Osprey until she arrived at Melbourne, circumstantially corroborating the story of the claimant. A very long and searching cross-examination failed to throw any discredit upon the witness, and the world is left to wonder whether, after all, the claimant is not Sir Roger.

On Thursday week the Attorney-General formally announced to the Supreme Court of the United States the death of its Chief Justice, and presented the resolutions of the Bar. Mr. Justice Clifford responded, paying a high tribute to the deceased. In the course of his remarks he said: "Men find it easy to review others, but much more difficult to criticise and review their own acts, and yet that is the very summit to which the upright judge should always be striving. Judges sometimes surrender with reluctance a favorite opinion, even when condemnation confronts it at every turn, and they find it well nigh impossible to yield it at all when it happens to harmonize with the popular voice or is gilded with the rays of successful experiment. Pride of opinion at such a time is too apt to predominate over a love of justice, but it was exactly under such circumstances that the late Chief Justice was called upon to review as a judge one of the most striking and conspicuous of his acts as the guardian of the national treasury at a moment when the fate of the nation so much depended upon its correct administration. Great success attended the financial scheme when it was adopted, and time had secured for it an extensive approval, as the war of the rebellion was victoriously ended and the national wealth was rapidly increasing. Circumstances better calculated to foster pride of opinion cannot well be imagined, but the Chief Justice, who had so creditably met the demands of duty in such a great variety of other responsible positions, did not hesitate to apply his best powers to the task of reviewing the measure in question and finally recorded his opinion that it was not justified by the constitution. Judges and jurists may dissent from his final conclusion and hold, as a majority of the justices of this court do, that he was right as Secretary of the Treasury, but every generous mind, as it seems to me, should honor the candor and self-control which inspired and induced such action."

If there is any thing approaching what is termed a "full vote" on the proposed amendment next Tuesday, it will no doubt be rejected; but time and again has it been shown that "the people" care very little for "( measures as compared with "men." The election of a governor will arouse the energies and bring to the polls thousands who would never bother themselves about a mere amendment to the constitution. So that a "full vote" may not be had, and the amendment may possibly be carried. The bar association, the union league club, the council of political reform, and several other New York organizations

are working for the success of the amendment, and will no doubt considerably influence the vote in the city. In the country an occasional lawyer will work at the polls for or against the measure, but no especial effort will be made on either side.

The unseemly personal attacks which some of the newspapers are making upon one of the candidates for justice of the supreme court in the third department, ought to convince, we should suppose, a great many people that the elective system is not conducive to great honor and respect for the judges. To charge the nominee of the opposite party with all sorts of misdeeds and shortcomings is quite in style with our manner of political discussion, and however groundless the charge may be, it always finds ready credence among a portion of the people. Fortunately, most of our judges have heretofore escaped political calumny, but there is no assurance of immunity even to the most spotless and upright. It is unquestionably important not only that our judges should be pure and honorable, but also that they should be believed to be so by the people. Popular confidence and respect for the judiciary is as essential as respect for the law is the parent of respect for the law and when that is lost a long step is taken toward anarchy and misrule. To hedge a man's way to the bench with such slander and abuse as that to which we have alluded, is, we respectfully submit, not calculated to preserve a very high respect for the judges.

NOTES OF CASES.

In addition to the cases cited in the article on "The liability of carriers as to goods sent, C. O. D.," ante, p. 140, we would call attention to the case of Lyons v. Hill, 46 N. H. 49, holding that when a package of goods is forwarded by a carrier to be paid for on delivery, the consignee is entitled to a reasonable opportunity to inspect them before he accepts them; and the carrier may afford him reasonable facilities for doing so, without making himself chargeable for the price - even if he put them into the hands of the consignee for that purpose, and receive from him the price as personal security to the carrier that the goods shall be returned, if not accepted, after a reasonable opportunity to examine them.

REMARKS ON SOME POINTS IN JEWISH LAW.

II. "PROSBUL."

According to Judge Joachimsen (page 194 of the LAW JOURNAL), the word "Prosbul" designates, in Talmudical law, a written deed of conveyance of real estate, which had to be executed and acknowledged by the grantor before a competent judicial authority. This definition of "Prosbul" has no foundation at all. It seems that Mr. Joachimsen relied too much on the authority of Auerbach, who (in his jud. Obligationen-Recht, page 191), without sufficient warranty, underlaid a false meaning to the term "Prosbul." The one passage which, in support of his definition, the judge quotes from Peah III, 6, has been misunderstood by him. For this Mishnah says, in the name of Rabbi Akiba, nothing else than that, amongst other things, the most insignificant piece of real estate (Karka col shehu), owned by a debtor, or his bondsman, or a debtor of his bondsman, is sufficient to execute legally a Prosbul. What in reality a Prosbul is, cannot be learned from this passage.

Now, what is then a Prosbul? In order to answer this question somewhat lucidly, I must begin at the beginning.

The Bible (Deut. XV, 1, 2), contains the following law:

At the end of every seven years thou shalt make a release. And this is the manner of the release: Every creditor that lendeth aught unto his neighbor shall release it; he shall not exact it of his neighbor, or of his brother; because it is called the Lord's release.

It is for our purpose not at all necessary to discuss the question, whether the original intent of the legislator was that the payment of debts should be suspended only in the seventh year, and the debts stand over to be paid in subsequent times, or whether the release of these debts should be total and final. So much is historically certain, that in post-Maccabean times, from the middle of the second century before Christ, and perhaps earlier yet, the law in Deuteronomy was understood and practiced in the sense that in every Sabbatical year all debts should be totally released, and payment of the same could not be insisted upon if this year had intervened.

Such a law, dictated by the most humane considerations, was well enough in a primitive society, where money is only borrowed by really poor people, and for the purpose of procuring the most crying necessities of daily life. But as soon as a nation rises so far as to pursue commerce and industry to some extent, the possession of money will bring to its owner some usufruct, and wealthy men will not be so ready to lend their money to the poor if they are in danger of losing the usufruct not only, but the principal also. Instead of being beneficial to the poor, the law became, in the course of time, burdensome and detrimental to them, as they found it difficult to get any loan in days of need.

What was to be done? Circumstances had altered, the law had become impracticable; but there it stood, inflexible, unrepealed, and (in the eyes of every Israelite then living) as a Biblical statute, unrepealable. What was to be done?

It happened, as it has happened in every period and in every country where a law, as yet standing in the Code, had outgrown the former conditions of life, under which, and with reference to which, it had been enacted, and was not any longer adaptable to the

altered circumstances; it happened, as it happens daily in our own times and in our own country, when any judge, or any other officer of sound common sense is called upon to apply obsolete and impracticable statutes. The law was so construed as to suit the new order of things, the new conditions of civil society. In such cases, it must be admitted, the letter of the law is often very stretched, and the new constructions are often very forced.

At an early time already it was generally held that the law in Deut. XV, 1, 2, should not find application if the debt was for goods bought, or for servants' hire, or for fines decreed by a court, or for any indemnity to be paid to an offended party, or if the debt was secured by a pawn(1), or if the borrower had waived his right of release in the seventh year(2), etc., etc. It is interesting, psychologically, to read the discussions in the Talmud concerning this matter(3), and to observe how the Rabbis and jurists in that remote past tried to justify these constructions. As I do not write an exhaustive monograph on the subject, I omit reproducing these talmudical discussions.

Hillel, who lived in the century preceding Christ, and died as first president of the Synedrion in Jerusalem, instituted another facilitating custom in order to free the people from the embarrassments which arose from the law under discussion: aye, he made it thereby altogether illusory. (4) It is this, the issuance of the Prosbul, that is to say, of a written or verbal declaration by the creditor before the court, that he reserves to himself the right to claim his debt even after the intervening of the Sabbatical year. To preserve the appearance, as though the Mosaic law were not abolished by Hillel's Tekanah, it was ordained that a Prosbul could only be executed if the debtor, or his warrantor, possessed some real estate. The formula of such a Prosbul is still known. It is to be found in Shebiith X, 4, and in Gittin 36.

Some readers may perhaps like to learn how, in the times of Christ and the apostles, such Jewish judicial papers read, and how they were executed. To gratify this desire, let us suppose for a moment that, on the wings of our imagination, we are carried back to times which lay now 1900 years behind us. We are in a Galilaean city, in Nazareth. We enter the court room and are in the midst of a pretty large gathering of people, amidst tradesmen, agriculturists and mechanics. Behind a large table we behold the court, consisting of three venerable judges, in the midst the Abh Beth Din, the president of the court, to his right and left the Dayyanim, the associate judges. At one end of the table is the Sopher, ready to perform the clerk's duties. It is Monday forenoon. A boy, of a pensive countenance and wondrous blue eyes - Jeshua, son of Joseph, is his name-had attracted our attention as soon as we had entered. Him we approach, and, upon our inquiry, he informs us that it is one of the court's regulations to sit regularly on Mondays and Thursdays in civil matters. The official business of the court begins, and we listen to the proceedings. Could we tarry long enough we might observe many things interesting. But our time is limited. The first case called is that of Joseph, the carpenter, against Hyrkanos, the blacksmith. Without delay one of the judges rises, turns to the president, and respectfully says: "Rabbi, I am

(1) Shebiith X, 1, 2. (2) Maccoth 3, b. (3) Gittin 34 and sequ. (4) Shebiith X, 3.

incompetent to sit as judge in this case; the plaintiff has rendered me some services of friendship sometime last winter, and although I am firmly resolved to pronounce justice without looking to the right or left, yet, unwittingly, I might be biased in favor of the man. The Dayyan is excused, and the Abh Beth Din calls upon Elieser, a learned Pharisee, who happens to be present in the hall, to take a seat at his side and fill the chair of the conscientious judge who had vacated it by his own free will.

A somewhat similar circumstance we note in the next case. Gamaliel, the defendant, calls the attention of the court to the fact that one judge is incompetent on account of his being related to Simon, the plaintiff. The judge vacates his seat, and another man, learned in the law, occupies it for the time being upon invitation by the president.

After the statements of the litigants and the depositions of the witnesses have been heard; after the various interrogations of the judges have been answered satisfactorily, the court renders judgment. Now these two civil suits have been finally disposed of, and another citizen of Nazareth appears. We will call him Antigonos. He will occupy the court's time but a few minutes. He states that Joachanan, the shoemaker, owes him one hundred shekels. The Sabbatical year is approaching, and he wishes a Prosbul to be written, so that he may ask payment even after this year has elapsed. The president questions: Has Joachanan some real estate upon which you can have a lien by virtue of the Prosbul prayed for? Antigonos replies that his debtor owns a small vineyard near the neighboring city of Sepphoris. That is sufficient, says the judge, and he directs the Sopher to issue the document. It is short, and we may insert it here. For convenience sake, we transcribe it in Roman letters:

Moser ani lachem ish ploni uploni hadayyanim shebamakom ploni shecol chobh sheyesh li sheagabbenu col s'man sheertzeh.

(Signatures of Judges or witnesses.)

(In translation: I lay down the declaration before you, N. N. and N. N., judges in the city of N., that I shall claim every debt due me, at any time when I may desire to do so.) (5)

We have been mentally present in the old Palestinial court long enough. Let us now look again upon the matter under consideration from our nineteenth century standpoint.

For many years after Hillel, the written document had to be shown when payment was asked for a debt contracted before the last Sabbatical year.(6) At a later period this, too, was declared unnecessary.(7)

Such is the power of progressive life over the dead letter of the law. By and by feature after feature of such antiquated laws fall into neglect, and in some cases, as, for example, in the one under discussion here, the old law becomes even imperceptibly perverted to the contrary. We know that some Rabbis shook their heads to the Prosbul-innovation, so, f. i., the eminent jurist, Samuel, president of the academy in Nehardea, in Babylonia, in the beginning of the third

century; he said: Prosbul is an unwarranted assumption of the judges; and, if I should have the power, I would certainly abolish it. (8) But how could the opinions of some theorists stem the onward moving mighty current of a new-conditioned life?

Before we close, we have to object against Mr. Joachimsen's etymology of the word Prosbul. He derives it from the Greek προσβολή. A great many unfortunate attempts have been made since the days of Rab Chasda(9) down to Dr. Ehrmann(10), to explain the etymology of this word; and it seems to us that Mr. J.'s etymology is also not the true one. (11) I believe that Benjamin Musafia has given the right explanation already 200 years ago(12), and Geiger, Sachs, Graetz, Jost, and others, adhere in the main to it. According to these authorities, "Prosbul" is the Greek #pó Bovan (a declaration) before the court. With what in old Athenian law is termed Prosbole, or Probole, the Jewish Prosbul has hardly any similarity. B. FELSENTHAL.

[Conclusion in next number.]

INTERNATIONAL LAW.

At the recent meeting of the social science congress, held at Norwich, England, Mr. David Dudley Field, on laying before the congress his outlines of an international code, made the following address:

66

Seven years ago, at the meeting of this association, held at Manchester in 1866, it was my good fortune to propose the appointment of a committee to prepare the outlines of an international code. The proposition was received with favor, and the committee was appointed, composed of jurists from different countries. In the distribution of the labor of preparing the outlines, a portion was assigned to me, it being understood that the different members of the committee should first interchange what they had respectively prepared, and then meet for a general revision. This, however, was found to be difficult. The members lived at too great distances from each other for any easy interchange. Under this embarrassment I thought it more convenient for the other members of the committee as well as for myself to undertake a draft of the whole work, hoping that the others would take the same course. The work thus undertaken by me has been completed after several years of labor; and I come now to lay it before my colleagues, and, with their permission, before the association itself. It should seem proper, therefore, for me to give you a brief account of the scope and contents of the work to which I thus venture to invite your attention. The importance of the subject no reflecting person can doubt. One has but to open his eyes upon what is passing before him to perceive the necessity and vastness of public law. Whether he remains at home or goes abroad, whether he travels by sea or by land, this law is ever present with him. Let us suppose him to be at sea. Let us take, for example, the great ship the City of Chester, in which the other day I crossed hither

(8) Gittin 36, b. (9) Ibid. 37, a.

(10) See Buxtorf Lex. Chald. Talm. Rabb. ed. Fisther, page 899, note.

(11) Totally incomprehensible is it, how the judge could say "The word Rabbi is analogous to the Greek Bpa Bevs, Arbitrator, Distributor of Prizes." "Rabbi" (my Lord) is a derivation from the good Semitic word "Rab" (Lord), similarly as ammi (my people) is derived from am (people), salli (my basket) from sal (basket), and so forth. (12) Additamenta to Aruch s. v. ve IV.

from the further side of the western ocean. As this vast fabric of wood and iron, cordage and canvas, with its outspread wings and its heart of fire, swept on its triumphant way, scarcely moving to the right or to the left, for aught that wind or storm could do, I thought what an illustration it afforded of the public law of the world. The ship was English, with an English crew. The passengers were members of various nationalities-English, American, German, French, Italian, and I know not how many more. The freight was destined to different ports of Europe. Observe, now, in what manner and by what standard the rights and duties of this mixed company of passengers, of master and mariners, and of the owners and ship and cargo were to be measured and judged. To avoid collision with other ships, precautions had to be taken by the display of lights at night, by signals in thick weather, and by steering a particular course, when other ships appeared in sight, in conformity with the rules of navigation now adopted by maritime nations. On meeting other vessels we conversed with them in their common language of sea signals, which the mariners of every nation should learn. If a collision had occurred, the wrong-doer and the amount of wrong done would have been adjudged by the first court of admiralty to which the case should come according to the general rules of maritime law. Had another ship sailing in the same sea fallen into peril and been rescued by us, salvage would have been awarded by the same court, and according to the same law. Had the vast and complex machinery by which we were impelled broken down, and, in a disabled condition, we had been driven upon the French coast, we should have fallen under the jurisdiction of the French courts, where our rights would have been adjudged, not so much according to French law as according to that law which is common both to France and England, to America, and to all the world-the law of nations. If, to escape a sea peril, a portion of the cargo had been thrown overboard, the loss arising from the jettison should have been apportioned according to a rule of average common to all civilized nations, though unfortunately a common rule has not yet been agreed upon. Besides those questions, how many others might arise! Suppose a contract or a testament to be made during the voyage, by what law is it to be interpreted or its validity determined? Suppose a contract between an Englishman and an Italian, and the same to be brought before a French court-or suppose a testament to be made by a German, according to the form used in Germany, and to be brought before an English court-where are the rules to be found by which the questions are to be decided? We may imagine other questions, and many of them in respect of collision, jettison, wreck, salvage, or personal violence, and ask ourselves how these questions would be solved by the courts of England, of France, or Belgium, or Holland? and we should easily see more clearly the importance of that law which is not confined to one country or race, but is, or should be, common to all countries and all races. From these illustrations, in reference to a single vessel out of thousands on the seas, it is easy to perceive how vast is the extent, and how varied are the details, of that public law which is designated variously as international law or the law of nations. In the outlines of that science which I have attempted will be found a scheme of classification and an arrangement of subjects, not, perhaps, the best that could be made, but the best that

I could make. The work is divided into two booksone relating to peace, the other to war; or, to speak more accurately, the first treats of the relations of nations and of their members toward each other, except as they are modified by a state of war; the second treats of the modification in these relations produced by a state of war. The first book is further subdivided into two portions, one containing the rules respecting the relations of nations to each other and to the members of other nations; the second respecting the relations of the members of each nation to the members of other nations; the first being that which is commonly known as public international law, the second that which is known as private international law. Bearing these divisions in mind, let us glance at some of the more important divisions which they contain. Besides the regulations which are usually treated of in works of international law, there are many others which, though often mentioned in treaties, do not usually find a place in general treatises. Thus, after treating of the essential rights of nations, such as their sovereignty, equality, perpetuity, territory, property— of their extra-territorial action, in respect of navigation, discovery, exploration and colonization, of fisheries and piracy, of the intercourse of nations with each other by means of accredited agents, of international compacts, of asylum and extradition, of national character and jurisdiction, of domicile and reciprocal duties of nations to foreigners, and of foreigners to the nation where they live in respect of residence, occupation, religion, obedience to the laws, taxation, civil and military service, there are provisions for mutual convenience to the subjects of which I attach much importance. These relate to shipping imposts, quarantine, railways, telegraphs, postal service, patents, trade-marks, copyrights, money, weights and measures, longitude and time, and sea signals. In respect to copyright, patent right and trade-marks, I would assert the right of the author, inventor or first designer as one to be held sacred and maintained in all countries. Longitude I would compute everywhere, as do the English, from Greenwich, instead of taking it for the maps of one country from Paris, and for those of another from Washington. For weights and measures I would adopt the metric system of the French; and as to money I would have a uniform coinage of certain pieces of gold which should pass current in every country, and thus save travelers and traders from the loss and embarrassment to which they are now subject. Then comes that part of the code which contains provisions intended for the preservation of peace. They would require, first, that there should be a simultaneous reduction of the enormous armaments which now weigh upon Europe; secondly, that if any disagreement or cause of complaint should arise between nations, the one aggrieved should give formal notice to the other, specifying in detail the causes of complaint and the redress sought, and that this complaint should be formally answered within a certain period. If such a course had been pursued by France and Germany before the fatal declaration of July, 1870, we should probably have been spared the last FrancoGerman war. A provision somewhat similar has already been inserted in the treaties of the United States with Portugal, Bolivia, Guatemala, Peru, St. Salvador and New Granada. Thirdly, it is provided that when the parties do not otherwise agree, they shall appoint five members of a joint high commission, who shall meet, discuss the differences, and endeavor