Page:The Green Bag (1889–1914), Volume 25.pdf/251

 234

The Green Bag

"By the Constitution the states divided only the field within which authority over commerce might be exercised, not the ends and aims which its exercise might be intended to accomplish. And the exercise of control by the federal government with that portion of the field con veyed to it, whether in the interest of health, fair trade, morals, or the general welfare, is not an infringement on state rights, but in aid thereof." "The Constitutional Right of Secession." By Judge Eugene B. Gary, South Carolina Supreme Court. 76 Central Law Journal 165 (Mar. 7). A lengthy argument reviving the theory of "state's rights." Government. "The Need for a Constitu tional Convention in Illinois." By W. F. Dodd. 7 Illinois Law Review 496 (Mar.). The present difficulty of amending the con stitution is analyzed; while the writer recog nizes that many constitutional changes of im portance are urged, he does not champion any specific measures. "The Parliament Act and the British Consti tution." By Edward Jenks. 13 Columbia Law Review 232 (Mar.). In reply to Sir William Anson, Mr. Jenks defends some of the views he expressed in 12 Columbia Law Review 32 (See 25 Green Bag 83). See Direct Government, Election Laws, Fed eral and State Powers, Separation of Powers, Social Legislation. History. "The Hayes-Tilden Controversy for the Presidency." By Henry Watterson. Cen tury, v. 86, p. 3 (May). An interesting "inside history" of the great contest, written by one who had a personal share in it and has deep appreciation for the character of Tilden. International Arbitration. "International Arbitration of Justiciable Disputes." By Wil liam W. Thayer. 26 Harvard Law Review 416 (Mar.). "If the growing tendency to confine the object of international arbitration to the 'settlement of disputes between states ... on the basis of respect for law' is to prevail, then non-justiciable disputes will have to be excluded either im plicitly or expressly from arbitration treaties. The scope of international arbitration would then correspond exactly to the scope of muni cipal law as administered by the courts. Non justiciable disputes which diplomacy had failed to adjust could be settled by mediation more properly than by arbitration. . . . "The preceding remarks may seem somewhat reactionary to pacifists who hope for and ulti mately expect a world treaty for the arbitration of all international disputes without reserva tions. On the other hand, it may well be that the desired result can better be attained by treaties like those proposed by President Taft than by

those of the Central American type: first, be cause they will meet with less opposition from opponents of the international peace movement in that they do not appear to be so extreme; and secondly, because the test of justiciableness, like the principles of municipal law, can be readily expanded to keep pace with the development of international civilization and the requirements of international opinion." Intersta te Commerce. See Commerce Court, Federal and State Powers. Irrigation. See Water Power. Legal History. "Procedure in the Feudal Curia Regis." By George Burton Adams. 13 Columbia Law Review 277 (Apr.). A striking article, evidencing an enormous amount of work in the investigation and com parison of sources. The trial of the Bishop of Durham for treason, at the beginning of the reign of William Rufus, is the subject of a careful study. "From the cases which I have been able to bring together in text and notes, it docs not seem to me possible to say that any definite procedure, or order of procedure, was required in the great Curia Regis as formally necessary. We can only say that certain forms or rules were so common, or in the case of some of them perhaps so universal, that there is a presumption that they were formal and required, of the nature of fixed rules. "There should be a formal opening in which the case of the plaintiff or appellant is stated; to this the defendant, or the accused, should make a formal answer, contradicere, or formally abandon his case. In the trial there might be much set argument and explanation addressed to the court by the parties, or their representa tives, apparently under no very formal regula tions, and evidence oral or written might be produced, and members of the court were free to interrupt by question or objection. Prob ably both parties, certainly the accused, or the defendant, had the right to retire from the court and take counsel with his own men, but he could not have such counsel from the members of the court: they were his judges. The court ren dered judgment from time to time, as the suit went on, upon such questions as arose, prob ably in the absence of the accused, and might even turn a judgment upon a special point into a final judgment upon the case as a whole. We get no evidence of any formal process by which a judgment was reached, by vote or otherwise. The majority opinion of the court plainly made the judgment, but what the opinion of the majority was seems to have been ascertained by free discussion and indicated often by the more or less disorderly outcries of the members of the court. When it was known, the party who had gone out was recalled and the decision formally announced to him, either by the moderator or by some member of the court designated for the purpose. The part taken by the King, or by the moderator of the court, in the ongoing of an ordinary case, and the amount of indirect influence which he might have on the