are unanimous in their views in this respect. There has, however, been no such universal agreement among the Courts as to just what statutes are penal within the meaning of this rule. A great deal of the existing contrariety of opinion seems to have resulted from a failure to appreciate the fact that penal in municipal law has a different meaning from that given it in international law when it is said that penal statutes have no extra-territorial operation.

For example, Massachusetts now has a statute which allows the recovery, in case of wrongful death, of a sum "not less than $500 nor more than $10,000," to be assessed with reference to the degree of the defendant's culpability. It is provided that such sum may be recovered either by indictment or by an action Lrought by the executor, one-half of which sum, however recovered, is to be paid to the widow, and the other to the children of the deceased. Some Courts have refused to enforce rights conferred by this statute because they considered it penal. Statutes of a similar character in other states, providing for the recovery of a lump sum, have likewise been held to be penal. In other jurisdictions, however, the Courts have considered such statutes as primarialy remedial and have given effect to them. State Courts in construing their own statutes have frequently held such statutes, as well as statutes giving double or treble damages, to be primarily remedial. In Massachusetts, when a statute was in force like the present statute, except that a recovery in tort was not providd for, an indictment was held to be bad because there was neither widow nor children surviving.'

The different meanings of the term penal have been recognized by eminent authorities. The Supreme Court of the United 2 Acts and Resolves 1907, chapter 375.

3 Adams v. Fitchburg Railroad, 67 Vt., 76, 30 Atl., 637; O'Reilly v. Railroad Co., 16 R. I., 338, 17 Atl., 906; Christilly v. Warner (Conn.), 88 Atl., 71.

Raisor v. C. & A. Railroad Company, 117 Ill. App., 488; Matheson v. Railroad Company, 61 Kan., 667; Dale v. Railroad Company, 57 Kan., 601. Boston & Maine Railroad Co. v. Hurd, 108 Fed. R., 116;Malloy v. American Hide and Leather Co., 148 Fed. R,, 482; Hill v. Boston & Maine Railroad Co. (N. H.).

6 State v. Railway, 58 Me., 176; State v. Railroad, 52 N. H., 548; Philpott v. Railroad, 85 Mo., 164; Quimby v. Woodbury, 63 N. H., 370; Brady v. Daly, 175 U. S., 147.

7 Commonwealth v. B. & A. Railroad Co., 121 Mass., 36.

8 Dicey, Conflict of Laws, p. 207; Minor, Conflict of Laws, sec. 10.

States, in Wisconsin v. The Pelican Insurance Co., pointed out in a general way the statutes considered as penal in international law: "The rule that the Courts of no country execute the penal laws of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the state for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judgments for such penalties. If this were not so, all that would be necessary to give ubiquitious effect to a penal law would be to put the claim into the form of a judgment." The leading case on this subject, however, is Huntington v. Attrill,” decided by the same Court in 1892. A judgment had been recovered against an officer of a New York corporation who had vioiated a statute of that state which made the officers of a corporation who signed and recorded false certificates of the amount of its capital stock liable for all its debt. An action was then brought on this judgment in Maryland, whose Courts refused to enforce it because they considered the statute on which it was based to be penal in its nature." On appeal to the United States Supreme Court, taken under the "full faith and credit clause" of the Federal Constitution, the Maryland Court was reversed, it being held that the statute of New York was remedial rather than penal. The Court points out the difference between violations of civil rights and criminal wrongs and holds that only those statutes which seek to punish offenses "against the public justice of the state" are penal in the international sense, and disentitled to extra-territorial operation. Those statutes which only confer a right on an individual to a civil action as a result of a wrongful act were held to be remedial and enforceable in other states and countries. The decision in this case was followed the next year by a decision by the Privy Council in a case where the same facts were involved.12 These decisions would class as remedial all those statutes which gave a remedy where none existed before, allowing only a recovery for damages actually sustained, and also those which gave a right of action but did not limit the recovery to the damages actually sustained, as where damages in a lump sum are given or where the damages awarded according to the

9 127 U. S., 165, 290.

10 Huntington v. Attrill, 146 U. S., 657.

11 Attrill v. Huntington, 70 Md., 191, 16 Atl., 651. 12 Attrill v. Huntington (1893). App. Cases, 150.

culpability of the defendant, provided always that the primary purpose of the statute was to confer a civil remedy rather than punish an offense against the state. It is submitted that these cases announce the sound rule.

When a state is asked to enforce a statute of another state, claimed to be penal, how shall it proceed? Obviously, the first question to be dealt with is whether the statute is penal in the international sense. Is such Court bound by constructions placed on the statute by Courts of the state where it was enacted? It has been held that it is not.13 The Connecticut Court in a recent case, Beach, J., dissenting, held that it was bound in such a case.1 The result of this decision is that Connecticut Courts may have to give effect to statutes of other states which are in fact penal because those other states have construed them to be remedial and because it is bound by their construction. It seems obvious that a court should not consider itself so bound, because rarely, if ever, would a State Court, in construing its own statute, be called upon to decide whether such statute is penal in the international sense. Only questions of municipal law would be decided by it. A decision that a statute is penal in the sense that it must be strictly construed, or that it punishes incidentally, would of course not mean that it is penal in the international sense, and a Court of another state should not feel bound by such a decision.15

The Supreme Court of New Hampshire, in Hill v. Boston & Maine Railroad Co., supra, was called upon to enforce rights conferred by the Massachusetts statute, which, in a similar case, Christilly v. Warner, supra, had recently been denied in Connecticut. In accordance with the views expressed by Beach, J., in his dissent in that case, the New Hampshire Court allowed the action. The decision is undoubtedly sound and adverse criticism of it could only rest on grounds extermely technical.

Since the principles of international law are based on principles of international comity, and since Courts, in enforcing them, proceed upon broad lines of justice, it is submitted that technicalities should not be allowed to prevail. If a statute, like the one in force in Massachusetts, where no part of the recovery inures

13 Marshall v. Wabash Railroad Co., 46 Fed. R., 269.

14 Christilly v. Warner, supra.

Steam Engine Co. v. Hubbard, 101 U. S., 188, 192; Chase v. Curtis, 113 U. S., 452; Missouri Pacific Railroad Co., 113 U. S., 452.

to the benefit of the state, and where the action may be prosecuted independently of the state authorities, and in which the rules of civil rather than criminal law prevail, and where everything indicates that the principal purpose of the act was to provide for those dependent upon the dead man, is to be construed to be penal because it incidentally punishes the wrongdoer, such a construction is most technical. It is based on form rather than substance and has little to commend it. The decision in the New Hampshire Court is sound and should be followed.

CONTRIBUTORY NEGLIGENCE AS MATTER OF LAW.

In the recent case of Hatch v. Lake Shore & M. S. Ry. Co., decided by the Appellate Division of the Supreme Court of New York, there was some conflict in the evidence relating to the care exercised by the deceased. The following facts, however, were undisputed:

The plaintiff's intestate, Hatch, together with the principal witness, Nelson, started to cross a grade crossing on defendant's line about 1:30 A. M. The gates were lowered, according to the defendant's case, before the two had gone upon the tracks; according to the plaintiff's case, however, Hatch and Nelson were already upon the first siding, and inside the gates when they were lowered, but were still in a place of safety. At least four more tracks, therefore, were now before them; first, another siding, then the west bound and east bound tracks of the main line, in the order named, and finally, still another siding. A freight train was approaching along the further, or east bound track. They waited until the caboose had almost reached the crossing, and then started on. Nelson testified that at this point they both looked eastward along the nearer track, where the Twentieth Century Limited was now approaching, but saw nothing of it. There was evidence, controverted by the defendant, tending to show that the headlight of this train was dim or entirely extinguished, and that there was no warning bell or whistle. Plaintiff's intestate was killed by the express on the near track, as he stepped ahead to pass behind the freight. On this evidence, the questions of negligence on the part of defendant and contributory negligence on the part of Hatch having both been left to the 1 145 N. Y. Supp., 781.

jury, they twice returned a verdict for the plaintiff, and the Appellate Division of the Supreme Court twice reversed the judgments entered on these verdicts, on the ground that the trial Court had refused to charge that a pedestrian who proceeds to cross a track after the gates are down, whether they are lowered before he starts, or while he is inside but still in a place of safety, is guilty of contributory negligence as a matter of law.

It is obvious that the Appellate Division desired to lay down an inflexible standard of reasonable human conduct. It may be worth while to inquire whether it was justified in so doing, on grounds either of authority or of reason. Mr. Wigmore, in his "Treatise on Evidence," lays down three eceptions to the general doctrine that the question of negligence is one of fact for the jury.2

1. A concrete rule of law, statute or common, may have been laid down, declaring certain acts, the dangerous consequences of which are well known, to be negligent per se. One does them at his peril. So a city ordinance might declare, or a Court might decide, that one who left his horse unhitched in a city street should be liable for the consequences at all events.

2. In every case, the Court must decide whether there is sufficient evidence to go to the jury, so this question forms an exception as a matter of course.

3. In cases where "the facts are undisputed, and fair-minded or reasonable men could draw but one inference from them," Courts, using these exact words, have often held that the consideration of negligence may be withdrawn from the jury.

Mr. Wigmore's first and third exceptions are also stated in somewhat different words in Cyc., and his second of course goes without saying. If we examine his propositions closely, it appears that the concrete rule of law mentioned in the first exception must necessarily be the result, either of legislation, with which we are not dealing here, or of the repeated exercise, in numerous similar situations, of the discretion which his third exception allows the Court. That is, another inflexible standard of reasonable human conduct has been embedded in the law. We may therefore confine ourselves to the second and third exceptions. As Mr. Wigmore points out, the form of words used in the third is often only another way of expressing the idea con