A VALUABLE study of "Constitutional Provisions Guaranteeing Freedom of the Press in Pennsylvania" is contributed by Thomas Raeburn White to the January number of the American Law Register.

There is (he says) some difference of opinion as to how far liability for spoken or written words can be altered by the Legislature. On the one hand, it may be said that freedom to publish being guaranteed, the Constitution does not extend its protection further, and everyone runs the risk of being held responsible for his words, whether that responsibilty is imposed by the common law or by legislative action; that the Constitution does not concern itself with what happens after the matter has been given to the public. In other words, the publisher has full liberty to publish what he pleases, but let him see to it that he does not transgress the law, written or unwritten.

Another view of this matter is possible, and has obtained some recognition, viz., that the Constitution not only gives permission to publish, but guarantees immunity from liability for such words as at common law were non-libelous. It is said that "freedom of the press" would mean nothing if the Legislature, while not able to restrain the printing, could pass laws which would inflict severe penalties for the publication of words which, judged by the standard of the common law, were innocent. The difference between the two views is that under the former the Legislature can create new civil or criminal liability for spoken or written words, whereas, under the latter, its hands are tied; it cannot increase the common law responsibility. This conception of the meaning of the freedom of the press was advanced by Cooley, Constitutional Limitations, ch. 12. It has never been the basis of a judicial decision, as no law raising the point has had its validity questioned on that ground.

And in a note is added this interesting comment on the recent Pennsylvania "gaglaw":

The Pennsylvania libel act of May 12, 1903, P. L., 349, may be attacked upon this ground, and if so there may be a judicial de

termination of this important question. By the terms of that act civil liability is created in a class of cases in which at common law there was no liability. It is provided that the publishers of newspapers shall be civilly responsible in damages for all publications made without a careful investigation into. facts. In other words, the test of liability in all cases is negligence. This means that where the words have been spoken upon a privileged occasion, the plaintiff to succeed need not (as he must at common law) prove actual malice on the part of the defendant, but that it is sufficient if he prove negligence only. It is true that recklessness in publishing may be evidence of malice, but it is not malice (in Briggs 7. Garrett, III Pa. 404, mere failure to investigate was held no evidence of malice); hence the new act creates liability in a class of cases in which, at common law, there was no liability. If Cooley's view should be adopted, the act may be declared void, as being contrary to the constitational provisions under discussion.

In the Michigan Law Review for February is printed a paper given by Dean Gregory of the College of Law of the State University of Iowa, before the International Law Association at Antwerp last September, on "Jurisdiction Over Foreign Ships in Territorial Waters." The question is considered, first, as to government ships, and then in relation to private ships. The result of the authorities is summed up as follows:

1. That a foreign government ship in territorial waters is not exactly "extraterritorial," but simply "inviolable" by local authority, that the extraterritoriality applies only to her foreign crew and equipments, and this only by general comity.

2. That, her inviolability continues only. while she is "demeaning herself in a friendly manner."

3. That, as to vessels belonging to private owners in foreign territorial waters, jurisdiction attaches whether those waters. are enclosed or littoral, very much at the discretion of the local State, but with a constant practice in local authorities to refuse juris

diction if the ship and its company are alone affected.

4. That, as to whether they are alone affected in cases of crimes seems even where there is no direct injury to any other, a question dependent upon the gravity of the crime, and one upon which the cases are not agreed.

5. That, as to whether, in matters of private right, the courts of the locality are compellable to enforce local law against a foreign ship, and those upon it, in local waters, depends upon extremely diverse interpretations of local law, as intended, or not intended, to so apply.

6. That local law enacted by any State may, by its terms, be made applicable to such foreign vessels and their crews coming within the territory, and will then be enforced against them by the local courts.

7. That it can not be said that any established principle of international law preserves any measure of absolute independence to private vessels in territorial waters, although it comes near to preserving, and perhaps does preserve, such independence for government vessels.

PROFESSOR JOSEPH H. BEALE, JR.. discusses in the Harvard Law Review for February, various problems of "Taxation of Foreign Corporations." On one interesting question which has arisen he says:

How far a tax upon the receipts of a corporation from interstate business may be taxed has not been altogether clear on the authorities. In 1873 the Supreme Court in the case of the State Tax on Railway Gross Receipts (15 Wall. 284) held that such a tax was valid. But in a later case (Fargo v. Michigan, 121 U. S. 230) the authority. of this case was shaken. The case was distinguished from the State Tax on Railway Gross Receipts on two grounds: first, that in the earlier case the corporation taxed was a domestic corporation, but in the case at bar a foreign corporation; second, that in the case at bar the receipts taxed had never come into Michigan and there been mingled with the other property of the company. The tax was held invalid.

But in Maine v. Grand Trunk Ry. (142 U. S. 217), the majority of the court reached a conclusion which seems to be opposed to the earlier cases. A statute of Maine required that every corporation, person, or association operating a railroad in the State should pay an annual excise tax for the privilege of exercising its franchise in the State. The amount of the tax was to be ascertained as follows: the gross receipts were to be divided by the number of miles of road operated, and the resulting average, multiplied by the number of miles operated within the State, was to be the basis of taxation. This statute was held not to be opposed to the Constitution of the United States. . . .

This case also has been many times cited with approval. Some of the points apparently decided in it, however, can hardly be supported. The ground seemingly taken by the majority, that the tax might be supported as an excise tax for the privilege of coming into the State, is certainly unsound; for later as well as earlier cases agree that a State cannot exclude from its territory a corporation 5: an individual engaged in interstate commerce or in the service of the national government. But the authority of the case being recognized, some more tenable ground must be found on which to place the decision. It will probably be found in the later case of Postal Telegraph Cable Co. v. Adams (155 U. S. 688). A statute of Mississippi laid upon all telegraph companies, domestic as well as foreign, a tax for the privilege of carrying on their business, graduated in each case upon the amount of property in miles and its value; and exempted them from all other taxation. It was found in the case that the burden of this tax was less than the ordinary tax on the same amount of property. The court said that although a franchise tax upon a corporation engaged in interstate commerce is invalid, and although this purported to be a franchise tax, yet the substance rather than the shadow was to be looked at. This tax was in lieu of another tax on property, and did in fact stand for a tax on the intangible property within the State, and it was therefore valid.

IN The Law Magazine and Review for February Gustav Shirrmeister, Doctor of Roman and Canon Law (Berlin and Leipzig) has an interesting article on "Legal Education in Germany." He says:

The necessary qualifications for a call to the Bar is attained in Germany by passing two legal examinations. The first one must be preceded by at least a three years' course in law at a University. Between the first and the second examination there must be a period of four years, which is to be spent in practical service, partly at the different Courts of Justice, partly in the chambers of practising advocates ("Rechtsanwalte"), and partly in the chambers of a public prosecutor (“Staatsanwalt').

After giving the list of lectures on both law and political science which must be attended by a German law student, and the programs prescribed by the Universities of Göttingen and Münster, the article contin

ues:

As it is very difficult for the average student to finish the required course of study in the short space of three years, the authorities of all German Universities recommend that the law student devote four years to the study of law before he tries to pass the first legal examination. Indeed, the law student will usually find it necessary to spend four years at the University in order to finish the prescribed course. The result is that the required academic study in law extends practically over four years in Ger

many.

THERE is much interesting matter in Sir Frederick Pollock's third article on the "Expansion of the Common Law"-"The Sword of Justice" in the February number of the Columbia Law Review.

Of the jury Sir Frederick says:

On the whole the jury triumphed in criminal, as well as in civil justice. But until the sixteenth century the process was gradual and inconspicuous, and some of the most important matters were settled, as it were, by accident. We can now see that if the

verdict of a majority had been accepted, the resistance of juries to the Crown in later times would have been, perhaps, impossible, certainly much less effective. The rule was not fixed before the fourteenth century, and I do not think it was ever laid down in terms that juries must be unanimous. It is true that the dooms of the ancient popular courts had in some countries, if not in England, to be unanimous; but the jury has nothing to do with the ancient folk-law. What was actually decided was that the verdict of fewer than twelve men would not do, and this appears to rest on a quite different, but not less archaic principle, the inherent sanctity of the number twelve. Then, as not less than twelve men would suffice, so it became the fixed custom not to have more on a petit jury; why I know not, unless that it obviously saved trouble to take the least number that sufficed. To this day the grand jury need not be unanimous, though every presentment must be made by at least twelve men. Accordingly, the total number is twentythree, making twelve a majority.

IN the American Law Review for JanuaryFebruary, Blackburn Esterline, after reviewing the cases in which an Act of Congress has been declared unconstitutional by the Supreme Court of the United States, says:

Thus, it will be seen, that of nineteen cases, two of which carried two acts of Congress, the judgment of only six received the concurrence of all the judges, and in two cases Congress "inadvertently" passed its limits. Furthermore, with few exceptions, all these cases were decided and the judgments passed into the archives of the country and into the jurisprudence of the world, without arousing serious public interest or comment. The decisions in Marbury v. Madison, the "Dred Scott Case," and the "Legal Tender Cases," the "Civil Rights Cases," and the "Income Tax Cases," are far the most important and practically the only ones that stirred public opinion or prolonged public discussion. In only one of these [Marbury v. Madison] did all the judges concur, and in the "Income Tax Cases," when one of the greatest ques

tions ever submitted to a human tribunal stood for judgment, the Court swayed and groaned and, unfortunately, was seriously divided against itself. Happily, no serious consequences followed; if any confidence was lost it was soon regained, the waves rolled away and all prejudices have evaporated.

THE Canadian Law Review for January gives "Some Reminiscences of Criminal Law" by George S. Holmested, K. C., among them this tale:

In the year 1629 one Isobel Young was accused in Scotland of witchcraft, and it was alleged that she had stopped George Sandie's mill 29 years before; that she had prevented his boats from catching fish, while all the other herring boats were successful, and that she was the cause of his failing in his circumstances and of nothing prospering with him in the world. That she threatened mischief against one Kerse, who thereupon lost the power of his leg and arm. That she entertained several witches in her house, one of whom went on the roof in the likeness of a cat, and then resumed her own shape. That she took a disease off her husband, laid it under the barn floor and transferred it to his nephew, who, when he came into the barn, saw the pirlot (i..e., the corn measure) hopping up and down the floor; that she buried a white ox and a cat alive, throwing in a quantity of salt along with them, as a charm to preserve herself and her cattle from infectious distemper; that she had the devil's mark, etc. The poor creature's counsel pleaded that the mill might have stopped, the boat caught no fish, and the man might not have prospered from natural causes; that as to the man who had lost the use of his leg and arm, the prisoner had never the least acquaintance with him; and that he was lame before the threatening expression she was said to have used; that the charge of laying a disease under the barn floor was a ridicu lous fable, and that two years had elapsed between her husband's illness and his nephew's; and that the mark called the devil's mark was merely the scar of an old ulcer;

and that the charge of burying the ox and cat was false.

The celebrated Sir Thomas Hope, who was counsel for the prosecution, insisted that these defences must be repelled, because contrary to the libel! In other words, the defences urged by the accused's counsel contradicted what was charged by the prosecutor; and the defences were therefore overruled by the court, and the poor wretch was convicted and ordered to be strangled and burned!

IN The Law Quarterly Review for January W. R. Bisschop points out some of the characteristics of the "Roman-Dutch Law in South Africa." For example:

It is possible to attach the person as well as the goods of the debtor, either (1) to secure the payment of the debt by preventing the person from secretly leaving the country (suspectus de fuga), and by compelling him. first to give security; or (2) to found jurisdiction (jurisdictionis fundandae causa), thus enabling the plaintiff to litigate at his own residence and there recover his debt from the foreigner.

The arrest is apart from the principal cause, and must be followed by a summons submitting the dispute as to the debt for the judge's decision. Thus a safeguard is created to prevent the arrest from becoming a mears of extortion and vexation. The debtor can even forestall the plaintiff by applying to the Court by a request antidotaal, which compels the creditor who may have the intention of using the said measures to show his cards. The Court is thereby asked to decide in advance that there exist no grounds for an arrest in so far as regards the plaintiff. . .

Another provisional remedy is the "provisional sentence," whereby payment is ordered of what is claimed, notwithstanding that the principal case is still pending. It was introduced, as Kersteman states in his Law Dictionary, "to check cunning, fraudulent, and unwilling debtors who seek to deprive their creditors by continuous delay and sinister proceedings in the payment of their

lawful claims." By these means the plaintiff can, on the production of sufficient evidence, obtain a provisional sentence condemning the defendant to pay the money over to him or into Court before going any further into the case. If the defendant pay to the plaintiff, the latter may be ordered to give security for repayment of the money.

A third provisional remedy, resembling the above-mentioned request antidotaal, is that of perpetual silence. If a plaintiff brings an action, but does not continue it, the defendand can ask for an "absolution from the instance," whereby the the proceedings are quashed and the plaintiff has to issue a fresh summons if he intends to persist in suing the defendant. If, however, a person avers that he can bring an action against another person, but does not bring it, and the other person is afraid that if the action were brought at a later time he would be deprived of his witnesses or otherwise of his means to refute the allegations of the plaintiff, he can petition the Court to compel the would-be plaintiff to commence his action at once, or else to be sentenced to perpetual silence. In RomanDutch Law it was a means for founding jurisdiction, and was known under the name of lex diffamari and preventie in cas van Purge (Merula, IV. 2, 22). . . .

A debtor is liable in his goods for the payment of his debts, and-in the absence of any possessions-he is liable in his person. This maxim has been handed down from ancient times, and it was left to the nineteenth century to make an appreciable alteration in a survival from early civilization.

The "civil imprisonment" of Roman-Dutch Law, either for debt, or ad factum praestandum (which-if valued in money-became also an imprisonment for debt), is still one of the remedies which a creditor can have in Holland and in Cape Colony for obtaining payment from his debtor after all other means have failed. The person concerned is put in prison, where he is kept at his creditor's expense. In Roman Law the imprisonment was for an unlimited time, or until the debt was paid off; and this is still the case in Cape Colony, except in the case of debts

of small amount, when a limit of three or six months is imposed. At the present time in Holland the limit is five years, or until the debtor reaches the age of seventy years.

AN interesting account of the courts in North Carolina down to the Revolution is given by R. W. Herring in February number of the North Carolina Journal of Law. Of the General Court he says:

Until the arrival of the Constitutions in 1670 the only tribunal in the colony, so far as we know, was held by the Governor and Council, and we know of this only through a law signed by the Lords Proprietors. In the sparsely settled territory of the infant colony one court seems to have been thought sufficient for all causes. It seems to have combined in itself the jurisdiction in law and in chancery as well as in criminal cases. But soon the growth of the colony necessitated the erection of Precincts, or districts of representation in the Assembly, and these Precincts became the territorial basis of the local courts. The Governor and Council held this General Court as late as 1695, and it is only in 1702 that we know that the new system was in use. Then the Governor and the Council became the Appellate Court of the colony. The General Court consisted of a Chief Justice, with assistants, varying in number at different times; the Chief Justice, who was the presiding officer of the Court, being appointed by the Proprietors, themselves, and his assistants by the Governor and Council. Just what powers these associates had, is uncertain. But it seems clear that they need not be "learned in the law" before 1724. In early days they were not, except in rare cases; lawyers.

THE subject of the initiative and referendum (says The New Jersey Laze Journal for February) which has been adopted in the State of Oregon and has been discussed in many of the States of the union, is a most interesting one, and not the least so in that aspect of its being in conflict with the constitution of the United States, guaranteeing to every State a Republican form of govern