207
Index to Periodicals never seen any differentiation of law and moral ity framed in such novel terms as this: — “Law is distinguished from morals (as I have explained in 'Helmolts Wellgeschichle,’ and in my ‘Lehrbuch des Bilrgerliehen Rechts,’ I,
13) in
this, that morals do not rest on ideas of social order, but upon conceptions of a hyper-social order which towers over the social order.
Morals,
therefore, relate not only to external conduct, but also touch the internal inclinations of men." See Corporations. Torrens System. "Registration of Title to Land — Royal Commission's Reports; ll." By
john Burns. 22 Juridical Review 284 (]an.). Outlining a project of legislation for the imme diate reform of conveyancing in Scotland, along the lines of registration of title, or as we should say, the Torrens System.
Tort. “The Rule in Rylands v. Fletcher." By Francis H. Bohlen. 59 Univ. of Pa. Law Re view 298 (Feb.).
At a time when there is a tendency to confuse tort with negligence (as, for example, Mr. Snow has done in his paper on Social Insurance, see
p. 208 infra), it is a pleasure to come upon a clear analysis of common law principles, which brings out the fact that moral blame is not of the essence of tort. Mr. Bohlen deserves gratitude for showing that in Rylands v. Fletcher Baron Blackburn did not originate new law, but merely applied a principle deducible from decisions in existing actions not founded on negligence. “In trespass to real property, in nuisance, in case for the harm done by the spread of fire, except where modified by statute, the defendant who is innocent of any intention to do harm is as liable today, no matter how lawful his use of his land or however carefully he acts, as he
was in 1461. Nor is the persistence of this concep tion attributable to any special rigidity peculiar to the actions in which redress was had. It was in the action of trespass that the extreme rigor of the early law was first relaxed when the injury was to the person. Not only was the action on the case the most flexible of all actions, the earliest remedy for the spread of fire, but, at a very early date this action came in also as the remedy for nuisance, in lieu of the assize of nuisance abandoned because of its procedural and other disadvantages. Now, while
no action of the case for personal injuries appears to have lain for harm to the person indirectly done, unless the defendant was shown to be in fault, the action on the case for the spread of
fire lay against a perfectly innocent defendant and when it superseded the assize of nuisance there was no tendency to alter or modify the principles of liability applied in the earlier action. "It seems clear that every man was originally considered liable for the harm, whether to another person, personal property or real estate,
which his acts had directly caused, quite irre spective of moral fault, and that while the rigor of the early rule was relaxed at an early date when the harm was done to the person or
personal property, it persisted unchanged where real estate was injured or invaded, or the owner's
occupation and enjoyment of and dominion over it was interfered with. So at present, or at least until very recently, the basis of liability in the two classes of cases is, or has been, so
entirely different that no proper analogy can be drawn from the one to the other." Mr. Bohlen seeks to answer the question why the rule in Ryland: v. Fletcher provoked such opposition in America, and his analysis of the legal and social prejudices which looked upon it as an oppressive innovation is highly illumi nating. See workmen's Compensation. Treaties. “Sanctity of Treaties." By Theo dore P. Ion. 20 Yale Law Journal 268 (Feb.). “Leaving aside the transitory treaties, the inviolability of which seems not to be generally questioned, on account of their character of permanency per se, so to speak, let us examine
the case of a treaty proper, concluded for an indefinite period, in which there exists no clause by which the parties have reserved to themselves the right to abrogate at any time such instru ment without mutual consent. The question is whether treaties of that character can be abrogated without the mutual consent of the contracting parties. "There seem to be three leading opinions on this subject. Some writers hold that treaties cannot under any circumstances be abrogated without the consent of all the contracting parties; others, after admitting the doctrine of the sanctity of international compacts, seem to
favor the view that a change of circumstances not foreseen at the time of the conclusion, may
justify a state in not considerin itself bound to abide by the provisions of suc compact; and finally there are some jurists who contend that when a treaty hinders seriously the develop ment and progress of the people of a country it may be renounced even against the will of the other contracting party or parties." The writer examines the opinions of leading authorities,
and
considers
recent
events
in
diplomatic history, reaching the following con clusion: "If, therefore, after the lapse of a certain time, it is found that on account of the change
of circumstances, not foreseen at the time of their conclusion, or independently of any such change, it is evident that the execution of the provisions of such treaties would materially affect the interests of a state or endanger its safety or security, in such extreme cases of para mount importance, it may fairly be admitted that a state is justified in denouncing such treaties or in proposing modifications compatible with the interests of the nation. But when a state is compelled by necessity to resort to such an extreme measure, it is just and right that it should pay to the other ‘party or parties a rea sonable compensation, In case any damages would result from such an ex parte abrogation of a treaty, especially if the aggrieved state, in
view of the execution of such instrument, has already made arrangements, which seem to be now irrevocable."
