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Congress, the Rivista di Discipline Carcerarie for some time past proved itself an almost indispensable help. It may, indeed, in regard to that portion which is printed in French, and entitled, “ Bulletin International pour l'étude de la Réforme Pénitentiaire,” be called the official organ of the International Committee. In that part of the Rivista will be found the official communications of the Committee, Reports of their Meetings at Brussels and Bruchsal, and lately in Paris, and the entire series of official reports on the questions submitted for the consideration of the Stockholm Congress. Besides this, in the Italian portion—the Rivista proper—will be found a complete collection of the essays written on the various questions by Italian Penalists, selected from a wide range of professors, councillors, or advocates of the Court of Cassation or Appeal, and prison officials. In addition to these features of special utility at the present moment, Signor Beltrani-Scalia provides his readers with a constant supply of information on matters of interest in regard to Penal Law and Prison Reform, such as the debates on the Prisons Bill in our own Parliament, the discussions in the Austro-Hungarian Chambers on the Draft Penal Code for the Kingdom of Hungary, and in the French and Italian Chambers on the latest Prison Legislation in France, and on the oft-mooted Draft Penal Code of the Kingdom of Italy. This, of course, is over and above the printing of official documents, laws, decrees, and ordinances of the kingdom on matters connected with Criminal Law and Prison Discipline, and the publication, from time to time, of original articles bearing upon the Theory or Practice of the general subject-matter of the Review. We draw attention to the varied contents of the “Rivista di Discipline Carcerarie all the more gladly that we have long wished to express our opinion of its value, and the present moment seems to furnish a most opportune occasion. Herr Pfenninger, whose position as a Privat-Docent in the University of Zurich, naturally inclines him to a mixture of the Philosophical and Practical in his views of Law is, as we have said, a strong partisan of Grotius and his school. With Grotius, as he justly remarks, Humanity was no mere phrase or scientific hypothesis, but the living soul of his doctrine. And he regarded punishment as the sanction of wrong-doing, “ malum passionis quod infligitur ob malum actionis.” It has been said that in regard to Penal Law the present age constitutes the Philosophical period, the two previous stages through which this branch of Law has passed having been respectively the Barbarian and the Theological.
The right of vengeance is first of all taken from the individual and assumed by the State, and is exercised with a frequently excessive and needless severity. In the Theological period new crimes make their appearance on the Statute Book, under clerical influence, and these are also often very severely punished. In the Philosophical period the dominant idea is the protection of Society. In this sense both Herr Pfenninger and M. Lefort may be called Philosophical Jurists, but they are none the less also practical. Herr Pfenninger would idealise the State, and bring it into prominence as against the individual. M. Lefort lays down, with Beccaria, the distinction between the "forum internum” of the conscience and morality, and what we may, to keep up the simile, call the “forum externum " of public law, and shows that it is not for every act contrary to morality in the abstract that man falls under the sanctions of repressive legislation. For Herr Pfenninger, the idea of law, the “Rechtsidee,” is in opposition to the Law of Might, therein, as in other points, differing from what we can collect as the view of Ihering's school. And Pfenninger explicitly declares that he sees an immense progress in that which is to Ihering an extinction of the “Rechtsgefühl,” or conception of Law, viz.: the exclusion of Penal Law from the purview of the Civil Law. To a considerable extent, therefore, Pfenninger may, we think, be said to stand on the ground of the older jurists, to whom he turns with a satisfaction none the less real from his acquaintance with the views of the most “ advanced” modern writers and thinkers on the Philosophy of Law. M. Lefort, having a more distinctively practical object before him, in the composition of an Elementary Course of Criminal Law, intended as a commentary for the use of students, and necessarily taking the French Penal Code as his basis, deals less fully with theory, and more fully with practice, than is the case with Herr Pfenninger. And it will readily be understood by those who remember M. Lefort's previous works, on the “Contrat de Location Perpétuelle," and "Intempérance et Misère," which have been noticed in this Review, that in his “ Cours de Droit Criminel" great attention is paid to the historical and economical aspects of the branch of law with which the present work deals. From the point of view, indeed, chosen by M. Lefort, it was obviously necessary that he should deal not simply with Criminal Law in the abstract, with the idea of punishment, of absolute justice, and so forth, but also with Penal Law in its widest
sense, and in its international as well as its national aspects. And accordingly we find Exterritoriality among the earliest of the questions of International Law which are discussed in his book. We observe that on this point M. Lefort's views are in accordance with the general tenor of our law, and with the doctrine which has been laid down in these pages by Sir Travers Twiss rather than with those of the many foreign jurists who would extend exterritoriality to the merchant ship. With regard to the present state of French Criminal Law, M. Lefort is far from being blind to the defects in it, and he advocates reforms which cannot fail to meet with the approval of his English readers. “The simplification of formalities, the curtailment of a too lengthy procedure, the assurance of better protection to the accused, greater respect for individual liberty, the mitigation of some punishments, the abolition or modification of punishments out of harmony with our present civilisation," such are among the most salient features of M. Lefort's earnest pleading for that “amelioration and moral education of its members which it is the interest of society to make the basis of all legislation for the repression of crime.” It would be impossible not to sympathise with M. Lefort in the objects which he thus sets forth as the aim of the Penal Law of the future.
The Draft Penal Code for the Kingdom of the Netherlands and the thoughtful discussion of its principal provisions by the eminent Dutch Penalist, M. Pols, of Utrecht, deserve fuller consideration than we are at present able to give them. It is probable that to an English eye the Dutch project would bear a somewhat too idealistic aspect, little as we are apt to connect the Netherlands with idealism. The committee which was charged with the task of drafting the new Penal Code appears to have desired to lay down fresh lines, instead of remaining within the groove of the French Code of 1810, which forms the basis of the existing Dutch Penal Law, and it will accordingly be found that the result of their labours is a novelty rather than a reform. The Committee comprised some of the best Dutch Penalists, including M. Pols himself, M. Modderman, and M. de Pinto, who was appointed Secretary, and to whose kindness we are indebted for the Code and the Pamphlet of M. Pols. When we mention that the Committee was appointed in 1870, and that the Code elaborated by them was duly published in 1875, and that it has not yet (so far as we are aware) passed into law, having been under consideration, for a lengthened period, by the Section for Justice of the Council of State before
being submitted to the Chambers, the course adopted in our own country, with regard to the recent Indictable Offences Bill, will not seem to partake of the character of an unnecessary delay. The Italian Draft Penal Code has likewise been subjected to lengthy Parliamentary and extra-Parliamentary discussion, and, in fact, owing to ministerial changes, has been to a great extent re-cast. If this be the case in countries already possessing Codes, it is not to be expected that a less careful consideration of the details of our proposed Codification of the Criminal Law should be adequate to our needs. The appointment of such a commission as that which includes Lord Blackburn, Mr. Justice Lush, and Sir James (now Mr. Justice) Stephen, is itself an earnest of the care and the excellence with which the work of Codification will be carried out. Whether it will fall within the scope of our Commissioners to take into consideration the reforms in Penal Law, which have been so numerous on the Continent of late years, we cannot, of course, forecast; but if it should be so, we might fairly suggest the Dutch Draft Code, as one of the most strikingly original works of the day in Penal Law. The Italian Government, which is well known for the interest it has shown in Criminal Law and Prison Reform, has published a splendid volume of Prison Statistics down to 1875, which we have received from the Inspector-General of Prisons, Commendatore Beltrani Scalia. The work is a remarkable one in many respects, and not less so as a specimen of convict labour in the “ Bagno," or Convict Prison of Palermo. It contains, besides a mass of valuable statistics, interesting accounts, illustrated by plans and engravings, of the Italian Penal Colony on the islands of Pianosa and Montecristo. The Director-General of the Administration of the Prisons, Sigr. Pavolini, who apologises in his letter to the Minister of the Interior for any crudeness in the printing on account of the circumstances of its production, may we think fairly congratulate himself on the success of his first attempt in utilising convict labour for this branch of State service. A very important point connected with Prison Reform, but unquestionably one surrounded with great difficulties, is the choice and training of warders and guards. It has been attempted to solve this problem in Italy by the establishment of a central training school in Rome, of which Signor Beltrani Scalia gives an interesting account in the Pamphlet which we cite, and which has been translated into French, so as to render it more widely accessible to readers. While not disguising the very great
difficulties attendant upon the experiment, the author is yet of opinion, on the whole, that some such organization as that which is under his inspection in Rome will be found to work the desired and necessary reforms in this branch of the public service.
Henrici de Bracton de Legibus et Consuetudinibus Anglia Libri Quinque. Edited by Sir TRAVERS Twiss, Q.C., D.C.L. (Published under the direction of the Master of the Rolls.) Longmans. 1878.
We have grown so accustomed to the invaluable series of works brought out by authority of the Lords Commissioners of the Treasury, and under the direction of the Master of the Rolls, that it is hard for us to realise the condition of the student of our Laws, Constitution, and History, when as yet these helps to knowledge were not. In the field of Mediaval Jurisprudence we were still far behind our Continental neighbours when the great task of preparing a new edition of Bracton's Classical Treatise was entrusted to Sir Travers Twiss. That a work of such magnitude and importance, demanded in our own pages more than six years ago, should have been placed in the hands of one who has contributed so much to contemporary Juridical Literature in this Review, is a fact of which we gladly take note. The choice of such an editor is an additional proof of the care with which the general supervision of the Rolls series of publications is carried out by the responsible authorities. For sympathetic appreciation of the position of his author as one of our greatest fountains of Law in the Middle Ages, and for depth of erudition and extensiveness of reading in Mediæval Law, it would not have been possible to have chosen a better editor. That Bracton was, in the strictly scientific sense of the term, “ Doctor Juris Utriusque,” is patent to any student of his text. What position the Civil and Canon Law held in his teaching is a question on which we think, so far as the matter before us at present enables us to judge, the opinion formed by Sir Travers Twiss will ultimately be generally adopted. Bracton's Scientific Jurisprudence is undoubtedly Roman. We do not see that it could well have been otherwise at any time, least of all in his day, when an English Prince had been elected, at least by a party, Emperor of the Romans, and when the tradition of “ Roma caput mundi” was kept before the world alike by the Holy Roman Emperor and the Holy Roman