Page:The Green Bag (1889–1914), Volume 16.pdf/303

 Rh

"2ist. And the said Maximilian hereby declares, as a fact, that in no single instance did he ever issue an order to take the life of any particular prisoner or prisoners; but that, on the contrary, whenever he was informed that prisoners of war were in the possession of his forces, he immediately issued orders not to take the life of any of them. "22d. And further, as one of the charges preferred against him, Maximilian, is, that of contumacy in objecting to the jurisdiction of the court ordered to try him, he avers that that is a question of law; and that in every court in civilized nations it is the legal right of a defendant to make such objections as he may be by counsel advised. "FREDERIC HALL, of Counsel." This curious document is, perhaps, the only known instance in which the head of a State charged with treason, and on trial for his life, has through counsel filed pleas to the jurisdiction of the trial court, and submitted a brief of his case. Maximilian undoubtedly realized the uselessness in all human prob ability of submitting such a form of argu ment to his judges, but he strongly desired that the legal strength of his position should be made known to the outside world, and left orders that the above brief should be sent to certain eminent men. This was done, and to that end the paper served its purpose;

the trial of the ex-Emperor, however, pro ceeded undisturbed, and, as was foreseen from the beginning, Maximilian was found guilty and sentenced to be shot. So far as I have been able to learn, Mr. Hall's brief has never been considered from the point of view of International or Civil law, nor have writers upon those subjects seen fit to deal largely with Maximilian's case. Yet it is only too evident that such cases must from time to time arise, and un less it be admitted that at all such times might alone makes right, we have no form of precedent to study. That in all such cases the party in power at the crucial moment should act as suits it best, whether it be by uncontrovertible experience, but to the stu dent of jurisprudence such an answer must form of law or at its own sweet will, may be and without needful authorities as he was, always be of little satisfaction. Mr. Hall, drawing a form of defence, pressed for time yet contributed much to our knowledge of his peculiar case, and the vagaries of the law in Mexico. The case deserves greater atten tion from the student of history, the efforts of Maximilian's counsel, both Mexican and American, deserve to be resurrected from oblivion, and the charges brought and an swers given to be read and re-read as a unique instance in the law of Nations.

THE ACTUAL DECISION IN THE MERGER CASE. BY BRUCE WYMAN, Of the faculty of Law in Harvard University.

IT seldom happens that an entire change in the law is worked by force of a single decision. At least this is true, that the con sequences of a great case are never to be known at the outset. And certainly this is true of the United States v. The Northern Securities Company ct. a/., that no one can predict with any certainty its final scope.

For the present the most that can be at tempted is an inquiry into the actual decision as it stands. The original bill was filed by the United States to restrain the violation of the act of July 2, 1890, entitled "An act to protect trade and commerce against unlawful re straints and monopolies"—the Sherman