Page:The Green Bag (1889–1914), Volume 24.pdf/569

 528

The Green Bag

ministic position. His attitude is per haps to be explained by his curious conception of retribution. "If my crime was a free one, there is no warrant for punishing either for having done it or in order to prevent its recurrence." For from that standpoint I cannot have been the cause of the crime, it is not my act. This is futile chop-logic, for under the classic retributive theory the very reason for punishment was found in the freedom of the agent to determine his own conduct, and the freedom and retribution theories are inextricably united, just as the deter ministic and penal tutelage theories, on the other hand, are inseparable. Deterrent punishment is administered to a child not because he is without power to shape his future conduct but because he has that power. Dr. McConnell makes the mistake of basing deterrent punishment not on that residual concept of freedom which determinism does not take up, but on the notion of a determinism with which freedom is incompatible. He thus offers a strange mingling of the older and newer theories, rather than a logi cal application of determinism. The result is that he is led unconsciously, somewhat in the manner of Saleilles, to exaggerate the moral responsibility of the criminal, and to defend a retri butive system as opposed to a system based wholly on the motive of social protection. Though the author professes to make social utility supreme, he does not really succeed in doing so. Is the punish ment to be measured and determined by the principle of social utility, or to express the same thought differently, by the principle of efficacious action to achieve the correction or reform of the criminal, or is it to be governed by some principle antecedent to that of

social utility? From the concluding pages it is clear that it is to be governed not by efficacy, but by the demand of the social will. The will of society, we are told, "is the ultimate source of all social authority." "An act is a crime in so far as it contravenes the will of society." Does then, the will of society govern social utility, or is it governed by social utility, or are the two so closely correlated that we cannot say that either is prior to the other? There can be no question as to Dr. McConnell's position, for with him the social will is clearly supreme. When a purely pragmatistic position is assumed, it is of course easy enough to justify retri butive punishment or any other insti tution on which the will of society in sists, whether it is actually essential to the conservation of the social wellbeing or not. MR. CHAMBERLAYNE'S THIRD VOLUME A Treatise of the Modern Law of Evidence. V. 3. Reasoning by Witnesses. By Charles Frederic Chamberlayne, Esq., of the Boston and New York bars, American editor of Best's Principles of the Law of Evidence, American editor of the Inter national Edition of Best on Evidence. American editor of Taylor on Evidence. Matthew Bender & Co., Albany N. Y. Pp. xxxiii, 1278+93 (index). ($28 for the four volumes.)

THE third volume of Mr. Chamberlayne's work on evidence, en titled "Reasoning by Wittnesses," will be of great value to the legal profession. Though an integral part of the entire work and best to be understood in con nection with it, this volume is neverthe less in itself a complete treatise on this important topic. A logical treatment of the subject is insured by a thorough going analysis at the outset of the mental processes of witnesses, yielding the important dis tinction between intuition and deduc tion. These principles are then applied