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To him laws are written in reason and heart, not in books.
His critics say that such negation of written laws and idealistic doctrine “Return to Nature," would lead men into a state of barbarism. They say that according to Tolstoy's and Rousseau's teaching, man would live like the beast in the forest or the fish in the water. This criticism is not valid. When Tolstoy denies positive laws and Russian judicial institutions, he premises the higher moral and intellectual development of nation and society in all. He sees the ignorance and immorality of many people, but they must not be blamed on account of these weaknesses. It is not their fault that they are such men. We rather must condemn our erroneous educational system, and our political machinery, whose fault it is that they are not better instructed and educated.
This doctrine of Tolstoy could be endorsed even by Hobbes, who, we know, was in favor of conservative rule, and one of the most vigorous supporters of monarchical principles in the seventeenth century. In his Leviathan (part II, ch. 30) Hobbes says: "The punishment of the leaders and teachers in a commotion, not the poor seduced people, when they are punished, can profit the common: wealth by their example; to be severe to the people is to punish that ignorance, which may in great part be imputed to the sovereign whose fault it was, that they were no better instructed.” When Hobbes, the “grand hedonist” and "propagator of despotism” speaks so compassionately of the people, what remains for Tolstoy, the “greatest altruist” and “propagator of fraternity” to speak of them?
Tolstoy's ultra-radical theories could not be explicable in a state with a republican or democratic form of government. But in Russia where Duma and Zemstvos (County Councils) were at Tolstoy's time sheer perversions of the legislative will of the people; where constitutional government in fact was a bitter mockery; and where a monarchical system through its inefficiency and corruption, was a real terror for the majority of the nation,-in such a state Tolstoy's teaching on law is quite explicable, if not excusable.
CURRENT TOPICS AND NOTES.
OUR CONTRIBUTORS.-CHIEF JUSTICE WALTER CLARK in his article “Back to the Constitution,” takes the side of Thomas Jefferson as against John Marshall in the controversy which, beginning with Marbury v. Madison, has been a living one ever since. With the majority of the Bench and Bar supporting Chief Justice Marshall, the AMERICAN LAW REVIEW has printed very many articles endorsing his view. Audi alteram partem. Chief Justice Clark's opinions are entitled to great consideration, as he is one of the foremost Jurists of the South. Born in 1846, in North Carolina, he was admitted to the Bar of that State in 1868; was a Judge of the Superior Court from 1885 to 1889; a Justice of the Supreme Court from 1889 to 1902, and since the 1st of January, 1903, has been Chief Justice of his native State. He has been an industrious compiler of historical records and laws; he annotated the North Carolina Code of Civil Procedure and the North Carolina Reports, and is one of the contributing editors of the Corpus Juris.
MR. JUSTICE WILLIAM RENWICK RIDDELL, the writer of “A Court Martial Fifty Years Ago,” is one of the Justices of the Ontario High Court of Justice, and has been a frequent contributor to the REVIEW. See The Judicial Committee of the Privy Council, 44 Am. L. Rev. 161, and The Constitutional History of Canada, 46 Id. 24. See also 44 Am. L. Rev. 269, for a biographical sketch and portrait of this distinguished Canadian Jurist.
RAYMOND T. ZILLMER, the author of “The Frontier Lawyer,” is also a former contributor. See The Commission on Uniform State Laws, 47 Am. L. Rev. 69. He is an instructor in political economy and law in the University of Wisconsin.
CLIFFORD THORNE, the writer of “The Great American Experiment,” received the degree of A. M. and LL. B. from the University of Iowa in 1899; Ph. D. from Yale University in 1901, and LL. D. from Wesleyan College of Iowa, in 1912. He was Fellow at Yale in 1900-1901, and was admitted to the bar in 1899. He was chairman of the committee which filed briefs and argued on behalf of the states of Iowa, Missouri, North Dakota, South Dakota, Kansas, Nebraska, Oklahoma and Texas, before the Supreme Court of the United States in the celebrated Minnesota Rate case. At that time there were seventy cases pending in the federal courts, presenting the same issues, most of which were dismissed immediately after the decision of the Supreme Court in the Minnesota case. He has appeared before the Interstate Commerce Commission authorized to represent sixteen different states and a number of shippers' organizations having an aggregate membership of more than three hundred thousand.' He is the author of the Iowa Commerce Counsel law providing the public with an advocate in railroad cases before state and federal commissions; also the author of the Iowa law against unfair discrimination. Mr. Thorne was elected a member of the Iowa State Railroad Commission in 1910; was re-elected in 1914, and has been chairman of the Iowa State Railroad Commission since 1912. He is now president of the National Association of Railway Commissioners which is composed of the Interstate Commerce Commission, and all the state commissions in the country--forty-eight in number. He has been a contributor to this REVIEW on several occasions. See Corrections of the Law, 33 Am. L. Rev. 522; The Scope of Jurisprudence, 35 Id. 546; Will the Supreme Court become the Supreme Legislature, 43 Id. 288.
Milivoy S. STANOYEVICH, the writer of “Tolstoi,” is a native of Serbia ; a graduate of Belgrade University (1907), instructor in Zayechar College (1908); he studied economics and political sciences at Columbia University, 1909-12, and after studying two. years at the University of California, received M. L. degree in 1914. He is the author of “Youth at Present" (in Serbian); “Pessimisme et Optimisme dans la Sociologie” (in French); “Rhetorical Figures in the Ballads” (in Serbian); “German and Serbian Literature in the Nineteenth Century" (in Serbian); “Tolstoy's Theory of Social Reform" (in English); “The Russian Foreign Policy in the East" (in English). He is a frequent contributor to several Slavic and American periodicals.
HON. JAMES CLARK MCREYNOLDS, whose portrait appears in this issue, and the latest Judge to take his seat on the Bench of the Supreme Court of the United States, was born in Kentucky in 1862; graduated from the Vanderbilt University and the University of Virginia and after locating in New York City and practic
ing law there for many years, became an Assistant Attorney General of the United States, in 1903. In 1907 he went back to private practice, but was employed so frequently by the Government as leading Counsel in the prosecutions under the anti-trust law that his name became familiar in every part of the United States. When President Wilson went into office he selected Mr. McReynolds for his Attorney General, and on the occurrence of the first vacancy, promoted him to the highest court in the land. His appointment was received with favor by the Bar of the country.
AN IMPORTANT DECISION IN BANKRUPTCY.-In the Supreme Court of the United States, there was decided on November 29, 1915, the case of Bailey v. Baker Ice Machine Company, where the court was called upon to determine for the first time the operative force and effect of the amendment of June 25, 1910, to the National Bankruptcy Law, giving a trustee in bankruptcy the right of a creditor holding a lien by legal process. The precise question arose in this way. A contract of conditional sale, required by the law of the state governing the contract, to be recorded in order to be valid as against creditors, executed in November, 1911, was not recorded until May 15, 1912. At the date of the recording, the purchaser was insolvent and the seller had reasonable cause to believe that such was the fact. Bankruptcy followed within four months of May 15, 1912. It was contended on the part of the trustee in bankruptcy that he was entitled to the rights of a creditor holding a lien by legal process as of a date anterior to the recording of the contract. This contention is denied by the Supreme Court. The Court holds that the rights of the trustee as a creditor holding a lien attaches as of the time of the filing of the petition and it is the condition at that time which fixes the status of the trustee.
Another question of great interest arose in this way: It was contended on the part of the trustee in Bankruptcy that the filing of the contract of conditional sale operated as a preferential transfer. It was claimed by the trustee that before the contract was filed for record, the property therein described was subject to have been levied upon for the debts of the purchaser and that if the contract had not been recorded prior to the filing of the petition in bankruptcy the trustee in bankruptcy would have retained the property. The Court, however, held that the contract itself did not operate as a preferential transfer because under the contract nothing passed from the seller to the purchaser. A petition for rhearing was filed in which counsel insisted that it was not the
1 36 S. C. Rep. 50.