페이지 이미지
PDF
ePub

IMPRISONMENT of CRIMINAL CORPORATIONS, The. Donald R. Richberg. Replying

to objections recently expressed against the theory, that, as a penalty for crimes of corporations, the state should take over the management of the corporate business for a certain time and reserve its profits wholly to the use of the state. 19

Green Bag 156. JURISDICTION AND PRACTICE UNDER THE ACT OF CONGRESS, APPROVED JUNE 11th,

1906, RELATING TO THE LIABILITY OF COMMON CARRIERS TO THEIR EM

PLOYEES, THE. John T. Harris. 12 Va. L. Reg. 866. LAW CHANGES PROPOSED. A. U. M. Suggesting federal divorce regulations within

the present powers of Congress. 68 Alb. L. J. 383. LEGAL ASPECTS OF THE SUBMARINE CABLE AND WIRELESS TELEGRAPH IN WAR.

Charles L. Nordon. Advocating an international rule to determine under what

circumstances cables may be cut. 32 L. Mag. & Rev. 166. LONG-HAUL LEGISLATION AND LAW-WRITING, BEING REFLECTIONS UPON A NEW

WORK ON RAILROAD RATE REGULATION. Charles E. Grinnell. Criticizing The Law of Railroad Rate Regulation, by Profs. J. H. Beale, Jr., and Bruce Wyman.

41 Am. L. Rev. 1. See 20 Harv. L. Rev. 340. MARRIAGE IN Roman Law. Émile Stocquart. 16 Yale L. J. 303. PRESUMPTIONS AS TO Possibility of Issue. Anon. Discussing under what cir.

cumstances the court will disregard the possibility of issue. 122 L. T. 405. TREATY-MAKING POWER AND THE RESERVED SovereigNTY OF THE STATES, THE.

Arthur K. Kuhn. Contending that where a state law and a treaty conflict the former must give way. 7 Colum. L. Rev. 174.

II. BOOK REVIEWS.

The Federal POWER OVER CARRIERS AND CORPORATIONS. By E. Parma

lee Prentice. New York: The Macmillan Company. 1907. pp. xi, 244.

8vo. In April, 1800, Thomas Jefferson wrote to Edward Livingston :

“ The House of Representatives sent us yesterday a bill to work Roosewell's copper mines in New Jersey. I do not know whether it is understood that the Legislature of Jersey was incompetent to do this, or merely that we have concurrent legislation under the sweeping clause. Congress are authorized to defend the nation. Ships are necessary to defense; copper is necessary for ships; mines necessary for copper; a company necessary to work mines ; and who can doubt this reasoning who ever played at .This is the House that Jack Built'?"

Plainly “men may construe things after their fashion clean from the purpose of the things themselves.”

To meet such perverted methods is the purpose of Mr. Prentice's book. The work now put forward in small compass is part of the results of twenty years of study devoted by a trained constitutional lawyer to the question, how far the Congress may constitutionally legislate in regard to corporations and common carriers of goods and persons. These questions belong to the domain of constitutional history. In following this development legal decisions tell but part of the story. The practice of states and of Congress must also be considered. Undisputed constructions are not often involved in litigations, and may appear only by study of constitutional practice, which for this reason is sometimes more important than decisions of the highest court. In this history the purpose of state and federal statutes and the contemporary significance of legal decisions have been exhaustively studied, and the results clearly, logically, and concisely stated. Much new material is made available, and important decisions are shown to have a meaning quite different from that which a modern reader would receive from the reports alone.

This is especially true of the great case of Gibbons v. Ogden. Marshall's broad references to a federal power to regulate commerce which was plenary and supreme, relate, Mr. Prentice says, only to coasting trade and the federal

revenue.

His conclusion is supported by a long and almost forgotten history of interstate transportation under state law. Federal power over commerce did not in the beginning extend over land transportation.

If, after reading this striking history, we turn again to Marshall's decision, his statement, that the sense of the nation as to the power of Congress within the states “is unequivocally manifested by the provisions made in the laws for transporting goods by land between Boston and Providence, between New York and Philadelphia, and between Philadelphia and Baltimore " (9 Wheat. 196), will be read and re-read with wholesome amazement. We should expect to find that there were then federal statutes which, in the present meaning of the phrase, could be said to regulate land transportation. There were no such statutes. The reference is to laws allowing a drawback of customs duties upon exportation of imported goods (e. g., Act of March 2, 1799, $ 79). This simple test shows how necessary, for any adequate comprehension of constitutional de velopment, is just such a careful study and analysis of constitutional history as Mr. Prentice has made.

Following the discussion of the constitutional convention, the case of Gibbons v. Ogden, and the early history defining federal and state powers, Mr. Prentice traces the course of subsequent history, the influence of slavery, of railroads, and the unforeseen and hardly traceable course of development by which land carriers have come within federal jurisdiction. This jurisdiction was not established at the time of the “Windom Report ” in 1874, and the argument of that report for extension of federal power over land transportation has not prevailed. The existing power comes from sources not then thought of, and is of a different nature, and subject to other restrictions, than would have been the case had the power been, as the report argued, within the original scope of the commerce clause.

The concluding chapters of the book contain a review of the Sherman Act with reference to the held for its operation as fixed by the constitutional interpretation of over a hundred years, together with a full discussion of the decisions, state and federal, applying the provisions of the statute.

In this connection Loewe v. Lawlor (148 Fed. Rep. 924, Dist. Conn.), reported since Mr. Prentice's book appeared, deserves attention. This case presents in a new aspect the rule of Gibbs v. McNeeley, which Mr. Prentice so strongly criticizes (pp. 198-204, 215). Hitherto the Supreme Court has placed the same construction upon the Sherman Act whether applied to combinations of capital or of laborers. Guilt or innocence of the charge of conspiracy has been determined by the character of the defendants' design and of the acts done for its accomplishment, not by the defendants' employment or walk in life. The Constitution, too, has been consistently interpreted. There has been no vary. ing interpretation by which federal jurisdiction is at times broadened to include some combinations and at times narrowed to exclude other combinations. In Gibbs v. McNeeley the Circuit Court of Appeals, Ninth Circuit, departed from previous interpretations by extending the operation of the Sherman Act to cover combinations of corporations which had formerly been within state control alone, a decision which has been followed in several cases. This extended jurisdiction the court in Loewe v. Lawlor now refuses to recognize in the case of labor unions. Constructions which lead to these contradictions are hardly less than the repeal of law. It is to be hoped that long-recognized principles may soon again prevail. Of this, perhaps, Pocahontas Coke Company v. Powhattan, etc., Co. (56 S. E. Rep. 264) and other cases of similar character, as well as Mr. Jenkins' able report on Woman and Child Labor (H. R. 7304, 59th Cong., 2nd Sess.), submitted on February 6, 1907, may perhaps give some sign.

The book is valuable for lawyers, — even for that much-tried brother, the “practicing ” lawyer. But it has a wider scope. It should be put — forced, if need be — into the hands of every Senator and Member of Congress.

R. W.

ACT OF STATE IN ENGLISH LAW. By W. Harrison Moore. London: John

Murray. 1906. pp. xi, 178. 8vo. When we learn on the first page of the introduction that “in modern times matter of state' connotes that the relation to which it applies is not one of law, or at any rate of municipal law,” we expect to be led through fields of theoretical discussion of abstract points, never to be brought out in courts of law. But some one hundred and sixty cases, many of them arising on questions of the annexation of territory and the peculiar nature of our states as independent sovereignties, have given the author a considerable framework whereon to build. A chapter is devoted to the difficult subject of the status of martial law in our system of jurisprudence. After considering the various theories and the law as presented by the cases, Mr. Moore suggests as a solution the view taken in Ex parte Marais ( 1 1902] A. C. 109) that “war exists not merely where the civil courts have been overthrown, but also wherever the circumstances of the war have made the military authority predominant in fact, so that all other organs are plainly subordinate to them.” It then remains for a civil court to determine whether war exists at a given place by making an inquiry into the actual exigencies of the military situation, but without considering any question of justifying by necessity the particular act complained of. Under this view civil society is not dissolved even temporarily, but a military organization is superimposed upon it. The question of how far the adoption by his sovereign of the act of an alien, otherwise a crime against the law of another country, will yield immunity to that subject is interestingly considered. The difficulty lies in the fact that adoption by the foreign sovereign should make it an “act of state " not conusable in municipal courts, but a matter to be settled through diplomatic channels, whereas such a view, if admitted to its full extent, would have the effect of surrendering to such sovereign jurisdiction over another soil. The widespread consequences of Quinn v. Leathem ([1901] A. C. 495) are shown by the suggestion, apart from the question of act of state, that since an alien has liberty, though no right, to enter British territory, by that case any effectual prohibition would undoubtedly be an actionable wrong The discussion of the rights and obligations of an individual under a treaty is also particularly pertinent.

Where there is an extended discussion of the principle of a case it is perhaps unfortunate that the facts are not always stated together with the ratio decidendi, so that the reader may form his own conclusion as to the principle to be deduced. The carelessness of the proof-reader at one or two points is painfully evident, and it would be a convenience, where reference is made to a case already taken up, to have the page on which it is discussed mentioned. These minor blemishes cannot detract from the interest and intrinsic value of a volume which shows the result of much thought and research upon a comparatively undiscussed subject.

M. F.

OUTLINES OF CRIMINAL LAW. By Courtney S. Kenny. Revised and adapted

for American Scholars by James H. Webb. New York: The Macmillan

Company. 1907. pp. xxi, 404. 8vo. In preparing this edition two classes of readers have been kept in mind by the editor : first, the student of law; secondly, the general reader and students of subjects wherein a general knowledge of criminal law may be of advantage. The original English edition contained chapters on the English courts and procedure, the problems of punishment and coming changes in the criminal law. These have been omitted from the present edition.

Considering the work from the point of view of the general reader or student who is not engaged in a technical study of the law, the work deserves commendation. The lucidity of expression, the illustration of abstract principles by interesting cases, the discussions of the nature of a crime and the purpose of punishment, make the book attractive and very readable.

From the point of view of its adaptation to the use of the student of law in an American law school, the work, admitting its above-mentioned merits, is, perhaps, more open to adverse criticism. The proportion of American to English

cases is somewhat less than one to two. This is for the most part unobjectionable, for if the law is clear it may perhaps as well be illustrated by English as by American decisions. It would seem, however, questionable whether the student should not, on so important a point as the question of when possession passes in larceny when the transfer is under a mutual mistake (p. 206), where the law is not yet clear, have had his attention directed to the American decisions. So, the proposition that “a conviction could probably be obtained for an attempt to incite, or an attempt to conspire ” (p. 75), makes no reference to either English or American decisions. So, in the question of the necessity of retreat in the case of homicide in self-defense (p. 95), where the American decisions are in decided conflict, there is no reference either to them or to the magazine articles on the point. In one instance a citation has been made of the decision of a lower court (p. 75, People v. Gardner, 73 Hun (N. Y.) 66), overlooking the fact that the case was reversed on appeal (People v. Gardner, 144 N. Y. 119).

Taking the work by the large, however, for what it is, an elementary treatise, it is good. The American cases that are cited are chosen with discrimination, the statements as to American law are accurate, and the additions to the text skilfully made.

H. A. B.

THE PRISONER AT THE BAR. By Arthur Train. New York : Charles

Scribner's Sons. 1906. Pp. xiv, 349. 8vo. In this book the author presents the workings of the machinery of criminal procedure in New York City. He handles, however, questions and conditions that are sufficiently general to make the book's appeal more than local. His experience as an assistant district attorney in New York County especially fits him for his task, and puts at his command a plentiful supply of interesting anecdotes, enabling him to drive home his points clearly and forcibly. The book is written in a popular style for the general public. Mr. Train has no pet theories to exploit, nor a thesis to prove : his aim, as he points out, is to give information on a subject about which the average man is curiously ignorant, and still more curiously unconscious of the extent of his ignorance. Some sane philosophizing and a reasonable amount of salutary criticism accompany his exposition, and serve to point out fairly the strongholds, the weaknesses, and the needed reforms in our present system of criminal procedure.

937. 8vo.

REGULATION OF COMMERCE UNDER THE FEDERAL CONSTITUTION. Ву

Thomas H. Calvert. Northport, N. Y. : Edward Thompson Company.

1907. pp. xiv, 380, 8vo. A TREATISE ON THE LAW OF TAXATION BY SPECIAL ASSESSMENTS. By

Charles H. Hamilton. Chicago : George 1. Jones. 1907. Pp. lxxxv, PowERS OF THE AMERICAN PEOPLE, CONGRESS, PRESIDENT AND COURTS,

ACCORDING TO Evolution of CONSTITUTIONAL. By Masuji Miyakawa.

Washington : The Wilkins-Sheiry Co. 1906. pp. xiv, 260. THE GOVERNMENT OF INDIA. By Sir Courtenay Ilbert. Second edition. Ox

ford : At the Clarendon Press. London and New York: Henry Frowde.

1907. pp. xxxii, 408. Svo. A SHORT ACCOUNT OF THE LAND REVENUE AND ITS ADMINISTRATION IN

BRITISH INDIA, with a Sketch of the Land Tenures. By B. H. BadenPowell. Second edition, revised by T. W. Holderness. Oxford : At the

Clarendon Press. 1907. pp. vi, 254. COMMENTARIES ON THE CONSTITUTION OF PENNSYLVANIA. By Thomas

White. Philadelphia: T. & J. W. Johnson Co. 1907. pp. xxvii, 618.

8vo. THE FEDERAL POWER OVER CARRIERS AND CORPORATIONS. By E. Par

malee Prentice. New York: The Macmillan Company. 1907. pp. xi,

I 2mo.

244. 8vo.

HARVARD

LAW REVIEW

VOL. XX.

JUNE, 1907.

No. 8.

THE SEPARATE ESTATES OF NON-BANKRUPT PARTNERS IN THE BANKRUPTCY OF A PARTNERSHIP UNDER THE BANKRUPT ACT OF 1898.

Dedicated to Professor Langdell.

THE

'HE federal courts have almost unanimously held that under

the Bankrupt Act of 1898 a partnership is to be treated as an entity. This is something wholly new. Under all prior acts, English and American, a partnership could be put into bankruptcy only by adjudicating all its members bankrupts. Courts of equity and bankruptcy courts have indeed often been driven by the necessity of the case to deal with the firm as an entity, and they have also frequently described the firm as an entity. The same court that declares that the firm as an entity cannot be adjudged bankrupt unless all the partners are bankrupt, will, after the adjudication of its partners as bankrupt, proceed to decide questions on the theory that the firm is a legal person. But as courts of law are not consistent in denying the personality of the firm, so courts of equity are not consistent in admitting it. The very same court will at one time deal with the firm as a person, and at another time

1 In the notes upon the law of Continental countries the société en nom collectif or Offene Handelsgesellschaft is taken as the equivalent of the English and American part. nership or firm. The société en commandite or Kommanditgesellschaft, the counterpart of our limited partnership, is for the most part subject to the same rules as the société en nom collectif except as regards the special partners (commanditaires or Kommanditisten), who risk only their subscribed capital.

2 See for a collection of cases an admirable article on The Firm as a Legal Person, 57 Cent. L. J. 343.

« 이전계속 »