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The Green Bag

used to expecting from Mr. James J. Hill. that struck me as more indicative of the growing enlightenment of the business world than this report of Mr. Vail's. it is a document such as a dozen years 0 no American in his posi tion, no ‘captain of industry‘ or ‘Trust magnate,' would or could have penned." Railway Rates. “The Railroad Rate Deci sion." By J. Shirley Eaton. North American Review, v. 193, p. 694 (May). An able analysis of the decision of the inter state Commerce Commission in the Western Traffic Association and Eastern Classiﬁcation cases. “The rate case was nominally an issue between two groups of railroads, on the one hand, and

opposing shi pers on the other hand, but the

Persons." Editorial. By E. R. Kleedy]. 5 Illinois Law Review 578 (Apr.). “The theory on which the bill [House Bill 49, Illinois] is based is questionable. The view of the Italian criminologists that criminal traits are transmissible by heredity is strongly combated in many quarters, notably in England. The enactment of House Bill 49 would embody in a proposition of law this theory that criminality l5 inheritable. This is a proceeding the physicians might reasonably be expected to oppose. They criticize with great vehemence the legal test of insanity, which test, when it arose seventy years ago, was but the crystalization of the then prevailing medical theory of insanity." Tort.

"The Rule in Rylands v. Fletcher."

By Francis H. Bohlen.

59

Univ. of Pa. Law

stability of Xmerican railroad credit, the char

acter of public investment, the ﬂexibility of capital as an agent of economic expansion, the nature and tency of com tition to evolve the economic e cients, have al received an impress which for good or for bad will greatly inﬂuence our affairs for a long time to come." See Postal Service, Public Service Corpora tions.

Review 423 (Apr.). The third and final installment of a paper marked by an unusual capacity for acute analysis and clear statement. “An entirely new system of jurisprudence might well contain, as a fundamental principle, the conception that liability to repair harm done is only to be imposed as a species of punishment for misconduct, moral or social.

Recall of Judges. “The Recall of Judges." By Albert Fink of the San Francisco and Alaska bar.

North American Review, v. 193, p. 672

(May) “It is one of the peculiar functions of a judge in a state governed by laws and not by men to protect the minority or the individual, as the case may be. Though chosen by the majority or by some person or persons to whom the power of selection has been delegated, they cease, upon induction into oﬂice, to become the mere ser vants at will of those by whom they were selected,

nay, they never were their servants. The right of selection in no sense carries with it such right of domination as was attempted by Charles I. Upon selection the judges become the servants of the whole people, not of the ma'ority or class by whom they may have been c osen. They represent the minority, the weakest class in society: the humblest individual, just as much as the dominant political party, the laboring or moneyed classes, or the most potent members of the community. During their term of oﬂice they are justly answerable to no one." Social Justice. “The Spencerian Formula of justice." By H. S. Shelton. 21 International Journal of Ethics 298 (Apr.). "Powerful as were his reasonings, and his advocacy of the cause of liberty, yet the eccen tricities of his special conclusions, and the way in which these appeared to be bound u with his main principles, render it unlikely t at his arguments wou d carry conviction to those not previously inclined to favor his school of thought. So far as this part of his work is concerned, he

appears to have left no successors."

But this was

not the original conception of the English law — on the contrary, it was an innovation, though an innovation now some four hundred years old. it came in gradually as a defense rebutting the liability attacking under the older conception that he who breaks, must, because he breaks,

pay. The defendant was allowed to escape a liability, under which he prima facie lay, because it was considered unjust to transfer the loss from one innocent person to another equally innocent. The absence of fault, there fore, originally served as a defense which re lieved an innocent cause of harm from liability to make good the loss he had occasioned. And while in new actions fault was regarded as essen tial to recovery, it was still required because it was thought more just to leave the log where it had fallen than to single out the innocent defendant as the victim simply because he was the author of the loss. The fact that the plain tiﬁ's harm is caused by some one's fault is no good reason why one innocent thereof should

pay for it. Whether the fault is important be cause liability is only imposed as a punishment, or because innocence is a defense to the prima facie liability of the author of harm, because of the injustice of the transferring the burden from the shoulders of one innocent person to those of another equally uiltless —- the fault of one other than the de endant can logically make no difference to the plaintiff's right to recover. It is certainly unjust to punish one man for the fault of another, especially for that of one for whose acts he is not legally responsible, nor should the guilt of a stran er invalidate his defense of innocence when 0 ered in bar of the liability

prima facie answering from his authorship of the harm. That the work is ill done may show that the one injured thereby should recover against the person in fault; it does not show that

Sterilization of Criminals. “Sterilization of Habitual Criminals and Feeble-Minded

he should recover against one innocent of all misconduct.