Proposed COURT OF ARBITRAL JUSTICE, THE. James Brown Scott. 2 Am. J. of Int. L. 772.

RIGHT OF STOCKHOLDERS TO NEW STOCK, THE. Frederick Dwight. Arguing that the doctrine sustaining the right has been extended too far. 18 Yale L. J. 101. RIGHTS OF A TRAVELER TO USE HERE ARTICLES MADE AND PURCHASED ABROAD BUT PATENTED HERE. Dwight B. Cheever. 7 Mich. L. Rev. 226.

SOME ASPECTS OF BUSINESS BY TELEGRAM. W. F. Chipman. Dealing with creation of contract relations by telegram. 28 Can. L. T. & Rev. 817. SOME HISTORICAL MATTER CONCERNING Literary ProperTY. Edward S. Rogers. 7 Mich. L. Rev. 101.

II. BOOK REVIEWS.

HISTORY OF The Roman-DuTCH LAW. By J. W. Wessels. Grahamstown, Cape Colony: African Book Company, Limited. 1908. pp. xv, 791. 8vo. The prevalence of Roman law in South Africa furnishes a curious and striking illustration of the far-reaching influence of ancient Rome. The law of Holland, then in large measure Roman, was carried to the Cape of Good Hope by the colonists of the seventeenth century and established itself so firmly that it continued in force after the English conquest and was in course of time officially adopted in Natal, the Transvaal, the Orange Free State, and Southern Rhodesia. As Holland had no code in the period before the loss of its African colonies, the law had for the most part to be sought in the writings of the great Dutch jurists of the seventeenth and eighteenth centuries; but in case of doubt the Corpus Juris Civilis was the ultimate resort, and as recently as 1901 an appeal from Natal to the Judicial Committee of the Privy Council involved the interpretation of a passage in the Digest. But while a certain amount of continuity is thus preserved, the Roman-Dutch law is in an isolated position. It is no longer a living force in Holland, where the new code came into force a century ago, so that it lacks such external support as the civil law in Quebec receives from France, and the forces of legal development inevitably favor English law. Not only has the English law of evidence been introduced, but the influence of English decisions, imperial legislation, and barristers with an English training, works strongly against the Dutch tradition. In many respects this state of affairs has tended to produce confusion, and Judge Wessels complains of "the heterogeneous mass of legal systems now prevalent in South Africa and pleads for a more scientific adjustment of conflicting principles.

A body of law fed from such streams has naturally an interesting history, some knowledge of which would seem essential to a thorough understanding of present conditions, and Judge Wessels tells us that it was the general ignorance of such matters on the part of practitioners that led him to write the articles for the South African Law Journal which have grown into the present volume. The work falls into two parts, one dealing with the general development of Roman-Dutch law, the other treating historically the more significant topics. Such a book cannot, especially for the earlier period, be expected to rest in any considerable degree upon original investigation, and while some use has been made of modern manuals such as those of Brunner and Schröder, too much reliance is placed upon older Dutch and Belgian writers, so that many of the statements respecting the law of the Middle Ages are open to serious question. The treatment is often scrappy and does not always bring out sufficiently the most significant points. The modern portions are better, and the task as a whole was worth attempting, even if it could not be carried out with the full equipment of the scientific student of historical jurisprudence. The book should teach the lawyers of South Africa some valuable lessons concerning the long and honorable history of their legal system.

C. H. H.

By Thomas

THE LAWS OF WAR ON LAND (WRITTEN AND UNWRITTEN). Erskine Holland. Oxford: At the Clarendon Press. 1908. pp. viii, 149. 8vo.

The principal written laws affecting the conduct of war on land may be found in the proceedings of international conferences at St. Petersburg in 1868, at

Geneva in 1906, and at The Hague in 1899 and 1907. These rules, with a few significant but relatively unimportant exceptions, have been accepted by the great majority of civilized nations and, supplemented where necessary by the general principles of international law, furnish material for a complete code. For this purpose these written rules or acts of the conferences are particularly adaptable, as they have uniformly been drawn in terse, concise language and framed in numbered paragraphs or articles. To assemble such a code has been the aim of the author.

The code as drawn consists of one hundred and thirty-nine articles. The first fifteen are all rules of the author gathered under the title of "General Principles." The fact that only ten others are drawn by the author is evidence of the completeness of the work of these conferences.

The Hague Convention No. iv of 1907" Respecting the Laws and Customs of War on Land," together with the Règlement or Regulations annexed to it, forms the backbone of the author's code. To it is prefixed The Hague Convention No. iii of 1907 "Relative to the Commencement of Hostilities," and affixed, The Hague Convention No. v of 1907 "Concerning the Rights and Duties of Neutral Powers and Individuals in Case of a War on Land." The Convention of Geneva of 1906" For the Improvement of the Condition of the Wounded and Sick in Armies in the Field," the St. Petersburg Declaration of 1868 and the three Hague Declarations, one of 1907 and two of 1899, are inserted at the logical places among the articles taken from The Hague Regulations of 1907.

While the author's articles are not unimportant, the value of the book lies, as will have been seen from the above statement, largely in the coördination of these various detached diplomatic acts. There is, however, an additional feature which must not be disregarded. To by far the greater part of these articles the author has subjoined comments of his own. These are, it is true, for the most part explanatory or merely by way of reference, but there are not a few which are critical in their nature. Nor should mention be omitted of the various appendices, containing brief historical notes as to the diplomatic acts which form the body of the work, together with their texts and lists of powers which became parties to them.

Excellent mechanically, the volume is very compact in substance, and its inclusiveness coupled with its brevity will make it a very convenient manual. The author's name vouches for its reliability.

A. R. G.

It

A TREATISE ON FACTS OR THE WEIGHT AND VALUE OF EVIDENCE. By Charles C. Moore. In two volumes. Northport, Long Island: Edward Thompson Company. 1908. pp. clxviii, 73; 730-1612. 8vo. The successful treatment of the subject "Facts" is peculiarly difficult. is not only the infinite variety of the forms that facts assume and the vast number of the laws governing things that imperil success. The common opinion that after a moderate experience the average mind is able to deal justly with even the most complex facts is a considerable barrier to the production of a profound treatise on "Facts." It is therefore a matter of congratulation when this comparatively little trodden path is widened and straightened.

The express design of Mr. Moore's treatise is "to facilitate the preparation for trial, the argument, and the decision of questions of fact, by exhibiting what has been said by United States, Canadian, and English judges concerning the causes of trustworthiness and untrustworthiness of evidence, and the rules for determining its probative weight."

This treatise divides into two parts, that containing various bits of information that have proved and may prove useful in the trial of cases; and that concerned with the rules of law more especially applicable to the judgment of facts.

The first division is the more useful and by far the more interesting. For instance, it is the rare lawyer who knows that although a person in the open can tell whether a sound comes from the right hand or the left, he may not be able to tell whether it comes from in front or behind; and yet how valuable would such a bit of information prove in the cross-examination of a witness as to the

position of a sound when the direction of the sound was material. That the author has not discussed such kinds of information more fully and has not delved more deeply into the discoveries of the scientists and particularly the psychologists is regrettable.

The chapters upon "Uncontradicted Evidence," "Degree of Proof," and similar matters contain no new contributions to the already considerable supply of such literature. The material is poorly arranged. The treatment is encyclopedic -that is to say, there is not a comprehensive consideration of the principles marked out by the precedents. The author has also failed to use the knife to good purpose. Much material should have been omitted and many sections consolidated and shortened. It was hardly necessary, for instance, to include in three separate paragraphs the subjects "Surmising Negligence in Admiralty Cases," Guessing concerning Contributory Negligence," and "Conjecture in Accident Insurance Cases."

แ

F. W. B.

THE PRINCIPLES OF ANTHROPOLOGY AND SOCIOLOGY IN THEIR RELATIONS TO CRIMINAL PROCEDURE. By Maurice Parmelee. New York: The Macmillan Company. 1908. pp. viii, 410.

12mo.

This is a much needed book in this country, where so little attention has been given to scientific criminology. Penology, on the other hand, which deals with the criminal after he has been convicted and sentenced, has received more attention here than elsewhere. The whole question of dealing with the criminal prior to his sentence has been, in this country where the legal incubus is so far developed, assumed to belong exclusively to the lawyer, and the lawyer has cared notoriously little for science and scientific methods.

The science of criminology the author divides into two branches, criminal anthropology and criminal sociology, the former dealing with the characteristics of the criminal man, and the latter with the social causes of crime. The problem which he sets before himself is that of the readjustment of the principles of criminal procedure so that the data of criminology can be utilized in the treatment of criminals. Criminal procedure is not conceived as a purely legal process, but as a process by which the class called criminal is separated from the rest of society.

Chapters I and II are historical, dealing with the development of the science of criminology, mainly in Italy, where it has received more attention than elsewhere, beginning with the "Crimes and Punishments" of Cesare Beccaria in 1764. Chapter VI is devoted to a discussion of systems of criminal procedure, and the subsequent chapters are given up to a more constructive development of the author's own views.

One of the main generalizations is that procedure should be devoted more toward the finding out of the nature of the criminal, on the ground that punishment should be adjusted to the nature of the criminal rather than to the nature of the crime. Of course the nature of the crime is one, but only one, index of the nature of the criminal, and other indices should be used. The work is, throughout, scholarly and moderate in tone, though proposing positive, not to say drastic, reforms. The only serious lapse in the author's scholarly treatment is, in the opinion of the reviewer, on page 98, where he refers to heredity as the "cumulative result of social environment in the past." This is a position which few students of heredity now maintain.

T. N. C.

THE LAW OF REAL PROPERTY. By Raleigh Coltson Minor. In two volumes. University of Virginia: Anderson Brothers. 1908. pp. vi, 1038; 10381825. 8vo.

EFFECTS OF WAR ON PROPERTY. By Almá Latifi. With a note on BELLIG ERENT RIGHTS AT SEA. By John Westlake. New York: The Macmillan Company. 1909. pp. x, 155. 8vo.

HANDBOOK OF AMERICAN MINING LAW. By George P. Costigan, Jr. Hornbook Series. St. Paul: West Publishing Company. 1908. pp. xiv, 765. 8vo.

HARVARD

LAW REVIEW.

VOL. XXII.

APRIL, 1909.

No. 6.

TH

SOME JUDICIAL MYTHS.

HE myths which are to be dealt with in this article do not come within the definition, “ A tale handed down from primitive times, and in form historical, but in reality involving elements of early religious views."1 Rather are they to be classed with what a learned writer2 has styled Myths of Observation. These, Mr. Tyler assures us, are inferences from observed facts, which take the form of positive assertions," "which seemed indeed probable when the myths arose, but which modern knowledge repudiates.” At the root of these myths lies the easy transition from "it might have been" to "it was." In illustration of this myth-making tendency of the human mind, our author writes: "To men whose country has the open sea to its west it seems that the sun plunges at night into the waters. Now the sun is evidently a mass of matter at a distance, and very hot, and when red-hot bodies come in contact with water there follows a hissing noise: and thus the inference is easy and straightforward that when the sun dips into the waves such sound ought to be heard. From the inference that the hissing might be heard, is the easy step by which the crude argument of early science passes into the full grown Myth of Observation."

One of the judicial myths which would seem to fall within the class described above appears in a decision of the New York Court of Appeals. The case involved the construction of the Factors Act of New York. Said the court: 3 "Statutes similar to this have for

1 The Century Dictionary.

2 Tyler, Early History of Mankind, ch. XI.

3 Soltau v. Gerdau, 119 N. Y. 380, 390, 23 N. E. 864 (1890).

many years existed in most if not all the states of the Union, and it has never yet been held, nor, so far as we can discover, claimed in any reported case, that the Factors Act can have any operation whatever in the case of goods taken by a common-law larceny from the true owner." Undoubtedly, the court gave the proper construction to the statute, but the positive assertion that statutes similar to the one under consideration had for many years existed in many if not all the states of the Union was a sheer myth. They existed in less than a half-score of the states. The learned judge who wrote the opinion of the court had observed the existence of the Factors Act in New York and a few neighboring states. him the inference of its wide-spread existence seemed probable, and the transition was easy from "it might have been" to "it was."

Two examples of the myths under consideration may be found in a recent article from the pen of a learned judge.1 The article contains an admirable discussion of certain provisions of the Bankruptcy Act of 1898 and of numerous decisions upon them. Even the myths which we are about to point out should not detract from the real merit of the article, but should be ascribed to what Mr. Tyler calls the myth-making tendency of the human mind.

The first myth is contained in the following extract: "It is often interesting to note the origin of phrases which are the small change of literature, and 'partnership entity' is now a legal commonplace. For it the profession seems to be indebted to Judge Thomas of the Eastern District of New York, and Mr. Lowell, whose work on bankruptcy was published in 1899."

No one will question that "partnership entity" is a commonplace phrase at the present time; and there may be many members of the bar who have no recollection of its use prior to 1899. To them the inference of the learned judge would seem warranted, that the legal profession is indebted for the phrase to a decision rendered in that year of grace. But a fuller knowledge of the history of the phrase repudiates the inference.

Six years before Judge Thomas' decision,2 partnership had been defined, in a standard treatise on that subject, as "a legal entity formed by the association of two or more persons for the purpose of carrying on business together and dividing its profits between

1 "Some New Aspects of Partnership Bankruptcy under the Act of 1898," 8 Colum. L. Rev. 599-604.

2 Chemical Nat. Bank v. Meyer, 92 Fed. 896 (1899).