was antiquated at the time of the codification. Concerning the passages most frequently cited, disagreement exists among the European scholars as to whether they actually relate to the Conflict of Laws. Professor Beale's generalizations are not supported in their totality by the Corpus Juris. In fact in some respects clear statements to the contrary are to be found therein. Professor Beale says, for example, "the maxim locus regit actum is established . . for the form of legal documents" (p. 23). The only citation from the Corpus Juris made in support of this statement is that of Dig. XXIX. 1. ult. The passage referred to may mean that all who are of such a condition that they cannot make a will by military law, if they are seized and die in a hostile country, may make a will in the form authorized by the local law. It certainly does not prove that wills in general may be executed, as regards form, in the mode prescribed by the local law. A rescript of the Emperor Diocletian shows clearly that the law of domicile governed the validity of wills as regards form. Cod. VI. 23. 9. The maxim locus regit actum was not established until the fourteenth century. Bartolus and his followers attempted to find support for the rule in Corpus Juris, but it is now generally conceded that their attempt failed. See Savigny, Private International Law (Guthrie's translation), pp. 326-27; II Lainé, Introduction Au Droit International Privé, pp. 340, 354-55; I Foelix, Traité du Droit International Privé, 4 ed., pp. 165-66; and Buzzati, L'Autorità delle Legge Straniere relative alla Forma degli Atti Civili, pp. 25-28. Professor Beale regards Story as "the creator of the modern science" and his book "the point of departure of all modern theories" (p. 51). He says: "From him the law flowed on in three streams, the theory of the neo-statutists, the theory of the internationalists and the common law doctrine of territorial law recognizing vested rights" (p. 52). That Story is the founder of the AngloAmerican school must, of course, be admitted by all, but can it be truthfully stated that "the doctrines of both the modern European schools were largely based on the work of Joseph Story" (p. 52)? The only evidence adduced by Professor Beale is (1) an admission on the part of Foelix, a neo-statutist, that he adopted Story's theory of comity; (2) that Schaeffner's first reference in his notes is to Story, whose commentaries are listed and described in the bibliography, and (3) that Savigny, in his preface to his Conflict of Laws, refers to Story's "excellent" and "extremely useful" work. This is certainly scanty evidence for the broad generalization made. That Story's great learning and helpful discussion of English and American cases should be duly appreciated by the continental writers is natural. No one would deny the great merit of Story's work. It has seemed to the continental and other writers on the Conflict of Laws, however, that as far as the leading features of Story's theory are concerned, he is but an adherent of Huber, but highly independent in details. See v. Bar, Private International Law (Gillespie's translation), p. 47. Story's theory of comity, though accepted by a few continental writers, such as Foelix, is rejected by nearly all of the neo-statutists and by all of the internationalists. Under these circumstances an assertion that the doctrines of both these modern schools were largely based on Story's work is not supported by fact. A considerable portion of the subject matter now contained in chapter 3 under "Current Doctrine on the Conflict of Laws" belongs more properly to the preceding chapter, which deals with the history of the subject. Its contents proper form the most interesting portion of the part now submitted. According to Professor Beale, the modern writings on the subject involve three systems of thought, which he names the "statutory" system, the "international" system, and the "territorial" system. The fundamental differences underlying these systems are brought out clearly and the special doctrines or theories of such noted writers as Pillet, Waechter, Schaeffner, Savigny, v. Bar, Zitelmann, Jitta, Story, Vareilles-Sommières, and Bustamante are given. In the opinion of the reviewer, the value of this portion of the work would be enhanced if, in connection with the discussion of the different schools of thought, all of the authors included in the general bibliography were specifically mentioned. A knowledge of an author's fundamental point of view in the treatment of a subject would help the reader in the study of a particular work. Professor Beale defends the Anglo-American system of vested rights (as he calls it) against the attacks made upon it by the internationalists, and rejects the statutory system because its doctrine of "public order," which nobody has been able to define, accepts the territorial theory, as it were, through the back door. He admits that the international theory "would furnish a basis for the protection of rights much more firm than that offered by either of the other theories," but concludes that as long as no definite body of rules on which nations can agree have found acceptance even among the scholars, it has no claim to superiority over the Anglo-American theory. The Renvoi theory deserves, in the opinion of the reviewer, a fuller treatment. However vicious it may be, the fact remains that courts are prone to take refuge under it in order to avoid the application of a foreign law. As the English courts have sinned on a number of occasions in this connection, and there is no clear authority of weight to the contrary in either England or the United States, it would be desirable in the interest of the development of a consistent doctrine that such an authoritative treatise as the one prepared by Professor Beale should call particular attention to these decisions and warn the courts against the danger lurking in the adoption of the Renvoi theory. It would be well also if Professor Beale would express his view concerning such cases as Armitage v. The Attorney General (1906 P. 135), and Lando v. Lando (112 Minn. 257), where the Renvoi theory is adopted, though unconsciously, in order to sustain a divorce and a marriage respectively. The reviewer cannot appreciate the value of the Preliminary Consideration of Jurisprudence contained in Book II. Whether the analysis of rights into primary rights, secondary rights, and remedial rights, which Professor Beale regards as a satisfactory basis for the study of the Conflict of Laws, will be helpful also to other students of the subject, can be known only when their application to the problems in the Conflict of Laws has been fully set forth. The foregoing suggestions are offered in accordance with the author's wish, expressed in the preface, in the hope that they may be of some use to the author before the above pages receive their final form. They are not intended to belittle the great merit of the part now submitted. The exhaustive and scholarly treatment of the subject gives every assurance that when the treatise is completed, it will be authoritative and constitute the most comprehensive statement of the law in the English tongue. ERNEST G. LORENZEN. ELEMENTS OF INTERNATIONAL LAW. By George B. Davis. Fourth edition, revised by Gordon E. Sherman. New York: Harper and Brothers. 1916. pp. xxiv, 668. This work originally appeared in 1889; and now that the author has died, an editor has attempted the almost impossible task of making it fulfill the needs of the present day. It is a book that appeals to the general reader rather than to the lawyer. It is readable, especially when it states and discusses specific cases. For professional purposes, however, it is not sufficiently exact and not satisfactorily abreast of the times. A few examples must suffice. The account of citizenship and naturalization (pp. 138-47) does not clearly indicate whether a child born to American parents resident abroad is an American citizen, nor whether there may be more than one citizenship of origin, nor whether naturalization includes expatriation in the absence of a statute or treaty to that effect made by the country of origin, nor exactly what is the effect of present naturalization treaties, nor what are the terms of the present United States statute regarding expatriation - the statute of 1907, which apparently is not cited. The list of works on diplomacy (p. 222) omits the books of John W. Foster. The list of references on war (pp. 354-56) omits the monumental work of Bloch. The accounts of the neutrality laws of the United States (pp. 43738) fails to say that the present laws are found not in the places cited but in the Federal Penal Code of 1909. The account of occasional contraband, as the author well terms what is usually called conditional contraband (pp. 46870), falls short of bringing that subject to date. All these are natural incidents of an attempt to keep alive a book that really belongs to a past generation. For the practical purposes of the present day the citations, which are very numerous, continue to be valuable. The appendices also are useful, containing a liberal collection of documents and a brief presentation of new topics, including intervention in Cuba, internment of prisoners of war, transfer to neutral flag, aircraft, and wireless telegraph. EUGENE WAMBAUGH. SHIPPERS AND CARRIERS OF INTERSTATE AND INTRASTATE FREIGHT. By Edgar Watkins. Atlanta: The Harrison Company. 1916. pp. cxv, 1057. After seven years Mr. Watkins has brought out a new edition of his book, in which, by means of India paper and a limp leather binding, eleven hundred pages have been compressed into a very small compass. The scope of the book is indicated by its title. It should be of value to lawyers engaged in the practice of the American law of freight carriage, and it is obvious that no more than that has been intended by the author. The book is largely a compilation of the decided cases in this field. The compilation, however, is exceptionally comprehensive and well arranged, though unfortunately rather poorly indexed. In a few instances, the author expresses interesting independent opinions - for example, that a state can compel the interchange of traffic by purely intrastate carriers (p. 26) and that the decision of the circuit court of appeals concerning bulked shipments was erroneous (p. 267). Several hundred pages of the book are given over to an exhaustive annotation of the Act to Regulate Commerce and its amendments, and of the Sherman and Clayton laws. The Conference Rulings of the Interstate Commerce Commission are given in an appendix. RAEBURN GREEN. THE LAW OF THE PUBLIC SCHOOL SYSTEM OF THE UNITED STATES. BY Harvey Cortlandt Voorhees. Boston: Little, Brown and Company. 1916. pp. xi, 429. This is a collection of the cases relating to the public schools. The questions involved are in the main of statutory construction, but the author has of course included those cases where the common law is applied to school affairs. The book also contains synopses of the principal state statutes. It partakes more of the nature of a digest than of a textbook, the personal contribution of the author being in amassing, compilation, and arrangement rather than in original and guiding thought. However, lawyers and those who manage the schools will find in the book a convenient and a full source of information of Public School Law. AMERICAN JUDICATURE SOCIETY, BULLETIN XII. A report on Commercial REASONABLENESS AND LEGAL Right of the "MINIMUM CHARGE" IN PUBLIC HARVARD LAW REVIEW VOL. XXX JANUARY, 1917 No. 3 THE END OF LAW AS DEVELOPED IN JURISTIC A THOUGHT II 8. THE NINETEENTH CENTURY1 CHARACTERISTIC juristic achievement of the nineteenth century was the setting off of jurisprudence as a separate science. This was the culmination of a development that began in the seventeenth century. Prior to that time jurisprudence and politics were treated along with theology as applications of its doctrines.2 In a second stage jurisprudence, politics and international law were treated together. The philosophical foundation was taken to suffice for all three and the details of each subject were supposed to be reached by deduction therefrom.3 Separation from politics was gradually achieved in the nineteenth century,' 1 Continuation of the paper in 27 HARV. L. REV. 605. See also my paper, "The Philosophy of Law in America," VII ARCHIV FÜR RECHTS- UND WIRTHSCHAFTSPHILOSOPHIE, 213, 385. 2 See 27 HARV. L. Rev. 605, 609 et seq. In HOBBES'S LEVIATHAN (1651) two of the four parts are theological. Compare also SPINOZA'S TRACTATUS THEOLOGICOPOLITICUS (1670). 8 See, for example, the sequence of BURLAMAQUI, PRINCIPES DU DROIT NATUREL (1747) and PRINCIPES DU DROIT POLITIQUE (1751); the order of treatment, that is, general philosophical foundation, philosophical jurisprudence, politics, international law, in WOLFF, INSTITUTIONES IURIS NATURAE ET GENTIUM (1740-49), and the like order in RUTHERFORTH, INSTITUTES OF NATURAL Law (1754–56). It is true the metaphysical jurists of the nineteenth century did not wholly abandon the old connection of jurisprudence, politics, legislation, and international law. and as the three distinct methods, philosophical, analytical and historical, were definitely worked out, the English analytical school believed that they had achieved a separation of jurisprudence from philosophy and ethics and in consequence from the science of legislation. The English historical school, conceiving that the traditional element in legal systems was the real law and that law was to be found in the unfolding of the principle of justice in human experience rather than made by legislators, agreed in this separation of jurisprudence and the science of legislation. Accordingly Maine said: "Investigation of the principles on which direct improvement of substantive legal rules should be conducted belongs . . . not to the theorist on jurisprudence, but to the theorist on legislation." " It has been suggested that a similar narrow tendency in nineteenth-century philosophy is to be attributed to division of labor in the universities and the requirements of academic courtesy. Very likely these played some part in the segregation of jurisprudence and the nineteenth-century Anglo-American tendency to insist upon analytical jurisprudence, where the lawyer required no aid from without and was continually in an atmosphere of pure law, as the whole of legal science." But the great expansion of learning in the last century, which prevented anyone from taking more than a corner of knowledge for his province, and the general tendency of the time to lay out everything analytically, to confine it to defined limits and to reduce it to rule, a tendency which the idea of evolution See, for example, LORIMER, INSTITUTES OF LAW, 2 ed., bk. II, ch. 1, and bk. IV, ch. 3 (1880). Compare LASSON, SYStem der RechtSPHILOSOPHIE (1882), where the philosophical foundations of public law are discussed but not politics. 5 Thus Markby says: "What . . . Austin's predecessors do not appear to me to have fully apprehended, at least not with that sure and firm grasp which proceeds from a full conviction, is the distinction between positive law and morals. We find, for example, that Bentham, when drawing the line between jurisprudence and ethics, classes legislation under jurisprudence, whereas, as Austin has shown, it clearly belongs to ethics. Austin, by establishing the distinction between law and morals, not only laid the foundations for a science of law but cleared the conception of law and of sovereignty of a number of pernicious consequences to which in the hands of his predecessors it had been supposed to lead." ELEMENTS OF LAW, 6 ed., § 12. 6 EARLY HISTORY OF INSTITUTIONS, 7 ed., Lect. 12, p. 345. 7 HOLLAND, ELEMENTS OF JURISPRUDENCE, ch. 1; MAINE, EARLY HISTORY OF INSTITUTIONS, 7 ed., Lect. 12, p. 370. The latter says: "The jurist properly so called has nothing to do with any ideal standard of law or morals." Compare the more temperate statement of this view by GRAY, NATURE AND SOURCES OF THE LAW, §§ 1-9. |