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THE GREEN BAG

time after time a Magna Carta which was the reenactment of King John's, slowly formed the English constitution?" HISTORY (The XII Tables) IN the Juridical Review for June (V. xvii, p. 93) Professor Henry Goudy publishes an article entitled "Are the XII Tables Authen tic." It is suggested by the work of a recent Italian historian, Professor Pais, who chal lenged the whole tradition of the XII tables as legendary, and of Professor Lambert, a French historian, whose conclusions are even more radical than those of his Italian col league. The author analyzes their arguments in detail but differs from their conclusion. He finds in some use of the letters and names in a list of Roman officials, which purports to date back to the XII tables, evidence of antiquity and in the style and language of the tables themselves as well as in their contents, indications of much earlier origin than the recent critics admit. JURISPRUDENCE (Criminal Law) UNDER the title of "Short Studies in the Common Law," A. Inglis Clark contributes to the Commonwealth Law Review (V. ii, p. 193) a consideration of The Fundamental Con ceptions of our Criminal Law. "The earliest laws which mark the emer gence of a people out of a condition of savag ery are those which refer to offenses against the person, and these are followed by laws which take cognizance of offenses against property. We might, therefore, be disposed to say that the oldest department of all law is that which we now describe as Criminal Law. But this would not be an exact statement of historic fact, in the light of modern distinctions in the domain of law, because the offenses which we describe as crimes, and regard as properly punishable by the state, were regarded in the infancy of law as being the same in character as the acts which we now describe as torts, or, in other words, civil wrongs, for which the injured party is entitled to compensation from the wrong-doer. "The conception that such an act as the malicious killing of one man by another, or the infliction of a grievous wound on one man by

another, is an offense against the whole com munity of which the wronged or injured man was a member, did not arise until men had made considerable progress in civilization and political organization. The primitive jural conception of the nature of all offenses against the person, as well as offenses against property, was that they were wrongs committed against the individual or his family for which he or his family ought to have compensation and redress. "The conception of moral delinquency finds its most direct expression in the Criminal Law of England in the doctrine that the essence of all crime is criminal intent or malice. But it is also a fundamental doctrine of the law of England that ignorance of the law is not an excuse for breaking it. This doctrine is prima facie at variance with the other doctrine that malicious intent is the essence of all crime; because if a man does not know that he is violating the law, he cannot by a strict use of language be correctly said to have an inten tion to violate it. But the doctrine, that ignorance of the law shall not excuse a viola tion of it, has been found to be absolutely necessary for the accomplishment of the pur poses for which the law is made; and the problem which the judges, as the authorized exponents af the law, have been required to solve, is the reconciliation of the two doc trines in a manner that would secure an efficient enforcement of the law, without offending the moral sentiments of the commu nity upon whose acquiescence and approval its enforcement must ultimately depend. This has been accomplished through the medium of a long series of decisions stretching from the earliest recorded cases down to the present time, with the result that while the law con tinues, in regard to both crimes and torts, to use words and phrases which imply an ethical or moral standard of conduct, yet when it is called upon to decide the question of the guilt or innocence of any person charged with a crime, it applies a purely external standard of conduct to determine it. ' ' In regard to. the acts which the law desig nates as crimes and for the doing of which it inflicts punishment, the standard or rule of conduct which it prescribes is that every man shall refrain from doing anything which, in