valuation should vitiate the policy. The judgment of the Court was that the policy was not avoided.

A little later in the same year (5 Cranch 187), another one of the same insurance company's cases came up on the question whether the jury should be told by the trial judge, against the wishes of one party, what meaning should be attached to the words of an absent witness whose deposition had been taken in writing: CUSHING gave the brief opinion that the judge was not bound to give a construction, but assigned no reasons, which, however, LIVINGSTON and JOHNSON, JJ., did in so few and apt words as to make CUSHING'S opinion entirely too oracular.

During February Term, 1810, CUSHING was detained at home by illness; and finally, death came in his seventy-eighth year, on the thirteenth of September, 1810. Ill health had warned him of approaching dissolution, and a letter of resignation was prepared by him, but not used.

Mr. Quincy, in writing to the distinguished author of Flander's Lives, summed up the character and attainments of CUSHING, from impressions "derived chiefly from observing him in court, and from the information of others. His legal attainments were of high rank. His judgment sound, his habits laborious, and devoted to the duties of his occupation and station. His virtues, of the pilgrim cast; pure in morals and inflexible in principle. But he was ambitious neither of literary nor political distinction. His nervous system was delicate, averse to all controversies, except those in which the pursuits of his profession involved him. In politics, he took no active part; but they were conservative and decided. The friend of such men as John Adams, Francis Dana, and Oliver Ellsworth, all of whom entertained for him the highest respect, could not be otherwise than of an elevated cast of intellect and moral power. But the habits of his life were retired, and he sought his happiness in domestic life; desirous rather to be useful than to be known." JOHN B. UHLE.

COMITY.

In the Legal Intelligencer of December twentieth, there is printed a dissenting opinion of Mr. Justice WILLIAMS, in the case of Forepaugh v. The R. R. It was the case of a contract with a carrier, made in New York, where the breach occurred. By the words of the contract, the carrier was not liable, and by the law of New York, the agreement was lawful. Because, by our law, the agreement discharging the liability would be contrary to public policy—that is, the policy of this State-Mr. Justice WILLIAMS says he would decline to recognize the validity of so much of the contract as regulated the liability. His reason is that comity does not require this at his hands.

The fallacy may best be illustrated by an exact parallel case, because no logical process is involved. A debt is contracted in New York, payable there, and the contract is broken, but suit is brought on it here. The law of New York does, or did, liquidate the damages for the delay at seven per cent. per annum. The law of Pennsylvania (the forum) makes that illegal and establishes a different rule. In stating this as an analogy, I must, however, admit there is a logical process, or something like it, involved, for the illegality in the case put is statutory; in the case decided it is the creation of the Court, and their notion of public policy is contrary to the law of nearly all, if not all, civilized States. That is, the courts of Pennsylvania have seen fit to declare illegal what has been sanctioned by Congress (Rev. Stat., § 4283 et seq.), by New York, by the courts of England, France, Holland, Germany, and Italy (129 U. S. 443, 444). It does not require a very profound mental process, I think, to perceive that a statutory illegality is certainly as binding as one established by the Court, founded on their views of public policy, and which they are entitled to change or disregard.

Now, would this judge have directed a jury to compute the damages according to the Pennsylvania rule, or according to the New York rule? And why? merely because the meaning, effect, and legality of the contract is governed by the law of New York thus became a part of that contract. Or, to put another illustration: if the consideration for the promise was

asserted to be illegal, by what law would he have ascertained that fact? Plainly, the mistake lies in the word comity.

There is a very happy illustration of the rule which really was the one in question, in the case referred to in The Moxham, L. R. I Prob. Div. 107, which well deserves reading. We have uniformly applied it in the class of cases where death resulting from accident has happened, with the exception of that class where the death occurred where there was no law creating a liability, as on the high seas. In these cases, many gentlemen have conceived, they had a right under their patents to dispense with legislation. In the case of The Moxham, a British ship ran into a wharf at Cadiz and injured it. There was no dispute that it was by the negligence of the master; nor any dispute that, by the law of England, the owner was liable. But the Court, L. J.J. JAMES and MELLISH, and BAGGALLAS, J. A., pointed out, with that charming simplicity of illustration so characteristic of their judiciary, that the relations of master and servant, to strangers, not involving the effect or the extent of the agency, was governed by the law of the place where the wrongful act of the servant was done, not by the law of the place of the hiring or domicile. If it were not so, there would be a double liability. For, unquestionably, the country where the wrongful act was done would decline paying any attention to the law of the place of the hiring.

No doubt, it is comity that alone compels the courts of a country to recognize rights created in another country. But it is not comity; it is an unwarranted assumption of power to recognize a different right from the one existing by the law creating the liability, which must depend on the law of the place where the act was done, or the contract was made. Comity may decline recognizing an asserted right, because it is intrinsically unjust, as a judgment without notice, or without jurisdiction of the person, or subject, or intrinsically immoral, as polygamy, or incestuous marriages; but it has never before been suggested that comity authorized a court to create a duty that did not arise by the law of the place of the contract or conduct. R. C. M.

THE SUPREME COURT OF THE UNITED STATES AND THE SCHEMES FOR RELIEVING IT.

The subject of the clashing decisions of the courts of the United States, and of the State courts, on questions of local law, has excited considerable interest recently.* From the standpoint of the writers that I have noticed criticising the conduct of the Supreme Court, there is nothing to be said in their defense. Judge Mitchell's judgment in Forepaugh v. The R. R., is as perfect an exposition of this view as probably is possible. On the other hand, an avowed postulate of the judges of the United States courts is apparently devoid of substantial foundation.

It behooves every one to speak with caution and deference, and certainly the writer has no claim to authority, but it is surely very clear to any one who will but pause and reflect, that, to speak of the common law as an abstraction, or the general commercial law in the abstract, as a standard of the right and the wrong, coupled with a disclaimer of the authority of all decisions of the courts, may be well enough when criticising a judgment, but as a basis of action-remembering the accepted definition of law as a practical thing,—does seem a very unsound or uncertain foundation.

The vice of the opposing schools-they are entitled to this dignity in jurisprudence—lies in this, as I apprehend, or rather I might say, I make this suggestion to have the benefit of discussion, and convert assertion into an inquiry, if there is not an error in the starting point, or the postulate; I would rather say an omission by both parties. In the one case the basis of the claim to sovereignty has been distinctly, defined. In the other, it has not been defined. Has the correct basis for the logical process of the Supreme Court of the United States been distinctly seen? May I ask this without presumption?

No one will dispute that every government (and every State of the Union is such, in this respect) can and does make

The subject is discussed in Hare's "American Constitutional Law," 447, 1112; by Wm. M. Meigs, in the "Central Law Journal," pp. 470-485, and by George Wharton Pepper, in his "Borderline of Federal and State Decisions," a thesis as a law student of the University of Pennsylvania, which would be quite remarkable if it had been the production of a lawyer of twenty years' standing.

law to suit itself; and that law is binding, regardless of any consideration but the power to make it. Blackstone's apparently meaningless addition to his definition (commanding what is right, etc.), has this, and only this meaning, that morally the government ought not to command the wrong and prohibit the right. It is absurd to suppose he (an Englishman) meant to say that because a law does command the wrong, there is a legal right in any body with or without a patent to refuse obedience.

No one can dispute that under the system prevalent in England and the United States, this rule we call law is far more the result of decisions of courts and tradition than of any thing like statutes.

It is not pretended by either school, that this kind of law is not as obligatory on courts as on citizens, or that any court does more (that is, professes to do more) than ascertain, expound and declare this law.

If a foreign court were seeking to enforce a contract and recognized that it must be construed by the law of the State where it was made, they would ascertain that law as any other fact, and would never let their belief as to what ought to be the law interfere in the matter. To speak accurately, there is really an exception to this; certainly the English courts have always recognized that a foreign law may be such that they would not enforce it. Witness their refusal to recognize foreign law relative to marriages and legitimacy. But we are not dealing with such matters, and they may be laid one side. The rule is practically absolute, that a court, administering a foreign law, as for instance the law of inheritance of a foreigner to property within their jurisdiction to distribute, simply ascertain as a fact what is the rule that governs at the domicile. It never occurs to any one to discuss the absurdity, injustice, or incongruity of the law, or to say that, their courts are in error.

Now it has occurred to me that the solution of the question which I mentioned at the outset, lies here. I do not mean the solution of the difficulty, for that is only increased by the solution of the dispute of the right, but the solution of the moral problem, for there is a moral problem, and one of no