Page:The Green Bag (1889–1914), Volume 19.pdf/582

 EDITORIAL DEPARTMENT merce," is sufficient to cause a different rule to be applied to it to that applied to private property on land, does not seem to us sound; as a carload of goods shipped by rail from one country to another would be as much a part of " international commerce" as the same goods shipped by sea, yet at present a different rule applies to the former to that applied to the latter. Equally un sound is his argument that " there can be little doubt that the abandonment of mari time capture of enemy's property would lead to an extension or greater application of the right to blockade, and this involves a greater restriction upon neutral as well as upon belligerent trade." The same inter national public opinion which would force the abolition of the old rule because of its harshness would not tolerate the substitution of a harsher one in its place. He summarizes the " modifications required in the existing practice of maritime capture " as follows: (i) The abolition of prize money. (2) The acceptance by the state of its obligation to recoup its own citizens for their losses by sea. (3) The relaxation of the old laws of enemy domicil by the English and Ameri can courts, and the general adoption of the French standpoint, not on logical reasons, but from comity to neutrals. (4) The accept ance by the State of its obligations to com pensate neutral owners, when innocent cargo is destroyed on an unarmed enemy vessel; (5) The exemption of mail-steamers from capture; and, (6) most important of all the classification of contraband by an inter national body." These suggestions are very excellent, if the old rule is to be maintained. On the whole, the book is very well ana lyzed, well written, and constitutes a wellperformed piece of work. Edwin Maxey. JURISDICTION (Scotland). "Reconven tion as a Ground of Jurisdiction," by George Duncan, July Juridical Review (V. xix, p. 119). A discussion of the position in Scotch jurisprudence of the Civil Law doc trine of reconvention. JURISPRUDENCE. "Responsibility in Law," by Rankine Wilson, in the August Law Magazine and Review (V. xxxii, p. 440), concludes an article begun in Vol. xxxi. The

547

conditions of criminal responsibility are dis cussed in this last instalment. JURISPRUDENCE. "The Origin of Punishment," by G. D. Valentine. July Juridical Review (V. xix, p. 152). The author sums up his position as follows: "... whether as regards clansmen or strangers the original purpose of punishment was not so much the satisfaction of feelings of resentment (the explanation usually given) as an attempt to make the criminal harmless. The action of the clan against strangers comes near vengeance, but may be distin guished from it by the important qualifica tion that its object was not the assertion of clan superiority regarded as a good in itself, not slaying for the joy of it, but self-assertion for the purpose of gaining the respect, and with it the forbearance of neighbors. It was this quality that made it possible for that self-assertion to be limited in its scope. Mere vengeance is never glutted with less than the complete destruction of the enemy. It is impossible for it to enter into composi tions. It can learn no law. Therefore it is not a fruitful principle from which equity can be derived. But a feud entered into with the view of rendering an offender power less to repeat his trespass is regulated by self-interest and by the universal principle of " least action." The clan will go to no risk and trouble further than is necessary to gain the end in view. In such circum stances composition naturally comes to dis place violence. "In dealing with offences within the clan vengeance seems never to have been promi nent. There punishment, as rendering the criminal harmless, soon passes into punish ment as the elimination of a degenerating element. First, the man is cast out, then by various processes the wickedness is cast out of the man. There may have been a period when this conception of punishment was the dominant one — the period when the clan organization was beginning to sink into the background before central authority. From this source the idea of the "king's peace" was readily evolved. In the popular mind the preservation of public peace seems to be the ruling explanation of punishment to-day." JURISPRUDENCE. " Possession and Own ership, II," by Albert S. Barnes in the July Law Quarterly Review (V. xxiii, p. 314) concludes the careful analysis, begun in the April number of the ideas represented by the significant words of the title. The author takes up in succession the modification by early common law of the idea that taking gives the right of possession and ownership