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Williamson v. Berry/Dissent Nelson

Mr. Justice NELSON.

I am unable to concur in the judgment of a majority of the court in this case, and shall, therefore, proceed to state the grounds of that dissent, with as much brevity as the nature and importance of the questions involved will admit.

I shall confine the examination to those grounds which I regard as decisive in the determination of these questions, without stopping to discuss several other points made upon the argument, and which have a more remote bearing upon the case.

The will of Mary Clarke, made and published April 6th, 1802, lies at the foundation of this controversy; and it is necessary, therefore, to recur for a moment to its provisions.

She devised to three trustees and their heirs, a part of her farm at Greenwich, called Chelsea, then situate in the vicinity of the city of New York, now a part of it, embracing some forty acres of land, together with a dwelling-house in town, in trust, to receive the rents and profits, and pay the same to Thomas B. Clarke, a grandson, during his life; and after his decease, to convey the estate to his children living at his death; and if he should leave no children, then, in trust, to convey the same to Clement C. Moore, and his heirs.

Thomas B. Clarke, the tenant for life, was married in 1802, and in 1814 had a family of six children, the eldest eleven years of age; and on the 2d of March of that year, applied to the Legislature of New York for relief on the ground that the property devised was, in its then condition, nearly unproductive, and incapable of being improved so as to yield an adequate income for the maintenance and support of himself and family.

The trustees, and C. C. Moore joined in the application.

On the 1st of April, 1814, an act was passed for his relief, authorizing the Court of Chancery to appoint trustees in the place of those named in the will, and providing for a sale of a moiety of the estate by the trustees, under the direction of the Chancellor; the proceeds to be invested in stocks or real security, upon the trusts in the will, and the income to be applied to the maintenance and support of the family of Clarke, and the education of his children. Nothing was done under this act.

On the 21st of February, 1815, Clement C. Moore, the ultimate remainder-man under the will, released and quitclaimed all his interest in the estate to Clarke; and on a second application to the Legislature for relief, a supplemental act was passed, on the 24th of March, 1815, reciting in the preamble the release, and substituting Clarke as the trustee of the estate in place of those provided for in the previous act; and authorizing a sale by the trustee of a moiety of the estate, with the assent of the Chancellor, and providing for the investment of so much of the proceeds in Clarke, as trustee, as the Chancellor should direct; the income of the investment to be applied to the maintenance and support of the family, as in the previous act.

On an application to the Chancellor, under this and the previous act, on the 28th of June, 1815, an order of reference to one of the masters in chancery was made, directing him to inquire into the debts of Clarke, distinguishing between those contracted for the maintenance of his family and the education of his children; and into the then condition of the estate devised under the will, and the means possessed by Clarke to maintain and support his family, other than from the rents and profits of the estate; which report was made accordingly. And on the coming in and filing of the same, the Chancellor, on the 3d of July, ordered a sale of a moiety of the estate, together with the house and lot in town; and that so much of the proceeds as might be necessary for the purpose be applied, under the direction of one of the masters of the court, to the payment and discharge of the debts then owing by Clarke, and to be contracted for the necessary purposes of the family, to be proved before the said masters; and the residue to be invested and the income applied as therein provided by the order.

Nothing was done under this order except the sale of a few lots, the sales having been superseded by the master for want of bidders, at the request of the trustee, to prevent the sacrifice of the property. And on application to the Legislature, another act was passed, on the 29th of March, 1816, authorizing Clarke, as trustee, under the order already granted by the Chancellor, or any subsequent orders that might be granted, either to mortgage or sell the premises which the Chancellor had permitted, or might permit him to sell; and to apply the proceeds to the purposes required, or that might be required, by the Chancellor, under the previous acts of the legislature.

On the 15th of March, 1816, on an application, the Chancellor ordered that Clarke be authorized to mortgage or sell the moiety of the estate, as provided for in the several acts, as might be deemed most beneficial to all parties concerned; and also to convey any part of it in payment and satisfaction of any debt owing by him, upon a valuation to be agreed on between him and his creditors, provided that every sale, and mortgage, and conveyance in satisfaction, that may be made by him, shall be approved by one of the masters of the court; and that the certificate of such approval be indorsed on such deed or mortgage that may be made in the premises. And further, that he apply the proceeds to the payment of his debts, and invest the surplus in such manner as he may deem proper to yield an income for the support and maintenance of his family. been questioned collaternally,-the under this order of the court, sold and conveyed the lot in question, among others, to George De Grasse, for the consideration on the face of the deed of $2,000. No approval of the master appeared to have been indorsed on the deed.

The defendant holds through intermediate conveyances from De Grasse, and is admitted to be a bon a fide purchaser.

I have thus stated the material facts out of which the important questions involved in this case arise: and I have done so for the reason, that, in my judgment, the statement itself presents a history of legislative and judicial proceedings, which demonstrate that the legal title to the premises in controversy is in the defendant, upon well established principles of law,-a title derived under a judicial sale, made in pursuance of an order or judgment of one of the highest courts in a state, in the exercise of its general jurisdiction.

This plain proposition is manifest on the face of the record. Every order made by Chancellor Kent was made in his court according to the established forms of proceeding, and rules of the court.

The Chancellor had previously determined, (In the Matter of Bostwick, 4 Johns. (N. Y.) Ch., 100,) that a proceeding of this character could be properly instituted by petition instead of by bill, as he found it to be in conformity with the established practice of the Court of Chancery in England.

The practice there had not been uniform, depending somewhat upon the amount of the estate; and a distinction had been made, at one time, between real and personal estate; but the later authorities had generally concurred in allowing the institution of the proceeding by petition. (2 Story Eq., § 1354, p. 582, and cases there referred to; Macpherson on Infants, ch. 22, § 1, and cases.)

In every instance, the application took the usual course of a reference to one of the masters of the court, directing him to inquire into the truth of the allegations in the petition, and report thereon; and upon the coming in and filing of the report, the order was entered.

All the powers and machinery of the court were used in conducting the proceedings; and which, while they facilitate the orderly despatch of business, at the same time enable the parties to present their case in the fullest and most authentic form, for the judgment of the court.

Even if a bill had been filed in this case,-and we have seen that it might have been, in which event, it would hardly have been pretended the order or decree of the court could have been questioned collaterally,-the forms of the proceeding could not have been more strictly observed. Indeed, the petition in the particular case is nothing more than a substitute for the bill, as affording a more speedy and economical mode of instituting the proceedings.

Originally it was supposed that a bill was indispensable, (Fonbl. Eq., Book 2, part 2, ch. § 1, note d,) as it still is in England, where the estate of the infant is large, or it is doubtful as to the fund. (15 Ves., 445; Macpherson on Infants, p. 214, and cases.)

Any party interested in the order had a right to appeal from the decision of the Chancellor to the Court for the Correction of Errors, as appeals may be taken from interlocutory, as well as final decrees, according to the laws and practice in New York.

That an appeal might have been taken in the case is the established practice, and would be doubted by no lawyer there; and which, of itself, would seem to be decisive of the nature and character of the jurisdiction exercised by the Chancellor.

Being, therefore, a judicial sale under the judgment of one of the highest courts of the state, the principle is fundamental, that the regularity of the proceedings cannot be inquired into in this collateral way.

The general impression of all the cases on this head, says Lord Redesdale, is, that the purchaser has a right to presume that the court has taken the steps necessary to investigate the rights of the parties, and that it has on investigation properly decreed a sale (1 Sch. & L., 597.) And says Mr. Justice Thompson, in delivering the opinion of this court, in Thompson v. Tolmie, 2 Pet., 168,-'If the purchaser was responsible for the mistakes of the court in point of fact, after it had adjudicated upon the facts, and acted upon them, these sales would be snares for honest men. The purchaser is not bound to look farther back than the order of the court. He is not to see whether the court was mistaken in the facts.'

The defendant in that case held the title under a judicial sale, ordered by the court in a case of partition, where the commissioners had reported that partition could not be made without loss. The suit was brought by the heirs, who set up, as invalidating the title of the defendant, that neither of the children of the intestate was of age at the time of the sale. The statute expressly forbade it, until the eldest became of age. The other ground was, that the sale had been confirmed only conditionally. The court held the parties concluded by the order and sale.

I shall not pursue the examination of this branch of the case farther, as the principle upon which it rests has become incorporated into the very elements of the law. I have referred to these two cases, simply to illustrate the strength and force of the principle, in protecting the title of a bon a fide purchaser, standing in the relation of the present defendant.

But it has been argued, that Chancellor Kent, while sitting in his court, administering the law under these acts of the Legislature of New York, has misconstrued or misapprehended the nature of his jurisdiction; and that, instead of sitting as a court, he was acting in the subordinate character of a commissioner, or as an individual outside of his court; that it was an extraordinary power, conferred upon him by a special statute, prescribing the course of proceeding; and that any departure therefrom, or error in the proceedings, rendered the order null and void, and of course all acts done under it.

It was even intimated, though not argued, that the statutes themselves were unconstitutional; that it was not competent for the Legislature to authorize the sale of the real estate of infants for their maintenance and support, or for their education or advancement in life.

We suppose this power will be found to exist in every civilized government, that acknowledges a superintending and protecting power over those of its citizens or subjects who are disabled through infancy or infirmity from taking care of themselves; and that, where they possess the means of themselves, they will be applied, under the direction of the proper authority, to their support and nourishment.

No one doubts the power of the government to take the property of the citizen to support the paupers of the state; and, surely, it can hardly be regarded as a very great stretch of power to provide for the application or it to the maintenance and support of the owner or proprietor himself or even to the support of the members of the same family.

But I shall not go into this question; for whatever may be the objections to the exercise of the legislative powers, we are not aware of any on the ground of repugnancy to the Constitution of the United States, or, if made, that there is any foundation for it; and as to the state of New York, where the question alone must be determined, no doubt is entertained there in respect to it, by any department of the government.

But to recur to the jurisdiction of the Chancellor.

The Court of Chancery possesses an inherent jurisdiction, which extends to the care of the persons of infants so far as is necessary for their protection and education; and also to the care of their property, real and personal, for its due management, and preservation, and proper application for their maintenance.

The court is the general guardian, and, on the institution of proceedings therein involving rights of persons or property concerning them, they are regarded as wards of the court, and as under its special cognizance and protection; and no act can be done affecting either person or property, or the condition of infants, except under the express or implied direction of the court itself; and every act done without such direction is treated as a violation of the authority of the court, and the offending party deemed guilty of a contempt, and treated accordingly. (2 Story Eq., §§ 1341, 1352, 1353; 3 Johns. (N. Y.), Ch., 49; 4 Id., 378; 2 Id., 542; 6 Paige (N. Y.), 391, 366; 10 Ves., 52; Macpherson on the Law of Infants, p. 103, App'x, 1; Hughes v. Science, 3 Atk., 601, S.C..)

If the father is not able to maintain his children, the court will order maintenance out of their own estate; and the inability need not depend upon the insolvency, but inability, from limited means, to giv the child an education suitable to the fortune possessed or expected. (Buckworth v. Buckworth, 1 Cox, 80; Jervoise v. Silk, Coop., 52.) The allowance will be made, although the devise or settlement under which the property is held contains no direction for maintenance (Ib.), but even directs the income to accumulate. (5 Ves. 194, 195, n. 197, note; 10 Id., 44; 4 Sim., 132; Macpherson, ch. 21, § 2, p. 223.)

It is also settled, that where there are legacies to a class of children, for whom it would be beneficial that maintenance should be allowed, though the will does not authorize it, but directs an accumulation of the income, and the principal, with the accumulation, to be paid over at twenty-one, with survivorship in case any should die under age, the court will direct maintenance (11 Ves., 606; 12 Id., 204; 2 Swanst., 436); but if there is a gift over, it will not be allowed without the consent of the ultimate devisee. (14 Ves., 202; 5 Id., 195, n.; Ward on Legacies, 303; Macpherson, pp., 232, 233, 234.)

So the court will break in upon the principal, where the income is insufficient for maintenance and education (1 Jac. & W., 253; 1 Russ & M., 575, 499); and will break in upon it for past payments (2 Vern., 137; 2 P. Wms., 23); and where the father is unable to maintain his children, and has contracted debts for this purpose, or for their education, the court will direct a reimbursement out of children's estate (6 Ves., 424, 454; 1 Bro. C. C., 387; Macpherson, sec. 9, p. 246); and will, if the father or mother is in narrow circumstances, in fixing the allowance, have regard to them, increasing it for the benefit of the family. (1 Ves., 160; 2 Bro. C. C., 231; 1 Beav., 202; 1 Cox, 179.)

The management and disposition of the estates of infants, which I have thus referred to and briefly stated, with the authorities, are among the mass of powers upon this subject which belong to the original and inherent jurisdiction of the Court of Chancery. They relate to their personal, and the income of their real, estate, the court having no inherent power to direct a sale of the latter for their maintenance or education; that power rests with the legislature. It will be seen, therefore, that the only additional authority conferred upon the Chancellor, by the acts of the legislature in question, was the power to direct the sale of the real estate,-to convert it into personalty for the purposes mentioned. It was but an enlargement, in this respect, of the existing jurisdiction of the court; placing the real estate, for the purpose of maintenance and education, upon the same footing as the personalty. With this exception, every power conferred or exercised under the acts in question, in the management and application of the fraud, as we have been, belonged inherently to its general jurisdiction; and its exercise in the particular case was as essential for the proper management and preservation, and application, as in any other that might come before the court.

We can hardly suppose that it was the intention of the legislature to confer authority upon the Chancellor in one capacity to sell, and in another to manage and apply the proceeds for the benefit of the children. And yet such must be the conclusion, unless we suppose it was intended that the fund itself should be administered out of court, and under the direction of the Chancellor as a commissioner.

I must be permitted, therefore, to think, that Chancellor Kent, familiar to his mind as were the powers and duties belonging to his court over the estates of infants, as well as in respect to every other branch of equity jurisprudence, did not mistake or misapprehend the nature of the powers and duties enjoined upon him under the acts in question. And that he might well conclude, that the authority to sell the real estate of the children, for their maintenance and education, was but an enlargement of his general jurisdiction in the management and disposition of their property for the purposes mentioned. Indeed, the very objects of the sale pointed directly to this jurisdiction. How apply the fund for maintenance and education,-as commissioner, or chancellor? Certainly, he could not doubt as to the intent or objects of the acts in this respect. It was a fund to be brought into the court, and the children were to become wards of the court, to be cherished, and protected by its powers.

In addition to the judgment of Chancellor Kent himself, we have also the judgments of the two highest courts in New York, in the case of Clarke v. Van Surlay, 15 Wend. (N. Y.), 436, and Cochran v. The Same, 20 Id., 365, S.C..

That was a suit involving the same title, brought by one of the heirs of Thomas B. Clarke, and depending upon the same evidence. It was first decided in the Supreme Court of that state in 1836, and in the Court for the Corporation of Errors in 1838.

It was determined by both courts, that the title of the purchaser was valid, on the ground, that he held under a judicial sale directed by the Chancellor in the exercise of his general jurisdiction; and that, having jurisdiction of the subject-matters, if any error was committed, either in his construction of the acts of the legislature or in the application of the funds, it was not inquirable into in a court of law. The order was conclusive, till set aside, upon all the parties.

No member of either court that expressed an opinion entertained a doubt about the nature of the jurisdiction. The judgment had the concurrence of Chancellor Walworth, his learned successor, who has presided in that court with distinguished ability for the last twenty years, and is familiar with its organization and powers. If it is possible, therefore, for a judicial question involving the construction of state laws to be settled by learning or authority in its own courts, it would seem that the one before us has been.

But there is another view of this branch of the case, which, in my judgment, is equally decisive of the question; and much more important, on account of the principle involved. Where are we to look, for the purpose of ascertaining the jurisdiction of the Court of Chancery of the state of New York? To the judgment of this court, or to the laws and the decisions of the courts of the state?

It should be recollected, that, in the trial of titles to real property held or claimed under the laws of the state, the Federal courts sitting in the state are administering those laws, the same as the state courts, and can administer no other. They are obliged to adopt the local law, not only because the titles as founded upon it, but because these courts have no system of jurisprudence of their own to be administered, except where the title is affected by the Constitution of the United States, or by acts of Congress.

It has been held, accordingly, that we are to look to the local laws for the rule of decision, as ascertained by the decisions of the state courts, whether these decisions are grounded on the construction of statutes, or form a part of the unwritten law of the state. The court adopts the state decisions, because they settle the law applicable to the case. Such a course is deemed indispensable in order to preserve uniformity; otherwise, the peculiar constitution of the judicial tribunals of the states, and of the United States, would be productive of the greatest mischief and confusion,-a perpetual conflict of decision and of jurisdiction.

In construing the statutes of a state on which land titles depend, say the court, infinite mischief would ensue should this court observe a different rule from that which has been established in the state; and whether these rules of land titles grow out of the statutes of a state, or principles of the common law, adopted and applied to such titles, can make no difference; as there is the same necessity and fitness in preserving uniformity of decisions in the one case as in the other. This court has repeatedly said, speaking of the construction of statutes, that it would be governed by the state construction where it is settled, and can be ascertained, especially where the title to lands is in question. (12 Wheat., 167, 168; 6 Pet., 291.) In the case of Nesmith et al. v. Sheldon et al., 7 How., 818, decided at the last term, involving a question upon the statutes of Michigan, the court say,-'It is the established doctrine of this court, that it will adopt and follow the decisions of the state courts in the construction of their own constitution and statutes, when that construction has been settled by the decision of its highest judicial tribunal.'

Now what can be more peculiarly a matter of local law, and to be ascertained and settled by the state tribunals, than the character and extent of the jurisdiction of their courts, and the effect to be given to their own orders and judgments.

I suppose it will not be denied but that each state has the right to prescribe the jurisdiction of her courts, either by the acts of her legislature, or as expounded by the courts themselves; and that, if that jurisdiction is settled by a long course of decision, or, in respect to the particular case, by the authority which has a right to settle it, this court, professing to administer the laws of the state as they find them, and acting upon their own principle, as well as the principle of the thirty-fourth section of the Judiciary Act, cannot disregard the jurisdiction as thus settled.

It is no answer to this view to say, that the question here is the construction of a private statute of New York. That assumes the very point in controversy. The point is, Can this court reach the question involving the construction of the statute? That depends upon the prior one, whether Chancellor Kent acted in the exercise of the jurisdiction of his court in expounding the statute. If he did, the question upon its construction is concluded; and whether the construction be right or wrong is a matter not inquirable into in this collateral way.

The case, therefore, comes down to a question of jurisdiction,-a question which Chancellor Kent himself settled in this very case in 1815, which settlement has since been confirmed by the highest tribunals in the state, and about which no one of them there could be brought to entertain a doubt.

I must be permitted to think, therefore, that, looking at the question as an original one, Chancellor Kent was right in the jurisdiction that he exercised in administering the acts in question; and that, whether so or not, it belonged to the courts of that state to expound and settle the limit of his jurisdiction; and that, when so settled, it becomes a rule of decision for the Federal courts sitting in the state, and administering her laws; and that therefore the order of the Chancellor in question was conclusive upon the matter before him, and is not inquirable into collaterally in a court of law.

But were we compelled to go behind the order, and to re-examine the case, as upon an appeal, we perceive no difficulty in sustaining it.

When Clarke applied to the legislature, in 1815, for relief, he was the owner of the life estate, and of the ultimate remainder in the premises, the residue belonging to the children; and for this reason, doubtless, the act which was passed at that time left it discretionary with the Chancellor to determine the portion of the proceeds that should belong to Clarke, individually, and also as trustee for the children.

And under this provision of the law, before any order was made for the disposition of the proceeds, the court ordered a reference to the master to ascertain the amount of his debts, and what portion of them had been contracted for the maintenance of the family and education of the children.

The interest of Clarke in the proceeds was properly applicable to his own debts, as well as to the debts contracted for the support of the family; and after the coming in of the report which exhibited the amount of the debts, and for what purposes contracted, the order for the application of the proceeds was made. This is the order referred to and confirmed by the act of 1816.

It, in effect, applied what was regarded by the Chancellor as the interest of Clarke in them to the payment of his own debts; the amount of that interest, as we have seen, having been left to be ascertained by him in the exercise of his judgment in the matters. That Clarke had a considerable interest is apparent, having united in himself two portions of the estate. That the Chancellor erred, in the exercise of his judgment in dividing the proceeds of the estate between Clarke and his children, according to their respective interests, does not appear, nor can it be shown from any thing to be found in the record; much less can a want of power to act, or an excess of power in acting, be predicated of the exercise of any such discretionary authority.

Then, as to the application of a portion of the fund belonging to the children for the maintenance of the family, as well as their own education.

From the cases already referred to on that subject, we have been that this is within the acknowledged powers of the Court of Chancery, and of which it is in the habitual exercise, in cases where the parents are in narrow circumstances, and unable to furnish the means of support. The application is made for the benefit of the children, that they may have the comforts and enjoyments of a home, with all the wholesome and endearing influences of the family association.

Even beyond this, small annuities have been settled upon the father and the mother, in destitute circumstances, out of the estates of the infant children.

It was a knowledge of these principles, which were familiar to the mind of Chancellor Kent, as was the whole system of the powers and duties of his court over the persons and estates of infants, that dictated the granting of the order in question; and, in my judgment, so far as the power and authority of the court was concerned, which is the question here, it requires but an application of these principles to the facts before him to enable us to see that it was well warranted.

Again, it is said that the children were not parties to the proceedings. The same may be said concerning the exercise of all the powers of the Court of Chancery over the estate of infants.

The answer is, the proceeding is not an adversary suit. The estate is regarded as a fund in court, and the infants as wards of the court; the Chancellor himself, as the general guardian, exerting his great power, either inherent or vested by positive law, over a class of persons specially committed to his care, for their own benefit, for the proper management of their estates, real and personal, for their maintenance and support, for their education and advancement in life.

It is a proceeding in rem, the property itself in custodia legis; and if a guardian had been appointed, it would have been but a desecration of the power of the court, which, in the proceeding before us, was exercised by the court itself, through the agency and instrumentality of its officers.

The rule in respect to adversary suits against infants, requiring the appointment of a guardian, pendente lite, has no sort of application to the proceedings in question.

It has also been argued, that the order of the Chancellor, authorizing Clarke to sell and convey the premises in question, required a certificate of the approval of one of the masters of the court to be indorsed on the deed; and that no such certificate has been given or indorsed thereon.

The deed to De Grasse was executed on the 2d of August, 1821; and on the next day it appears that the master was a witness to prove the execution before the commissioner who took the acknowledgment.

It further appears, that on the same day, the master, having had the life estate of Clarke in the premises previously conveyed to him, in trust, in order to complete the title, indorsed on the back of the deed, and executed under his hand and seal, a release of this life interest to the purchaser, and duly acknowledged the same, that it might be recorded in the register's office along with the deed. This was done, as the master recites in the release, at the request of the trustee, and for the purpose of completing the title.

One can hardly conceive of a more effectual approval, than is to be derived from these acts of the master; for without the release of the life estate, which he held in trust, the title could not have been perfected, and the sale must have fallen through. The release enabled the trustee to complete it, and invest De Grasse, the purchaser, with the fee.

But the courts of New York in the case already referred to have held, that, upon the true construction of the order, the approval of the master was not necessary, as the direction in that respect was limited to conveyances by the trustee in satisfaction of debts. Even if this construction should be regarded as doubtful, or that requiring the approval was thought to be the better one, inasmuch as this construction has been given by the highest court of a state upon this very title, in a case in which its judgment was final, the habitual deference and respect conceded by this court to the decisions of the state courts upon their own statutes and orders of their courts. would seem to render it conclusive.

This view was directly affirmed, and acted on, in the case of The Bank of Hamilton v. Dudley's Lessee, 2 Pet., 492. That, as is the case before us, was an action of ejectment by the heir, to recover a tract of land situate in the city of Cincinnati. The defendant held under a deed made by administrators, upon a sale under an order of the Court of Common Pleas for the County of Hamilton, which possessed the powers of an Orphans' Court.

The title depended upon the effect to be given to the order under which the sale took place. It was made at the August term, and entered as of the May term preceding. It was alleged that, though granted at the May term, the clerk had omitted to enter it. The law conferring the powers of the Orphans' Court upon the Common Pleas had been repealed between the May and August terms; and the question was whether the order was a nullity, or valid until set aside.

The sale had taken place at an early day, and the property had become of great value. The case was most elaborately argued. The action of this court, independently of the principle decided in the case, is worthy of remark.

Chief Justice Marshall, in delivering the opinion, observed, that the case had been argued at the last term, on the validity of the deed made by the administrators; but as the question was one of great interest, on which many titles depended, and which was to be decided upon the statutes of Ohio, and as the court was informed that the case was depending before the highest tribunal of the state, the case was held under advisement.

The state court held, that the order of the Court of Common Pleas, entered at the August term as of the preceding May term, was coram non judice, and void; and that the deed under which the defendant derived title was, of course, invalid.

This court held, that the judgment of the Supreme Court of Ohio should govern the case. I will give its language.

'The power of the inferior courts of a state,' said the Chief Justice, 'to make an order at one term as of another, is of a character so peculiarly local, a proceeding so necessarily dependent on the revising tribunal of the state, that a majority consider that judgment as authority, and we are all disposed to conform to it.'

I will simply add, that the Court for the Correction of Errors in New York possessed a revising power in all cases over the orders and decrees of the Chancellor, and that that court has held, upon this very title, not only that the order in question was an order entered by him acting as a court, but, in expounding it, that the deed of conveyance given to De Grasse under it did not require the approval of a master. Further comment to show the identity of the two cases would be superfluous.

But I forbear to pursue this branch of the case farther,

The validity of the execution of the deed to De Grasse by the trustee, as it respects the alleged want of approval, stands,--

1. Upon the acts of the master in the execution of it, as a substantial approval within the meaning of the order; and,

2. Upon the decision of the highest judicial tribunal of the state, whose laws we are administering, that, upon a fair interpretation of the terms of the order, and approval was not essential.

It has also been argued, that, according to the true construction of the order, the sale should have been for cash, and that here it was otherwise.

But this is an action at law; and the deed on the face of it shows a cash consideration of $2,000. The nature of the consideration was not inquirable into, and should have been excluded at the trial. If the complainant had sought to invalidate the proceedings on that ground, he should have gone into a court of equity, where the question could have been appropriately examined, and justice done to all the parties. That it was not examinable in a court of law is too plain for argument. The recital of the considerations can no more be varied by parol proof than any other part of the deed. (2 Phill. on Ev., 353, 354, 2 Cow. & Hill, n. 289, and cases there cited; 1 Id., n. 228, p. 384; 7 Johns. (N. Y.), 341; 8 Cow. (N. Y.), 290; 2 Den. (N. Y.), 336; 4 N. H., 229; 1 J. J. Marsh. (Ky.) 388, 390.)

I have thus gone over the several grounds relied on for the purpose of impeaching the title of the defendant to the premises in question; and, although in the minority in the judgment given, have done so, not so much on account of the magnitude of the interest depending, which is great of itself, as of the importance of the principle involved; and upon the application of which the judgment has been arrived at.

Notwithstanding several questions have been brought within the range of the discussion, there are but two, in reality, involved in the determination of the case. 1. The effect to be given to the order of Chancellor Kent made on the 15th of March, 1817; and 2. The execution of the conveyance by Clarke, the trustee, under this order.

If the order was made by the Chancellor in the exercise of his jurisdiction as a court, his judgment was conclusive in the matters before him; and there is an end of that question. It affords an authority to sell and convey, that cannot be controverted in a court of law. And the validity of the deed executed under it stands upon an equally solid foundation.

The title of the defendant, therefore, would seem to be beyond controversy, were it not for the principle against which we have been contending, and which imparts to the case its greatest importance, namely, the right claimed for this court to inquire into the nature and character of the jurisdiction exercised by the Chancellor in making the order coming before us collaterally; and as this court determines that jurisdiction to be general or special, to refuse or consent to go behind his judgment, and re-open and rejudge the merits of the case; and according to the opinion entertained upon that question, to affirm or disaffirm the validity of all acts and proceedings that have taken place under it. And this, too, in a case where the jurisdiction thus exercised by the Chancellor has been settled by himself in his own court, under the state laws, and affirmed by the judgment of the highest judicial tribunals of the state.

It is apparent that, if this principle becomes engrafted upon the powers of this court, and is to be regarded as a rule to guide its action in passing upon the judgments of the state courts coming up collaterally, a revising power is thus indirectly acquired over them in cases where no such power exists directly, under the Constitution or laws of Congress. For, if the right exists to inquire into the kind and character of the jurisdiction, without regard to that established by the laws and decisions of the states; and to determine for itself whether the jurisdiction is general or special, and if the latter, to go behind the judgment to see whether the special authority has been strictly pursued, there is no limit to this revising power, except the discretion and judgment of the court.

The principle will be as applicable to every state judgment coming before us collaterally, as to the one in question. It denies, virtually, to the states the power, in the organization of her courts, to prescribe and settle their jurisdiction, either by the acts of her legislature, or the adjudication of her judicial tribunals.

I cannot consent to the introduction into this court of any such principle, and am, therefore, obliged to refuse a concurrence in the judgment given.

title: Williamson v. Berry/Dissent Nelson


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78 The Catholic Church by her methods, no less than by her Sacraments, her Scriptures, and her Creeds, is ever maintaining her protest against the limitations by which all merely human systems are disfigured. She is ever bearing her impassioned witness to Him Who is 'the Light that lighteth every man that cometh into the world.’ This is the real significance of the solemnities that accompany her Epiphany observance.

The Tree of Life is the real Christmas Tree. Its underwoven roots support the cradle; its branches, overarching with many a blossom and many a cluster, form the canopy of the Heavenly Babe, the Darling of God and of man. 'The fruit thereof is for meat, the leaf thereof for medicine;’ mindful of which the holy Evangelists speak of the crib as a  'manger,’  that is the feeding place. 'Lo! we heard of the same at (Bethlehem) Ephrata, and found it in the Wood.’

The Gospel songs express the joy with which by the humble and simple and pure-hearted this Plant of Renown is discovered;

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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 with Lord Knutsford's concurrence, to give evidence before the select committee of the House of Commons, to which, early in the session of 1890, the Constitution Bill was referred. The whole facts of the case were most fully explained to the select committee by Sir Frederick Broome and the other witnesses, the blue book containing the report of the evidence being a complete compendium of information respecting Western Australia. The commission reported, much to the surprise of the London press, in favour of the bill and of the transfer of all lands to the colony. Opposition was at length overcome, or nearly so. The Government stood firm, and had the support of the front Opposition bench; and after some applications of the closure, Sir Frederick Broome had the satisfaction of witnessing the passage of the bill through committee with all restrictions erased, the whole of the lands of the vast territory—1,060,000 square miles in extent—being freely handed over to the Legislature of Western Australia, which thus obtained its new constitution on the same basis as the other colonies of the continent, there being no opposition to the bill in the House of Lords. On quitting Western Australia, in Dec. 1889, for the mission to England in connection with the Constitution Bill, Sir Frederick and Lady Broome received many proofs of the esteem and regard of the colonists. Sir Frederick's tenure of the government of Western Australia came to an end with his mission to England, and finally ceased in Sept 1890. In July 1891 he was appointed Governor of Trinidad.

Broome, Mary Anne, Lady, the wife of Sir Frederick Napier Broome, K.C.M.G., the late Governor of Western Australia, was the eldest daughter of Hon. Walter G. Stewart, Island Secretary of Jamaica. She was sent to England to be educated when two years old, and returned to Jamaica in 1850. She married first, in 1852, Colonel Sir George Barker, B.A., K.C.B., an officer distinguished for his Crimean and Indian services, who died at Simla in 1861. She married secondly, June 21st, 1865, Sir (then Mr.) Frederick Napier Broome, whom she accompanied to New Zealand the same year. Returning with her husband to England in 1869, Lady Barker, as she was then styled, became well known as a successful authoress. She has published "Station Life in New Zealand" (1870), followed by "Stories About," "Ribbon Stories," "A Christmas Cake," "A Year's Housekeeping in Natal," "Letters to Guy," descriptive of life in Western Australia, and other works. She published a useful manual in 1874, entitled "First Principles of Cookery," and was appointed Lady Superintendent of the National School of Cookery at South Kensington, a post she relinquished on accompanying her husband to Natal in 1875. Her next home was in Mauritius, 1878-83, when she organised a fund for the relief of the sick and wounded in the Zulu war. For this service she received a special official acknowledgment in a despatch from the Secretary of State for the Colonies. A movement in favour of the higher education of women was also initiated by her in Mauritius.

Broughton, Vernon Delves, son of the late Rev. Thomas Delves Broughton (grandson of the 6th baronet of this name, of Broughton, Staffordshire) by his marriage with Frances, daughter of Lewis Corkran, was born in Dec. 1834, at Bletchley in Buckinghamshire. He was educated at Marlborough School and at Magdalen College, Oxford. Having entered the Civil Service whilst still an undergraduate, he was employed in the Treasury from 1855 to 1877, acting in the interval as private secretary to Lord Lingen, when Secretary to the Treasury, and to Lord Sherbrooke when Chancellor of the Exchequer. In Nov. 1877 Mr. Broughton was appointed Deputy-Master of the Mint, and Chief Officer of the Melbourne Branch, a position which he retained till a short time before his death in 1886. Mr. Broughton married in 1861 Augusta, eldest daughter of George Arbuthnot, Auditor of the Civil List.

Brown, Gilbert Wilson, M. A., Clerk of the Executive Council, Victoria, was educated at Emmanuel College, Cambridge, of which he was scholar in 1852, and graduated B.A. (Mathematical Tripos) in 1855, and M.A. in 1881. He went to Victoria, and took up the position of Assistant Master in the Scotch College, Melbourne, in April 1857. In Jan. 1858 he was appointed Head Master of the National Grammar School at Geelong, and Organising Master and Inspector of National Schools in May 1859. In Sept. 61


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 On his return to Australia, he commenced to qualify for practice as a solicitor, and on the expiry of his articles first entered Parliament in 1871 as the representative of East Adelaide, by which district he has been returned to the House of Assembly ever since. It was not until 1875 that he filled any ministerial position. When Mr. Justice Bundey, who had been Minister of Justice and Education in the Ministry, resigned, Mr. Bray was appointed in his place on March 15th, 1875, but the Government only lasted till June 3rd of the same year. In June 1876 Mr. formed his first Administration, and appointed Mr. Bray to the post of Attorney-General, which he held till the Ministry retired, on Oct. 26th, 1877. For the next four years Mr. Bray was the generally recognised leader of the Opposition, although when Sir 's Ministry resigned in 1881, the Governor sent for Mr. Colton. This gentleman, however, declined the task of forming a ministry, and Mr. Bray was sent for, and got together a ministry which was strong enough to remain in office for three years. In 1884 Mr. Bray made a trip to England, and returned to the colony by way of America. On arriving in Adelaide, he found the Government in power, and on the resignation of Mr. Darling, who held office as Commissioner of Public Works, he joined Mr. Downer as Chief Secretary on Oct. 14th, 1885, resigning that position for the post of Treasurer on June 8th, 1886. He went out of office on the downfall of the Downer Ministry, on June 7th, 1887; but in May 1888, on the death of the late Sir Robert Ross, he was elected to fill the position of Speaker of the House of Assembly—a post which he held with marked ability during the remainder of the Parliament. He declined, however, to again accept the position at the opening of the Parliament in 1890, preferring to re-enter the active arena of politics. Mr. Bray was created K.C.M.G. in 1890, his acceptance of the distinction provoking considerable comment, it having been understood that he had on a previous occasion declined it, on grounds similar to those which influenced Mr. Higinbotham, Mr. Francis, and Mr. Deakin, in refusing the title. Sir John Bray, however, defended his action on the ground that, having accepted an office under the Crown which, according to well-known custom, carried with it the honour of knighthood, he would have been casting a slur upon his predecessors and doing an injustice to his successors in repudiating it. Sir John Bray, who accepted the post of Chief Secretary in the Government in August 1890, has taken an active part in the proceedings of the South Australian Natives Association, and presided over the Intercolonial Conference of these bodies, which in 1890 declared in favour of Australasian Federation. He was elected by the South Australian Legislative Assembly to be one of the representatives of the colony to the Federation Convention, held in Sydney in 1891. Sir John Bray was, it may be added, one of the representatives of his colony at the Intercolonial Conference held In Sydney in Nov. 1883, out of which the Federal Council of Australasia sprang. He was a member of the South Australian Commission for the Colonial and Indian Exhibition of 1886, and Vice-President of the South Australian Commission to the Melbourne Centennial Exhibition of 1888. In Jan. 1892 Sir John Bray left Adelaide to assume the post of Agent-General in succession to the late Sir Arthur Blyth, and took over charge of the London office on Feb. 29th of that year.

Brentnall, Hon. Frederick Thomas, M.L.C., was born at RidingsRiddings [sic], Derbyshire, in 1834, and educated at Alfreton. He was sent by the British Wesleyan Conference to New South Wales in 1863 to join the ranks of the Wesleyan ministry in that colony. An affection of the throat, however, necessitated his resignation about 1883, when he bought an interest in the Brisbane Telegraph, and joined the literary staff, becoming Chairman of the Company upon the retirement of the Hon. in Oct. 1885. Mr. Brentnall is a director of several companies, including the Queensland Deposit Bank and Building Society, and the Queensland General Insurance Company, Ltd.; and has been a member of the Legislative Council since April 17th, 1886.

Brett, Henry, J.P., an enterprising newspaper proprietor and publisher in New Zealand, who has issued a large number of standard works on colonial subjects, was born in the south of England, and brought up to the printing trade in 54


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 to Melbourne in 1851, and began business at Richmond. Having discovered the remarkable antiseptic properties of the eucalyptus, he went largely into the manufacture of its products. The Pharmaceutical Society of Victoria was founded mainly through his instrumentality in 1857. He was twice mayor of Richmond, and chairman of the local bench for five years consecutively. From 1874 to 1889 he was M.L.A. for the city, but was defeated in the latter year. Having represented Victoria at the Calcutta Exhibition in 1883, he was appointed President of the Royal Commission of that colony at the Colonial and Indian Exhibition, held at South Kensington in 1886, for his services at which he was created C.M.G. on June 28th of that year. Mr. Bosisto is a J.P. for Victoria, and has been president of the Technological Commission, and Examiner in Materia Medica and Botany at the College of Pharmacy. In April 1892 Mr. Bosisto was re-elected to the Assembly for the Jolimont subdivision of his old constituency.

Boucaut, Hon. James Penn, Puisne Judge South Australia, son of the late Captain Ray Boucaut, H.E.I.C.S., by Winifred, daughter of the late James Penn, Superintendent of H.M.'s Dockyard, Mylor, Falmouth, was born near that place on Oct. 29th, 1831. He came to South Australia with his father (who died in 1872) in 1846, and was called to the bar in 1855. He was returned to the Legislative Assembly for the city of Adelaide on Dec. 9th, 1861, on the resignation of Sir ; but was defeated at the general election in Nov. 1862. He was returned for West Adelaide at the general election in March 1865, and sat till the dissolution in March 1868, when he was returned for the Burra. He was, however, defeated at the general election in March 1870; but in August 1871 re-entered the Assembly as member for the West Torrens district, in succession to Mr., who resigned. He was again returned for West Torrens at the general election in Dec. 1871, and sat till the dissolution in 1875, when he became member for Encounter Bay; and having been re-elected in April 1878, he finally retired on Sept. 25th in the same year, on being appointed a judge. Mr. Boucaut first took office in Mr. 's Ministry, on Oct. 23rd, 1865, being appointed Attorney-General, a position which he had refused when offered him by Mr. (afterwards Sir) Henry, immediately after his return for West Adelaide in March. On March 28th, 1866, the Ministry was reconstructed under the premiership of Mr. Boucaut, who continued to hold office as Attorney-General until May 3rd, 1867, when he retired with his colleagues, in connection with the Moonta question. At this time he refused a Q.C.-ship, and subsequently frequently declined office. In 1872, however, he joined Mr. ', or, as it is generally called, Mr. Ayers' Ministry, "to establish the principle that the Governor was not entitled absolutely to say that the framer of the Government should necessarily be its head." Having established this principle, the ministry resigned, and Mr. Boucaut was out of office till June 3rd, 1875, when he again became Premier, and initiated the famous "Boucaut policy," which embraced a wide scheme of public works. In this, his second administration, Mr. Boucaut held the post of Commissioner of Crown Lands and Immigration, and subsequently the commissionership of Public Works. On March 25th, 1876, Mr. Boucaut reconstituted his ministry, Mr. having become Chief Justice, and Mr. (afterwards Sir) Wm. and Mr. having retired. He was turned out of office on June 6th, 1876, partly, as his friends asserted, by backstairs cabals, and partly because he refused to borrow large sums of money without making provision to pay the interest, his taxation proposals having been rejected in two sessions by the Legislative Council. Mr. Boucaut again became Premier on Oct. 25th, 1877, and held that office till he was raised to the judicial bench in Oct. 1878. "As a politician," a friendly hand writes, "his horror of a plutocracy made him democratic; but his love of fair play often tinged that with conservatism, as he generally opposed extreme views, and did not sacrifice a far-seeing purpose for the sake of a present advantage, nor would he court popularity by the sacrifice of independence. He was amongst the most national of Australian politicians, and strongly dwelt upon the community of interest between South Australia and New South Wales. He advocated a gradual  49


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On 22 July 2010, the International Court of Justice gave its Advisory Opinion on the question of the Accordance with international law of the unilateral declaration of independence in respect of Kosovo.

The Court was composed as follows: President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Buergenthal, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Registrar Couvreur.

The final paragraph (para. 123) of the Advisory opinion reads as follows:

"…

The Court,

(1) Unanimously,

Finds that it has jurisdiction to give the advisory opinion requested;

(2) By nine votes to five,

Decides to comply with the request for an advisory opinion;

IN FAVOUR: President Owada; Judges Al-Khasawneh, Buergenthal, Simma, Abraham, Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood;

AGAINST: Vice-President Tomka; Judges Koroma, Keith, Bennouna, Skotnikov;

(3) By ten votes to four,

Is of the opinion that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law.

IN FAVOUR: President Owada; Judges Al-Khasawneh, Buergenthal, Simma, Abraham, Keith, Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood;

AGAINST: Vice-President Tomka; Judges Koroma, Bennouna, Skotnikov.


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152 Five minutes passed and the prisoner never once stirred. Fifteen years' confinement had taught him to sit motionless. The banker tapped on the window with his finger, but the prisoner made no movement in reply. Then the banker cautiously tore the seals from the door and put the key into the lock. The rusty lock gave a hoarse groan and the door creaked. The banker expected instantly to hear a cry of surprise and the sound of steps. Three minutes passed and it was as quiet inside as it had been before. He made up his mind to enter.

Before the table sat a man, unlike an ordinary human being. It was a skeleton, with tight-drawn skin, with long curly hair like a woman's, and a shaggy beard. The colour of his face was yellow, of an earthy shade; the cheeks were sunken, the back long and narrow, and the hand upon which he leaned his hairy head was so lean and skinny that it was painful to look upon. His hair was already silvering with grey, and no one who glanced at the senile emaciation of the face would have believed that he was only forty years old. On the table, before his bended head, lay a sheet of paper on which something was written in a tiny hand.

"Poor devil," thought the banker, "he's asleep and probably seeing millions in his dreams. I have only to take and throw this half-dead thing on the bed, smother him a moment with the pillow, and the most careful examination will find no trace of unnatural death. But, first, let us read what he has written here."

The banker took the sheet from the table and read:

"To-morrow at twelve o'clock midnight, I shall obtain my freedom and the right to mix with people. But before I leave this room and see the sun I think it necessary to say a few words to you. On my own clear conscience and before God who sees me I declare to you that I despise freedom, life, health, and all that your books call the blessings of the world.

"For fifteen years I have diligently studied earthly life. True, I saw neither the earth nor the people, but in your books I drank fragrant wine, sang songs, hunted deer and wild bear in the forests, loved women. . . . And beautiful


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 United Nations

A/64/PV.120 Official Records

General Assembly Sixty-fourth session

120th plenary meeting Thursday, 9 September 2010, 3 p.m. New York

President:

Mr. Ali Abdussalam Treki. . . . . . . . . . . . . . . . . . . . . . . . . . . (Libyan Arab Jamahiriya) I now give the floor to His Excellency Mr. Vuk Jeremi, Minister for Foreign Affairs of Serbia, to introduce draft resolution A/64/L.65/Rev.1. Mr. Jeremi (Serbia): Allow me to introduce draft resolution A/64/L.65/Rev.1, proposed by the Republic of Serbia, which is co-sponsored by the 27 countries of the European Union. My presence here today as Foreign Minister of the Republic of Serbia signifies the paramount importance that my country assigns to the issue that we have met to discuss. As befits the General Assembly and in accordance with established practice, we are here to follow up after the advice of the International Court of Justice, placing its opinion in an appropriate international context that contributes to all-around stability. To that end, the Republic of Serbia has submitted a draft resolution, co-sponsored by the 27 member States of the European Union. Some of them continue to respect the territorial integrity of Serbia, while others have recognized Kosovo's unilateral declaration of independence. Nonetheless, common ground has been reached by ensuring that the draft resolution is fundamentally a status-neutral document. The Republic of Serbia does not, and shall not, recognize the unilateral declaration of independence of Kosovo. The draft resolution receives with respect and acknowledges the content of the Court's findings in the present matter. In addition, the draft resolution welcomes the readiness of the European Union to facilitate the process of dialogue between the parties,

The meeting was called to order at 3 p.m. Agenda item 77 Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law Note by the Secretary-General (A/64/881) Draft resolution (A/64/L.65/Rev.1) The President (spoke in Arabic): I now give the floor to His Excellency Mr. Vuk Jeremi, Minister for Foreign Affairs of Serbia, on a point of order. Mr. Jeremi (Serbia): I have a point of order. We see representatives of Pristina in the Hall. They do not represent an independent, sovereign United Nations Member State, so could you please explain to us, Mr. President, their presence in the Hall? The President: I would like to inform Member States that the representatives from Pristina are present today in the General Assembly Hall as guests of the delegations of France, Germany, Italy, the United Kingdom and the United States. With that I think I have answered the question of the representative of Serbia. As noted in document A/64/881, the individual opinions, separate opinions and declarations appended to the advisory opinion will be issued as an addendum to the present note.

This record contains the text of speeches delivered in English and of the interpretation of speeches delivered in the other languages. Corrections should be submitted to the original languages only. They should be incorporated in a copy of the record and sent under the signature of a member of the delegation concerned to the Chief of the Verbatim Reporting Service, room U-506. Corrections will be issued after the end of the session in a consolidated corrigendum.

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which in itself would help to secure regional gains, reinforce shared strategic priorities and improve the lives of the people on the ground. We hope that the draft resolution, if adopted, will help create an atmosphere conducive to the establishment of a comprehensive compact of peace between Serbs and Albanians, achieved through good-faith dialogue. Only such an approach can produce a legitimate and sustainable result consistent with the fundamental principles of the United Nations. The Republic of Serbia believes that the draft resolution before the General Assembly deserves the full support of this body. We therefore propose that it be adopted by consensus. The Assembly should have no doubt that, come what may, Serbia's resolve shall not waver. We will not tire, because we must not fail. Although our challenges remain formidable, so do our strengths as we look to the future with conviction in the justice of our cause. Mr. Mehdiyev (Azerbaijan): With regard to the draft resolution entitled "Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law" (A/64/L.65/Rev.1), Azerbaijan commends the efforts aimed at finding mutually acceptable ways to continue a dialogue between the parties for the purpose of peace, security and stability in the region. At the same time, I would like to reiterate Azerbaijan's principled position, according to which unilateral actions cannot be an acceptable way of resolving armed conflicts and territorial issues. It is essential to emphasize that States are at the heart of the international legal system and the prime subject of international law, while the principle of the protection of the territorial integrity of States is bound to assume major importance. International law is unambiguous in not providing for the right of secession from independent States and in not creating grounds and conditions for legitimizing non-consensual secession in any sense. Such unilateral actions do not involve the exercise of any right conferred in international law, and hence have no place within the generally accepted norms and principles of international law, which apply within precisely identified limits. In paragraph 81 of its advisory opinion of 22 July 2010 (see A/64/881), on the accordance with

international law of the unilateral declaration of independence in respect of Kosovo, the International Court of Justice reaffirmed that the legality attached to the unilateral secession stems from the fact that, "they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)." Our firm position is that the only way to reach a just and comprehensive settlement of conflicts and disputes is an approach based on full and unequivocal respect for the letter and spirit of international law. The international community should therefore redouble its efforts in rejecting any attempts at imposing solutions based on the result of unilateral actions, the use of force, the seizure of territory and ethnic cleansing. As a country suffering aggression from a neighbouring, State, foreign military occupation and the ethnic cleansing of its territories, Azerbaijan believes that the fulfilment in good faith of the obligations assumed by States under the Charter of the United Nations and international law is of the greatest importance for the maintenance of international peace and security. Mr. Valero Briceno (Bolivarian Republic of Venezuela) (spoke in Spanish): The Government of the Bolivarian Republic of Venezuela believes that the unilateral declaration of independence issued by the Provisional Institutions of Self-Government of the autonomous Government of Kosovo violates Security Council resolution 1244 (1999). That declaration does not take into account the mandate set out in the resolution to comply with the principles of sovereignty and territorial integrity vis-�-vis the Serbian State. The unilateral declaration of independence also contradicts previous resolutions of the Security Council, including resolutions 1160 (1998), 1199 (1998), 1203 (1998) and 1239 (1999), which also establish the same mandate. The Government of the Bolivarian Republic of Venezuela maintains that the right to secession, which is enshrined in the principle of the right of peoples to self-determination, applies only and exclusively to colonized territories, within the terms of resolution 2625 (XXV). In that context, the Bolivarian Republic of Venezuela supports any initiative put forth by the

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General Assembly with regard to preserving and maintaining the principles of international law, whose supremacy is unquestioned. We should therefore emphasize the need to encourage the parties to find a mutually acceptable resolution of outstanding issues on the basis of dialogue, in the interests of peace and security in the region. The Bolivarian Republic of Venezuela's foreign policy includes the principle that conflicts and disputes should be resolved peaceably between parties, in line with Article 33 of the United Nations Charter, on the pacific settlement of disputes. The Bolivarian Republic of Venezuela supports draft resolution A/64/L.65/Rev.1, which has been introduced today in this world body by His Excellency Mr. Vuk Jeremi, Minister for Foreign Affairs of the Republic of Serbia. Mr. Limeres (Argentina) (spoke in Spanish): My delegation supports draft resolution A/64/L.65/Rev.1, as we believe it necessary to promote a peaceful dialogue between the parties that makes it possible to reach a mutually satisfactory agreement. In that regard, I should like to recall that international peace and security constitute one of the pillars of the United Nations system. The Security Council is the main organ of the United Nations with purview in that regard. The basis for the collective security system established by the Organization is predicated on United Nations Members being obliged to adhere to the relevant resolutions of the Organization. A political solution to this issue should be based on respect for the decisions adopted by the United Nations. With regard to Kosovo, we should bear in mind Security Council resolution 1244 (1999), which clearly establishes the legal and political parameters for achieving the political solution to which I have referred. The validity of that resolution has now been acknowledged by the International Court of Justice in its advisory opinion of 22 July 2010 (see A/64/881). The President (spoke in Arabic): I should like to consult the General Assembly with a view to proceeding immediately to consider the draft resolution contained in document A/64/L.65/Rev.1. In that connection, since the draft resolution has only been circulated today, it would be necessary to

waive the relevant provision of rule 78 of the rules of procedure, which reads as follows: "As a general rule, no proposal shall be discussed or put to the vote at any meeting of the General Assembly unless copies of it have been circulated to all delegations not later than the day preceding the meeting." Unless I hear any objection, I shall take it that the Assembly agrees with that proposal. It was so decided. The President (spoke in Arabic): Before we proceed, I would like to notify members that technical corrections are now being made to the Chinese and French versions of draft resolution A/64/L.65/Rev.1. The final version will include all those changes. We shall now proceed to consider draft resolution A/64/L.65/Rev.1. May I take it that the Assembly decides to adopt it? Draft resolution A/64/L.65/Rev.1 was adopted (resolution 64/298). The President (spoke in Arabic): Before giving the floor to speakers in explanation of position following the adoption of the resolution, may I remind speakers that explanations are limited to 10 minutes and should be made by delegations from their seats. Ms. DiCarlo (United States of America): The United States welcomes this resolution, which responds to the advisory opinion of the International Court of Justice on Kosovo's declaration of independence. We fully support the resolution, and therefore joined the consensus on it. The Court has answered the question posed by the General Assembly. The Court's answer was clear. Kosovo's declaration of independence did not violate general international law or Security Council resolution 1244 (1999). Our consistent position has been that the situation in Kosovo is a special case, and not a precedent for other conflicts. Indeed, the Court's opinion is quite specific, namely, that Kosovo's declaration of independence had to be considered within the factual context that led to its adoption. This included, as the opinion described, the framework established by resolution 1244 ( 1999) to resolve the humanitarian crisis in Kosovo, the establishment of a transitional administration and the United Nations-facilitated future status process, which concluded that the negotiations

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on Kosovo's status were exhausted and that further talks on status would not produce a mutually agreeable outcome. Resolution 64/298 is consistent with the United States strong support for Kosovo's independence, sovereignty and territorial integrity. Now is the time for the region to move forward and for Serbia and Kosovo to open a new phase in their relations, focused on their shared future within the European Union. We therefore welcome the European Union's offer to facilitate a dialogue between Kosovo and Serbia to promote cooperation, achieve progress on their respective European integration paths and improve the lives of people in the region, thereby enhancing peace, security and stability in the Balkans. The United States is prepared to lend its support to a constructive, forward-looking dialogue. More broadly, we remain fully engaged and committed to helping Kosovo, Serbia and all the countries of the region to realize their aspirations for full integration into the Euro-Atlantic community. Mr. Apakan (Turkey): The advisory opinion of the International Court of Justice on Kosovo's declaration of independence (see A164/881), which was issued on 22 July, stated without any ambiguity that the declaration, made in February 2008, did not violate general international law. The advisory opinion, which was clear and decisive, marks the end of the legal process on Kosovo. In that respect, Turkey welcomes resolution 64/298. We believe it is an important step forward in the establishment of lasting peace, stability and prosperity in the region. My delegation is therefore in favour of it. We appreciate the steps taken by Serbia to introduce the resolution. Serbia is an important player and partner in the region when it comes to addressing core issues and ensuring lasting peace and stability in the Balkans. We believe that the dialogue to be established is the only viable way to reach a common understanding, and that Serbia can and will contribute to attaining the needed peaceful solution on all issues of mutual concern. Our position on Kosovo's independence is well known. Turkey recognizes Kosovo, upholds its territorial integrity and sovereignty, supports its democratic structures and Euro-Atlantic orientation and advocates its inclusion in regional cooperation schemes.

What now remains to be done is to look forward and encourage Serbia and Kosovo to address their future relationship through dialogue and mutual respect. In that regard, I would like to express our appreciation to both Belgrade and Pristina for keeping diplomacy at the forefront with regard to the Kosovo issue since 2008. Turkey enjoys friendly relations with Serbia and Kosovo. We are committed to the achievement of the objectives of peace, stability and prosperity for the whole region. We firmly believe that the common future of the region lies in European and Euro-Atlantic integration. Turkey is ready to assist the countries of the region to realize their aspirations in that regard and to contribute to the establishment of a constructive dialogue in our region. Mrs. Viotti (Brazil): The resolution that has just been adopted, as a result of the agreement reached between Serbia and the 27 countries of the European Union, is auspicious for the continuity of dialogue on the question of Kosovo. We appreciate the role of the European Union in the efforts to resolve the dispute at hand. At the same time, we reiterate that any solution must have the support of the entire international community. Brazil believes that Security Council resolution 1244 (1999) remains the foundation for durable peace and stability in the region and for the resolution of the question of Kosovo, based on dialogue and respect for the principle of territorial integrity. Mr. Pankin (Russian Federation) (spoke in Russian): In view of the agreement reached between Serbia and the European Union on the content of the resolution just adopted by the General Assembly on the advisory opinion of the International Court of Justice on the question of the legality of the unilateral declaration of independence of Kosovo (see A/64/818), the Russian delegation has joined the consensus. Russia's position of principle on the issue of Kosovo remains unchanged. We firmly believe that Security Council resolution 1244 (1999) remains fully in force and is still binding on all as the international legal basis for settling the Kosovo question. The Security Council continues to have a leading role in a Kosovo settlement. We think it important that the parties resume dialogue with a view to a settlement of the Kosovo problem. An important role in facilitating that process will continue to be played by the United Nations Mission in Kosovo on the basis of the mandate given to it by the Security Council.

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Mr. Wang Min (China) (spoke in Chinese): The Kosovo question is very complex and sensitive and has a bearing on the peace and security of the Balkans and of Europe as a whole. We have always believed that the best way to solve the Kosovo question is for the parties concerned to seek, through dialogue, a mutually acceptable solution within the framework of the relevant resolutions of the Security Council. China takes note of the advisory opinion delivered by the International Court of Justice on 22 July (see A/64/818). We are also aware of the fact that different parties hold different views on this matter. China has maintained all along that respect for national sovereignty and territorial integrity is a fundamental principle of contemporary international law and the basis for the international legal order of our times. The sovereignty and territorial integrity of United Nations Member States should be respected by all parties. The Court's advisory opinion should not prevent the parties concerned from finding a proper negotiated solution to the problem. Mr. Hardeep Singh Puri (India): My delegation joins others in welcoming the consensus that made it possible for the General Assembly to unanimously adopt resolution 64/298. India has consistently held the view that the sovereignty and territorial integrity of all countries should be respected by all States. Therefore, the Government of India has so far not recognized the unilateral declaration of independence by Kosovo. We believe that the Kosovo issue should be resolved peacefully through consultation and dialogue between the concerned parties. Mr. Gutierrez (Peru) (spoke in Spanish): In October 2008, the General Assembly requested the International Court of Justice to render an advisory opinion on whether the unilateral declaration of independence by the Provisional Institutions of SelfGovernment of Kosovo was in accordance with international law. In response to that, on 22 July, the International Court of Justice delivered its advisory opinion and concluded that the declaration of independence by Kosovo did not violate international law or Security Council resolution 1244 (1999) or the Constitutional Framework of the Provisional Institutions of Self-Government of Kosovo. The International Court of Justice is the only universal international entity with general jurisdiction. Its advisory opinions therefore contribute to

developing international law -- which, as a judicial body, it interprets independently and impartially. Peru was very pleased to join the consensus to adopt resolution 64/298. We would have liked to have been a sponsor of it, for we believe that it reaffirms the primary role of international law and conforms to our strong tradition of respect for that pillar, on which the United Nations Charter is based. Likewise, we believe that it properly recognizes the judicial work carried out by the International Court of Justice. My delegation believes it is important to underscore and acknowledge the constructive spirit and maturity shown by the Republic of Serbia, along with its European Union partners, which have made it possible for us to adopt this important resolution. We are certain that it will make a contribution to building peace and security in the region, thereby making it possible to carry forward a constructive dialogue based on cooperation that will clearly increase the well-being of all peoples of the Balkan region. Mr. Hoxha (Albania): We are pleased with the decision by the Republic of Serbia to withdraw the controversial and disruptive text of draft resolution A/64/L.65, which contained narrow objectives to instrumentalize the General Assembly and hinder the progress in international support for the Republic of Kosovo. We support the wise decision to substitute that text with a text agreed among the 27 European Union member States, as embodied in resolution 64/298, which has just been adopted. On 22 July 2010, the International Court of Justice delivered an advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo, in response to the question put forward by the General Assembly in resolution 63/3, of 8 October 2008, namely, whether the unilateral declaration of independence by the Provisional Institutions of SelfGovernment of Kosovo was in accordance with international law. As is known to the membership, the Court concluded, by an overwhelming majority and in unambiguous terms, that Kosovo's declaration of independence violated neither general international law nor Security Council resolution 1244 (1999), nor the Provisional Constitutional Framework of Kosovo, adopted by the United Nations Interim Administration Mission in Kosovo pursuant to that resolution. The

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Court's opinion made it clear that Kosovo's case is in fact a unique one, that it has its own long historical background and that it cannot and should not be related to any other situation elsewhere in the world. Albania welcomes this rendering of the world Court and we believe that this opinion should be acknowledged and respected. We are very pleased that the new resolution welcomes the Court's opinion with respect. Kosovo's independence is a reality and has passed through many difficult phases, from war atrocities to lengthy negotiations under the mediation of the international community and the SecretaryGeneral's special envoy. This reality has been increasingly recognized by Member States. The Court's advisory opinion will certainly help many countries to move towards recognition of the Republic of Kosovo, as the opinion also offers the prospect of a new phase in the relations between the Republic of Serbia and the Republic of Kosovo within the perspective of their integration into the European Union -- a goal shared by the whole region. Albania is attentive to the difficulty of some in the Government of Serbia to come to terms with this new reality. What happened today at the General Assembly was a clear illustration of that. But despite this, we note with satisfaction that the text adopted today has clearly nothing in common with what we have seen in recent weeks. That is the reason that the Republic of Albania decided to support it. Albania expresses its deep appreciation for the efforts of the European Union, along with those of other countries that have recognized Kosovo, to bring Serbia to a reasonable position by presenting this new resolution. Indeed, it is very positive that, rather than calling in vain for renewed talks on the status of Kosovo, a process already fully exhausted and a chapter definitively closed, the new text supports efforts under way and encourages Serbia and Kosovo to engage in a cooperation process on practical matters, in the interests of both countries and in the spirit of good neighbourliness. Albania will lend its full support to such a process. Mr. Thomson (Fiji): The Fiji delegation welcomes the consensus spirit that has allowed us to carry through the revision of the Serbian resolution on the unilateral declaration of the independence of Kosovo. We welcome in particular the readiness of the European Union to facilitate a dialogue process

between the parties. This occasion allows us to reaffirm our belief that the principle of peaceful dialogue is fundamental to international relations. In the place of conflict and punishment, the words peaceful engagement and positive dialogue are those we need to hear more often in our daily work. As a member of the United Nations Special Committee on Decolonization, Fiji continues to give careful consideration to the International Court of Justice advisory opinion on the unilateral declaration of independence of Kosovo. This is so because there is often a fine line to be identified between the United Nations stated purpose of respect for the selfdetermination of peoples and the Charter's principle of the territorial integrity of Member States. For the Member States of the Organization, our overriding purpose is the maintenance of international peace and security. The implications of the Court's advisory opinion must therefore be addressed responsibly and vigilantly in order to avoid the perception of the opinion as a green light for other unilateral declarations of independence around the world. Fiji is located in the region of Melanesia. The recent history of our region demonstrates that we must be sensitive to active and latent separatist tendencies. We recognize that our region is not alone in that regard. We therefore reiterate the need for careful consideration of the possible broader implications of the Court's advisory opinion, at all times with full respect for international law. In conclusion, we reiterate that Fiji welcomes the consensus achieved today and trusts the revised resolution's commitment to dialogue directed at peace, security and stability in the region concerned. Mr. Kleib (Indonesia): Resolution 64/298, which has just been adopted, clearly reflects the commitment of all concerned parties to find a solution to the question of Kosovo through dialogue. It is also in line with the preference consistently expressed by Indonesia to follow the path of dialogue and diplomacy to resolve the question of Kosovo and to find a mutually acceptable solution. This path alone will guarantee that the region achieves the path of stability, peace, security and prosperity. This has been true in other regions; it shall also be true in the Balkan region. This is the time for us to devote our full political and

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diplomatic energies to finding sustainable solution to the issue.

a

suitable

and

The International Court of Justice has discharged its task. Unquestionably, the advisory opinion will raise a host of new ramifications. We are also acutely aware that this opinion will have a dynamic life of its own. We will therefore rigorously examine the contents of the opinion. In addressing the matter at hand, we wish once again to emphasize the importance of faithfully maintaining the sanctity of key international law and principles, in particular upholding of the principles of the peaceful settlement of conflicts, territorial integrity and political independence. That has been our steadfast position; it shall be our time-honoured principle. Finally, we hope that the intention and readiness to undertake a process of dialogue, which is clearly reflected in the resolution, could be commenced in the immediate future -- a process that will hopefully lead to achieving a mutually acceptable solution and that could contribute to the promotion of peace, stability and prosperity in the region. For its part, the United Nations should continue to remain engaged in the political process to find a sustainable and peaceful solution to this issue.

Mr. Baghaei Hamaneh (Islamic Republic of Iran): The Islamic Republic of Iran joined the consensus on resolution 64/298, which is the result of a compromise between Serbia and the European Union, with the understanding that the resolution is a call to relevant parties to resolve their dispute through peaceful dialogue. My delegation reiterates its principled position concerning the vitality of adhering to international law and the principles enshrined in the Charter of the United Nations. The Islamic Republic of Iran stresses that disputes have to be resolved through peaceful ways and in accordance with international law and with full respect for the lofty principles of the United Nations Charter, in particular the sovereignty and territorial integrity and political independence of the Member States of the United Nations. The President (spoke in Arabic): We have heard the last speaker in explanation of position following the adoption of the resolution. May I take it that it is the wish of the General Assembly to conclude its consideration of agenda item 77? It was so decided. The meeting rose at 6:15 p.m.

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  of railways from Adelaide to Wentworth, in order to join the Sydney lines to the Barrier Ranges, to Innamincka, and northwards across the Continent, although strongly opposing any immediate attempt to extend it to Port Darwin." Judge Boucaut was Acting Chief Justice during the absence in England on leave of Chief Justice, 1891-92. He has been several times Deputy Governor and twice administrator of the Government.

Bourke, General Sir Richard, K.C.B., sometime Governor of New South Wales, eldest son of John Bourke, of Thornfield, co. Limerick, Ireland, by his marriage with Anne, daughter of Edmund Ryan, of Boscobel, co. Tipperary, was born on May 4th, 1778, and educated at Westminster School and Oxford University, where he matriculated at Oriel College in 1793, and graduated B.A. at Exeter in 1798. Sir Richard, who succeeded to his father's property in 1795, entered the army in 1798, and served with great distinction in Holland in the next year's campaign, being severely wounded in the face. After being, for a short time, Superintendent of the Military College at Marlow, he was appointed Quartermaster-General in South America in 1806, and in the following year was present at the storming of Monte Video. He served in the Peninsular year from 1809 to 1814, was raised to the rank of major-general in 1821, and acted as Lieut.-Governor of the Cape of Good Hope from 1826 to 1828. Sir Richard assumed office as Captain-General and Governor-in-Chief of New South Wales and its dependencies in Dec. 1831, and held the reins until Dec. 1837, when he left the colony amidst the regrets of the people. Sir Richard, who was created K.C.B. in 1835, and was made colonel of the 64th regiment on his leaving New South Wales in 1837, became lieut.-general in Jan. 1851, and general in November of the same year. He was one of the witnesses to the will of the Right Hon. Edmund Burke, with whom he claimed kinship; and he edited, in conjunction with Charles, 5th Earl Fitzwilliam, an edition of that great statesman's correspondence. Sir Richard, who was High Sheriff of co. Limerick in 1839, married, on March 1st, 1800, Elizabeth Jane, youngest daughter of John Bourke, of Carshalton, Surrey, Receiver-General of the Land Tax for Middlesex, by his wife, Mary Battye of Yorkshire. This lady died at Parramatta, N.S.W. on May 7th, 1832, and was interred there. Sir Richard died on August 12th, 1855, at his seat at Thornfield, where his only surviving son Richard resided. A monument was erected to Sir Richard Bourke's memory in the Domain, Sydney, the inscription on which well summarises his services as Governor of New South Wales, at a time when the Queen's representatives in Australia were allowed a much greater initiative than is the case at present. It runs as follows: "This statue of Lieutenant-General Sir Richard Bourke, K.C.B., is erected by the people of New South Wales, to record his able, honest, and benevolent administration from 1831 to 1837. Selected for the government at a period of singular difficulty, his judgment, urbanity, and firmness justified the choice. Comprehending at once the vast resources peculiar to this colony, he applied them, for the first time, systematically to its benefit. He voluntarily divested himself of the prodigious influence arising from the assignment of penal labour, and enacted just and salutary laws for the amelioration of penal discipline. He was the first Governor who published satisfactory accounts of public receipts and expenditure. Without oppression or detriment to any interest he raised the revenue to a vast amount, and from its surplus realised extensive plans of immigration. He established religions equality on a just and firm basis, and sought to provide for all, without distinction of sect, a sound and adequate system of national education. He constructed various public works of permanent utility. He founded the flourishing settlement of Port Phillip, and threw open the wilds of Australia to pastoral enterprise. He established savings banks, and was the patron of the first Mechanics' Institute. He created an equitable tribunal for determining upon claims to grants of lands. He was the warm friend of the liberty of the Press. He extended trial by jury after its almost total suspension for many years. By these, and numerous other measures for the moral, religious and general improvement of all classes he raised the colony to unexampled  50


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 , and retired amid the reverent and affectionate regret of the people, having won their confidence by his integrity, their gratitude by his services, their admiration by his public talents, and their esteem by his private worth." Sir Richard, though in the first instance he discountenanced the formation of a settlement at Port Phillip, ultimately induced the Home Government to recognise it. In 1837 he visited the incipient colony, and was the author of most of its existing nomenclature, giving the present names to Hobson's Bay, and the city of Melbourne itself, and his own family designation to the metropoltianmetropolitan [sic] county, and to one of the principal streets of the embryo capital of what was to become the great colony of Victoria.

Bourne, Joseph Orton, Registrar of Titles, Queensland, was born at Windsor, N.S.W., in 1854, and was the first pupil enrolled at the Normal School at Brisbane, where he went with his parents in 1859. He entered as a cadet in the Survey Office in 1861, became a draftsman in 1862, joined the Real Property Office as head draftsman in 1873, became principal Deputy Registrar of Titles in 1884, and received his present appointment as Registrar of Titles on Dec. 4th, 1889. He is a captain unattached in the Queensland Defence Force.

Bowen, Hon. Charles Christopher, M.L.C., was born at Milford, co. Mayo, Ireland, in 1830, being the eldest son of Charles Bowen, one of the founders of Canterbury, who was Speaker of the Provincial Council from 1855 to 1864. He was educated at Rugby and Cambridge, but left the University without taking a degree, and went out to the Canterbury Settlement in one of the first four ships, acting, until Dec. 1852, as secretary to Mr. . In the Provincial Council of Canterbury Mr. Bowen was for some years Treasurer. In 1859 he visited England, where he remained till 1862; and upon his return was, in 1864, appointed Resident Magistrate at Christchurch, which office he held till 1874. From 1872 to 1874 he was Chairman of the Canterbury Board of Education. Mr. Bowen, on Dec. 16th, 1874, was called to the Legislative Council to take office under Sir Julius, but immediately afterwards resigned his seat and entered the Lower House as member for Kaiapoi. His offices were those of Minister of Justice and Commissioner of Stamps, which he held until the advent of the Ministry into power on Oct 14th, 1877. During his tenure of office, he busied himself with the reform of prison management, introducing the system of "marks" into gaols. He also carried through the House in 1877 the Education Act, which established free primary schools and compulsory attendance throughout the colony. Mr. Bowen retired from Parliament in 1881, when he paid another visit to England. Mr. Bowen was called to the Upper House in 1891.

Bowen, Right Hon. Sir George Ferguson, G.C.M.G., D.C.L., LL.D., successively Governor of Queensland, N.Z., and Victoria, is the eldest son of the late Rev. Edward Bowen, rector of Taughboyne, county Donegal, and was born in 1821. He was educated at the Charterhouse and at Trinity College, Oxford, where he obtained a scholarship in 1840, and graduated B.A. as first class in classics in 1844. In the same year he was elected to a fellowship at Brasenose College, and became a member of Lincoln's Inn, In 1847 he was appointed President of the University of Corfu, and in 1854 became Chief Secretary of the Government of the Ionian Islands, in which post he remained till 1859, when he was appointed the first Governor of the new colony of Queensland. Taking with him Mr. (now Sir Robert) as Colonial Secretary, he successfully organised the government of the infant colony, and presided over the inauguration of responsible institutions, Mr. Herbert becoming the first Premier. His term of Office expiring in Jan. 1868, he became Governor of New Zealand, where he had the difficult task of bringing the Maori War to an end. His rule gave entire satisfaction to the Colonial Office, and when in March 1873 he was transferred to Victoria, the official intimation of his promotion was couched in very complimentary terms. From Jan. 1875 to Jan. 1876 he was at home on his first leave of absence. On his return to Melbourne his troubles began. Sir, who had held the reins in the interim, had shown somewhat too little flexibility in the exercise of his temporary powers, with the result that a constitutional struggle of unparalleled bitterness had been commenced between the supporters of Sir  51


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ING LOUIS XIV. selected the most barren and intractable bit of land out of which to create Versailles, with its gardens, plantations, and palace; and Sir Thomas Tyrwhitt chose the most inhospitable site for the planting of a town. Sir Thomas was Black Rod, and Warden of the Stannaries. He was a man of a sanguine temperament, for he calculated on reaping gold where he sowed shillings, and that in Dartmoor bogs.

At his recommendation prisons were erected at Princetown in 1806, at a cost of £130,000, for the captives in the French and American wars. Sir George Magrath, M.D., the physician who presided over the medical department from 1814 until the close of the war, testified to the salubrity of the establishment.

"From personal correspondence with other establishments similar to Dartmoor, I presume the statistical record of that great tomb of the living (embosomed as it is in

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260 a desert and desolate waste of wild, and in the winter time terrible scenery, exhibiting the sublimity and grandeur occasionally of elemental strife, but never partaking of the beautiful of Nature; its climate, too, cheerless and hyperborean), with all its disadvantages, will show that the health of its incarcerated tenants, in a general way, equalled, if not surpassed, any war prison in England or Scotland. This might be considered an anomaly in sanitary history, when we reflect how ungenially it might be supposed to act on southern constitutions; for it was not unusual in the months of December and January for the thermometer to stand at thirty-three to thirty-five degrees below freezing, indicating cold almost too intense to support animal life. But the density of the congregated numbers in the prison created an artificial climate, which counteracted the torpifying effect of the Russian climate without. Like most climates of extreme heat or cold, the new-comers required a seasoning to assimilate their constitution to its peculiarities, in the progress of which indispositions, incidental to low temperature, assailed them; and it was an everyday occurrence among the reprobate and incorrigible classes of the prisoners, who gambled away their clothing and rations, for individuals to be brought up to the receiving room in a state of suspended animation, from which they were usually resuscitated by the process resorted to in like circumstances in frigid regions. I believe one death only took place during my sojourn at Dartmoor, from torpor induced by cold, and the profligate part of the French were the only sufferers. As soon as the system became acclimated to the region in which they lived, health was seldom disturbed."

There were from seven to nine thousand prisoners incarcerated in the old portion of the establishment.

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