adherence to them, and speculating as to changes both in principle and in practice that are advisable. The subject is not handled as a matter of case law, even where, as in the case of maritime law, it is susceptible of such treatment. Somewhat over a hundred cases, largely American, are cited, but the collection does not apparently purport to be substantially complete. It follows that to the active practitioner the book will have little value, and the same thing is true for the student of the subject. But to the beginner, and to the lawyer who would obtain a general view of this subject in a readable and reasonably concise form, the book will be very welcome. Its style is pleasant and smooth, and the presentment, with its slight British bias, clear and comprehensive. Some very interesting problems are discussed, of which we may mention the question as to the power of common-law courts to protect private property of the inhabitants of conquered territory from executive confiscation incident to the acquisition of the territory. It is believed, however, that the author is mistaken in thinking that in such case "the law of the nations is, by an article of the Constitution" of the United States, "part of the law of the land" (p. 20). But his contention that recent English decisions on the point were ill-advised, and that in such case the courts should adjudicate upon private rights in accordance with the principles of international law, though admittedly without common-law support, is strongly urged, and worthy of consideration. A. R. G. THE MECKLENBURG DECLARATION OF INDEPENDENCE. By William Henry Hoyt. New York and London: G. P. Putnam's Sons. 1907. pp. XV, 284. 8vo. In the last few years interest has again been aroused in the moot case of the Mecklenburg Declaration of Independence by the discovery of fresh evidence bearing on the controversy. There seems no doubt that the patriotic committee for Mecklenburg County, on May 31, 1775, passed a set of resolutions which were in effect a contingent declaration of independence. But since 1817 an energetic effort has been sustained to force general belief in a more formal and unconditional declaration, asserted to have been pronounced on May 20, 1775, in language strikingly similar to the federal Declaration. Here, then, is the crux of the matter. Was there a separate declaration on May 20, whose spirit was softened in the May 31 resolves, or was it the latter resolves which were recalled and written of incidentally as a declaration of independence? In favor of the existence of the earlier declaration there are alleged copies and circumstantial evidence. Dr. George W. Graham, in his book published in 1905, found in the more recently discovered evidence new grounds for supporting this view. Mr. Hoyt has reached the opposite result one that to the layman seems the more reasonable. It would not do to say that he has written the last word on the question, but it will probably be the last word of moment until irrefragable documentary evidence comes to light. No existing clue seems to have been neglected by Mr. Hoyt. His spirit is that of the impartial judge, his logic is convincing, and his style is clear and readable. The exposition should be interesting to every student of American history. H. s. THE GOVERNMENT OF INDIA. By Sir Courtenay Ilbert. Second Edition. Oxford: At the Clarendon Press. London and New York: Henry Froude. 1907. pp. xxxii, 408. 8vo. The author of this book brings to his task exceptional qualifications. At one time he was law member of the Council of the Governor-General of India, and he is at present Clerk of the House of Commons, so that both from familiarity with Indian affairs gained by personal experience, and from acquaintance with British legislative and administrative ideals, he can speak with authority. The purpose of the book is to show the necessity for consolidating the English statutes relating to India, and to show in what way it can be done. The first chapter contains an historical introduction, covering some hundred pages and yet much compressed. The author has written solely from the view point of one interested in constitutional law; and it is necessary to have some knowledge both of English and of Indian history in order to understand and appreciate his work. The same criticism may be made of the summary of existing law that follows. But a careful reading presents forcibly the necessity for consolidating the various enactments. That it is possible to do so Sir Courtenay Ilbert proceeds to demonstrate. He has collected all the statutory enactments relating to the government of India, arranging them in convenient order according to the principles adopted in preparing consolidation bills for presentation to Parliament, and he has added explanatory notes. This work is largely based on the consolidating draft of 1873, which he has brought down to date. If the British government sees fit to pass a consolidating act, this work will be of unquestionable value. Even if consolidation is not enacted, it should be an almost invaluable handbook for Indian administrative officials. It is also of interest to the student of comparative law, legislation, and administration. S. H. E. F. LEADING CASES ON THE LAW OF EVIDENCE. By Ernest Cockle. London: Sweet and Maxwell, Ltd. 1907. pp. xii, 224. 8vo. The title should be "Leading Cases on the English Law of Evidence," since English cases alone have been selected. At the head of each case is a short statement of the principle to be illustrated, then follow the facts and that portion of the opinion which deals with the point at issue. To this the author usually adds a footnote of comment or explanation. Such an arrangement is compact and clear. On the other hand so little of each case is given that the reader cannot tell by examination whether the point is the sole, or one of several grounds for the decision. The index, however, is full and well arranged, and thus gives a fairly adequate summary of the subject. The scope and value of the book within its somewhat limited field would be greatly increased if each leading case were followed by a reference to those English cases wherein it has been cited, explained, or distinguished. E. H. A., JR. A TREATISE ON THE MODERN LAW OF BANKING. By Albert S. Bolles. In two volumes. Philadelphia: George T. Bisel Company. 1907. pp. lxxix, 508; 509-1124. 8vo. A TRUSTEE'S HANDBOOK. By Augustus Peabody Loring. Third Edition. Boston: Little, Brown, and Company. 1907. pp. xxxvi, 224. I2mo. SAMUEL FREEMAN MILLER. By Charles Noble Gregory. Iowa Biographical Series. Iowa City: The State Historical Society of Iowa. 1907. pp. xvi, 217. 8vo. TRIAL EVIDENCE. By Richard Lea Kennedy. St. Paul: The Keefe-Davidson Company. pp. vii, 49. 8vo. MANUAL OF CORPORATE TAXATION IN NEW YORK. New York: Fallon Law Book Company. 1907. pp. xv, 119. 8vo. DIE KUNST DER RECHTSANWENDUNG. By Lorenz Brütt. Berlin: J. Guttentag. 1907. PP. 214. 8vo. 12mo. THE LAW AND THE GOSPEL OF LABOR. By Luther Hess Waring. New HARVARD LAW REVIEW. VOL. XXI. FEBRUARY, 1908. No. 4. THE CONTRIBUTORY NEGLIGENCE. HE opinions in the earliest cases upon contributory negligence, Butterfield v. Forrester, and its little known predecessors, Conden v. Fentham 2 and Clay v. Wood,3 offer no indication that the court is aware that any new doctrine is being announced. That a plaintiff who by his own misconduct in conjunction with that of the defendant has brought harm upon himself, cannot recover damages, is stated as a well-settled rule. There is, therefore, no discussion of general principles, no logical argument applying such principles to the particular facts and showing that they necessitate the result reached by the court. All attempts to ascertain upon what legal principle the defense of contributory negligence is based, are therefore efforts ex post facto, to explain and account for a result already reached apparently unconsciously. The ready acceptance by the profession of the decision as conclusive, the entire absence of any attempt by counsel to attack it, seems clearly to negative the idea that it was an innovation, an anomalous rule applicable only to its own circumstances, — justifiable only by its convenience and utility. Had it not been the exhibition under the peculiar circumstances of some well-settled, universally recognized and accepted general legal conception, there can be no doubt that its introduction would have been sharply contested, instead of hardly causing a ripple in the placid surface of professional thought. Setting aside, therefore, the suggestion that the defense of contributory negligence is a pure anomaly justified by its utility under the peculiar facts under which it arises, it is necessary to examine 35 Esp. 441803). 1 11 East 60 (1809). 2 2 Esp. 685 (1798). carefully the theories upon which it has been from time to time attempted to explain the defense, to see whether any of them in reality offers a satisfactory explanation, and if not, whether there is in fact any fundamental principle of legal thought to which it can be ascribed. Three theories are commonly advanced as to the basis of the defense of contributory negligence. It is maintained that it depends on the application to the particular facts of the rule governing (1) proximity of legal causation; (2) indemnity or contribution between joint tortfeasors; or (3) voluntary assumption of risk as expressed in the maxim volenti non fit injuria. Taking first the theory that the plaintiff's wrongful assisting act breaks the chain of proximate causation between his own harm and the defendant's misconduct, it is necessary to ascertain if possible what proximity of legal causation is, and what part it plays in legal liability. It would be obviously opposed to any possible conception of justice that any one should be required to answer for a harm unless he had actually caused it. It is therefore always a vital prerequisite to recovery to establish that the plaintiff's harm was caused by the defendant's alleged misconduct. As to what is to be regarded as the cause of any given result admits of much difference of opinion. It is possible to regard as a cause any causa sine qua non, without which the result would not have happened, including every antecedent to the most remote, or, again, only to consider that a cause which operates directly to produce the result. Or the true. conception may well be taken to lie between these two extremes. Legal proximity of causation may be defined as that conception of cause and effect which has been adopted by the courts as the test by which to ascertain whether a particular harm is to be ascribed to a particular act or omission as its consequence as a prerequisite to the imposition of legal responsibility therefor. This conception has from time to time varied. The primitive concep 1 This is the explanation usually given by text-writers. Webb's Pollock, Torts, 573; Wharton, Negligence, 2 ed., § 132-133; Whittaker's Smith, Negligence, 373; Thompson, Negligence, 1156; Beach, Contributory Negligence, 10-11 et passim; Bishop, Non-Contract Law, § 463, n. 2. And see Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 697. "It [contributory negligence] rests on the view that though the defendant had in fact been negligent, yet the plaintiff by his own carelessness severed the causal connection between the defendant's negligence and the accident which has occurred and that the defendant's negligence accordingly is not the true proximate cause of the injury." tion of a sufficient legal cause was a causa sine qua non.1 When this idea was abandoned, the rebound carried judicial opinion to the opposite extreme, that no one should be answerable beyond (1) the direct result of his misconduct, his trespass, his semicriminal delict, or (2) those indirect results actually intended. As society became more highly organized, civilization more complex, it was evident that to prohibit violence and acts intended to be harmful was not enough; some further protection was required. Similarly, the citizen injured found little real compensation in the good intentions of him who had without violence and unintentionally brought harm upon him. It was necessary to add something to this test of wrongfulness, to this narrow field of liability, so as to enforce a decent social decorum, and to give compensation more really proportionate to the harm sustained by one whose rights were without violence, or unintentionally invaded without fault. of his own. It thus came to be said that " every man must be presumed to intend the natural and probable consequences of his act." Here the judges appeared to be merely laying down a rule of purely procedural law, dealing with the effect which might be given to evidence, a matter manifestly within their powers, and part of their function as presiding officers of a court of justice. Yet in so doing, as in so many other similar cases, without the appearance of judicial legislation, without incurring the stigma attached to law reformers, they substantially changed the whole conception of legally wrongful conduct, and immensely enlarged the limits of legal responsibility for admitted injuries. The presumption, by precluding inquiry into what was actually intended when the result was natural and probable, established between the two things a forced equivalence in legal effect. The whole conception of legal causation was enlarged, and an actor became as fully liable for the natural and probable consequences of his act, though unintended, as before he had been when the result had been foreseen and designed.2 In defining the test by which this new social duty is to be ascertained, this enlarged measure of responsibility applied, the tendency of modern judicial opinion is overwhelmingly toward a full 1 2 Pollock and Maitland, History of the Common Law, 469-471. 2 But while a new conception was added, the old remained and still remains. No question of natural or probable causation arises where the actor actually intended the specific harm suffered, — for that he is now answerable, as he always was punishable, though to others it would appear both an unlikely and abnormal result. |