Page:The Green Bag (1889–1914), Volume 25.pdf/505

This page needs to be proofread.


476

The Green Bag

R. L. Marshall. 38 Law Magazine and Review 401 (Aug.). Continued from 38 Law Magazine and Review 278 (25 Green Bag 311). "It is important to estimate rightly the true position of consideration in contract. Now, as it seems to the present writer, consideration is not inherently essential to contract: it may be incorporated in the contract as part of it, or something collateral to it; it may be a term of the actual performance of the contract, or a condition precedent to it: but in no case can any amount of considerations, or cause, or motive, or quid pro quo, of themselves constitute a contract: in no case can the mere fact of work done constitute an obligation to pay for it. What does constitute a contract is the promise of one party and the agreement of both: the consideration is rather of the nature of a buttress to support the agreement. And this is perfectly consistent even with an artificial rule that there must be consideration: it is not only consistent with, but implied as a matter of course by the evidentiary view of consideration, which view modern writers and judges have found it neces sary to adopt from time to time." See Sales. Conveyances. "The Recording System." By Axel Teisen. 70 Legal Intelligencer (Philadel phia) 538 (Aug. 22). "Our recording system has reached that point in the evolution where all title papers are re corded in extenso, in separate books, according to their nature, with indexes of names divided into separate books corresponding to the sepa rate books of record. "We have no indexes of the land according to separate holdings, and the recording and index ing of transactions and events affecting real estate have not been concentrated into one office and worked upon one principle, but are spread among a number of institutions and offices and worked differently in the several places. . . . "It may be necessary to increase the cost of recording, or — what would be better — levy a tax on all transfers of land according to the price paid or the assessed value, the amount of the mortgage or lien; during the period of transition this may be somewhat of a hardship, but in a comparatively short time an index like the one proposed will make title insurance superfluous in almost all cases, and a more than corresponding saving will be made." See Real Property. Corporations. "Responsibilities of Officers and Directors of Private Corporations." By Charles Kerr. 47 American Law Review 561 (July-Aug.). "This is essentially a business age. It is an age when the commerce of the world is handled through the medium of corporate capital. What then would be a clear rule for the measurement of the responsibility of the director or officer of a corporation, growing out of mistakes of judg ment, must be exceedingly difficult to establish.

And a somewhat hasty examination of the subject leaves little doubt that the only safe rule lies in the 'rule of reason' as it may be applied to the circumstances of each case." Criminal Law and Procedure. "The Re vival of Criminal Jurisprudence." By Professor Maurice "ThereParmclee. must be Independent, a revival ofSept. the 18, study p. 676. of criminal jurisprudence in order that criminal law and procedure may be brought up to date and harmonized with the new forms of penal treat ment. This study must be based upon the two sciences which deal with the causes of crime, criminal anthropology and criminal sociology. No system of criminal jurisprudence or of penal treatment has a sound scientific basis which is not based upon the data and inductions of these sciences. The penal reforms to which, we have referred have been too empirical because they have lacked this basis. . . . "American criminal law has been derived from the English common law. This system of law was evolved in the course of several centuries in a very empirical manner out of the decisions of judges. Neither in England nor in America has much study been made of the theory of the law. This has been a great loss to our criminal law, which has not been submitted to the critical examination which an attempt to formulate theory requires. But now that scientific stand ards are to be applied to the law such a critical examination must be made, and necessary changes must follow in order that the theory of the law may harmonize with these stand ards. . . . "Penal responsibility requires a legal criterion according to which the responsibility in each case can be measured. It must be determined to what extent premeditation or intention can serve as this criterion, and what else is needed to complete it. The fundamental principle of modern criminal law, nulla poena sine lege criminali, must be interpreted in the light of criminological science. A legal doctrine of attempted crime in harmony with the facts of criminal psychology must be developed. The same must be done for plurality of crimes and plurality of the agents of crime or complicity. A penal code must be devised in which crime will no longer be treated as a juridical abstrac tion, but in which the character of the criminal will receive due recognition. These are a few suggestions as to what needs to be done to give our criminal law a broad theoretic basis in har mony with the facts of science. "Still more extensive changes need to be made in criminal procedure; these changes are even more important than those in criminal law because of the increased emphasis which is being laid upon the character of the criminal in the treatment of crime. Procedure must become an agency for determining this character as well as a more perfect agency than it now is for deter mining whether a crime has been committed and who has committed it. To accomplish these functions more evidence should be gathered. The police, who are usually among the first to reach the scene of a crime, could gather more evidence than they now do if they were trained