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regulate quarantine, their laws to those | NOTES OF IMPORTANT DECISIONS. 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 FAILURE TO TAKE PROPER CARE OF AN L. Ed. 1209, and cases cited.

INJURY AS PROXIMATE CAUSE OF DEATH. "Fisheries have been the subject of trea - What is the proper care to be taken of an ties always, and the principles and objects injury, the failure to exercise which would rethereof are equally applicable and desirable lease the party responsible for the injury from in relation to migratory birds and other such damages as flowed from such neglect? game. So doubtless of air and water, their The Supreme Court of Wisconsin has just held protection from pollution, their conserva in the case of Banner Coffee Co. v. Industrial tion, apportionment, and use. The object of Commission, 174 N. W. Rep. 344, that a laborer all thereof is to peacefully share those nat who is kicked on the shins by a horse is not ural resources which are the property of acting without common prudence when he does no one till reduced to possession, from not at once consult a doctor. In this case the which all may take when within their terri injured man applied carbolic salve and other tory, which are alternately found within the home remedies and did not consult a physician territory of the several nations and in places until it was too late to save his life from the common to all as the high seas, which may resulting infection. be wholly seized and exterminated by one to the great and irreparable damage of all,

The Industrial Commission allowed the inwhich in accord may be preserved and en

jured workman's widow the sum of $3,000, from joyed a blessing to all, but in discord may

which award the employer appealed to the Sube annihilated to the injury of all, and

preme Court. In discussing the appeal the which may become legitimate causes for

court said: war, to obviate which is of the most ancient

"Conceding that persons highly appreciative and important objects of treaties."

of the dangers resulting from infection would It seems to us that the attorneys and at once consult a physician, we cannot say that

this is true of the great mass of mankind under statesmen who are seeking to set limita

the same or similar circumstances. It is a mat tions upon the treaty-making power are

ter of common knowledge that strong, healthy

men engaged in manual labor frequently give trying to put the United States in a strait

| such trifling injuries, which would arouse the jacket which the framers of the Consti apprehension of others, little thought, and in

comparison with the number of such injuries tution sought deliberately to avoid. In

the instances followed by infection are not defense of the unrestricted power to make

numerous. If they are treated at all, home reme

dies are applied, just as was done by the de. treaties granted by the Constitution, Alex

ceased. Carbolic salve was his remedy for cuts, ander Hamilton argued that the treaty bruises, etc., and this he applied. The injury

itself was not sufficient to keep him from his making power "ought to exist without lim

work, and he went about the performance of his itation because it is impossible to foresee daily duties, attaching little consequence to the

injury. We do not think it is customary for or define the extent and variety of national

laboring men to rush to a doctor every time exigencies, or the correspondent extent and they sustain a cut, bruise or abrasion of the

skin, and we cannot say as a matter of law that variety of the means which may be neces the conduct of the deceased was not that of the

great mass of mankind under the same or simisary to satisfy them.”

lar circumstaces." It is curious to note that in spite of dicta and argument against the unrestricted pow

MAY A DEFENDANT RAISE THE DEer to make treaties, no treaty has ever been

FENSE OF FORMER JEOPARDY TO A VERheld unconstitutional. The reason is prob

DICT IMPOSING A SEVERER PUNISHMENT ably that while inter nos a treaty is part THAN ON A PREVIOUS TRIAL FOR THE of the “law of the land,” internationally SAME OFFENSE.-An appeal in a murder case speaking, a treaty is only a contract made is often a dangerous speculation with the life of

the defendant. The case of Stroud v. United by the only authority having power to

States, 40 Sup. Ct. Rep. 50, decided by the Supledge the word of the United States; and

preme Court on a third appeal, illustrates this there does not seem to be anything in the

point. On the first trial defendant was convictConstitution that restricts in any manner ed and sentenced to be hung. Upon confession the subject matter of such contracts.

of error by the United States District Attorney the Circuit Court of Appeals reversed this judg QUANTITATIVENESS IN LAW. ment. 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 pun In recent years the proclamation that law ishment.” Upon writ of error to this court the is a science has been made with increasing Solicitor-General of the United States confessed

emphasis. error, and the judgment was reversed; the mandate commanded:

Yes, law is a science. This we will prob"Such further proceedings be had in said

ably all admit. But lawyers are fain to cause, in conformity with the judgment of this stand aloof and gaze upon the structure of court, as according to right and justice and the this science as something too ephemeral or laws of the United States ought to be had, the

elusive to undertake to remould-recognizsaid writ of error notwithstanding."

ing, at the same time, the need of improveIn pursuance of this mandate the District

ment. Court issued an order vacating the former sentence, and ordered a new trial. The trial was | We lawyers in some respects very much had; the jury found Stroud guilty of murder in

resemble handicraft men, who hand down the first degree as charged in the indictment,

their particular calling from making no recommendation dispensing with

generation to capital punishment. Upon this verdict sentence generation, and test an apprentice by how of death was pronounced. A third appeal was nearly like his master he can perform his taken and the case carried for a second time to

task. As a result, much time, motion and the Supreme Court. On this appeal the defend

efficiency are wasted, due to a following of ant raised the point of former jeopardy because the second conviction was "without capital pun tradition. ishment.” On this point the court said:

A recent study of brick laying disclosed "It is true that upon the second trial the jury

that present day masons performed their

that present day added 'without capital punishment to its verdict, and sentence for life imprisonment was work "in much the same way as their preimposed. This recommendation was because of

decessors did on the walls of Babylon. the right of the jury so to do under section 330 of the Criminal Code. This section permits the From time immemorial masons have workjury to add to the verdict, where the accused

ed from a scaffolding which was raised is found guilty of murder in the first degree, 'without capital punishment,' in which case the only when the mason could no longer reach convicted person is to be sentenced to imprison

the top of the wall. It was then raised to ment for life. The fact that the jury may thus mitigate the punishment to imprisonment for

such a height that he must bend his back life did not render the conviction less than one for the first degree murder. Fitzpatrick v. Unit

constantly or work on his knees until the ed States, 178 U. S. 304, 307.

wall grew so high as to relieve him of such "The protection afforded by the constitution | awkward positions. From time immemorial is against a second trial for the same offense. Ex parte Lange, 18 Wall. 163; Kepner v. United

also the mason's tender has dumped unStates, 195 U. S. 100. Each conviction was for sorted brick and mortar on the scaffold at murder as charged in the indictment, which, as we have said, was murder in the first degree.

the mason's feet so that the mason has to In the last conviction the jury did not add the

stoop to get both mortar and brick, selecting words 'without capital punishment to the verdict, although the court in its charge particu the brick as he went along, and often worklarly called the attention of the jury to this

ing up the mortar with his trowel.” It was statutory provision. In such case the court could do no less than inflict the death penalty. found also that many of the motions made Moreover, the conviction and sentence upon the

by the workers were useless and used up former trials were reversed upon writs of error sued out by the plaintiff in error. The only valuable energy with no effect. thing the appellate court could do was to award a new trial on finding error in the proceeding. One of the first innovations introduced Thus the plaintiff in error himself invoked the action of the court which resulted in a further by the investigator was a "scaffold that trial. In such cases he is not placed in second

could be raised quickly a few inches at a jeopardy within the meaning of the constitution. Trono v. United States, 199 U. S. 521, 533." time so as to be kept at or near the best

level for economic working. To this was, investigated. * * * They substitute exact added a shelf-like attachment on which the knowledge for prejudiced opinion and bricks and mortar could be placed near the force in determining all the conditions of workman's hand. The sequence in which work and pay.” the brick should be laid for various types of wall was worked out and in order to

The effort to measure human effort in a

scientific, quantitative manner is or should save the high-priced mason's time in sort

be common to scientific industrial manageing the brick, low-priced men were employed to sort the brick on the ground. The

ment and to law. bricks were sent up to the mason in packets

The general principles of any science may of twenty-four each with the bricks ar

| be known qualitatively or quantitatively. ranged with the right side up so that no

Thus we know that beams will bend if sorting was necessary. The mortar was

loaded. The chemist knows that the addicarefully standardized and a special mortar

tion of a certain acid to a given mixture box made it easy for the mason to secure

will precipitate a certain substance. A mortar while still following with his eye

| lawyer knows that fraud makes a transacthe hand which held the brick. A careful

tion voidable, or that negligence may imstudy of the mason's motions and a rear

pose a liability upon one guilty thereof. If, rangement of methods eliminated about half

however, the knowledge of the chemist, the the motions previously performed. As a

engineer or the lawyer does not go beyond result of these changes it was found that

these generalities their knowledge is qualithe worker could lay about three times as

tative only. many bricks per hour as formerly, and with less fatigue.”

But if the chemist can state that a given The improved method of laying brick quantity of acid will precipitate a definite was discovered not by a mason, but by au amount of a certain material from the liquid outsider who applied to brick laying prin: in question, he is said to know the laws perciples of scientific industrial management, taining to the operation quantitatively. A and carried on time and motion studies to lawyer possesses similar knowledge, for determine wherein, and how much, time instance, when he can ascertain with cerand motion was being wasted in the old way tainty whether a given state of facts conof laying brick.

stitutes fraud or negligence, or comes within

the pale of “reasonable,” as the case may be. It may be that we lawyers, trained in

The development of chemistry from a legal lore and tradition, need some cut

qualitative into a quantitative science afsider to turn a scientific searchlight on the

fords a bit of interesting history here pertiancient precepts and practices with which

nent. Naturally, the early chemists, known we are familiar, and show us wherein and

as alchemists, first learned the existence of wherefore our mistress, the law, is inef

certain substances and something of their ficient, and how by a turning from tradition

properties. They acquired a limited amount and an improvement in precepts and prac

of qualitative knowledge, just enough to tices our mistress may be better able to

give them one great aim—to ennoble the perform her task.

base metals and to prolong life indefinitely Mr. F. W. Taylor, the founder of scien -a most utilitarian desire, but which of tific industrial management, has stated : course availed nothing, though lasting well "Time and motion study is the accurate on into the seventeenth century A. D. There scientific method by which the great mass then came a revolution against tradition and of laws governing movements of men are a change toward the direction of true re

search, which included an extensive devel- found himself. If in the whole department opment of pharmacy and medicine. But of unintentional wrongs the courts arrived not until the latter half of the eighteenth

| at no further utterance than the question

1 of negligence, and left every case, without century did chemistry begin to acquire

rudder or compass, to the jury, they would quantitative precision, the prior mastery of simply confess their inability to state a very quantitative conceptions by the physicists large part of the law which they required undoubtedly being of great aid to the chem

the defendant to know, and would assert,

by implication, that nothing could be learned ists. Not until the absolute neecssity of

by experience." quantitative investigation was recognized did chemistry become a science. Modern 1 Consider also in the light of the prechemistry then begins. With the quantitative sumption that every man knows the law, the knowledge of chemistry began a new era of following from Freund's “Standards of precision and efficiency. Exact knowledge | American Legislation :"? “Unfortunately, was substituted for prejudiced opinion. opinions in constitutional cases rarely go

beyond rhetoric; and generalities and quoThe substitution of exact knowledge for

tations from similarly elusive pronounceprejudiced opinion is the great desideratum

ments take the place of searching analysis. of law, and will mark the development of

We are referred to reasonableness as a crilaw from a qualitative into a quantitative

terion of validity, as if ‘reasonable' were science. Law is not and never will be an

not the very negation of scientific preciexact science. Yet the more exactness it

sion.” acquires,—the more nearly it approaches an exact science, the greater will be the cer

| Essential to quantitativeness in law are tainty of justice.

.standards,-not changeable, indefinite mat

| ters of whim, but fixed and definite measJustice Holmes, in his work, “The Com

ures or gauges by which to determine with mon Law,''l says:

exactness the jural results arising from “When a man had to pay damages, he is given states of facts. supposed to have broken the law, and he is

When we note the variability of the profurther supposed to have known what the law was.

nouncements, both legislative and judicial,

in our many jurisdictions, when we hear of "If, now, the ordinary liabilities in tort

judicial recall, the recall of judicial deciarise from failure to comply with fixed and uniform standards of external conduct. sions, and of initiative and referendum, we which every man is presumed and required wonder whether W. C. Brownell has not to know, it is obvious that it ought to be spoken in all truth in his brochure, “Standpossible, sooner or later, to formulate these

ards,” when he says:3 "One of the really standards at least to some extent, and that

significant signs of our revolutionary and to do so must at last be the business of the court. It is equally clear that the feature

transitional time is the wide disappearance less generality, that the defendant was of standards altogether, the contempt felt bound to use such care as a prudent man for them as conventions, the indignation would do under the circumstances, ought to

aroused by them as fetters, the hatred inbe continually giving place to the specific one, that he was bound to use this or that

spired by them as tyranny.” precaution under these or those circum It may be that too many of us have stances. The standard which the defendant

adopted the manufacturer's or salesman's was bound to come up to was a standard of specific acts or omissions, with reference

concept of quality, where quality means to the specific circumstances in which he

"what the public wants,” and go about our

[blocks in formation]

work accordingly. Here the standard for! It would be needless to spend time pointquality is mere whim or caprice, subject to ing out that law has frequently fallen short change without notice. It is of such that of true quantitative precision. But when Brownell speaks. The standard is no we find industrial engineers measuring standard. It has no certainty.

human efforts and processes quantitatively, Obviously, no such "standard" will suf

when we find investigators of physical fice for law, wherein "standardization

science creating by exact and minute calserves to advance the other main objects of

culations the ultramiscroscope, whereby law, namely, certainty, objectively, stabil

they have secured direct confirmation of ity, and uniformity."! “The principle of

the kinetic theory of matter--that is, the standardization has four main applications

theory that the molecules are in a very or phases in the making of statute law:

rapid state of vibration-by actually seeing conformity to undisputed scientific data and

particles closely approaching molecular conclusions, the working out of juristic prin

dimensions, which appear as structureless ciples, the observance of an intelligible

disks of light like tiny blazing suns in very method in making determinations, and the

rapid motion, are not jurists spurred into avoidance of excessive or purposeless in

greater efforts toward quantitativeness in stability of policy."5 The last-quoted state

law ?

HENRY C. CLARK. ment is needlessly limited to statute law. It

Jacksonville, Fla. is equally true with the word “statute” omitted. In the light of the marvelous advance

LIABILITY FOR OBSTRUCTING THE ment evidenced by other sciences, today the NATURAL FLOW OF SURFACE extent to which law is entitled to be denom WATERS. inated a science depends upon the amount The case of Rylands v. Fletcher, is of quantitativeness which can be found probably the most frequently quoted of all therein.

leading cases and apparently its authority The facts, the bases upon which the

and implications are not being diminished science of law rests, are “the irrefragable,

with the lapse of time. The facts conpermanent, and invariable facts of the con

nected with it may be briefly recalled. The stitution of human society, as exhibited in

parties were the owners of adjacent lands. the state of the physical, logical, and ethical

The plaintiffs worked mines under their constitution of man."* "When these ma

close which communicated with disused terials are carefully scrutinized, it will be

workings under defendants' lands which found that they are composed of elements

workings, although partly filled in, were as permanent and universal as the elements

insufficiently protected from a reservoir of human nature itself.” It is curious,

which the defendants constructed. When however, that “the region of law, has, up to

this reservoir was filled with water which a recent time, been held to be the natural

percolated into the plaintiffs' mines the home of caprice and irregularity. * * * It

latter were held to be entitled to recover has been forgotten, or has escaped notice,

damages from the defendants. In the that the caprice has been accidental and the

course of his judgment Lord Cairns L. C. order is essential.”?

stated the legal principles governing the

case as follows: “The defendants might (3) Page 4.

lawfully have used that close for any pur(4) Freud, op. cit., 248.

pose for which it might in the ordinary (5) Ibid., 249. (6) Amos, Science of Law, 27. (7) Ibid., 19.

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

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