Or, taking a concrete view of the species facti libelled, we may ask, at what point of the transaction is the criminal act to be held as completed, apart altogether from the success of the adventure?

To the former question various answers have been returned. It may be said, that the essence of the crime consists in the overt act of the accused, in consequence of which, in the cases in question, all the succeeding events, up to the final deception of the parties victimised, and their giving up possession of the goods and delivery of them to the prisoner, were brought about. Thus it was said in the cases under discussion, that the overt act was the posting of the letters or the ordering of the advertisements. These acts took place, as libelled, in England, and therefore it was urged the locus delicti, and consequently the forum delicti were there, and not in Scotland. On the other hand, it was maintained that the essence of the crime of fraud consisted in the deception of the parties to whom the letters were addressed; in other words, in the success of the adventure. That of course took place in Scotland, consequently the locus delicti and the forum delicti were here, and not in England.

It may however be reasonably argued, that if success is the essential element constituting criminality, then the essential element of the deception cannot be held to be the effect produced by a fraudulent attempt on the parties against whom the design is conceived, rather than the conception of such fraudulent purpose by the accused, and the attempt to carry the fraud into effect. Can the perpetration of the act add anything in the way of moral guilt to the deliberately formed intention to perpetrate the act? We might venture to affirm that it cannot, were the question one of moral guilt. And even legal guilt is complete when the evil intention passes into overt action, irrespective altogether of the successful completion of the crime. Law encourages the principle, at once rational and merciful, that a criminal act conceived, but not carried into effect, if the committer will instantly arrest himself in his course, is not punishable until the crime has been completed. Till then the individual has locus pænitentiæ.

Hence there is room for the consideration of the second question, to which we have referred, as offering a medium of decision, viz. : At what point in the train of events, of which the whole transaction is composed, is the criminal act to be held as completed? In the cases mentioned there was a series of distinct steps in the process of fraud. These were, first, the posting of the letters or ordering of the advertisements; second, the receipt of these letters or advertisements by the parties to whom they were addressed; third, the despatch by them of goods in compliance with the orders contained in the letters; fourth, and lastly, the delivery of the goods in question to the accused. By which of these steps was the act of fraud completed? The difficulty is, that there is a good deal to be said in favour of any of the four different views which may be adopted upon this point. It was argued, and apparently with

some force, on behalf of the pannels, that quoad them, at all events, the crime must be held to have been completed by the posting of the letters or ordering of the advertisements, inasmuch as by this act of dropping the letters into the letter-box, or ordering the publication of the advertisements, they put them irrevocably beyond their control. They could not, if they would, have got them recalled. They had therefore at that point of time incurred all the consequences of publication in Scotland, and the effect calculated to be produced there, and from that moment locus pœnitentia was finally lost. The crime was thus completed, and consequently the locus delicti must be held to have been in England.

But again it was argued, alternatively, if the crime is not completed until the delivery of the goods, then that took place in England. For, notwithstanding that the parties imposed upon did, in point of fact, dispossess themselves of their property in Scotland by delivering them for transmission into the hands of the appropriate agencies, yet delivery was not accomplished in point of law until possession of the articles was actually obtained by the party to whom they were sent. Up till that time the sellers could recover possession of their property by a "stoppage in transitu." In Bradbury's case and in Allen's case, the moneys sent to him being payable at banks and post-offices in England, he could only get it there, while the senders might countermand payment, and till the possibility of that was past, they were not fully divested of their possession.

In reply, it was maintained, first, that in view of the alternative as to the letters, it was not the despatch, but the receipt of these which constituted the completion of the design to defraud. Till the letters were received no one had been imposed upon. There was till then a mere attempt to deceive, which might, if only accidentally, have been frustrated-in which case, even the confession of the sender, that he had so sent the letters, and with a fraudulent intent, would not have made him amenable to punishment.

But, in the second place, so far as the crime might fall short of completion even after the receipt of the letters, that was at least supplied by the despatch of goods. By sending off the goods in compliance with the pretended purchaser's orders, that had been accomplished quoad the sellers which was in the contemplation of the deceiver at that point they succumbed to the deception. Moreover, at the time when the articles were finally entrusted to the railway company for transmission to England, they were constructively delivered to the purchaser, so that even regarding delivery as the test of completion, that took place, that test was complied with in Scotland.

We do not consider it of importance to decide between these conflicting views, or to give any opinion as to the relative force of the arguments adduced in their support. It does appear to us however to be proved by the discussion thus briefly summarized,

that we have advanced but a very little way in the direction of any definite principle for a satisfactory decision on the question of jurisdiction in dispute.

With regard to the authorities cited and founded upon in Bradbury's case (Taylor, 16th May 1853, 1 Irv. 230; Jeffrey, Bell's Notes, 149; Brown, p. 337; M'Gregor, Arkley, 49), these seem to throw little if any light on the matter, and certainly cannot be held to furnish anything of the nature of broad principle. In the cases of Taylor and Jeffrey, indeed, it was held that quoad the panel the crime (of forgery) was completed by the "irrevocable act of putting the forged documents into the post-office;" but these decisions do not appear to have been given in view of any question of jurisdiction. The case of M'Gregor seems to be the only one bearing (and that indirectly) on the point at issue. A swindling letter was sent by a party in Scotland to a tradesman in England, in consequence of which goods were sent down to Scotland, and delivered to him there. In these circumstances it was held that the criminal courts of Scotland have jurisdiction to try the offender. And now, turning to the decisions in the present cases (reported), what are we to regard as the effect of these decisions viewed in connection with the former one in M'Gregor's case? It is somewhat difficult to say. Either of two views may, it appears to us, be fairly entertained as to the present state of the law, so far as depending on decisions, on this question of jurisdiction. The last decision may, on the one hand, be regarded as conflicting with the former, seeing that if there is jurisdiction in the Scotch courts to try an offender who, himself in Scotland, through the medium of the post-office commits a fraud against a party in England, it is surely inconsistent with that view to hold that there is also jurisdiction in Scotland where the circumstances are reversed, the defrauding party being in England, and the victims of the fraud in this country; more especially when the conduct of the Englishman is not a crime in his own country. On the other hand, we can perfectly understand the position, that the effect of the two decisions taken together is to establish the doctrine that in such cases there is jurisdiction in both countries, and that accordingly the offender may be brought to trial in either.

There are, however, two considerations adverse to the latter view. In the first place, in neither of the cases is there any decision to that effect. In the case of M'Gregor, the Lord Justice-Clerk (Hope) expressly withheld his opinion on that point. He instanced such an imaginary case as that of Bradbury, and said, "I give no opinion whether the offence stated in the fourth charge may be tried both in England and in Scotland, or on the case of a person who by means of swindling letters written from England gets goods sent to him from Scotland, and is afterwards apprehended and brought up for trial here," &c. So also Lord Mackenzie: "It is not for me to say whether or not there would also be jurisdiction in England."

In the case of Bradbury, Lord Neaves seems to have been dis

posed to go a little further than the judges in the former case. He says: "There may even be cases in which a party may be chargeable on both sides of the Border. Take the case of a man standing on the other side of the Border and shooting at another on this side. Here the result of the crime is intended to, and does, take place on this side although it has its origin on the other."

Notwithstanding, however, this apparent expression of the principle of a double jurisdiction, it does not appear to have been more than a mere obiter dictum, and at all events does not appear to have been the basis upon which the judgment of the Court was founded. But in the second place, even had this view been given full effect to, we venture to think that it is not a satisfactory view in itself. Simply to say, that in such cases there is jurisdiction in both of the countries in which the transactions libelled occurred, seems to be a proposition, possibly equitable in its effects, but devoid of a satisfactory foundation in principle. And when we call to mind the general principle stated in the earlier part of this article, that the forum in criminal matters is the forum delicti, it would appear to follow from the proposition under consideration that the locus delicti may be in both countries. That is to say, that an individual may perpetrate one criminal act in two different places. This consequence is one which, to say the least of it, does not commend itself to one's judgment.

The question then still remains. Is there discoverable any principle upon which a satisfactory conclusion can be arrived at on the vexed question of jurisdiction in international crimes?

An argument to which we have not as yet referred was presented on behalf of the prosecution in the case of Bradbury, which, it appears to us, furnishes as nearly as possible the very principle we are in quest of. This is a case," it was pleaded, "of crimen continuum, a crime, that is to say, committed all along the route over which the swindling letters travelled. The locus delicti therefore was not at any one point of that route, exclusive of all the others, but was really at each and every point. Therefore also the forum is at each and every point of the route; and the panel liable to the jurisdiction of either tribunal before which it might be convenient to arraign him." The principle of continuity of crime is thus extended to the idea of jurisdiction, and gives rise to what may be termed the principle of " continuity of jurisdiction." And this idea of continuity of crime cannot, we think, be objected to on the ground that it is identical with the idea already rejected, that the same criminal act can be committed in more than one place. In the latter case the locus delicti is regarded as two distinct loci, whereas according to the view we are at present advocating the locus is not confined to a point of space, but is rather represented as embracing a certain radius of territory, that, viz., within which are enacted the whole series of events of which the complete fraudulent transaction is composed.

Whether the idea of "continuous jurisdiction" will recommend itself to our readers it is of course impossible to say. To us it appears at least to have a semblance of principle, with regard to a matter which was, as we have seen, somewhat wanting in this very respect, and thus far at all events the idea is not without value.

There is one point to which, before closing, we perhaps ought to refer. Upon the theory of "continuous jurisdiction" there seems to be no room for the application of the principle "si deprehendatur" stated in the second passage above quoted from Hume. On this theory, the culprit may be brought before the tribunals of any one of the countries included in the radius of his actings, whether he be "found within the territory" of that country or not. It may be objected that thus to remove that principle, introduced in merciful consideration for the prisoner, is harsh, and not consonant with the generally merciful tone of our criminal law. Any alteration, it may be said, ought to be in the direction of relaxation, and not of increased stringency. To that we have only to say, that a good deal as to the soundness of the objection depends on what view is taken on the large question of what is the main object of criminal law and statutory penalties. Is it the protection of society, or is it the punishment, the requital of the culprit? We do not propose to enter upon the discussion of the question at present, wide and interesting as the field thereby opened to view unquestionably is. We are content to indicate the opinion, that the first alternative is the correct one. Protection of society at large, it appears to us, must be regarded as the main, if not the sole object of penal legislation. And we do not shut our eyes to the fact that it must follow as a necessary consequence from this proposition if acted on, that the interests of the individual may sometimes suffer. Be it so. We regard it as no violation of either moral or philosophical principle to hold that the one must sometimes be sacrificed to the many-the individual to the community." J. C. M.

Reviews.

A Treatise on the Law of Trade-Marks and Trade-Names, including Foreign Laws applicable to British Trade-Marks. By HENRY LUDLOW, M.A., late Fellow of St John's College, Cambridge, and of Lincoln's Inn, Barrister-at-Law, and HENRY JENKYNS, M.A., of Balliol College, Oxford, and of Lincoln's Inn, Barristerat-Law, Assistant Parliamentary Counsel. London: William Maxwell and Son, 29 Fleet Street.

THIS is a brief but very comprehensive and useful summary of the law relating to a subject of great and increasing importance. The law of trade-marks and trade-names has grown up almost entirely within the present century; and in Scotland, the decisions VOL. XVII. NO. CXCVII.-MAY 1873.

S