Matters Entrusted to Him.. 148

An Attorney may Represent a Client Before the Legisla-
ture but Cannot make a Legal Contract to Procure

Specific Legislation .......-....-seee sere e eee Seat ats 149
Of the Attorney’s Right to a Lien—Retaining Lien and
Charging. Lien. occupies scsniua sr se sctesaawa ven dae 150
CONTENTS

Same Subject—Nature of the Retaining Lien............ 150
Same Subject—The Charging Lien............ 6.2 eeeeeee 150
Same Subject—Extent of the Charging Lien, and How it

ASs DISCHAr BEd» cs casess dain ent ncaceantonsid ahs a eeapr asiadbumnere, seed I51I

Some Remarks on the Advantages and Disadvantages of
Partnerships Between Attorneys in the Practice of

DC eE YU! easy crores spun sayave cvapackoue nee ce upenyvonst aver oPareareaneedalan es. Seleade mee 152
CHAPTER VI.

Of the Elements of Success in the Practice of the Law.
Of the Desirability of Aiming at Success.............. 155
A Lawyer should Aim to Cultivate a Pleasing and Attrac-

tive Manner and Appearance...............0e-eeeee 155
A Lawyer may be a “Trial Lawyer,’ or an “Office

TEV Ro seccseieetustann ig ke vies aie tsa ogaed “apav sth dia sa vcbubvduas dem ieee ante 158
A Lawyer in His Zeal for His Clients should not forget

that He must also Cultivate Fairness and Candor.... 159
Earnestness is an Essential to Forcefulness in a Lawyer.. 162
Of the Use of Dignity to an Attorney................- 163
A Reasonable Command of Language is Necessary to the

LAWNS scarewsannusuos aenecs oi ween mm eas Su RieRwetes ace 164

The Lawyer must Develop His Reasoning Powers, and
Aim to Cultivate the Faculty of Being Logical as well

aS: Forceful. excess ckvaice 14 taeda aesins woes seers 165
Along with His other Learning the Successful Lawyer
should Acquire a Knowledge of Men................ 166

The Attorney must not Stop Studying the Principles of
Law because He is Admitted to the Bar—This is a
Life Study «sscesseccsusccuwewsaeeae.eaieeaneee rece 169

Of the Advantages of General Knowledge to the Lawyer 169

The Successful Lawyer must also be Energetic, Indus-
trious, Temperate, Patient and Persevering.......... II

OUESSHONS: vie seis sis Gecainateses munesionones saamaumnwans . 173