perty,

not by the individual act of the mind, for some could not know what others would desire, so as to abstain from it, and many might wish for the same thing; but by some expressed agreement as by division, or tacitly, as by occupation.1

The question is discussed whether men may not have a right to enjoy in common those things that are already become the property of other persons. In a case of absolute

necessity that former right of using things as if they still remained in common must revive and be in full force. For in all laws of human institution, and consequently in that of property also, allowances are made for matters of strict necessity. Hence at sea, if there is a scarcity of provisions, what any man has reserved in store is distributed amongst the rest. And in case of fire one's neighbour's house may be pulled down if there be no other means of preserving one's own. As Seneca says:-"Necessitas, magnum humanæ imbecillitatis patrocinium omnem legem frangit." The first right, therefore, which remains, since the introduction of property, from the ancient community of goods, is that of necessity. The second is that of innocent profit. As Cicero says: :"Quidni enim, quando sine detrimento suo potest, alteri communicet in iis quæ sunt accipienti utilia, danti non molesta." The principle is this, that where a man can do anything to his own advantage without detriment to another person, he may then act as if all things had still remained in

common.3

Grotius carries this doctrine so far as to maintain that neutral nations ought to afford a free passage even to an army seeking to recover its rights in a just war. But this doctrine, if ever received, has long been exploded; and even in the case of private property it is better to give the possessor the uncontrolled disposal of it, trusting to the general good sense of mankind that such property will ultimately be managed in the best way for the good of the community.4 The principle of Free Trade is advanced. No tax which

Lib. ii. c. ii, s. 2—5.

2 Ib. s. 6.

3 Ib. ss. 11-13.

is laid on the subject to defray the public charges should be imposed on strangers who are only passengers through the country. If, however, the Government should be put to expense for the security of merchandise, such taxes may be imposed as shall be no more than equivalent to the expense. And on this principle does the justice of all taxes and tributes entirely depend.1

Next to the right to things is to be discussed the common right to actions. And here is laid down that we have a right to such actions as the occasions of human life require.

To the methods of acquiring property by original Division or by Occupancy, the jurisconsult Paulus added that of Labour, or as it expressed, "Si quid ipsi ut in rerum naturâ esset fecimus." On this Grotius remarks, since nothing can be naturally produced, except from some matter that did itself exist before, therefore if that be ours, then do we continue our property in what is produced from it. If it belong to no one then is our property in it acquired by the right of a first possessor; but if it belong to some other person it can never become our natural and absolute property.2

Occupancy is twofold, being divided into sovereignty, and property, as Seneca explains" Ad Reges potestas omnium pertinet, ad singulos proprietas."

Sovereignty may be exercised over the adjoining seas, but with certain limitations. Thus such a property can give no right of obstructing an inoffensive passage.3

The right of usucaption, or prescription, is next considered. A man is presumed to relinquish his right to a thing by an overt act when he has quitted it or thrown it away, unless it appears by some circumstances that he did so with some design of resuming it. So even a forbearance of action, if attended with particular circumstances, may morally be comprehended under the name of action. But before we can safely presume from a man's silence that he has relinquished his right, two circumstances are necessary to be observed; that he should know that he has such a right, and that he should voluntarily decline it; for he who forbears

1 Lib. ii. c. ii. s. 14.

8 Ib.

2 Lib. ii. c. iii. ss. 1, 2.

to act through ignorance should not in justice suffer from it. Length of time then, joined with non-possession, and with silence, evidences to the conjecture that the right to the thing is quitted.1 It may be observed that the period of prescription is very long in the infancy of civilisation, and is diminished by countries according to their progress.

A right over persons is acquired by generation, by their consent, and by their crime. In the age of children three periods are to be distinguished. In that of infancy, or imperfect judgment, they are capable of inheriting an estate, though the exercise of that right be suspended. As Plutarch says, they have a right in possession, but not in enjoyment, ἐν κτήσει, οὐκ ἐν χρήσει. In the second stage, when age has ripened their judgment, they are subject to parents only in actions which concern the family. In the third, that of emancipation, they are completely independent.2

Consent is the next mode discussed of requiring authority. And the first species of it is marriage. The chief questions relating to divorce, polygamy, clandestine marriages, and incest are discussed.3

The right or authority of all other associations founded on consent is in the majority. It is to be presumed that those who enter into a society are willing that there should be some method fixed of despatching business. But it is altogether unreasonable that a greater number should be governed by a less; and, therefore, though no law expressed the precise form of managing affairs, the majority would naturally have the right and authority of the whole.*

The right is maintained of every citizen to leave his country, contrary to the practice of the Russians, which still continues in the nineteenth century. Nor shall the State retain any power over exiles. Voluntary subjection is either public or private; voluntary private subjection may be as various, as there are various sorts of governments. Adoption in the Roman sense is the best kind; and slavery the worst. The succession from a person intestate is nothing else than a

Lib. ii. c. iv. s. 1—6.

2 Ib. ii. c. v. s. 1-6.

tacit will grounded on a conjecture of the intention of the deceased.

He next treats of such properties as are commonly called acquisitions by the Law of Nations. The Roman lawyers, when they treat of the acquiring of the property of things, reckon many which they say are according to the Law of Nations. But these are either to be referred to the Law of Nature which was the immediate consequence of an established property, and before all civil laws.1 Grotius appears to forget here that the Romans used the term jus gentium to mean Natural Law. In the remainder of this chapter are discussed the questions as to property in animals, feræ naturæ, treasure trove, islands rising in rivers, &c. The order and almost the very words in the Institutes of Justinian are exactly followed.2

ART. VII.-HOW SHOULD THE CHILD-CRIMINAL BE TREATED?

Juvenile Delinquents; their Condition and Treatment. By Mary Carpenter. London: W. & F. G. Cash.

Report from the Select Committee on Criminal and Destitute Juveniles, together with the Proceedings of the Committee, Minutes of Evidence, &c. Ordered by the House of Commons to be printed the 24th of June 1852.

IN the number of the Law Review for February, 1852, we called the attention of our readers to the proceedings of the conference held at Birmingham in the previous December, for the purpose of considering the condition and treatment of the perishing and dangerous classes of children and juvenile offenders, with a view of procuring such legislative enactments as might produce a beneficial change in their actual condition and prospects. Since that time the

1 Lib. ii. c. vii. s. 1.

2 The remainder of the Analysis of Grotius is omitted for want of space in the present Number.

cause has made sensible progress. In May of last year the subject was referred to a Committee of the House of Commons, consisting of Mr. Baines, Mr. Sidney Herbert, Mr. Adderley, Mr. Tufnell, Mr. Monckton Milnes, Mr. Fitzroy, the Marquis of Blandford, Mr. Miles, Mr. Monsell, Mr. Tatton Egerton, Mr. Cornwall Legh, Mr. Headlam, Mr. Hardcastle, and Mr. M'Cullagh. The evidence has been printed and the Committee reported to the House that they had made progress in the consideration of the matter referred to them, and had examined several witnesses from whom they had received much important information; but, at the same time, they considered the inquiry so far from complete, that, having regard to the approaching prorogation of Parliament, they did not feel themselves in a position to offer any definite opinion to the House on the question referred to them, and that they had therefore agreed simply to report the evidence taken, and to recommend to the House an early resumption of the inquiry. The Blue Book containing that evidence is now before us, and although, as might be expected, there is much diversity of opinion amongst the witnesses as to the alterations which it would be most expedient to make in the law, they almost without exception unite in condemning the present system of dealing with juvenile offenders. Immediately upon the meeting of the new Parliament the Committee was re-appointed under the presidency of their former chairman, Mr. Baines. They have continued to take evidence, but it is understood that their labours have now nearly come to an end, and that we may soon look for a comprehensive report upon the matters referred to them.

There cannot, indeed, be a more opportune time than the present for dealing effectually with this great subject. It has been announced by the Government that transportation is to cease. The labours of Archbishop Whateley, who, insisting upon the truth and wisdom of Lord Bacon's declaration that "it is a shameful and unblessed thing to take the scum of the people and wicked condemned men to be the people with whom you plant," has for more than twenty years been