on several occasions witnessed this high court listening to a petty criminal whose only objection to his conviction for larceny or fraud was that his sentence was a year and a half, which he thought too much and that it should be reduced to a year. And he frequently got what he asked for, as the Reports of the court will show. Here at least is a suggestion which meets the above criticism. Such a power probably exists in most of our Appellate Courts, but that it is not exercised is not the fault of the trial Judge, who has a narrower range than would have the Appellate Court in the consideration of appeals on the ground of excessive punishments.

ANOTHER LAW journal-this time an English one-asked by a lay newspaper what is the shortest judicial summing-up on record, thinks that the palm should be awarded to Judge Rentoul, one of the present Judges of the London Criminal Court. "Gentlemen of the jury," said he, "you have heard Mr. X. say everything that there is to be said for the prisoner-which amounts to exactly nothing. Consider your verdict." The second prize it thinks should be given to a certain Judge in a case concerning loss of property on a railroad. "Gentlemen, in this case the plaintiff claims a hundred pounds for goods lost on the defendants' line. Railways are always losing people's things. They lost a bag of mine last week. Consider your verdict." Very good for England. But the first prize, as THE DOCKET several years ago pointed out, belongs to this side of the water and to a contributor to this very number of the REVIEW, and an old friend of THE DOCKET, Mr. Justice Riddell, of the High Court of Ontario. The lawyers on both sides had finished their lengthy arguments when the Judge seeing that the only question in the case was the measure of damages charged the Jury in but three words: "Gentlemen, how much?"

THE NEXT of the great Jurists of the World (see 49 Am. L. Rev. 304) is Emerich de Vattel-the Swiss Jurist and author of the great treatise, Le Droit des Gens-The Law of Nations. He was a son of a Protestant minister and was born in Neufchatel in 1714. He early showed a taste for philosophic subjects, which, in common with general scholarship, he pursued at the University of Basle. He passed on to the University of Geneva, where he finally specialized on moral philosophy. He became an ardent student of Leibnitz and Wolff and published against Crousaz a luminous summary and defense of the Leibnitz position. This he dedicated to King Frederic II, and in 1742 he followed his book to Berlin in order to offer his services to the king. He was rebuffed by the monarch and passed on to Dresden, where his great abilities were at once recognized by the Prime Minister of Saxony, Comte de Bruhl. The future jurist was placed in the diplomatic service, where his unique knowledge of the law of nations and of the his

tory of treaties enabled him to perform services of considerable moment. It was, however, possible for him to spend some years at Neufchatel, but in 1746 he returned to Dresden, when the king, Augustus III, appointed him adviser of the embassy and sent him the next year to Berne as minister plenipotentiary. He had long been composing his famous treatise, Le Droit des Gens, and it was at Berne, amidst pleasing and congenial diplomatic duties, that he finished his work. He also during this period wrote widely on philosophy and literature, closely investigated the whole theory of natural rights and, as a relaxation, published some poems.

IN 1758 he returned to Dresden, was made a privy councillor, and became the chief adviser of the government on foreign affairs. During the same year Le Droit des Gens was printed at Neufchatel and issued with the name London on the title-page. A second edition appeared in the same year bearing the impress of Leyden. In 1762 he issued his last work, his "Observations." It was not until late in life that he married, in 1764, at Dresden, Mademoiselle Marianne de Chesne, a member of a noble French family which had settled in Saxony. A son was born in 1765, who died in the year 1827. The strain of his official work proved very great, and in 1766 he broke down and retired for rest to his native district, Neufchatel. In the autumn, with characteristic energy, he returned to Dresden and resumed his duties. In the following year he broke down again and once more sought relief at Neufchatel. But it was too late, and he died on December 28, 1767, in his sixty-fourth year.

IT IS NECESSARY to notice first his "Observations," as this remarkable volume contains most of the material on which Les Droits des Gens was based. The first part of the book concludes with a discussion of the measure of damages caused by a wrongful act. There must be a certain proportion between the punishment and the crime. This proportion must be maintained even if the punishment will not prevent the wrongdoing. If capital punishment only will prevent apple-stealing from an orchard, the loss must be tolerated. A man has a duty to preserve and protect, not only himself, but others, and if the loss in question is of less importance to a man's perfection than kindly conduct, then the loss must be suffered. If, however, it is found that certain offenses become common, it may be necessary to inflict penalties out of proportion to the offenses in order to preserve society. The second part deals with certain elementary propositions. Vattel discusses the difference in a primitive community between the gifts of nature and the fruits of industry. The first are held in common by the whole community, but each man has "un droit de preference sur les fruits de son industrie et de son travail." The result, in the end, is the

dissolution of primitive conditions. A man cultivates a piece of land; discovers that he has a special right to the fruits of the field, and appropriates them; insensibly he acquires a right to the field itself, and his successors continue to hold it. In this demonstration we see clearly enough the peculiar vice of eighteenth-century speculation. Had Vattel not been content to reason from the necessarily sophisticated outlook of his own age and class, but had turned to the examination of the village communities within his reach, he would have seen that, in fact, his theory was absolutely untrue; that the appropriation of the fruits of the soil had gone on for untold centuries without individual appropriation of the soil. Vattel attacks Wolff's theory of the origin of property and ownership as a result of the exercise of natural liberty and apparent needs, but his own generalization is far less convincing. It is as follows: As the race multiplied, the simple products of the earth ceased to be sufficient; industry and art became necessary; foreseeing men began to provide against the future, and to cultivate fields instead of roaming at large. A general right to everything existed, so these men could not be restrained from taking a particular portion of land and renouncing the rest. They thereupon acquired the right to the produce of this soil. Others followed their example: "voila la propriete et le domaine etablis."

THE THIRD PART discusses some interesting questions of contract. and lays down two propositions of natural law: first, that no one can be presumed to have abandoned property; and, secondly, that a holder in good faith must be protected. The Fourth Part continues the discussion of contracts, raising questions of curious interest, such as: Can a man accept an offer by silence? Must a seller point out the patent faults of his goods? In the latter case Vattel is apparently guided by the maxim caveat emptor. The discussion as to accidental injury to a workman is interesting. The employer is responsible, in the case of a hired workman, but not where the work is done by a contractor. The Fifth Part continues the discussion of special cases. Are lotteries allowable by the law of nature? Vattel declares that they are allowable. Again Vattel upholds in principle contracts of insurance made in good faith after the event. He agrees that it is illegal to agree to terminate a difference by a duel. He declares that a vendor of land can reserve a right of passage over it for the use of a neighbor. Problems of these various types are, of course, familiar to modern lawyers. In the Sixth Part, after a discussion of certain questions relating to land (such as the right to the surface) Vattel proceeds to discuss the law of necessity. He is surprisingly and admirably uncompromising as to the limits of lawful action in cases of necessity. He lays down the definite principle: "Qu'il ne nous est jamais permis

THE DOCKET.

de faire tort a quelqu'un, d'aller contre son droit bien etabli." There is a right to do all things that are not illegal in themselves. or contrary to the absolute right of another person. For instance, you may kill an aggressor because he began the evil and has not an exclusive right to preserve his own life. But you must not kill a defenseless person for the purposes of food in a case of desperate necessity, unless he voluntarily consents to sacrifice himself for others.

VATTEL IS FULL of interest when he turns from the doctrine of He sees here, at any human equality to the subject of women. rate, no equality, nor has he, despite his suavity, any illusions. He sees nothing fundamental in the doctrine of monogamy. He denies that the laws of nature forbid plurality of wives, though he admits the inexpediency, in most cases, of polygamy. In certain cases, however, he admits its use and possibly its necessity, while he thinks that concubinage can quite well be legalized. He claims that a man should be allowed a divorce for sterility, and asserts that marriage is never indissoluble in itself, but that natural law imposes on us the obligation never to break it without strong and just reasons, especially if there are children. His treatment of this subject is a striking instance of the luminous way in which he applies the principle of utilitarianism to human problems. It is from the utilitarian standpoint that he goes on to inquire as to the person to whom authority belongs in marriage. It is curious that a question which is creating such unpleasant interest in the present day should have been discussed with such gusto more than a century and a half ago. M. de Vattel would not have been popular with the army of women who are demanding the franchise today. His cold reasoning and his uncompromising views on the superiority of the male sex would have caused pain in many sensitive hearts. He asserts that men are "plus capables-des affaires importantes, plus fermes, plus forts et plus courageux. Il paroit donc que la nature a destine la femme a vivre sous la protection du mari, et cette protection donne deja une superiorite." Someone, says this jurist, even then trembling on the verge of matrimony, must lead, and that one must be the stronger. "Dans une pareille societe, dis-je celui qui est le plus capable ait le droit de decider, en cas de partage dans les sentimens." Then follows the touch of sentiment that is intended to sweeten the bitter draught. The husband must use his superiority "avec douceur, avec sagesse et avec equite, pour l'avantage commun." But he adds, to cure all, "outre l'amour et les soins que le mari lui doit, elle a ses droits, qu'il est oblige de respecter." Wolff's answer, of course, would have been that Vattel was begging the question, that he was constructing a universal argument from his own very imperfect knowl

edge of the past, when in fact the law of nature depends as much on the potentiality of women as on their actual achievement. You cannot, for instance, argue that there is a law of nature asserting that the negro is necessarily inferior to the Aryan. Wolff, in asserting the equality of the sexes, no doubt wrote as a theorist, while Vattel, in denying the equality, wrote as a practical utilitarian. But the weakness of the utilitarian position is that, while it necessarily depends on the appeal to experience, it invariably appeals to a very limited experience. If experience were exhaustive, the idealist and the utilitarian would be at one. But as it is, there can be no finality about the utilitarian position, which shifts in the direction of idealism as the ages pass and knowledge increases.

COMING now to his Law of Nations, and to his definitions: "Nations or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength." Such a society, we are told, is a moral person susceptible of obligations and rights. The law of nations is a science which teaches the rights subsisting between nations and the obligations corresponding to those rights. Nations are to be considered as so many free persons living together in the state of nature. The entire nation (whose common will is but the result of the united will of the citizens) remains subject to the laws of nature; consequently the law of nations is originally no other than the law of nature applied to nations. This application gives us the necessary law of nations called by Grotius "the international law of nations" and by other jurists "the natural law of nations." Every treaty and every custom which contravenes the injunctions or prohibitions of the necessary law of nations is unlawful and condemned by the law of conscience even if validated by the external law. A nation is obliged to live on the same terms with other nations as an individual man was obliged, before the establishment of nations, to live with other men. A man when he joins a nation is still bound by his duties to the rest of mankind. Men, adds Vattel, are naturally equal, and a perfect equality prevails in their rights and obligations, as equally proceeding from nature.

VATTEL TELLS us that each individual nation is bound to contribute everything in her power to the happiness and perfection of all other nations. But each nation should be left in the peaceable enjoyment of that liberty which she inherits from Nature. It follows. also from the natural equality of all men that nations, being composed of free persons living together in a state of nature, are naturally equal and inherit from Nature the same obligations and