REVIEW OF CURRENT PERIODICAL LITERATURE OF INTEREST TO LAWYERS.

(Edited by A. H. R.)

Constitutional Law. "Political Safeguards and Judicial Guaranties." By W. F. Dodd of the University of Illinois. 15 Columbia Law Review, p. 293 (April).

The author discusses the subject of proper safeguards for individual and property rights, and he groups, these safeguards into two divisions, one political and the other judicial. Political safeguards he discusses under the headings: (1) Suffrage eliminations in which he calls attention to the greater power given to large tax payers. (2) Upper house controlling in the legislature, in which he calls attention to the great power of the Bundesrat in Germany, and the less important influence of the House of Lords in England. (3) Checks and balances, such as the requirement of the approval of the two houses and of the executive in matters of legislation. (4) The referendum, in which he strangely contends that the referendum is a conservative rather than a radical measure. (5) Safeguards of a purely political type, as the influence of aristocratic or leisure classes in the matters of leadership political and economic, and in the shaping of political issues.

Judicial guaranties are thus set up in constitutions and enforced by the courts. The author divides these guaranties into practically two classes: first, definite guaranties applicable to rights carefully defined; and second, guaranties of an individual character, such as provisions in our federal Constitution regarded as "due process of law," and "equal protection of the law."

The importance of the subject arises from the recent tendency for pure democracy and the political dominance of the non-property owning classes. The author quotes from Mr. W. S. McKechnie's work entitled, "The New Democracy and the Constitution," in which the author, speaking of English conditions says, "These classes not paying taxes, but receiving the benefits of taxation, will if in complete control operate the government in their own interests, and in the long run cripple or destroy the propertied classes-the more provident classes of the community. A safeguard of some sort is therefore desirable to protect property from a democratic government."

The author takes a peculiar view, however, with respect to the desirability of obstructing democratic control, saying. "In this discussion primary attention will be given to the safeguards which are compatible with the notion of democratic government. The whole tendency has been toward a democratic control, and such a control is in modern governments more, rather than less necessary, when government because of increasing activity is becoming more of an economic or social problem rather than a purely political one." The author then favors judicial guaranties rather than political guaranties unless the political guaranty is one which controls the decision of the people themselves through their intelligence, and he gives the English example of groups of persons

of the leisure class who, "pay rather more continuous attention to public affairs than the majority of the electors." The author gives the history of the Act of Parliament which took away the veto power of the House of Lords, showing that in the place of that check there has developed a much stronger opposition in the House of Commons itself with a tendency toward coalition ministries.

The author's discussion of judicial guaranties is a discussion of American decisions enforcing constitutional provisions. He reaches the conclusion that the courts have not been always wise in the enforcement of these guarpublic anties as against strong sentiment, which has reacted against the court itself and the right of the judiciary to declare legislation unconstitutional. The author commends Mr. Justice Holmes' now famous declaration in the Haskell case to the effect that the "police power extends to all the great public needs," and further, that "It may be put forth in aid of what has been sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare."

Courts. "Justice for the Small Man-A Modern Municipal Court in Operation." By David Baer. The Century Magazine, p. 144, May, 1915).

The author discusses the municipal court of the District of Columbia, and its operation, showing that the municipal court has solved the problem of the small man's litigation, and has become the poor man's court. He shows the defects of the former justice practice to be not only the incompetence of the justice, but his "pronounced tendency" to always give the judgment for the plaintiff, on the ground that the justice who gave the most favorable decisions to the plaintiff would naturally get the most business for himself and his constable. The author quotes one eminent justice of the peace who declared that "In these days J. P. means 'Judgment for the Plaintiff,' unless some providential interference could be procured to prevent it."

The author declares that the cost in the municipal court of the District of Columbia rarely exceeds $2.25 in each case. He calls attention to the provision on the law which permits the plaintiff to make affidavit to the truth of his complaint, and thereby compel defendant to answer by sworn statement of defense. Failure to make affidavit to matters of defense will result in immediate judgment for the plaintiff. The most remarkable fact exposed by the author's statistics is that of 92,736 cases which were tried during the period running from March, 1909, to January, 1913, only 448 were appealed. The author says, "Probably no stronger evidence than the value of such a court, and the respect shown for its decisions, can be found in this trivial proportion of cases which are carried to a higher tribunal, in this instance about one-half of one per cent." The judges of the municipal court are all experienced lawyers, which serves to give confidence to their decisions and rarely are there calls for a jury. The result is that the hearings are very seldom interrupted by objections to evidence, and not more than two hours are consumed on the

average to each case, resulting in the fact that more than 25,000 cases a year are handled by five judges of this court, and the dockets are never a day old.

The cost of suit, regardless of the character or amount of the claim, is $1.60, with an additional fee of 50 cents if the case comes to trial. Cost for judgment, bonds, etc., are on a similar scale, yet despite the negligible sum required, the municipal court, for the fiscal year ending June 30, 1913, showed a profit of more than $12,000 over and above all expenses. The fact that the judges are appointed by the President of the United States may have much to do with the character and ability of this par ticular court, without doubt, making it the model of its kind in this country.

Criminal Evidence. "Nemo Tenetur Prodere Seipsum." By A. Leo Everett of New York. 9 Bench and Bar, p. 530 (April).

The author discusses the history of the constitutional privilege against self-incrimination. He takes a favorable view of this privilege and attacks Prof. Wigmore's statement that the interests of the public require a substantial modification of the doctrine. The author has given a very learned review of the practice in England, discussing the subject with reference to the inquisition and the Star Chamber, out of which period and the practices of which period, the demand for this privilege arose. He op poses certain proposed restrictions from this right offered to the New York Constitutional Convention, which shows wherein each one of them would be detrimental. (1) Elimination of the privilege from the Constitution, so that it shall be dealt with, as policy may require, by statute. (2) That inferences may be drawn by the jury from the failure of the defendant in a criminal case to testify in his own behalf. (3) That a witness shall not, in a cause or proceeding in which he is not on trial for crime, be excused from testifying on the ground that his testimony may incriminate him, but that the testimony so obtained shall not be read against him at his own trial. (4) That there should be a complete abolition of the privilege in connection with persons holding public office.

Another proposition made to the New York Constitutional Convention was that power should be conferred on the courts to compei protection of documents by the accused. The author does not favor this proposition, and quotes with approval the Boyd case, 116 U. S. 616, that the tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

Evidence. "Observations on the Law of Evidence." By Ezra Ripley Thayer, or the Har

vard Law School. 13 Michigan Law Review, p. 355 (March).

The author's liberal position on the rules of evidence is well known, and in this article, which is practically his address delivered before the Rhode Island Bar Association last December, he states at length the criticism that has been made of courts of this country in their strict application of evidentiary rules. While the author justifies much of the criticism that has been made by the courts' attitude on matters of evidence, he shows that this criticism has often gone to the extent of urging that all rules or privileges which shut out the truth should be cleared away and the light let in from every angle. The author thinks that the profession and the courts pay too little attention to the criticism of laymen and of the press, forgetting that it is the people's business and not the lawyers' that is being transacted. He thinks that both the people and the lawyers are wrong-that there is a middle course saying, "The matter cannot be at a proper focus until the law of evidence is seen as the thing it is a piece of illogical, but by no means irrational, patchwork; not at all to be admired, nor easily to be found intelligible, except as a product of the jury system, as the outcome of a quantity of rulings by sagacious lawyers, where ordinary untrained citizens are acting as judges of fact."

The author discusses the hearsay rule as being the rule of evidence most subject to objection, and suggests that the number of exceptions made to it is clear proof that it does not rest altogether upon a sound basis. The author's main conclusion is not that the hearsay rule, character rule and other rules of exclusion should be abrogated, but that their application should be left largely to the discretion of the trial court. In other words, the rules of evidence should not be the rule of right but of administration. The author says, "Sometimes, no doubt, real rights of the parties are concerned, as in the case of professional privilege. But for the most part it is only procedure; and simplicity and flexibility, important enough in any question of procedure, become doubly important in a matter so delicate and varied as the guidance of a trial before an untrained tribunal." The author calls attention to the inroads made on the hearsay rule by certain statutes, calling atten tion to a statute in Massachusetts that a declaration by a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.

Homicide. The Law of Dying Declarations. By A. A. Hoehling, Jr., of Georgetown University. 3 Georgetown Law Journal, p. 8 (March).

The author gives the scholar a resume of the development of the idea underlying the maxim nemo moriturus praesumitur mentiri. He considers it a curious development of the idea that the rule as to dying declarations should be limited to cases of homicide, saying, "If the sanctity attributed to statements made by persons in extremis be based upon the general belief

some

new

description of it sufficient for one to take such disclosures and embody the mental act in concrete form, he may then rest calmly at least a full two years, which he supposes the stat ute gives him, before filing his patent applica tion." The author says, though, that however brilliant the discovery of a new principle may be, it is not patentable until the principle has been applied to practical purpose. In other words, it is not the man who discovers the principle, but the man who first reduces it to some practical form, who is entitled to a patent. From an exhaustive review of cases the author draws the following conclusion. "First, constructive reduction to practice by filing an allowable patent application has been given a position of importance heretofore undefined, because this exact condition had never before been presented to the courts. Second, that this ruling is of final control where it fits the facts; but that there are obviously numerous conditions to which it could not be applied except by material modification. Third, it teaches inventors and attorneys alike that diligence in reduction to practice, either by actual construction or by filing an allowable patent application, grows in importance with the increase of inventive genius and intensity of industrial struggle."

Prizes. "Prize Cases in the English Courts Arising Out of the Present War." By Russell T. Mount, of New York City. 15 Columbia Law Review, p. 316 (April).

This article discusses the principles involved in decisions in Prize Courts in the English Courts which have arisen out of the present European war. He discusses the organization and administration of prize law under Section 4 of the Supreme Court of Judicature Act. It discusses the following cases: The Chile (1914) Probate Division 212; The Marie Glaeser (1914) Probate Division 218; The Tommi and The Rothersand (1914) Probate Division 251, and The Roumanian (1915) Probate Division 26. Each of these cases is exhaustively quoted and discussed, and the changes which have been made in international law are set forth.

Roman Law. "The Value and Place of Roman Law in the Technical Curriculum." By Chas. S. Lobingier, of Shanghai, China. 49 American Law Review, p. 349 (May-June).

The author's argument is to the effect that the Roman law is the source of elementary juridical conception as well as of specific doctrines now found in every legal system of the civilized world, that it is a mine of legal terminology and the model for studying legal de velopment, that it follows naturally the student's under-graduate work in the classical courses of our universities, and should be properly an introduction to the study of law. author criticises the present unphilosophical and unscientific methods of the study of cases without laying a broad foundation in the history of the theory of law and the rationale of legal institutions.

The

Trial and Procedure. "Studies in English Civil Procedure." By Samuel Rosenbaum.

University of Pennsylvania Law Review, p. 380 (March).

The author continues his discussion, which we have reviewed in two previous numbers, of the history of the rule making authority in England. He calls attention to the fact that the old Rules of 1875 amounted to less than six hundred in number, but that the new Rules under the Revision Act of 1883 number eleven hundred, but he says that the fear that such an increase was oppressive was soon dispelled when it was discovered that nearly four hundred of the Rules were transcriptions from previous statutes and regulations so that there had been completed a true code of procedure. Of these Rules three hundred and sixty-seven constitute a distinctively new element in procedure and are the ones that contain the most interest. Characteristic of the new Rules is a complete set of forms for every action. Some critics, the author declares, have stated that the effect of these is to return to a system very much like that in use in the common law procedure act. He says that this is not true, as the forms are very simple and could easily be understood by anyone, and it is further provided in the Rules that the pleadings must be as concise as possible, and that the parties may, if they choose or must, at a Master's order, dispense with pleadings altogether. Two other important innovations are involved in the Rule, "No technical objection shall be raised to any pleading on the ground of want of form," and the Rule abolishing demurrer. The author says that the bar is very glad to get rid of the demurrer, as its use was never beneficial and only afforded the parties the satisfaction of delaying cases or annoying the other parties. In place of the demurrer the pleader is privileged to raise an objection on a point of law, which is disposed of at the trial or after the trial. The author quotes a complaint of Lord Davey to the effect that, "Nowadays the pleader need not stop to think whether his cause of action or defense will hold water or not, and anything which is not obviously frivolous or vexatious will do by way of pleading for the purpose of trial and for getting the opposite party into the box." The author. however, calls attention to the fact that no case goes to trial in the court and consumes the time of the court until it is a bona fide case and ready for trial on the day it is set. For this purpose the case must first go to a Master, who has complete charge of the proceedings up to trial, and his preliminary decisions "clear the air of many matters that might cloud the issues when they come to trial." "His presence," the author says, "is the visible symbol of the control over the course of an action, now lost to the parties themselves, which is exercised by the court."

Passing over a number of other interesting innovations mentioned by the author. we notice one which will not fail to arouse the interest of American lawyers. Order XXV in Rule 5. which permits the court to "make binding declarations of rights, whether consequential relief is or could be claimed or not." This introduces for the first time the practice of giving decisions on points not actually in litigation.

This rule is limited to cases where the plaintiff has a cause of action, the court awarding asserting his right without awarding damages. This is an action against one member alone of a numerous class, for the infringement of a right they are all violating, and a declaration is asked for that the right exists as against them all.

Without going further into the various changes in the Rules of English practice, we note that the author remarks upon the eager activity of some lawyers to secure a change in the Rules, and the bitter opposition of other lawyers that the Rules shall be left as they are. The decision, however, of whether there shall be a change in the Rules rests with the Rule Committee, the constitution of which we called attention to in our last review. The elasticity of this system is shown in the fact that when a Rule is shown to be obscure or incomplete the Rule Committee immediate ly amends it. It appears from the author's discussion that the key to the present English system is the Master, whose control over the case is almost complete. He can force the parties to give him such information as will enable him to make preliminary orders which he thinks are necessary to aid the court or the jury in the hearing of the case. All preliminary motions and orders, which in this country take so much time of our courts, are threshed out in courts before a Master to whom the case is assigned.

The Mississippi Bar Association held a very successful meeting May 4, 5 and 6, at the Elk's Club in Vicksburg. All of the Justices of the Supreme Court were present, and a large representative delegation of lawyers from all parts of the state.

The welcome address was made by Hon. Jos. Hirsch, President of the Vicksburg Bar Association. Chief Justice Sydney Smith, President of the Association, called the Association to order and delivered the annual address, the subject of which was "A Plea for the Establishment in Mississippi of a Modern Unified Court." Hon. Thos. W. Shelton, of Norfolk, Va., delivered an address on the subject of "Some Observations of the Conflict Between Moral and Jural Law." When the name of John Allen was called, a name known by lawyers throughout the country, the profession gave a touching expression of their regard for him by carrying by a rising vote a motion to request the Secretary to wire Mr. Allen their regrets on account of his not

being able to be present at this meeting, due to his illness, this being the first meeting of the Mississippi Bar Association that Mr. Allen has missed.

After selecting the city of Laurel as the next meeting place of the Association, the convention adjourned, after electing the following officers: President, R. B. Campbell, of Greenville; VicePresident, Judge R. A. Reed, of Natchez; Secretary and Treasurer, James R. McDowell, of Jackson; Executive Committeemen, R. L. McLaurin, Vicksburg; C. S. Street, Laurel; T. F. Paine, Aberdeen.

HUMOR OF THE LAW

"Is it true that both your husband and the man who lives next door to you have failed in business?" "Yes, but Ned's failure isn't nearly so bad as Mr. Naybor's. He failed for fifty cents on the dollar, while my husband failed for only ten cents on the dollar."-Boston Transcript.

Russell Duane, the lawyer, is authority for the statement that a successful jury lawyer will talk up, not down, to the twelve men in whose hands his client's fate rests. Juries like to draw their own conclusions from the facts, and they hate to be patronized or insulted. "A little circumstance that happened in a Philadelphia common pleas court illustrates, this," says Mr. Duane. "A lawyer was defending a suit for damages for personal injury. His defense was contributory negligence, based upon drunkenness, but he cautioned his witnesses to scrupulously avoid testifying that the plaintiff was drunk. 'How did he act?' a witness was asked. 'Oh,' was the response, 'he acted awfully funny, I thought. He lurched from side to side, swayed, staggered, and his head kept bobbing forward and backward, at this point the foreman of the jury was seen to lean over to the juror seated next to him and whisper hoarsely, 'Why, that man was drunk.' The jurors all thinking so, too, were quite tickled over their own acumen in drawing an inference of facts. On the other hand, if the lawyer's witnesses had testified that the plaintiff was drunk, it would have immediately thrown the jury into a belligerent mood. Jurors usually drink, and if they had had to listen to a witness, who reflected on the drinking habit, they would have retaliated by giving such a witness testimony scant consideration, if any." -Philadelphia Record,