« PreviousContinue »
German troops, or shall cause prejudice by perfidy, will be brought before a Council of War. Whoever shall act as a spy to the French troops or shall lodge or give them assistance, whoever shall show the road to the French troops voluntarily, whoever shall kill or wound the German troops or the persons belonging to their suite, whoever shall destroy the canals, railways or telegraph wires, whoever shall burn munitions and provisions of war, and lastly, whoever shall take up arms against the German troops, will be punshed by death. It is also declared that (1) all houses in which or from out of which, any one commits acts of hostilities towards the German troops will be used as barracks; (2) not more than ten persons shall be allowed to assemble in the streets or public houses; (3) the inhabitants must deliver up all arms by 4 o'clock on Monday, October 31, at the Palais Rue de la Princesse ; (4) all windows are to be lighted up during the night in case of alarm.” The foregoing proclamation may be said to deal with war treason, but as it has a certain affinity with Lord Roberts' proclamations of 1900, which are classed by the War Office as reprisals, it is quoted as evidence that the theory of reprisals and the theory of war crimes overlap. In any case, however, it is clear that the threat of reprisals is more likely to be successful than the reprisals themselves, that in most cases reprisals where carried out are liable to be denounced as methods of barbarism, and are, therefore, likely to divert sympathy to the sufferers. For this reason, if for no other, great care and forethought should be given to all the aspects of the case, before a threat of reprisals is formulated. For if the threat is delivered it becomes almost impossible to avoid its execution, with all the discreditable consequences.
THE WHOLE question of reprisals is considered by the writer as most difficult. There can be no more glaring example of barbarism than the sack of Magdeburg by Tilly's troops in the Thirty Years' War; but Gustavus Adolphus persistently refused to sanction reprisals, and history holds that he was right. Possibly the rules proposed by Professor Holland might form a useful basis for future guidance. They are as follows:
“Reprisals must be exercised only subject to the following restrictions: (1) The offense in question must have been carefully inquired into. (2) Redress for the wrong or punishment of the real offenders must be unattainable. (3) The reprisals must be authorized, unless under very special circumstances, by the Commander-in-chief. (4) They must not be disproportionate to the offense, and must in no case be of a barbarous character.” These rules in effect summarize the proposals put forward by the Russian Government at the Brussels Conference of 1874, Proposals which, unfortunately, were not adopted. As, however, the aim of reprisals is not vengeance, but prevention, Sir Graham Bower adds to the foregoing the following rule: “(5) A threat or warning must precede all reprisals, and the reprisals should only be carried out if the threat or warning is disregarded.” As the aim of all war is a lasting peace, so a reluctance to engage in reprisals, except under compulsion, is likely to promote that aim and to preserve the honor of the nation in the eyes of impartial or neutral or humane persons.
A HISTORY OF CONTINENTAL CRIMINAL LAW. By CARL LUDWIG VON BAR, late
Professor of Law in the University of Gottingen, and others. Translated by THOMAS S. BELL, of the Los Angeles Bar, and others. With an Editorial Preface by JOHN H. WIGMORE, Professor of Law in Northwestern University, and Introductions by WILLIAM RENWICK RIDDELL, Judge of the High Court of Justice for Ontario, and by EDWIN R. KEEDY, Professor of Law in the University of Pennsylvania Little, Brown & Co., Boston. 1916.
We have here another weighty and interesting volume in the Continental Legal History Series published under the auspices of the Association of American Law Schools under the supervision of an Editorial Committee headed by Judge John H. Wigmore, who contributes a scholarly preface to the present work.
Like other volumes in the present series, this one is built up around a central treatise, namely the late Professor von Bar's "Geschichte des Deutschen Strafrechts und der Strafrechtstheorien.” Much additional matter has been added, however, from the works by von Hamel, Stemann, Pfenninger, von Stein, Glasson, and Garraud, while a small amount of original or new material in the text and notes has been contributed by Dr. Ladislas von Thot, a learned Hungarian jurist. The result as a whole is exceedingly creditable to American legal editorial scholarship as this volume, while falling short of an ideal history of Criminal law, furnishes lawyers and students of legal history with a comprehensive and scholarly survey of the origin and development of criminal law in continental European states up to the present time. If read in conjunction with the volumes on Continental Criminal Procedure (Vol. V), and on the History of Italian Law, largely a criminal law survey, by Calisse (Vol. VIII), one cannot fail to get an excellent knowledge of the history of European criminal law and of its procedure. It is safe to say, therefore, that these volumes are a distinct contribution to legal historical literature in Eng. lish and, on account of their composite character, careful editing, and up to date annotations, are almost more valuable than the original treatises in various foreign languages.
Members of the bar in America and England should take advantage of the opportunities afforded them by this series and by the Modern Crim, inal Science Series to acquaint themselves with the history, principles, sociology, and general background of modern law.
CRIMINALITY AND ECONOMIC CONDITIONS. By WILLIAM ADRIAN BONGER, of
Amsterdam, Netherlands. Translated by HENRY P. HORTON, of Ithica, N. Y. With an Editorial Preface by EDWARD LINDSEY, of the Warren, Pa., Bar, and with an Introduction by FRANK H, NORCROSS, Justice of the Supreme Court of Nevada, Vice-President of the American Institute of Criminal Law and Criminology. Little, Brown & Co., Boston. 1916.
The Committee of the American Institute of Criminal Law and Criminology could hardly have chosen a more interesting, stimulating, and informative work for translation in the Modern Criminal Science Series than this by the brilliant and industrious young Dutch scholar. Dr. Bon. ger has earned a reputation among sociologists of today as a careful student of social problems. His publications are numerous and are marked by a spirit of research and a use of statistical information which back up his strongly socialistic theories and interpretations.
The present work is divided into two parts of different type and origin. Part 1 is entitled "A Critical Exposition of the Literature dealing with the Relation between Criminality and Economic Conditions.” Copious extracts from writers dealing with crime and criminal science from various viewpoints are given and appended to these are critical comments by Dr. Bonger. Thus part 1 is virtually a source book of modern criminology and one gets quite a comprehensive viewpoint by reading these eight interesting chapters. The literature of criminal science in Europe, England, and America is covered in a general way, no less than fifty-eight writers being drawn upon for illustrative extracts. The emphasis is, of course, on the economic side of crime, but the extracts cover a broad range and deal with statisticians, environmentalists, bio-socialists, spiritualists, and writers of the Italian school such as Lombroso, Garofalo, and Ferri.
Much more important than the first part is Part II, which takes up and discusses fully the present economic system in relation to criminality. The strongly Marxian views of Dr. Bonger appear constantly throughout this part of the volume and the remedies along lines of economic read. justment which he suggests and favors will appear doctrinaire and impractical to most Americans. Nevertheless his analysis and description of various classes of crime in relation to economic conditions and environment is so searching, his statistics and pieces justicatif so convincing, and his reasoning so clear and cogent that the book makes a deep impression. He is a sturdy enemy and critic of capitalism, militarism, and alcoholism while showing strong leanings toward socialism of enlightened character. Particularly interesting are Dr. Bonger's chapters on the relation of the sexes and of the family and on economic and sexual crimes. Many of the other chapters are brief and summary merely setting the author's viewpoint. Dr. Bonger places himself in strong oppositoin to the writers who regard crime as largely a disease due to heredity and he makes an effort to show that crime and degeneracy are largely the result of social and economic environment and are not necessarily heritable. His main conclusion is "that economic conditions occupy a much more important place in the etiology of crime than most authors have given them." From this he goes on to attack in detail the present system and decides “that where crime is the consequence of economic and social conditions we can combat it by changing those conditions.” The last pages of the book present an optimistic and glowing, but by no means convincing, picture of how crime would be eliminated by a fundamental reorganization of gov. ernment, society, and industry along lines of Marxian socialism, the author concluding that "in such a society there can be no question of crime properly so called.” This is a rather sweeping assertion.
The volume is well equipped with prefaces and introductions of brief character and the work of translation from the French original has been admirably done by the Rev. Henry P. Horton of Ithica, N. Y., whose sociological interests have made him a sympathetic and understanding translator, something to be much desired in work of this character. An exceedingly thorough and comprehensive bibliography and a fairly good index will be found at the close of the volume.
VICARIOUS LIABILITY. The History of the Liability of Employers, Princi
pals, Partners, Associations and Trade Union Members, with Chapters on the Laws of Scotland and Foreign States. By T. BATY, D. C. L., LL. D. Clarendon Press, Oxford. 1916.
This is a type of scholarly legal historical essay, fortified by references and citations of cases, for the production of which English lawyers are justly famous. The author of this volume, Dr. T. Baty, is already known for his contributions along lines of law and political science and has added to his reputation by this timely and interesting discussion of vicarious liability. The title suggests the nature of the contents of this small volume which deals historically and contemporaneously with the principles and application of the law of the liability of masters, corpo. rations and other employers and principals for the wrongdoings or torts committed by individual servitors or members of associations or societies.
A brief, discriminating preface points out that the present day discussion of the question of the liability of Trade Unions is hampered by the constant and unwarranted implication that liability on the part of prin. cipals and employers for the wrongful acts of those who are employed by them is a sort of natural law.” That such an assumption is wrong historically and legally is Mr. Baty's thesis which he proceeds to develop and support in ten interesting chapters. The discussion begins with the history of vicarious liability in England for which the author finds no solid legal foundation before the time of Lord Justice Holt at the close of the 17th and beginning of the 18th centuries whose decision in the famous case of Hernv. Nichols was the cause of subsequent misinterpretation and poor law in regard to the liability of principals for the actions of agents. So fast did bad law develop that by 1765 Blackstone wrote "if a servant by his negligence does any damage to a stranger the master shall answer for his neglect” as if, observes Dr. Baty, "that had been the glory of English law per saecula saeculorum." The author's judgment is that "the liability in tort constitutes a gigantic inverted pyramid whose apex is nothing but nisi prius dicta."
Dr. Baty's iconoclastic viewpoint as to the law of vicarious liability in modern times as a false and mushroom growth is skillfully developed in chapters on the liability for agents and partners; for coadjutors, managers of associations, and underservants; as well as for servants proper. There are also chapters on corporations and quasi-corporations as mas. ters; deliberate trespass of servant; fraud of servant and liability to bailors; scope of employment; and justification in morals. One supplemen