« ForrigeFortsett »
ing from the opinion of Depue, J., in Camden & A. R. Co. v. May's Landing, etc. Co., 48 N. J. L. 530, 7 Atl. 523, he says of Ultra Vires: "In its legitimate use, the expression should be applied only to such acts as are beyond the powers of the corporation itself," and not loosely applied, as many courts often do, to mere excessive use of authority by the members, directors, or officers, or to acts which do not conform to charter requirements (pp. 202-04). It is such preciseness of thought and language that makes this work valuable to the student. DALE M. PARKER.
INTERNATIONAL REALITIES. By Philip Marshall Brown. New York: Charles Scribner's Sons. 1917. pp. xvi, 233.
Says Professor Brown: "Since the Great War began I have been conscious with many others, of the urgent necessity of a thorough reconstruction of the law of nations in accordance with the big facts of international life. I have set myself the task of endeavoring to ascertain the fundamental values in international relations." What these big facts, these fundamental values, are, we never learn.
The function of international law, the author insists, is not to regulate war - such a conception is "essentially paradoxical and unsound." He then proceeds to explain (p. 3) that wars must be waged "with due respect to the rights of humanity," and that neutral interests must be protected. After spending several pages wondering whether international law is law, he finally decides that it is, apart from its status as municipal law, because the Supreme Court of the United States has said so (p. 20). This conception of the Supreme Court's power is most interesting. There is one great principle, ruled our first Chief Justice in a case too famous to be unknown to Professor Brown, "that all the members of a civil community are bound to each other by compact. The compact between the community and its members is, that the community will protect its members. . ." 1 Here is Contrat Social pure and simple, and by the Chief Justice of the United States; yet Professor Brown, in his chapter entitled "Nationalism," dismisses the Social Compact with a scant line, as the speculation of a theorist. Apparently he believes that a United States court can make one star to shine, but not another. The truth is, that no court of the United States has, or ever has had, jurisdiction to adjudicate any question of international law as such, much less to declare international law's validity as law.?
This chapter "Nationalism" contains elaboration at length of such profound truths as that "geographical location frequently has much to do with the formation of States." So also, "the existence of a common enemy has served . . . to foster a national community of interest." Professor Brown wholly fails to understand criticisms of nationalism; indeed, he makes no attempt to comprehend, but unhesitatingly distorts and condemns.
Arbitration Professor Brown would restrict to causes too trivial to quarrel over; every question of importance should be settled by diplomacy or by war. Arbitration, even by a super-national court, can settle nothing finally; while war, he says, can and does so settle. To Mr. Norman Angell is here (p. 75) attributed the curious statement that "there never was a good war or an honorable peace." Whenever Professor Brown desires to clinch his arguments against pacifism, he knocks down Mr. Angell for a "materialist," and quotes a new form of this statement - always inclosed in quotation marks, which Professor Brown apparently intends as a warning of more than usual inaccuracy.
1 Trial of Isaac Williams, 2 Cranch *83 a; WHARTON, STATE TRIALS OF THE UNITED STATES, 652, 653.
2 Cf. 2 WESTLAKE, INTERNATIONAL LAW, 2 ed., 317, 318.
Democracy should not supplant diplomacy, the author holds, since diplomacy is far more competent. This superior competency is proved, first, by the fact that America has in the past possessed some able diplomats. Professor Brown would no doubt be astonished at the idea that the more efficient its agents are, the more dangerous may diplomacy be as a means of transacting international business. The second proof is, that American democracy, by showing restraint and by reposing confidence in the President in times of international stress, has "confessed its own sense of incapacity to handle foreign affairs." The third proof is that democracy's feeling would run so high, at critical times, that unnecessary wars would be precipitated.
Professor Brown opposes the establishment of a super-national court, as has been intimated. He likewise severely criticises the work of the newly formed American Institute of International Law, which has endeavored to formulate the rights of states, and, more recently, has produced the Code of Maritime Neutrality. Opposing as he does both the rational codification and the supernational interpretation of international law, it is natural that Professor Brown should likewise oppose any proposition (such as that of the League to Enforce Peace) to enforce it. His faith is placed in the trinity of war, diplomacy, and the somewhat vague "complete, just understanding between the nations."
The book impels one to a belief in some relentless law of diminishing deserts, that operates upon the reputations of American writers upon international law. The present preponderance of shallow thinking concerning international relations is the most dangerous phase of national unpreparedness.
HANDBOOK OF THE LAW OF TORTS. By H. Gerald Chapin. St. Paul: West
DIGEST OF WORKMEN'S COMPENSATION LAWS IN THE UNITED STATES AND TER-
THE ELEMENTS OF JURISPRUDENCE.
By Thomas Erskine Holland. Twelfth Edition. New York and London: Oxford University Press. 1917. pp. XXV, 454.
BLOCKADE AND CONTRABAND. By A. Maurice Low. Washington. pp. 16.
BETTER CITY PLANNING FOR BRIDGEPORT. By John Nolen.
With a Report on
Cincinnati: W. H. Anderson Com
CASES AND READINGS ON THE JURISDICTION AND PROCEDURE OF THE FEDERAL COURTS. By George W. Rightmire. pany. 1917. pp. xvi, 892.
STATUTE LAW-MAKING IN IOWA.
Edited by Benjamin F. Shambaugh. Applied History, Volume III. Iowa City: The State Historical Society of Iowa. 1916. pp. xvii, 718.
CASES IN QUASI-CONTRACT SELECTED FROM DECISIONS OF ENGLISH AND AMERICAN COURTS. By Edward S. Thurston. American Case-Book Series. St. Paul: West Publishing Co. 1916. pp. xv, 622.
Published in full in THE CHRISTIAN SCIENCE MONITOR, January 25, 1917.
INSANITY AND CRIMINAL RESPONSIBILITY
TREATISE on the Criminal Responsibility of Lunatics published in England in 1909 begins with this statement:
"The feud between medical men and lawyers in all questions concerning the criminal liability of lunatics is of old standing. More than one authority on either side has tried to bring about a reconciliation between the contending parties. But their endeavours have been crowned with very little success. For though it cannot be denied that the strife and warfare has of late lost much of its former bitterness, a modus vivendi satisfactory to both parties has not been found." 1
A year after this statement was made Professor John H. Wigmore, then president of the American Institute of Criminal Law and Criminology, believing that some agreement might result from the combined and coöperative labors of members of the two professions and that the difficult problem of determining the relation of insanity to criminal responsibility might be thereby to some extent solved, appointed a committee composed of four physicians and five lawyers.2 This committee, which has had a continuous existence since its original appointment, published yearly reports,
1 OPPENHEIMER, Criminal ResPONSIBILITY OF LUNATICS, Preface.
2 Two members of the original committee resigned, and one vacancy thus created was later filled. Otherwise the committee has remained unchanged since its original appointment. It now consists of the following members:
Albert C. Barnes, Judge of the Superior Court, Chicago.
Orrin N. Carter, Justice of the Illinois Supreme Court.
Edwin R. Keedy, Chairman, Professor of Law in the University of Pennsylvania.
Adolf Meyer, Professor of Psychiatry in Johns Hopkins Medical School.
William E. Mikell, Dean of the Law School, University of Pennsylvania.
one of them being a compilation of the laws of all the states of this country relative to insanity and criminal responsibility. It also at various times suggested for discussion tentative proposals, some of which were finally recommended for adoption. In 1915 the committee presented a bill for the regulation of expert testimony in cases where insanity is set up as a defense to a criminal charge. This bill was approved by the Institute of Criminal Law and Criminology, and by the Conference on Medical Legislation of the American Medical Association. Last year the committee, having reached a unanimous agreement, presented to the Institute a bill providing a test for determining criminal responsibility when the defense of insanity is raised, and a method of procedure to be employed in such a case. This bill was approved by the Institute, which also at the request of the committee approved several sections of the expert testimony bill independently of the others. The two bills as finally approved are as follows:
CRIMINAL RESPONSIBILITY BILL
Sec. I. When Mental Disease a Defense. No person shall hereafter be convicted of any criminal charge when at the time of the act or omission alleged against him he was suffering from mental disease and by reason of such mental disease he did not have the particular state of mind that must accompany such act or omission in order to constitute the crime charged.
Sec. 2. Form of Verdict. When in any indictment or information any act or omission is charged against any person as an offense, and it is given in evidence on the trial of such person for that offense that he was mentally diseased at the time when he did the act or made the omission charged, then if the jury before whom such person is tried concludes that he did the act or made the omission charged, but by reason of his mental disease was not responsible according to the preceding section, then the jury shall return a special verdict that the accused did the act or made the omission charged against him but was not at the time legally responsible by reason of his mental disease.
Sec. 3. Inquisition. When such special verdict is found, the court shall remand the prisoner to the custody of [the proper officer 3] and shall immediately order an inquisition by [the proper persons 3] to determine Morton Prince, Physician, Boston.
William A. White, Superintendent Government Hospital for the Insane, Washington, D. C.
3 When this bill is introduced in the legislature of any state, the titles of the persons
whether the prisoner is at that time suffering from a mental disease so as to be a menace to the public safety. If the members of the inquisition find that such person is mentally diseased as aforesaid, then the judge shall order that such person be committed to the state hospital for the insane, to be confined there until he shall have so far recovered from such mental disease as to be no longer a menace to the public safety. If they find that the prisoner is not suffering from mental disease as aforesaid, then he shall be immediately discharged from custody.
EXPERT TESTIMONY BILL
Sec. 1. Summoning of Witnesses by Court. Whenever in the trial of a criminal case the issue of insanity on the part of the defendant is raised, the judge of the trial court may call one or more disinterested qualified experts, not exceeding three, to testify at the trial, and if the judge does so, he shall notify counsel of the witnesses so called, giving their names and addresses. Upon the trial of the case, the witnesses called by the court may be examined regarding their qualifications and their testimony by counsel for the prosecution and defense. Such calling of witnesses by the court shall not preclude the prosecution or defense from calling other expert witnesses at the trial. The witnesses called by the judge shall be allowed such fees as in the discretion of the judge seem just and reasonable, having regard to the services performed by the witnesses. The fees so allowed shall be paid by the county where the indictment was found.
Sec. 2. Written Report by Witnesses. When the issue of insanity has been raised in a criminal case, each expert witness, who has examined or observed the defendant, may prepare a written report regarding the mental condition of the defendant based upon such examination or observation, and such report may be read by the witness at the trial after being duly sworn. The written report prepared by the witness shall be submitted by him to counsel for either party before being read to the jury, if request for this is made to the court by counsel. If the witness presenting the report was called by the prosecution or defense, he may be cross-examined regarding his report by counsel for the other party. If the witness was called by the court, he may be examined regarding his report by counsel for the prosecution and defense.
Sec. 3. Commitment to Hospital for Observation. Whenever in the trial of a criminal case the existence of mental disease on the part of the accused, either at the time of the trial or at the time of the commission
whose duty it is, according to the existing law of the state, to conduct such an inquisition, shall be inserted here. It is not proposed to change the prevailing practice in this respect.