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regulate quarantine, their laws to those ends yield to the extent of any conflict with treaties. Compagnie Francaise v. Board of Health, 186 U. S. 388, 22 Sup. Ct. 811, 46 L. Ed. 1209, and cases cited.

"Fisheries have been the subject of treaties always, and the principles and objects thereof are equally applicable and desirable in relation to migratory birds and other game. So doubtless of air and water, their protection from pollution, their conservation, apportionment, and use. The object of all thereof is to peacefully share those natural resources which are the property of no one till reduced to possession, from which all may take when within their territory, which are alternately found within the territory of the several nations and in places common to all as the high seas, which may be wholly seized and exterminated by one. to the great and irreparable damage of all, which in accord may be preserved and enjoyed a blessing to all, but in discord may be annihilated to the injury of all, and which may become legitimate causes for war, to obviate which is of the most ancient and important objects of treaties."

It seems to us that the attorneys and statesmen who are seeking to set limitations upon the treaty-making power are trying to put the United States in a straitjacket which the framers of the Constitution sought deliberately to avoid. In defense of the unrestricted power to make treaties granted by the Constitution, Alexander Hamilton argued that the treatymaking power "ought to exist without limitation because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them."

It is curious to note that in spite of dicta and argument against the unrestricted power to make treaties, no treaty has ever been held unconstitutional. The reason is probably that while inter nos a treaty is part of the "law of the land," internationally speaking, a treaty is only a contract made by the only authority having power to pledge the word of the United States; and there does not seem to be anything in the Constitution that restricts in any manner the subject matter of such contracts.

NOTES OF IMPORTANT DECISIONS.

FAILURE TO TAKE PROPER CARE OF AN INJURY AS PROXIMATE CAUSE OF DEATH. -What is the proper care to be taken of an injury, the failure to exercise which would release the party responsible for the injury from such damages as flowed from such neglect? The Supreme Court of Wisconsin has just held in the case of Banner Coffee Co. v. Industrial Commission, 174 N. W. Rep. 344, that a laborer who is kicked on the shins by a horse is not acting without common prudence when he does not at once consult a doctor. In this case the injured man applied carbolic salve and other home remedies and did not consult a physician until it was too late to save his life from the resulting infection.

The Industrial Commission allowed the injured workman's widow the sum of $3,000, from which award the employer appealed to the Supreme Court. In discussing the appeal the

court said:

"Conceding that persons highly appreciative of the dangers resulting from infection would at once consult a physician, we cannot say that this is true of the great mass of mankind under the same or similar circumstances. It is a mat ter of common knowledge that strong, healthy men engaged in manual labor frequently give such trifling injuries, which would arouse the apprehension of others, little thought, and in comparison with the number of such injuries the instances followed by infection are not numerous. If they are treated at all, home remedies are applied, just as was done by the deceased. Carbolic salve was his remedy for cuts, bruises, etc., and this he applied. The injury itself was not sufficient to keep him from his work, and he went about the performance of his daily duties, attaching little consequence to the injury. We do not think it is customary for laboring men to rush to a doctor every time they sustain a cut, bruise or abrasion of the skin, and we cannot say as a matter of law that the conduct of the deceased was not that of the great mass of mankind under the same or similar circumstaces."

MAY A DEFENDANT RAISE THE DEFENSE OF FORMER JEOPARDY TO A VERDICT IMPOSING A SEVERER PUNISHMENT THAN ON A PREVIOUS TRIAL FOR THE SAME OFFENSE.-An appeal in a murder case is often a dangerous speculation with the life of the defendant. The case of Stroud v. United States, 40 Sup. Ct. Rep. 50, decided by the Supreme Court on a third appeal, illustrates this point. On the first trial defendant was convicted and sentenced to be hung. Upon confession of error by the United States District Attorney

the Circuit Court of Appeals reversed this judgment. 245 Fed. 990, 157 C. C. A. 672. Stroud was again tried at the May term, 1917; the jury in the verdict rendered found Stroud "guilty as charged in the indictment, without capital punishment." Upon writ of error to this court the Solicitor-General of the United States confessed error, and the judgment was reversed; the mandate commanded:

"Such further proceedings be had in said cause, in conformity with the judgment of this court, as according to right and justice and the laws of the United States ought to be had, the said writ of error notwithstanding."

In pursuance of this mandate the District Court issued an order vacating the former sentence, and ordered a new trial. The trial was had; the jury found Stroud guilty of murder in the first degree as charged in the indictment, making no recommendation dispensing with capital punishment. Upon this verdict sentence of death was pronounced. A third appeal was taken and the case carried for a second time to the Supreme Court. On this appeal the defendant raised the point of former jeopardy because the second conviction was "without capital punishment." On this point the court said:

"It is true that upon the second trial the jury added 'without capital punishment' to its verdict, and sentence for life imprisonment was imposed. This recommendation was because of the right of the jury so to do under section 330 of the Criminal Code. This section permits the jury to add to the verdict, where the accused is found guilty of murder in the first degree, 'without capital punishment,' in which case the convicted person is to be sentenced to imprisonment for life. The fact that the jury may thus mitigate the punishment to imprisonment for life did not render the conviction less than one for the first degree murder. Fitzpatrick v. United States, 178 U. S. 304, 307.

"The protection afforded by the constitution is against a second trial for the same offense. Ex parte Lange, 18 Wall. 163; Kepner v. United States, 195 U. S. 100. Each conviction was for murder as charged in the indictment, which, as we have said, was murder in the first degree. In the last conviction the jury did not add the words 'without capital punishment' to the verdict, although the court in its charge particularly called the attention of the jury to this statutory provision. In such case the court could do no less than inflict the death penalty. Moreover, the conviction and sentence upon the former trials were reversed upon writs of error sued out by the plaintiff in error. The only thing the appellate court could do was to award a new trial on finding error in the proceeding. Thus the plaintiff in error himself invoked the action of the court which resulted in a further trial. In such cases he is not placed in second jeopardy within the meaning of the constitution. Trono v. United States, 199 U. S. 521, 533."

QUANTITATIVENESS IN LAW.

In recent years the proclamation that law is a science has been made with increasing emphasis.

Yes, law is a science. This we will probably all admit. But lawyers are fain to stand aloof and gaze upon the structure of this science as something too ephemeral or elusive to undertake to remould-recognizing, at the same time, the need of improvement.

We lawyers in some respects very much. resemble handicraft men, who hand down their particular calling from generation to generation, and test an apprentice by how nearly like his master he can perform his task. As a result, much time, motion and efficiency are wasted, due to a following of tradition.

A recent study of brick laying disclosed that present day masons performed their work "in much the same way as their predecessors did on the walls of Babylon. From time immemorial masons have worked from a scaffolding which was raised only when the mason could no longer reach the top of the wall. It was then raised to such a height that he must bend his back constantly or work on his knees until the wall grew so high as to relieve him of such awkward positions. From time immemorial also the mason's tender has dumped unsorted brick and mortar on the scaffold at the mason's feet so that the mason has to stoop to get both mortar and brick, selecting the brick as he went along, and often working up the mortar with his trowel." It was found also that many of the motions made. by the workers were useless and used up valuable energy with no effect.

One of the first innovations introduced by the investigator was a "scaffold that could be raised quickly a few inches at a time so as to be kept at or near the best

level for economic working. To this was added a shelf-like attachment on which the bricks and mortar could be placed near the workman's hand. The sequence in which the brick should be laid for various types of wall was worked out and in order to save the high-priced mason's time in sorting the brick, low-priced men were employed to sort the brick on the ground. The bricks were sent up to the mason in packets of twenty-four each with the bricks arranged with the right side up so that no sorting was necessary. The mortar was carefully standardized and a special mortar box made it easy for the mason to secure mortar while still following with his eye

the hand which held the brick. A careful study of the mason's motions and a rearrangement of methods eliminated about half the motions previously performed. As a result of these changes it was found that the worker could lay about three times as many bricks per hour as formerly, and with less fatigue."

The improved method of laying brick was discovered not by a mason, but by an outsider who applied to brick laying prin ciples of scientific industrial management, and carried on time and motion studies to determine wherein, and how much, time and motion was being wasted in the old way of laying brick.

It may be that we lawyers, trained in legal lore and tradition, need some cutsider to turn a scientific searchlight on the ancient precepts and practices with which we are familiar, and show us wherein and wherefore our mistress, the law, is inefficient, and how by a turning from tradition and an improvement in precepts and practices our mistress may be better able to perform her task.

Mr. F. W. Taylor, the founder of scientific industrial management, has stated: "Time and motion study is the accurate scientific method by which the great mass of laws governing movements of men are

investigated. *** They substitute exact knowledge for prejudiced opinion and force in determining all the conditions of work and pay."

The effort to measure human effort in a scientific, quantitative manner is or should be common to scientific industrial management and to law.

The general principles of any science may be known qualitatively or quantitatively. Thus we know that beams will bend if loaded. The chemist knows that the addition of a certain acid to a given mixture will precipitate a certain substance. A lawyer knows that fraud makes a transaction voidable, or that negligence may impose a liability upon one guilty thereof. If, however, the knowledge of the chemist, the engineer or the lawyer does not go beyond these generalities their knowledge is qualitative only.

But if the chemist can state that a given quantity of acid will precipitate a definite amount of a certain material from the liquid in question, he is said to know the laws pertaining to the operation quantitatively. A lawyer possesses similar knowledge, for instance, when he can ascertain with certainty whether a given state of facts constitutes fraud or negligence, or comes within the pale of "reasonable," as the case may be.

The development of chemistry from a qualitative into a quantitative science affords a bit of interesting history here pertinent. Naturally, the early chemists, known as alchemists, first learned the existence of certain substances and something of their properties. They acquired a limited amount of qualitative knowledge, just enough to give them one great aim-to ennoble the base metals and to prolong life indefinitely -a most utilitarian desire, but which of course availed nothing, though lasting well on into the seventeenth century A. D. There then came a revolution against tradition and a change toward the direction of true re

search, which included an extensive development of pharmacy and medicine. But not until the latter half of the eighteenth century did chemistry begin to acquire quantitative precision, the prior mastery of quantitative conceptions by the physicists undoubtedly being of great aid to the chemists. Not until the absolute neecssity of quantitative investigation was recognized did chemistry become a science. Modern chemistry then begins. With the quantitative knowledge of chemistry began a new era of precision and efficiency. Exact knowledge was substituted for prejudiced opinion.

The substitution of exact knowledge for prejudiced opinion is the great desideratum of law, and will mark the development of law from a qualitative into a quantitative

science. Law is not and never will be an exact science. Yet the more exactness it acquires, the more nearly it approaches an exact science, the greater will be the certainty of justice.

Justice Holmes, in his work, "The Common Law," says:

"When a man had to pay damages, he is supposed to have broken the law, and he is further supposed to have known what the law was.

"If, now, the ordinary liabilities in tort arise from failure to comply with fixed and uniform standards of external conduct, which every man is presumed and required to know, it is obvious that it ought to be possible, sooner or later, to formulate these standards at least to some extent, and that to do so must at last be the business of the court. It is equally clear that the featureless generality, that the defendant was bound to use such care as a prudent man would do under the circumstances, ought to

found himself. If in the whole department of unintentional wrongs the courts arrived at no further utterance than the question of negligence, and left every case, without rudder or compass, to the jury, they would simply confess their inability to state a very large part of the law which they required the defendant to know, and would assert, by implication, that nothing could be learned by experience."

Consider also in the light of the presumption that every man knows the law, the following from Freund's "Standards of American Legislation:"2 "Unfortunately, opinions in constitutional cases rarely go beyond rhetoric; and generalities and quotations from similarly elusive pronouncements take the place of searching analysis. We are referred to reasonableness as a cri

terion of validity, as if 'reasonable' were not the very negation of scientific precision."

Essential to quantitativeness in law are standards,-not changeable, indefinite matters of whim, but fixed and definite measures or gauges by which to determine with exactness the jural results arising from given states of facts.

When we note the variability of the pronouncements, both legislative and judicial, in our many jurisdictions, when we hear of judicial recall, the recall of judicial decisions, and of initiative and referendum, we wonder whether W. C. Brownell has not spoken in all truth in his brochure, "Standards," when he says: "One of the really significant signs of our revolutionary and transitional time is the wide disappearance of standards altogether, the contempt felt for them as conventions, the indignation. aroused by them as fetters, the hatred in

be continually giving place to the specific spired by them as tyranny.”

one, that he was bound to use this or that precaution under these or those circumstances. The standard which the defendant was bound to come up to was a standard of specific acts or omissions, with reference to the specific circumstances in which he

(1) Pages 111-112.

It may be that too many of us have adopted the manufacturer's or salesman's concept of quality, where quality means "what the public wants," and go about our

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work accordingly. Here the standard for quality is mere whim or caprice, subject to change without notice. It is of such that Brownell speaks. The standard is no standard. It has no certainty.

Obviously, no such "standard" will suffice for law, wherein "standardization serves to advance the other main objects of law, namely, certainty, objectively, stability, and uniformity."4 "The principle of standardization has four main applications or phases in the making of statute law: conformity to undisputed scientific data and conclusions, the working out of juristic principles, the observance of an intelligible method in making determinations, and the avoidance of excessive or purposeless instability of policy." The last-quoted statement is needlessly limited to statute law. It is equally true with the word "statute" omitted.

In the light of the marvelous advancement evidenced by other sciences, today the extent to which law is entitled to be denominated a science depends upon the amount of quantitativeness which can be found therein.

The facts, the bases upon which the science of law rests, are "the irrefragable, permanent, and invariable facts of the constitution of human society, as exhibited in the state of the physical, logical, and ethical constitution of man." "When these materials are carefully scrutinized, it will be found that they are composed of elements. as permanent and universal as the elements of human nature itself." It is curious, however, that "the region of law, has, up to a recent time, been held to be the natural home of caprice and irregularity. *** It has been forgotten, or has escaped notice, that the caprice has been accidental and the order is essential."

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It would be needless to spend time pointing out that law has frequently fallen short of true quantitative precision. But when we find industrial engineers measuring human efforts and processes quantitatively, when we find investigators of physical science creating by exact and minute calculations the ultramiscroscope, whereby they have secured direct confirmation of the kinetic theory of matter that is, the theory that the molecules are in a very rapid state of vibration-by actually seeing particles closely approaching molecular dimensions, which appear as structureless disks of light like tiny blazing suns in very rapid motion, are not jurists spurred into. greater efforts toward quantitativeness in law? HENRY C. CLARK.

Jacksonville, Fla.

LIABILITY FOR OBSTRUCTING THE NATURAL FLOW OF SURFACE WATERS.

The case of Rylands v. Fletcher,1 is probably the most frequently quoted of all leading cases and apparently its authority and implications are not being diminished with the lapse of time. The facts connected with it may be briefly recalled. The parties were the owners of adjacent lands. The plaintiffs worked mines under their close which communicated with disused workings under defendants' lands which workings, although partly filled in, were insufficiently protected from a reservoir which the defendants constructed. When this reservoir was filled with water which percolated into the plaintiffs' mines the latter were held to be entitled to recover

damages from the defendants. In the course of his judgment Lord Cairns L. C. stated the legal principles governing the case as follows: "The defendants might lawfully have used that close for any purpose for which it might in the ordinary

(1) 1868 L. R., 3 H. L. 330.

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