also states that it is open to doubt "whether Germany's invasion of Belgium, with no other object but a passage through her confines in order to reach the northern parts of France, and after formal assurances as to Belgium's independence and integrity had been given, constituted ipso jure a breach of Belgium's neutrality."

Such citations as above from what is entitled "The Legal Aspects of Belgium's Neutrality" clearly show the thesis the writer is endeavoring to maintain.

There are several valuable documents in the Appendix.

man.

The book by Dr. Waxweiler, who was the director of the Solway Institute of Sociology at Brussels, claims "to clear up every doubt and furnish material for a considered judgment." This book has also appeared in French and GerIt shows the peaceful penetration of Germans into the industrial, economic, and social life of Belgium, up to 7 P. M., August 2, 1914, also showing why, after considering the statements of Jagow and Bernhardi, King Albert of Belgium became an advocate of preparedness. He also shows that the German statement that if Belgium would maintain "friendly neutrality" Germany would at the conclusion of the war "guarantee the possessions and independence of the Belgium Kingdom in full," presumes a result of the war which Belgium could not in August, 1914, foretell. Then follow the well-known discussions of the statement of the German Chancellor that the entrance into Belgian territory by force was in violation of the law and that indemnities would be paid at the close of the war. The negotiations of the early days of the hostilities, including the "scrap of paper" incident, etc., are reviewed. Accusations and counter accusations are considered. The German rules of war and their application to Belgium form the concluding chapter. Manifestly it is too early, and the data is insufficient, to enable one who would form a just estimate of these contentions to come to a final judgment upon many of the matters considered in this book. In general, however, it may be said that the temper of the book is more moderate and the basis for the conclusions is more sound than in the work of Dr. Fuehr.

Like all books issued with the object of presenting the case for one or another party in the present struggle, there is an undue stress upon the positions which may be more advantageous to the side whose case is favored. This book has a brief appendix and also a convenient index. GEORGE GRAFTON WILSON.

THE COMMODITIES CLAUSE. By Thomas Latimer Kibler. Washington, D. C.: John Byrne & Company. 1916. pp. 178.

Into this legal-economic treatise Professor Kibler has condensed a great amount of interesting and valuable information as to the inevitable tendency to monopoly where railroad companies engage in any non-transportation business in competition with other shippers over their lines. Confining his discussion chiefly to the coal business and basing it upon the findings of the Interstate Commerce Commission and the facts disclosed in various suits brought by the federal government, he shows convincingly that the failure of this country to follow the example of Europe and to divorce transportation altogether from other enterprises has led to the monopolization by railroad companies of much the greater part of the anthracite and bituminous coal fields along their respective lines and that this process of monopolization is still going on.

His discussion of the Commodities Clause of the Interstate Commerce Act, passed in 1906 to remedy this situation, may be summarized as follows. In United States v. Delaware & Hudson Co., 213 U. S. 366, the Supreme Court held that, despite the sweeping language of the act, nevertheless in view of its legislative history, it must be construed as not prohibiting a railroad company

(1) from owning stock, even all of the stock, of a bona fide corporation engaged in mining, producing and shipping commodities over its lines, or (2) from transporting commodities mined or otherwise produced by the railroad company itself, provided it has in good faith dissociated itself from such commodities prior to the act of transportation - sale to a bonâ fide separate corporation whose stock is owned by the railroad company, apparently constituting such dissociation. Although in subsequent decisions the Supreme Court has shown a disposition to give to the act the most effective possible construction consistent with these limitations, nevertheless so long as they exist no real dissociation will ever be accomplished.

He urges, therefore, in some detail, legislation designed to sweep away these limitations and to secure a genuine separation of railroad companies from any business other than that of common carriage. Both on the merits and for the purpose of disarming opposition, these suggestions should be modified to the extent of permitting mining and producing companies, on application to the Interstate Commerce Commission, to build and operate such lateral branch lines or spur tracks as may be reasonably necessary to reach a trunk line railroad. Broadly speaking, however, these suggestions accord with repeated utterances of the Interstate Commerce Commission and of the Attorney General and will doubtless meet the approval of most disinterested persons.

The concluding section in which Professor Kibler seems to advocate extending "the principle of dissociation" to "any two industries that are complementary in their nature" will not be so generally accepted. Common carriers, whose facilities other shippers are under compulsion to use, stand upon a very different footing from any ordinary business. Most readers will be doubtful indeed as to the wisdom of prohibiting the union of complementary industries generally the mere integration of industry.

The usefulness of the book for legal reference purposes would be increased by a proper table of cases cited and by a reference to the cases of United States v. D. L. & W. R. Co., 231 U. S. 363; The Tap Line Cases, 234 U. S. 1, 27; and United States v. Lake Shore & M. S. R. Co., 203 Fed. 295, 315, 319.

THURLOW M. GORDON.

CLINICAL STUDIES IN THE RELATIONSHIP OF INSANITY TO CRIME. By Paul E. Bowers, M.S., M.D. Michigan City, Indiana: The Dispatch Print. pp. 104.

Lawyers are beginning to admit that there is no such sharp division between the legally responsible and the legally irresponsible as they used to believe. Science is pressing upon them the realization that a penalty affixed to an act by law is less often an efficacious preventive of the act than the law supposes. Instead of sending the malefactor to prison only to let him out later, the psychiatrists are demanding an opportunity to try their new-found learning on him in a hospital. And to this plea they add the assurance that in case of failure they will isolate him for good and not for a time only. It is clear that the opportunity must be given them. Crime must follow disease into the hands of the scientists.

Dr. Bowers' monograph is an attempt to draw the line between the responsible and the irresponsible. He believes that too many of the latter are sent to the prison, and his thesis is a more accurate division of the field between the prison and the hospital. To do this it is first necessary to get an exact idea of the relation between the abnormal mind and the abnormal act, for, so far at least, the only method of classifying men the law knows is by their acts. "By their fruits shall ye know them" is peculiarly true of the criminal. This relation the author tries to show by a series of clinical cases. For "theoretical discussions," he

says, "are tiresome and confusing." However we may differ as to that, the cases he gives us, almost all from his own experience, are both interesting and illuminating. These are divided under general headings: epilepsy, paranoia, hysteria, etc., with an explanatory introduction and about half a dozen cases under each. The cases are described and explained in a brief and simple way, quite sufficient for the lawyer or layman, but perhaps too untechnical for the expert. The introductions, on the contrary, are inadequate. For the layman needs more than he can find here for even an intelligent understanding of the cases, and the expert must not be told what he already knows. Perhaps this is the result of the distaste for theory intimated in the preface. But it leads us all the more to regret that an author who has combined a personal knowledge of the cases described and a study of the bibliography at the end of the book should not hazard his own theories in a subject where they are so welcome. C. P. CURTIS, JR.

COMMENTARIES ON THE LAWS OF ENGLAND. By Sir William Blackstone. Edited by William Cary Jones. San Francisco: Bancroft Whitney Company. 1915. pp. CXX, 2770.

We have nothing but good to say of Professor Jones' new edition of Blackstone. He, with the assistance of his colleagues in the school of jurisprudence in the University of California, has taken the Hammond edition, retained the original notes and the more important notes of the distinguished editor, and has profusely annotated the commentaries with his own work and with extracts from the writings of modern jurists. These two latter contributions give this edition its peculiarly valuable character.

Blackstone's short section on the Roman law in England, Book I, *18, is made the base of an elaborate note and a bibliography of Maitland's, Stubb's, and Vinogradoff's contributions. The consideration of rights, Book I, *121, has been an excuse for pointing out the classifications of Holland, Salmond, Holmes, Pound, Stephen, and Langdell. The law of master and servant, Book I, *429, is annotated with a short description of workmen's compensation acts. Modern theories of corporate personality appear in Professor Lynch's contributions to Book I, c. 18. The Rule against Perpetuities now contains a note by Professor McMurray which leads the reader to Leake, Gray, and recent legislation. Reference to all the modern learning on possession appear in the note to Book II, *196, and the whole subject of private wrongs, Book III, c. 8, takes on a new aspect when annotated with modern decisions on negligence, physical injury resulting from fright, the right to privacy, libel, slander, and malicious prosecution. A wholly new chapter has been supplied by Professor McMurray on the Conflict of Laws. All these and other new matter make it apparent that we shall now resort to Blackstone not only for clear and elegant statements of the old law but for references to modern thinking and decisions of present-day importance. The form of the work is much improved by the use of sections numbered and appropriately entitled in bold-faced type. JOSEPH WARREN.

LES TRAITÉS FÉDÉRAUX ET LA LÉGISLATION DES ÉTATS AUX ÉTATS-UNIS. Par Lindell T. Bates. Paris: Librarie Générale de Droit et de Jurisprudence. 1915. pp. 228.

This pamphlet has for its chief purpose the enlightening of foreigners as to the treaty-making power of the United States, and as to specific instances of apparent conflict between treaties and the laws of the several states. It begins

with conditions under the Articles of Confederation, passes to a rapid survey of the changes wrought by the Constitution, discusses the general problem of the federal treaty-making power and other preliminary matters, and then devotes the greater part of its pages to such topics as rights of property, taxation, workmen on public works, corporations, liquor licenses, workmen's compensation acts, public schools, and trademarks. Little that has been written regarding the borderland between international law and constitutional law can compare with this pamphlet in clearness or in interest. The whole of it is well worth reading; and even the very busy man ought to run through the two historical sections at the beginning and the section on the public schools. This last, consisting of four pages, leading to the conclusion, peculiarly acceptable in San Francisco, that "L'attitude du Departement d'État fut donc plus favorable au Japon qu'il ne fallait, en insistant sur le rapport de la resolution de séparation des races." EUGENE WAMBAUGH.

VICARIOUS LIABILITY. By T. Baty. Oxford, England: At the Clarendon Press. 1916. pp. 244.

THE LAW OF ARCHITECTURE AND BUILDING. By Clinton H. Blake, Jr. With a Special Introduction by Aymar Embury II. New York: The William T. Comstock Co. pp. xxxviii, 314.

LAW AND ORDER IN INDUSTRY: FIVE YEARS' EXPERIENCE. By Julius Henry Cohen. New York: The Macmillan Company. 1916. pp. xx, 292. TREATIES: THEIR MAKING AND ENFORCEMENT. By Samuel B. Crandall. Second Edition. Washington: John Byrne & Company. 1916. pp. xxxii, 663.

COMMERCIAL MORTMAIN: A STUDY OF THE TRUST PROBLEM. By John R. Dos Passos. New York: The Bench and Bar Company. 1916. pp. viii, 101.

AMERICAN GOVERNMENT AND MAJORITY RULE: A STUDY IN AMERICAN PoLITICAL DEVELOPMENT. By Edward Elliott. Princeton: University Press. 1916. pp. viii, 175.

GROTIUS: ANNUAIRE INTERNATIONAL POUR 1915. La Haye: Martinus Nijhoff. 1916. pp. 200.

THE GROTIUS SOCIETY: PROBLEMS OF THE WAR. PAPERS READ BEFORE THE SOCIETY IN THE YEAR 1915. Volume I. London: Sweet and Maxwell. 1916.

THE FEDERAL TRADE COMMISSION: ITS NATURE AND POWERS. By John Maynard Harlan and Lewis W. McCandless. Chicago: Callaghan and Company. 1916. pp. vi, 183.

A MANUAL OF THE FEDERAL TRADE COMMISSION. By Richard S. Harvey and Ernest W. Bradford. Washington: John Byrne & Company. 1916. pp. xxii, 457.

A DIGEST OF ENGLISH CIVIL LAW. By Edward Jenks (Editor), W. M. Geldart, W. S. Holdsworth, R. W. Lee, J. C. Miles. Books iv and v. London: Butterworth & Company. 1916. pp. liii, 1155-1294, (16).

THE LAW OF BLOCKADE. By A. Maurice Low. Washington: Columbian Printing Company, Inc. pp. 20.

HARVARD

LAW REVIEW

VOL. XXIX

JUNE, 1916

No. 8

LIABILITY WITHOUT FAULT *

"I AM satisfied that Rylands v. Fletcher is not limited to the case

of adjacent freeholders. I shall not attempt to show how far it extends. It extends as far as this case, and that is enough for the present purpose." So Lord Sumner,1 using the method of inclusion and exclusion by which the common law "broadens down from precedent to precedent." That method has its conveniences for the judiciary. Other students of the law, however, cannot so easily avoid the question how far Rylands v. Fletcher extends; and the question is a profitable one, for there has been too little consideration of the scope or utility of the doctrine for which that famous case stands as compared with the discussion of its theoretical merits. On this latter point there has been abundant controversy for a generation or more, with the apparent assumption on both sides. that it involved a difference of serious importance in its practical aspects as well as in legal theory. The soundness of this assump

* NOTE. — Dean Thayer left three drafts of this article among his papers, together with a great mass of manuscript materials for notes. From his manuscript alterations upon what appears to have been the last draft it has been possible in almost every case to determine what he intended as the final form. In one or two instances of no great importance the text has been fixed on the balance of probability as between different drafts. Unfortunately it has proved impossible to work out the elaborate notes which were to have illustrated and reinforced the text. A few that appear to be complete are given as he left them. For the rest, reference to the cases cited and quoted from is as much as the state of the manuscript warrants.

1 Charing Cross & City Electricity Supply Co. v. London Hydraulic Power Co., [1914] 3 K. B. 772, 779.