"In the

United States

V.

John B. Smith

SUPREME COURT OF MONTANA TERRITORY

Brief on Motion to Dismiss Appeal

The defendant was convicted in the Third District Court of selling whiskey to Indians, but escaped from jail before sentence was passed upon him. His attorney afterwards moved for a new trial, which was denied; whereupon he appealed to this court.

The United States moves to dismiss the appeal on the ground that no final judgment has been rendered in the court below. This court has no jurisdiction until the rendition of the final judgment and the bringing up of the whole record.

Appellant has availed himself of that species of bail, known in common parlance as 'leg-bail,' the forfeiture of which brings to the government no revenue. He has gone to the Indian country, from whose bourne no traveler returns virtuous and but few rich. His inconsiderate departure has deprived this court of a case, the United States marshal of a guest and his counsel of a client.

It is a presumption of law that, when an attorney enters an appearance, he is duly authorized to do so; but this presumption is weakened when the client abandons his case before its determination in such unseemly haste as to neglect the parting civilities, which obtain among gentlemen of good breeding.

This is a serious case-for the United States. The presence of the appellant is respectfully solicited. Let the wanderer return. Let him cease to prefer the hardships of the prairie to the home comforts of the penitentiary. His case in the District Court can then he terminated and he will be suitably rewarded for his trouble. As it is, the pleasure, which this court would experience in hearing and deciding this case will be clouded by the unwelcome suspicion that its judgment will meet with a courteous and cheerful obedience. The persistent absence of the appellant is a waiver of all claim to a new trial and betrays a lack of interest in judicial proceedings.

There is no equity in appellant's case. His indiscretion has not only proved embarrassing to the court, but has rendered the marshal and his deputies the jest of the worldly minded, who continually ask: 'Have you heard from Smith?'

Equity follows the law and the law follows Smith; but unhappily Smith has all the advantages of an early start and a more intimate knowledge of the topography of the Indian country.

This appeal should be dismissed and the cause remanded to the District Court to await the appearance of the defendant. In that court he left his case; in that court he may confidently expect to find it on his

return.

M. C. PAGE,

United States District Attorney."

As the report shows the appeal to have been dismissed on the point made in the second paragraph, viz., that it was not taken from a final judgment, the probability is that the document is not apocryphal.

FRANK H. CULVER.

INHERITANCE TAX-GIFTS INTER VIVOS-FORM OF-TestaMENTARY GIFTS-INSINUATION-[Entscheidungen des Reichsgerichts in Civilsachen V No. 34 (1881)].—According to the laws of the Grand Duchy of Hesse and especially a regulation of 11 August 1808 and a fiscal law of 8 June 1821 (§ 21), all inheritances, testamentary gifts and legacies to collateral relatives of, or to persons unrelated to, the deceased which exceed a sum of 100 florins are subject to a tax of 5 per cent. Gifts inter vivos are not subject to the tax. On 22 March 1879, E. B. of Offenbach died unmarried and left the defendants as her collateral relatives and intestate heirs. The fiscus commenced suit alleging that the defendants were in possession of movables of the deceased and owed a collateral tax of M. 4142. It was also alleged that on 23 November 1863, the defendants entered into an agreement of gift with E. B. by which E. B. gave to the defendants all of her property with a reservation to E. B. during her life of possession and use; but that this agreement was void so far as it exceeded 100 florins (M. 171.43) according to the Solmser Landrecht (T. II 13 § 2) for lack of judicial insinuation [registration].

In the court of First Instance the defendants pleaded that the gift was properly executed by delivery of the signed document of gift to a court; and that in any event the form pursued (presentation of the document to a court with the request that it be entered as a legal document and action thereon by the judge of non-contentious jurisdiction) was the customary method of registration in the former Provincial Court of Offenbach. The defendants further stated they did not then take possession of the gift, but in accordance with the terms of the gift left it in possession of the living donor. The defendants then averred that if the gift was invalid beyond the sum of 100 florins, that a tax on the surplus sum could only be demanded by condiction from the donor.

The plea was overruled and the defendants were condemned in accordance with the claim. In the court of appeal the defendants reasserted the points made below. The Provincial Court of Appeal denied the appeal and a revision of the judgment was also refused.

With respect to the form of gifts at common law, which exceeded 200 solidi, the constitution of Emperor Constantinus Chlorus required for validity a judicial insinuation. This insinuation must have been performed before a magistrate and required entry in the minutes of the court ('acta' or 'gesta'). Justinian made the conditions easier, raising the necessity for insinuation to gifts which exceeded 500 solidi, abolishing the requirement of formal words, and giving legal validity to mere promises of gift without contemporaneous delivery. But the necessity of insinuation remained. This was accomplished by judicial entry in the minutes of the magistrate of the agreement of the parties. The protocol had the purpose of furnishing future evidence of a present gift by a public record and of checking the rashness and indiscretion of donors by the formality of the act. C. 8.53.34 pr. (de donat.):

[Sancimus omnen donationem sive communem sive ante nuptias factam usque ad trecentos solidos cumulatam non indigere monumentis, sed communem fortunam habere, ut non usque ad ducentorum solidorum summam teneat, sed in huiusmodi observatione similes sint tam communes quam ante nuptias donationes.]

C. 8.53.36.3:

[Ceteris etiam donationibus quae gestis intervenientibus minime sunt insinuatae, sine aliqua distinctione quingentos usque ad solidos valituris. hoc etenim tantummodo ad augendas huiusmodi donationes addendum esse ex praesenti lege decernimus: anteriore tempore nostra lege praecedente moderando, qua usque trecentos solidos factae donationes et sine insinuatione firmitatem obtinere iussae sunt.]1

The common law of modern times has not departed from the above cited provisions of Roman law and the necessity of judicial authentication for large gifts is so much in accord with the legal conscience of modern times that such a requirement is found in nearly all of the newer civil codes: cf. Bremer, Jhering's Jahrb. für Dogmatik XIII 13. In matters of detail, of course, there are questions concerning the amount of form required. That a simple notice to the court does not suffice and that a judicial act is necessary, of that there is no doubt. On one hand, in agreement with Roman law, it is supposed that declaration by a judicial protocol is necessary; on the other, that notice of the gift in any form, followed by judicial authentication, is enough. There is a third view that it is sufficient if the donor executes the document of gift before the court and it is delivered and noted in the minutes of the court or even if the document of gift is presented to the court and is there signed by the parties and authenticated and either returned to the parties or kept in the records of the court: Windscheid "Pand." § 367 no. 3; Sintenis "Prakt. gem. Civilrecht" I § 110 no. 38; Seuffert Archiv I 343, XVI 111, XVII 242, XXVI 28, XXVII 228.

Whichever of these views may be the correct one, it does not appear from the statement of facts upon which the judgment of the appellate court is based, that any one of these forms was observed by the donor. There was neither a declaration of the parties in the form of a judicial protocol nor a formal execution of the document of gift. The parties simply had their signatures attested by subordinate officers of the court and presented their agreement to the court with the request "that it be received for insinuation in the records and that they be notified of the court's action." The provincial court acted as requested.

The judgment of the appellate court that there was no judicial execution of the gift was correct.

*

*

*

*

1. See also C. 8.53.25, 27, 30; Cod. Theod. 3.5 (de spons.).

BOOKS AND PERIODICALS

INTRODUCTION A L'ÉTUDE DU DROIT PÉNAL INTERNATIONAL. Par H. Donnedieu de Vabres, professeur à la faculté de droit de l'Université de Montpellier. Paris: Librairie de la Société du Recueil Sirey, 1922. Pp. 482.

The "Introduction to the Study of International Penal Law" is a historical study of timely interest to us in America. The criminal lawyer will find in it an instructive summary of the present jurisdiction of criminal courts and of the conflict of laws in France; the jurist will find here a historical essay vitalized by such a spirit of philosophy as pervades the work of Maine on Ancient Law; while to the political scientist, the point of view of Professor de Vabres may add new meaning to the present international isolation of the United States.

Articles 5-7 of the French Criminal Code determine the jurisdiction of French criminal courts in regard to crimes and misdemeanors committed in foreign territory by nationals and foreigners and those committed by foreigners in France. The "Introduction"" is an argument for the revision of these articles to conform to the ever intensifying solidarity of modern society and is in advocacy of "an organized and internationalized resistance to the alarming progress of international criminality." This revision involves a reversion from the territorial to the personal conception of the application of penal law.

Of the two conceptions of criminal law, the territorial predominates in Anglo-American systems and in practically all modern systems on the continent; the personal existed among the barbarians of Gaul before the infiltration of Roman law and now survives, it is believed, in the Hindoo and Mohammedan systems. Wharton terms these two theories the "objective" and the "subjective." In the terminology of Professor Dicey, under the heading of "compétence judiciaire" the author treats the subject of the 'choice of jurisdictions' and under the heading of "compétence legislative" he treats the 'choice of laws.'

Since M. Lainé published his "Introduction au droit international privé" (1888-1892), the term 'private international law' seems to have been definitely accepted by continental jurists in spite of the protestations of Holland, Dicey, and others; hence no issue will be made of the use of this term by Professor de Vabres. The author gives us the analytical definition of his subject:

"International penal law is the science which determines the competence of the penal jurisdictions of the state as opposed to foreign jurisdictions, the application of its criminal laws, with regard to the places and persons which they govern, the authority on its territory of foreign repressive judgments."

It is recognized, however, that as yet international penal law is a part of internal or municipal law. "From the standpoint of its scientific development," says the author, "it is impossible to see in it anything else but a chapter of criminal law."

As M. Lainé went to the speculations of Bartolus of XIVth century Italy for a juridical basis for the new science of private international law, so Professor de Vabres finds in the doctrine of statutes evolved by the various autonomous cities of northern Italy of the middle ages his inspiration for universal criminal repression:

"Of the complex questions of international penal law which the conventions of jurists are facing today with the interest which novelty inspires, there is probably not a single one which the Italian doctors have not examined and applied the unbelievable resources of their foresight and juristic subtlety."

It is regretted that space does not permit a complete survey of the historical elements in this monograph, for Professor de Vabres has gone to remotest antiquity in search of primitive conceptions of the nature of criminal repression. An early example of extraterritorialty is found in the privilege accorded the Greek merchants by the Egyptians to establish their courts at Naucratis. The author cites the example of the delivery of the seven sons of Saul to the Gibeonites (Samuel ii 21, 1-14) as a primitive example of extradition among the Hebrews. The reviewer is of the opinion, however, that the prospect of relief from the three-year famine had more to do with this purported extradition than any sense of social solidarity. Though the treaties between the Greek cities regulating criminal repression were on a basis of territoriality, the author finds an idea of personal jurisdiction in the humane character of Hellenic penal law.

Roman law differed from the Grecian in its narrowing nationalism. However, the imperialistic law became the common law of all the continental states several centuries later. This jus gentium, originated because the jus civile was not applicable to foreigners, became the basis of international penal law. In the first five centuries of Rome the system of 'delicta privata' dominated and foreigners were excluded from actions at law by the XII Tables, but in 512 A. v. c. the prætor peregrinus was established with jurisdiction over foreigners by actions at law, and foreigners, by a fiction, were permitted to avail themselves of the formulary procedure. Under the Empire the courts of Rome had, besides their territorial jurisdiction, cognizance of certain offenses which touched the public order, no matter the place of the offense or the quality of the delinquent embezzlement of public funds, high treason, counterfeiting, etc.—a rule of law which obtains today in most systems. The Roman regard for local law and custom ended with the constitutions of the Emperors. A common penal law was formed for all the empire and the rule established that jurisdiction was determined by the domicile of the accused, of which the origins are in the traditional principles of the 'ordo judiciorum.' The jurisdiction of the