provincial governors became territorial, but the competence of the forum delicti was also extended for private justice, so in penal matters several tribunals might have jurisdiction.

In the middle ages, the barbarian races which succeeded the Roman Empire were governed by personal law and recognized what Maine has called "tribe sovereignty." Professor de Vabres says:

"In prescribing the application of their personal law to men of different races living in their territory, the Visigothic, Burgundian and Frankish kings exercised their sovereignty in the act of command; while today the application of their national law to foreign subjects is a homage to a preferable jurisdiction and therefore to the sovereignty of a foreign state."

The church reached the height of its influence in about the XIIth century. Its penal jurisdiction over those attached to it was purely personal and the competence of the judex domicilii was exclusive. A principle familiar to our own law here appears. "The distinction is clearly made," says the author, "between procedure, which is governed by the lex fori, and the substantive law [fond du droit] which is governed by a different law." The most significant fact in the ecclesiastical history of this period is the borrowing of the cognitio extraordinaria from the Roman law and the establishment of the inquisitorial procedure by Pope Innocent III. From that time the law began to lose its personal character as the church magistrates assumed a territorial jurisdiction.

"The notion of the territoriality of the law is generally linked with the feudal system," says Professor de Vabres. At the end of the Carolingian period, the feudal lords assumed a penal jurisdiction which, with the weakening of the royal power, became the 'droits de justice' transmitted with the lands. As a consequence 'personnalité' gave way to 'réalité féodale,' the sovereignty of the 'seigneurs justiciers' extending to all who were 'couchans et levans' on their lands. However, in criminal matters their jurisdiction was predominatingly personal.

Professor de Vabres defines the Italian Doctrine of Statutes as"the ensemble of theories elaborated by the Italian jurists of the XIIth to the XVIth centuries to solve the questions of jurisdiction and of the conflict of laws which arose among the neighboring and independent cities of Northern Italy."

Of the commentaries written by these, the Great Gloss of Accursius is probably the most important before Bartolus because of its interpretation of the famous text of the Code, C. 3.15.1 (ubi de criminibus agi oportet). After the commentator Pillius, the text attributes jurisdiction to the forum loci delicti, but Accursius construes it as giving jurisdiction to the forum domicilii, the judge of the locus delicti having jurisdiction only over a special class of offenders such as vagabonds. This interpretation had a profound effect on the future course of the law.

After the death of Frederick Barbarossa, the agitation of the Renaissance proved a fertile breeding culture for criminals. The

post-glossators were practical men as well as professors and founded a system based on the inspiration of necessity. The jurisdiction of the local judge was admitted regarding all offenses committed in the territory. A distinction was made where the offense committed was contrary to the jus civile or was per se illicitum. The local statute was then applied in all its severity. Where the offense was merely malum prohibitum, the ignorance of the local law, according to the great weight of authority, was a complete vindication of the accused. It was believed that the judex domicilii could proceed only per accusationem for offenses committed beyond the territory by residents, and remissio was accorded upon the request of the judex loci delicti. The authority of a foreign judgment was recognized only when given according to the common law, for statutes had no extra-territorial effect. When the judex domicilii assumed jurisdiction an interesting problem in the conflict of laws arose. "What statute did he consult?" asks the author. "His own, that is, the statute of the domicile? Or the statutum loci? Neither the one or the other. But there exists a law common to the domicile and to the locus delicti commissi which is the jus commune. The incrimination depends on that."

Another important principle dates from this period. Albericus de Rosate concluded that sentences which created a general incapacity in the accused followed him beyond the territory, but sentences involving only a particular incapacity were limited territorially. Vagabonds and banished persons were assimilated to the publici latrones and could be prosecuted wherever found.

The works of Bartolus, the greatest of the post-glossators, had a profound effect on the future law in Italy, France and Germany. That familiar theory that larceny may be prosecuted wherever the accused is taken with the stolen property may be traced to Bartolus. Professor de Vabres defends the solution of Bartolus that the lex loci should govern in cases of contracts and misdemeanors against the vigorous criticism of M. Lainé as "the only one to assure the stability of the law." Bartolus recognized the distinction between executing a foreign sentence and giving it passive authority of res judicata.

The Italian doctrine points to two methods of assuring universal repression: "on one hand, the enlargement of facilities for extradition, on the other, the recognition of the universal jurisdiction of the judge."

The theories of the Italian jurists, penetrating through the universities of the Midi, acquired a decided influence in France at the close of the Hundred Years War. The spirit of justice and reason was welcomed by a society torn by strife. Dumoulin reflected the psychological element of the Italian doctrine in proclaiming the application of the statutum loci on the theory of the consent of the foreigner implied from his entering the territory. Says Professor de Vabres:

"The decadence of the feudal system, the weakening of the power of the church and the enfranchisement of the communes caused a

centralization, the immediate effect of which in regard to penal jurisdiction was a substitution of the territorial principle for a personal (church) or real principle (feudal). It is the preponderance acquired by the forum loci delicti to the prejudice of the forum domicilii." This was a fact from the moment the tribunals became sedentary. The birth of modern international penal law dates from the treaty of extradition of 1376 between Charles V of France and the Count of Savoy. Professor de Vabres states, however, that the growing practice of extradition was based on political and not juridical motives. As a result a new jurisdiction based on nationality and the interest of the state was assumed. The principle of territoriality was definitely established by the famous Ordinance of 1670 (Article 1) after which the judge of the domicile could only assume jurisdiction by agreement of the parties and per accusationem. Except for a special class of criminals, the French tribunals had jurisdiction over offenses committed by foreigners outside of France only per viam accusationis, and then only when French interests were involved.

As Lombardy of the XIIIth century was the cradle of interstatutory penal law, so Holland of the XVIIth century became the cradle of international penal law. Grotius influenced the course of criminal law through his ideas of natural law. In his "De Jure Praedae" he takes as his hypothesis the social contract which involved the cession by man of his rights of self-defense and revenge and a submission to an authority. Sovereignty is but the total of subjective rights thus ceded and is independent of territory. Grotius denied that the civil law of a given state was applicable to foreigners -only the jus naturale or jus gentium could be applied. Admitting the right of extradition, Grotius stood for universal repression: "If the act complained of was not made a crime by natural law or the jus gentium," says Professor de Vabres, "the accused was judged according to the civil law of his own country."

After the Thirty Years War, Germany, physically devastated and a chaos of practically autonomous states, but inspired by the genius of Leibnitz, welcomed the humanitarianism of Grotius. That there was already a latent liberalism is shown by the predominance of the 'procédure accusatoire' which existed even under the Caroline, the criminal constitution of Emperor Charles V. But the influence of Descartes conflicted with that of Grotius and as a result the German jurists refused to accept the metaphysical hypothesis of an absolute justice. Pufendorf denied the authority of anything but positive aw and asserted the non-existence of moral questions between states. reducing natural law to the right of self-preservation. The idealism of Grotius was reflected in the writings of Wolff, who foreshadowed the League of Nations by a universal society called the civitas maxima. The modern notion of a jurisdiction over all acts committed within a certain territory (räumliche Herrschaft) displaced the ⚫ feudal notion of a jurisdiction over all things within a certain territory (sachliche Herrschaft). Henricus de Cocceji affirmed the application of the lex loci regardless of the forum, its application by

the judex deprehensionis resting upon the theory of delegated justice advocated by Burgundus. The German doctrine ends with a strict affirmation of the territorial principle.

"The honor belongs to Prussian law of formulating for the first time a complete system regarding criminal jurisdiction in relation to foreign states it constitutes the first modern attempt to penetrate positive law with the conclusions of science."

At the beginning of the XVIIIth century France was unified and intensely nationalized. The sole criterion of penal jurisdiction was the 'interêt de l'État.' Liberal ideas came from other countries which "enriched by French genius found their immortal expression in the political writings of Montesquieu, Voltaire, and Rousseau." The problem of jurisdiction appears in three lights according to the theories of the criminalists, of the internationalists and of the publicists. German idealism had less influence than the scientific realism of Hobbes, Locke and Spinoza.

The criminalists favored the territorial principle and denied the principle of delegated justice. The internationalists speculated on problems of the conflict of laws. Bouhier based his system on the essential principle of the French doctrine, the bi-partite division of statutes, but added a new meaning to the words 'real' and 'personal,' defining a real statute as one of which the effect is limited territorially and a personal statute as one without territorial limitations. Boullenois discarded the anachronism of the jus commune and added a third category-mixed statutes. The influence of the publicists is seen in the theories of Merlin, procureur général at the Court of Cassation, who stood for strict territoriality and refused all authority in France to foreign sentences.

In the XVIIIth century philosophy turned from the deductive to the inductive method. Interest centered no longer in the human type but in the ethnological and psychological barriers which separate the varieties of human types. Professor de Vabres shows how the French penal law was made territorial through the influence of the nationalistic publicists.

In the last chapters of Montesquieu's "Esprit des Lois" is found his opinion of the territorial application of law. No other conception could follow his theory of law as the "necessary relations resulting from the physical nature of things" such as climate and terraine. Rousseau also took the social contract as his postulate. Since this suppositious contract, only states exist in a state of nature. There is no more natural law and the will of the people—the sovereign— is the sole source of law. Voltaire exhibited a profound contempt for German idealism and in several articles of his "Dictionnaire philosophique" (1764) insists upon the purely local character of penal statutes. Voltaire was decidedly indulgent toward accused foreigners and were he living today we should probably have an illustration in his "Dictionnaire" of the non-applicability of Amendment XVIII to his compatriots in America along with the humorous

example of the Roman faced with local legal impertinences for the crime of killing a sacred cat in Egypt!

One of the first tasks of the revolutionary legislators was the reform of criminal procedure. Bartolus was almost unknown and the sole inspiration of the Criminal Code of 1808 was the nationalistic principles of the preceding century. "The jealous 'exclusivism' from which proceeds the affirmation of a jurisdiction uniquely territorial is the mark of a people which has just gained its independence" concludes the author. The egoism of the French philosophers and the humanitarianism of Kant produced an eclectic school which caused the passage of the law of 1866 under the Second Empire making an important extension of personal jurisdiction, based, however, on the last-century idea of the interest of the state. Articles 5-7 as first written extended the jurisdiction of French courts to all crimes committed in foreign territory against the state, contingently, however, in the case of a foreigner, on his presence, voluntary or compulsory, within the territorial jurisdiction of the court. The author examines the proceedings before the Council of State during the drafting of the articles: "The striking thing in this discussion is the ignorance of all the orators of historical precedents. The only clear idea which emerges is that of the absolute

territoriality of penal law."

We may now examine Professor de Vabres' statement of the present French law. For offenses committed in France, foreigners are amenable to French law. For misdemeanors committed by nationals on foreign territory jurisdiction depends upon the voluntary return of the accused and the complaint of the victim or of the foreign state. For offenses regarded as crimes by the common law, jurisdiction depends on the voluntary presence of the accused, but for offenses against the state, extradition may be demanded or the accused sentenced by default. French courts have no jurisdiction over offenses by foreigners in foreign territory except in cases touch

ing the security of the state.

French law is applied to foreigners guilty of offenses in France. Some authors have contended, however, that certain phases of the substantive law applied should be that of the defendant, for example, provisions of the penal code fixing degrees of responsibility should give way to the personal law of the accused. Professor de Vabres suggests along this line that the responsibility for such offenses as abduction and rape should be so determined. The reviewer believes this particular point not well taken because the gravity of such offenses 'contre les moeurs' depends in practice upon the physical development and not the age of the parties. If the accused were a native of a tropical country where seduction is not punishable when the victim is over the age of eleven there would be no injustice in holding him responsible in France for seducing a girl of the age of fourteen whose physical appearance would be that of a girl of ten of his native country. As for crimes committed by nationals in foreign countries, French law is applied, and in case of misdemeanors there is no jurisdiction at all unless the act is classed as a misde