Rath Scheibler, who was opposed to the other Raths in his opinion, dissented, as we would say in this country. Regarding him the king says: "the Cüstrin Regierungs-Rath Scheibler, who, it appears in evidence, was of an opposite opinion to his colleagues, and voted that the man up-stream had not a right to cut-off the water from the man downstream; and that the point, as to Arnold's wanting water, should be more closely and strictly inquired into,-he, Scheibler, shall be set free from his arrest, and go back to his post at Cüstrin."

The question submitted regarding the action of President Kruger and the Valksraad is "buttressed" with a wrong reference; but I presume it was intended to refer to the famous case of Brown v. Leyds N. O., decided in December, 1896,39 and which so nearly rent asunder the South African Republic. The exact facts and matters leading up to the famous case, and creating the dangerous situation in the affairs of the Republic, are not fully known to the writer; but this much is apparent: That the Valksraad-for what procuring reason not apparent attempted, by a set of "rules,'' to infringe upon the independence of the judiciary, which independence was secured and guaranteed by the Grondwet." By Valksraad Besluiten it was sought to open to the public, for purposes of gold digging, certain privately-owned (whether by Utlanders, does not appear) land; and on June 19, 1895, there was published in the Staatscourant a proclamation of the State President declaring that from that date the eastern portion of the farm Wifontein, in the district of Potchefstroom, was, in terms of Art. 5, of Laws of 1894, proclaimed as a public digging, and should form a part of the Krugersdorp Gold Field. Out of these transactions arose the famous case of Brown v. Leyds, in which it was held that the Valksraad Besluiten did not have the force of law; and in which was

39 See 14 Cape Law Journal, pp. 71-94.

40 Id., pp. 38-49.

41 Art. 62 of old Grondwet and Art. 57 of the revised Grondwet, Local Laws, 1888-1889, p. 181.

also enforced the provisions of the Grondwet guaranteeing the independence of the judiciary. The court was clearly right and well within its functions and prerogative; President Kruger and the Valksraad cannot be justified in their action as an ordinary "legal" measure in times of peace and quietude, but may have been fully justified in it as a "war measure, "-for it will be recalled that this occurred during the troubled days just preceding the outbreak of the Boer War, when the Utlander or foreign population was giving President Kruger and the people of the little republic so much trouble. This trouble was instituted through the machinations of one Cecil Rhodes, and egged on by him in the greedy and selfish interests of one of the greatest and most pernicious of robber-chiefs of "high-finance," and in whose behalf a great nation sullied an honored name in the promotion of so unworthy a cause, crushing a weak and free people that they might be robbed of the riches Nature had deposited within their soil by persons without the shadow of a right-unless "might makes right."42

The question relative to the High Court of Viborg plunges us at once into the depths of the perplexed and perplexing Finnish question. As I understand the situation, the action of the tyrannical bureaucracy of Russia simply perpetrated another of its many atrocities. Finland is not and never was an integral part of the Russian government, and is not subject to the laws of the Russian Duma. It has had a troubled career for more than three centuries; has struggled against and evaded many outrages against its dignity as a nation and its existence as a people. In the year 1788 Gustavus III secured and confirmed to Finland those "fundamental laws" which the nation has succeeded in maintaining against kings, czars and bureau

42 The leading tenet in the political "philosophy" of Metternich and his apt pupil von Bismarck, and the leading principle in practice, to all appearances, in the two bureaucratic governments built up by these two

statesmen. See Hazen's "Europe since 1851," passim.

See also, Colonel Du Cane, "The War in South Africa," and Phillip's "Transvaal Problems."

cracies for over two centuries, and until the present hour. When Finland and the Aland Islands were ceded to Russia by Gustavus IV in 1809, Finland did not enter Russia as a conquered country, but maintained her free institutions and fundamental laws, becoming a semi-independent grandduchy, with its own senate (the first in which women ever sat as legislators, 39 in number), and its own governorgeneral. The province of Viborg was reunited to Finland in 1811, and has since that time partaken of like freedom and independence. On the assassination of Alexander II, the influence of the reactionary party in Russia began to create trouble for Finland. Although one of the first acts of Alexander III was to confirm the constitution and freedom accorded to Finland by his predecessors, soon the Slavophil movement, with its motto of "one law, one church, one tongue," acquired great influence in official circles, the aim being, in defiance of the solemn pledge of successive czars, to subject Finland to the Orthodox Church and to autocracy. Years of bitter struggle followed, the details of which cannot be set out here, with the result that on the accession of Nicholas II, the valiant constitutional struggle still being acute and the Finns still being free, in a manifesto of February 15, 1899, the Czar sought to abrogate the legislative power of the Finnish diet, and a new military law was proclaimed in July, 1901, by means of which it was sought to practically amalgamate the Finnish and Russian forces. But patriotic and determined Finns still struggled on,-and maintained their rights and their independence. This dogged resistance and earnest determination culminated in an imperial manifesto on November 7, 1905, by which all the demands of the Finns were granted, and the status quo ante 1899 was restored. From this brief summary it will be seen that the High Court of Viborg (the province of Viborg being an integral part of Finland) was right, and the Russian government flagrantly wrong.

In the case of Rutgers v. Waddington, the decision was

made by an inferior court-a court corresponding in many particulars to a modern police court-and with a jurisdiction and efficiency comparable to that of a magistrate or justice of the peace. If the decision was wrong, or even if unsatisfactory, there was ample remedy by an appeal or writ of error. The assembly of New York at that time, I believe, was the court of last resort in New York, and might, of their own initiative, probably, have caused a proper review to be had. The Mayors Court was properly surprised that "a case of such magnitude should receive its first impression from a court of such limited jurisdiction," "from magistrates actively engaged in establishing the police of a disordered city," but the members were in a measure consoled by the intimation in argument that it was "probable, whatever might be their determination, the case would not end there." Why was not the case appealed? The Assembly's censure was clearly not only wrong, but childish.

In Trevett v. Weeden, the act under which the Superior Court of Judicature refused to take jurisdiction was not only unjust but unconstitutional in more regards than one, in that it deprived of the constitutional right of trial by jury, provided for a new and an unconstitutional court, in that a less number of the judges of the court required to constitute a quorum were designated as a court to try violations of the act, and made the decision of these judges final, specifically depriving of the constitutional right of appeal. The judges were unquestionably right in their decision, and if they were not, there was ample remedy by appeal, error or certiorari, or possibly by mandamus in a higher court to compel them to take jurisdiction. Plainly the legislature was at fault in censuring the judges but acted within its plain rights in refusing to re-elect the judges for this or any other reason-but not justified in so doing.

In the case of the Ohio judges who refused to enforce an act of the legislature which was in derogation of the

right of trial by jury guaranteed by the Ohio constitution, the judges were in the right and the legislative attempt at impeachment for rendering such decision was wrongmen stepping beyond the legislative function of government and attempting to dictate to the judiciary (an independent and co-ordinate branch of the government), in what manner they should perform the functions of the high trust reposed in them. This was another manifestation of the public hysteria in the New York case and the Rhode Island case. When you consider the character, or want of character, of the average legislators, and the motives which control their acts, these three occurrences, and the Kentucky case following cannot be regarded as the deliberate acts of cool-headed and intelligent men uninfluenced by an outburst of public hysteria, and are valueless in this connection for any purpose.

The Kentucky case is of a class with the last three discussed, with these important differences: (1) the executive department joined with the legislative department in attempting to do an unconstitutional act; (2) they attempted to perform an act of removal in a way not provided for by the constitution and laws of the State; and (3) attempted by statute to abolish a court established by the constitution and to erect in its place a court not provided for by the constitution. Not one of their acts can be tolerated in any State with an established form of government-a simple illustration of the tyranny of ignorance. and spleen.

The Massachusetts case, although the result of an outburst of public indignation taking on a form of hysteria, is on a somewhat different footing, occurring as it did at the height of the excitement in one of the history-making epochs of our nation. The sentiment in the north was at fever heat and the current was beginning to turn against the fugitive-slave law and in favor of common humanity;"

43 See Vol. 18 The American Na- 44 Life of Seward, Vol. II, p. 230. tion: A History, pp. 263-285.