Criminal Law: Oysters as Subjects of Larcency: Reservation of Oyster Lands

T. A. J. D.
1914 California Law Review  
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more » ... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. 64 CALIFORNIA LAW REVIEW CALIFORNIA LAW REVIEW of custody based on insanity negatives, at least prima facie, the presence of the element of intent. Therefore it would seem to follow that a crime has not been legally and substantially set forth, and that the court correctly stays the extradition proceedings where the extradition papers themselves show the mental rresponsibility of the person. The only question before the court was extradition or no extradition. But query: if New York had given evidence of its status as guardian under the parens patriae doctrine, and earidence of the wardws escape and sought return, not upon the ground that Thaw was a criminal but that he was a ward subject to guardianship control, would not New Hampshire in that case have surrendered him up as a matter of comity? The tendency of modern decisions is to recogntze, as a matter of comity, the rights of foreign guardians in respect of the persons of their wards ;7 and in many cases the courts have awarded custody of the ward's person to foreign guardians, with right of removal to the state from which guardianship control emanates.8 The courts have almost uniformIy made the welfare of the ward the sole controlling factor in determining whether to recognize a foreign guardianshithus considering it their duty to give effect to the principle of comity in all cases where the well being of the ward does not interfere.9 S*o it would seem that the proper proceeding on the part of New York should have been something like this: attempt to retake the person of Thaw, there being no liability for false imprisonment for such an act ;X° but if this were unsuccessful, petition the proper court for an adjudication of Thaw's present insanity, and on the basis of this adjudication ask for the recognition of the guardianship status in New York. In such a proceeding, the question before the court would not have been whether the executive acted within his strict legal rights, but whether in the sound discretion of the judicial department alone, guided by considerations of the ward's well-being, the recognition of the foreign guardianship was justified. J. C. A. CRIM INAL LAW: OYSTERS AS SUBJECTS OF LARCENCY * RESER-VATION OF OYSTER LANDS.-Common-law analogy af Forded by growing vegetation, or, perhaps as readily, by stones or pebblesS might easily have induced the courts to regard the lowly oyster as a part of the freehold whereon it lived. However, it is judici-
doi:10.2307/3474793 fatcat:i7qicbuorrfktmx2sg7bd5maka