He mentions five obstacles (all on the part of the United States) to the unification of the law: (1) the jealousy with which each jurisdiction guards its own legal products; (2) the increasing tendency to make law through legislators rather than judges or jurists, as legislators are even more apt than judges to restrict themselves to local considerations; (3) the sluggish progress made in obtaining uniform commercial law on other matters, such as warehouse receipts, sales, and even negotiable instruments; (4) the division of jurisdiction which commits the regulation of commerce to the federal government and the regulation of the instruments of commerce to the states; and (5) the tendency of the American business public to sneer at jurisprudence. He mentions three conditions favorable to unification: (1) that American jurists and teachers of law are turning from the welter of decisions, and seeking unity in law; (2) that Latin-American jurists have inherited a tradition of universal law, and incline to the universal treatment of law; and (3) that the sociological movement in America is gaining strength, and that this must make for universality since it breaks from purely legal reasoning and turns to general considerations of utility, of justice, and of adaptation to human activities. Professor Pound concludes by saying that we must not expect to move rapidly. The first step would seem to be the promotion of uniformity from within, both in Latin America and in Anglo-America. The second step must be education through scientific discussions in congresses and conventions, out of which may arise in the near future a Pan-American Conference on Uniform Commercial Legislation composed of jurists, practicing commercial lawyers, and men of affairs, which will gradually produce a scheme of Pan-American legislation on the subject. The report is terse. The learned author has simply sketched the situation. The reviewer ventures to suggest that, while it is improbable that the laws relating to composite business units, even in the United States, will be made uniform in the near future, if ever, it seems, on the other hand, probable that a law may be evolved regulating one type of a composite business unit, which could be readily understood by lawyers and business men in all the American Republics, and that at least the great commercial states would permit its citizens, at their option, to do business by such method. EDWARD H. WARREN. THE DOCTRINE OF CONSIDERATION. Treated historically and comparatively. By Pherozeshah N. Daruvala, LL.D. Calcutta, 1914. pp. lxvii, 622. The scope of this book on consideration is remarkable. It includes all questions relating to the necessity of consideration in order to make valid either a promise or a transfer of property. Though it deals primarily with the law of England and her colonies, the law of all other civilized countries is in separate chapters compared with the English doctrine. It is unfortunate that the execution of the work is not equal to the scope. The author seems to have read an astonishing number of books, and he quotes liberally from them; but there is little attempt to coördinate in accurate statements of principle the author's conclusions from the many authorities which he cites. Such attempts as he makes in this direction are not very helpful. On pages 118-120 he collects more than twenty different definitions of consideration, all of which he criticises as defective "because instead of laying down a principle they try to give instances." This criticism, however, seems inapplicable to many of the definitions which not only "give instances" but profess to include all the instances where the author of the definition thinks consideration may be found. There is a confusion of terminology, however, in the definitions which Dr. Daruvala quotes - a confusion which he does nothing to clear up, between consideration which is in fact given for a promise, and such consideration as the law regards as essential to make a promise binding. The lack of discriminating thought which is evident in this matter is typical of the book. Thus in treating the crucial question of the validity as consideration of the promise, or the performance, of an act due under a previous contract with a third person, the author carefully states the conclusions of all writers on that subject, but he gives little of their reasoning, and says nothing himself which sheds light upon the subject. His final conclusion (p. 155) that either performance or promise of an act due to a third person may suffice to support a promise is logically at variance with his earlier statement (p. 121) made in attempting a definition of the requisite of valid consideration that "there must be a detriment by the promisee.' But he does not observe the inconsistency. There is much valuable material in the book, but the author has not been equal to dealing with his material. In mechanical execution, though the print and form of the volume are pleasing, it is defaced by numerous misprints. SAMUEL WILLISTON. PALAEOGRAPHY, AND THE PRACTICAL STUDY OF COURT HAND. Parts I and II. By Charles Johnson and Hilary Jenkinson. Oxford: Clarendon Press. 1915. pp. xlviii, 250. The object of this sumptuous monograph is to prove that, at least in England where medieval manuscripts are numerous and men of all classes wrote them, it is not possible to decipher or even to date a manuscript by internal evidence; "that Court Hand documents can generally be read with certainty, but only in the light of their meaning, and that they can nearly always be dated with accuracy, but not by their handwriting." The author's thesis is proved in a novel way. He reproduces thirteen documents, written in widely different hands, and gives comments on the peculiarities of each hand; and then announces that the documents "are all of one date 1225; they all relate to the same small piece of business; they actually form separate membranes of a single roll; and they come all from one small part of Lincolnshire not more than a few miles square." The facsimiles are beautiful; the comments enlightening; the surprise complete; the demonstration convincing. J. H. BEALE. THE ADMINISTRATION OF JUSTICE IN CRIMINAL MATTERS (In England and Wales). By G. Glover Alexander. Cambridge: Cambridge University Press. 1915. pp. x, 235. THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD. By Edwin M. Borchard. New York: The Banks Law Publishing Company. 1915. pp. xxxvii, 988. COLLECTED DIPLOMATIC DOCUMENTS RELATING TO THE OUTBREAK OF THE EUROPEAN WAR. London: H. M. Stationery Office. 1915. pp. xix, 561. VOTING TRUSTS. By Harry A. Cushing. New York: The Macmillan Company. 1915. pp. 226. THE CRIMINAL IMBECILE. By Henry Herbert Goddard. New York: The Macmillan Company. 1915. pp. ix, 157. THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907. Edited by James Brown Scott. Carnegie Endowment for International Peace. New York: Oxford University Press. 1915. pp. xxx, 303. OUTLINE OF INTERNATIONAL LAW. By Arnold Bennett Hall. Chicago: La Salle Extension University. 1915. pp. v, 255. ILLUSTRATIONS IN ADVOCACY. By Richard Harris. Fifth Edition. London: Stevens and Haynes. 1915. pp. xii, 261. PATHOLOGICAL LYING, ACCUSATION, AND SWINDLING. By William Healy and Mary Tenney Healy. Criminal Science Monograph No. 1. Boston: Little, Brown, and Company. 1915. pp. ix, 286. A HISTORY OF CURRENCY IN THE UNITED STATES. By A. Barton Hepburn. New York: The Macmillan Company. 1915. pp. xv, 552. DAS ENGLISCHE PRISENRECHT. Von Charles Henry Huberich. Berlin: Carl Heymanns Verlag. 1915. pp. xv, 135. INTERNATIONAL LAW TOPICS AND DISCUSSIONS, 1914. Naval War College. Washington, D. C. 1915. pp. 169. PRIMITIVE AND ANCIENT LEGAL INSTITUTIONS. Compiled by Albert Kocourek and John H. Wigmore. Evolution of Law, Volume II. Boston: Little, Brown, and Company. 1915. pp. xiii, 704. REMEDIES OF Vendors and PURCHASERS OF REAL ESTATE. By C. C. McCaul. Second Edition. Toronto: The Carswell Company, Ltd. 1915. pp. xxiii, 222. GUIDE TO THE Law and Legal LITERATURE OF SPAIN. Prepared under the direction of Edwin M. Borchard by Thomas W. Palmer, Jr. Washington: Government Printing Office. 1915. pp. 174. Edited by T. Baty. London: Stevens PRIZE LAW AND CONTINUOUS VOYAGE. and Haynes. 1915. pp. 134. THE PRINCIPLES OF LEGAL LIABILITY FOR TRESPASSES AND INJURIES BY ANIMALS. By William Newby Robson. Cambridge: Cambridge University Press. 1915. pp. xvi, 180. THE SIMPLIFICATION OF THE CIVIL PRACTICE OF NEW YORK. Volumes I, II and III. Prepared by the Board of Statutory Consolidation. Albany: J. B. Lyon Company. 1915. pp. 454, 346, 638. THE SWISS CIVIL CODE. Translated by Robert P. Shick. Annotated by THE DIPLOMACY OF THE WAR OF 1812. By Frank A. Updyke. EQUITY PRACTICE. State and Federal. Volumes I, II and III. The Albert By Robert 1915. pp. HARVARD LAW REVIEW VOL. XXIX DECEMBER, 1915 No. 2 ON PENALTIES AND FORFEITURES BEFORE PEACHY 7. THE DUKE OF SOMERSET N the jurisdiction of chancery to relieve against penalties and forfeitures, Peachy v. The Duke of Somerset1 is usually cited as the leading case. Simple enough on the facts, the parties concerned were sufficiently important to insist on a very thorough discussion of the law. We are told that it "held three days" and was "solemnly debated"; hence the arguments of counsel and the judgment of the chancellor took a wider range than will be found in previously reported decisions. It discloses just how far equity jurisdiction had developed in this class of cases by the first quarter of the eighteenth century, forming a convenient stopping point for a review of the earlier law. The penal obligation, as known to-day, is a product of Roman law. Probably, in the earliest period of contract, stipulations (stipulatio) for the payment of money were alone valid, so that the practical mode of stipulating for a collateral act was to make the payment of a sum of money conditional on the non-performance of the act desired. The amount of the poena had no measure except the will of the parties, and it might be recovered in full, although exceeding the value of the act or forbearance stipulated for.2 Later, an equity in favor of actual damages was recognized 1 I Strange 447 (1720), s. c. Prec. Ch. 568, 2 Eq. Ca. Abr. 227; 2 WHITE AND TUDOR, LEADING CASES IN EQUITY, 8 ed., 255. 'JUSTINIAN, INSTITUTES, 3, 15, 7 (Moyle's 5 ed.); DIG. 4, 8, 32; 21, 2, 56. 3 in some cases although not in all; indeed, there were many debatable points on this subject still unsettled at the close of the Classical period, as is reflected in modern continental jurisprudence. The French civil code provides: "When the contract stipulates that the party who fails to execute his obligation shall pay a certain sum as damages, neither a greater nor a less sum can be granted the other party." But elsewhere it is said: "The penalty may be modified by the judge whenever the principal obligation has been executed in part." The German civil code provides: "If a forfeited penalty is disproportionately high, it may be reduced to a reasonable amount by judicial decree obtained by the debtor. In the determination of reasonableness every legitimate interest of the creditor, not merely his property interest, shall be taken into consideration. After payment of the penalty the claim for reduction is barred."5 Stipulations for the performance of collateral acts were uncommon in the early period of the Roman law. We are told that they were used chiefly in the creation of servitudes upon provincial lands. The older modes of constituting servitudes by in jure cessio, or by mancipatio, could not be applied to praedia provinciala; hence the occupiers of land in the provinces resorted to the solemn contract, stipulatio, by which the owner bound himself to allow its enjoyment or in default to pay a penal sum. The stipulation, it is needless to say, was the formal contract of the Roman law entered into by question and answer (dari spondes? spondeo), having distinct procedural advantages; a written memorandum of the act was merely a convenient means of proof. But, as time went on, practice gave increasing importance to the writing," 6 HUNTER, ROMAN LAW, 652, citing DIG. 44, 4, 4, 3. Cornelius compromised a claim against Maevius for 60 aurei, but Maevius inconsiderately agreed to a penalty of 100 aurei if he did not keep the terms of the compromise. Cornelius could not recover more than was really due—namely, 60 aurei; and if he demanded more, could be defeated on the ground of bad faith (exceptio doli mali). 4 CODE CIVIL, arts. 1152, 1231. So also the ITALIAN CIVIL CODE, art. 1214, and the SPANISH CIVIL Code, art. 1154. See SWISS FED. CODE OF OBLIGATIONS, arts. 179 to 182; POTHIER, OBLIGATIONS, pt. 2, ch. 5, and, for Scotland, Lord Elphinstone v. Monkland Iron Co., 11 App. Cas. 332, at p. 436 (1886); Forrest v. Henderson, 8 M. 187 (1869). GERMAN CIVIL CODE, art. 343. See notes to Official French Edition (1904). • GAIUS, II, 31; INSTITUTES, II, 3, 3 and 4 (Moyle's 5 ed.); SOHM, Institutes, § 80, 2. INSTITUTES, III, 19, 12. Hence the cautio fide jussoria. |