12

Portland Oregonian Oct 20, 1898

Chicago Tribune Nov. 1, 1899

the nineteenth century. Many existed early in the century, were accepted as time went on, and others added, until the close of the century sees a body of them to which full allegiance is given in the United States, if not to the same extent elsewhere, and which can truthfully be called modern.

To Judge Baldwin the chief modern political institutions appear to be these: The foundation of all government on the consent of a majority of the people; religious liberty; the written constitution as the supreme law; the protection by law of the individual against the state; the combination of political absolutism with democracy; the secret ballot; simpler and surer methods of legal procedure; freedom of incorporation under general laws; minority representation in office; the regulation of succession to the dead in the interest of the state; international arbitration; and for the United States especially, the Monroe doctrine.

The subjects considered in the several chapters after a general introduction are: The centenary of modern government; the first century's changes in our state constitutions; absolute power, an American institution; the exemption of the accused from examination in criminal proceedings; freedom of incorporation; American jurisprudence; the decadence of the legal fiction; the recognition of habitual criminals as a class to be treated by itself; the defense of the state of suits attacking testamentary charters; salaries for members of the Legislature; permanent courts of international arbitration; the Monroe doctrine in 1898.

The ideals held up to the American people are unity and social policy, uniformity of statute law and judicial procedure, and solidarity of national beliefs. In support of these ideals, Judge Baldwin marshals historical facts and logical deductions in illuminating argument.

The Outlook Oct. 29, 1898

POLITICS AND ECONOMICS

Some able and interesting papers on political and legal subjects, by Dr. Simeon E. Baldwin, President of the American Social Science Association, are published under the title of *Modern Political Institutions*. (Little, Brown & Co., Boston.) Some of these subjects had been discussed in previous years by Dr. Baldwin in articles and public addresses. The author recognizes and enumerates certain political and legal principles which the most highly civilized nations of Europe and America regard as having been established in the nineteenth century— not before, although the seed-truths had taken root centuries previous to their fruition in national life. He holds, in fact, that new principles of legislation or jurisprudence cannot assume an institutional character until the generation by which they have been adopted has passed away. The book contains thirteen chapters, each dealing with an institution of vital importance, which, though sometimes considered chiefly historically, is always revealed in its present place and perspective among political forces. The chapters on "The Centenary of Modern Government," "Absolute Power an American Institution," "Freedom of Incorporation," "American Jurisprudence," "The Decadence of the Legal Fiction," and "The Monroe Doctrine in 1898," will give an idea of the variety and weight of the topics discussed.

Modern Political Institutions.

Neither pretentious nor voluminous, this volume will appeal with great force to students of political economy and jurisprudence. The author and compiler is a jurist of large experience on the bench of Connecticut, and these papers, addresses and special articles are the work of an active lifetime in the exacting duties of judicial station. He holds that modern political institutions are the outcome of growth, selection and rejection. Political theories are brought forward, discussed and tried. Many are thrown aside, few retained. But those rejected often affect the result. Some grain of good is saved from chaff that is thrown away. Political institutions rest on popular assent. They must have been long tested and approved, and must seem part of the natural order to things to those affected by them. Nothing is natural to a man into which he was not born and bred, and which he does not remember as part of his early surroundings. There are such institutions native to the 19th century. Early in the century many existed; as time went on they have been accepted and others added to them, and the close of the century (sees a body of them to which full allegiance is given, at least in the United States, which we can truthfully call modern.

"(Modern Political Institutions," by Simeon E. Baldwin. Little, Brown & Co., Boston.)

Book News Nov. 1, 1898

Dr. Simeon Eben Baldwin, in "Modern Political Institutions," has written a very useful book, though popular in its treatment. In thirteen short articles he has reviewed the trend of organic change in certain visible institutions. The limitations in State Constitutions for a century, the grant of absolute power at certain points to one man in the Presidency and to certain majorities in constitutional amendments, the examination of the criminally accused and the treatment of the habitual criminal as a separate class, freedom of incorporation, the development of law by court decisions and the decadence of legal fictions, salaries for Representatives and permanent international courts of arbitration. These are all of the usual "address" order. They are full of related facts. They are hopeful. This advance is all along one definite line. Dr. Baldwin deems much of it collectivism. As a matter of fact it has given the individual such freedom of initiative as he never had before. The technical student will not find here much that is new, but that large class whom a certain acrid criticism leaves with the impression that our American political life is an amorphous welter, with corruption below and material prosperity above, will learn how steady our march has been on the right road.

Review Reviews Nov. 1, 1898

Modern Political Institutions. By Simeon E. Baldwin. Svo, pp. 387. Boston: Little, Brown & Co. $2.

Among the ideals which Judge Baldwin puts before his readers in this collection of addresses and essays is unity of social policy, uniformity of statute law and judicial procedure, and solidarity of national beliefs. More specifically, the effect of general incorporation laws on modern society is discussed from an institutional point of view, and there are chapters on such topics as "Salaries for Members of the Legislature," "Permanent Courts of International Arbitration," and "The Monroe Doctrine in 1898." The paper on "American Jurisprudence," while primarily addressed to members of the legal profession, has a suggestive interest for the laity.

Good Political Essays.

Modern Political Institutions. By Simeon E. Baldwin. Little, Brown & Co.

MR. BALDWIN needs no introduction to the class of readers his book will interest chiefly. He is the President of the American Social Science association, was formerly President of the American Bar association and also of the New Haven Colony Historical society. As a distinguished and learned jurist he has been in demand at national gatherings of importance for many years. This compilation of his essays will be found of particular value to all students of constitutional history, and of no small degree of interest to the general reader.

Of the thirteen chapters all except four are made up largely from the author's public addresses. The four exceptions are entitled "Freedom of Incorporation," "Salaries for Members of the Legislature," "Permanent Courts of International Arbitration," and "The Monroe Doctrine in 1898." The first named is a treatise of over 100 pages, which is comprehensive and pretentious enough to deserve separate binding and especial consideration. The topic is one of the most important that tinkers of the present day have to consider. Mr. Baldwin has, unfortunately, obscured his able and notable argument in favor of corporative methods by publishing it in this form.

He gives the place of honor in the collection to a review of the "Centenary of Modern Government," a chapter in which he has made free use of his annual address delivered before the American Bar association at its meeting in Chicago in 1889. Among the other chapters are those upon the "Decadence of the Legal Fiction" and the "Century's Changes in our State Constitutions," the latter being of especial interest locally because of the present agitation for a revision of the constitution of the State of Illinois.

Buffalo Commercial

Nov. 6, 1898

Judge Baldwin of the Connecticut Bench is one of the soundest, most completely equipped lawyers in the country. His book entitled "Modern Political Institutions" is published by Little, Brown & Company. It is made up of twelve articles preceded by an introduction on the following subjects: The centenary of modern government; The first century's changes in our state constitutions; Absolute power, an American institution; The exemption of the accused from examination in criminal proceedings; Freedom of incorporation; American jurisprudence; The decadence of the legal fiction; The recognition of habitual criminals as a class to be treated by itself; the defence of the state suits attacking testamentary charters; Salaries for members of the legislature; Permanent courts of international arbitration; The Monroe doctrine in 1898. These are all living topics, and these are discussed here by one who is by nature, inclination and experience a profound thinker and student. It is characteristic of Judge Baldwin to go thoroughly, impartially and freely into every subject upon which he intends to give the public the benefit of his views; and there is not a page in this book that does not provide the intelligent reader with food for thought and reflection. The reader may not agree with the Judge in every instance; but he will thank him for valuable suggestion enforced by careful study.

Brooklyn Times Nov. 19, 1898

Congregationalist Nov. 24, 1898

16

### MODERN POLITICAL INSTITUTIONS.
By Simeon E. Baldwin, LL. D. Little, Brown and Company.

In addition to the value which must always belong to a work coming from a logical reasoner and a trained thinker, and, above all, a work which concerns itself with a subject intrinsically important, Judge Baldwin's book has a special significance at this time, when the country is facing grave problems, problems which in the solution will put our modern political institutions to new tests. In the preface the author says: "Political history is the tree from which modern political institutions branch. Many a shoot is put forth in the springtime of a nation, to wither and perish. The work of natural selection is nowhere so unremitting and remorseless as in the development of the processes of Government. Political institutions rest on popular assent. They must have been tested by long use and not found wanting. They must seem part of the natural order of things to those whom they affect, and nothing seems natural to any man into which, as part of his earliest surroundings, he was not born and bred. There are such institutions native to the nineteenth century. Many were already established at the beginning of the century, and with the lapse of time they have been accepted and others have been added." It is especially of the institutions of our own time that Judge Baldwin treats in this volume. According to him, the chief modern political institutions are "The foundation of all government on the consent of a majority, of the people, religious liberty, the written Constitution as the supreme law, the protection by law of the individual against the State, the combination of political absolutism with democracy, the secret ballot, simpler and sure methods of legal procedure, freedom of incorporation under general laws, minority representation in office, the regulation of succession to the dead in the interest of the State, international arbitration." To these he would add for the United States "The Monroe Doctrine." Several of the thirteen chapters in the book were originally delivered as addresses before different organizations the remainder are new. The author's style is fluent, lucid and agreeable. To the technical student, the book may not present much that it new, but to a large class of readers the book is certain to prove most valuable and, illuminating. The book is stimulating and adds certain to create respect for the steady advances which have been made, and will arouse a feeling of hopefulness for the future. The subjects discussed, after the introductory chapter: "The Centenary of Modern Government," "The First Century's Changes in our State, Constitutions," "Absolute Power, and American Institutions," "The Exemption of the Acquired from Examination in Criminal Proceedings," "Freedom of Incorporation," "American Jurisprudence," "The Decadence of the Legal Fiction," "The Recognition of Habitual Criminals as a Class to be Treated by Itself," "The Defense of the State of Suits Attacking Testamentary Charities," "Salaries for Members of the Legislature," "Permanent Courts of International Arbitration," "The Monroe Doctrine in 1898."

Dr. S. E. Baldwin, president of the American Social Science Association, has gathered into a volume a dozen papers based largely upon public addresses made by him and dealing with a considerable variety of such themes as appeal primarily to the members of the bar, but also in a real sense to the general public. One of the most significant is that on the First Century's Changes in Our State Constitutions, a historical sketch pointing out how the powers of the executive have been enlarged and how those of the judiciary have been increased in some respects and limited in others; how some inroads have been made upon the jury system, and how methods of legislation have been altered, etc. Another is that on The Exemption of the Accused from Examination in Criminal Proceedings, an exemption which Judge Baldwin strongly opposes, feeling that we have gone too far towards making the law serve as a possible shield of crime and that it is legitimate, and would be wise, to ask an arrested man to give a statement immediately in regard to the matter of the accusation against him, even though such a statement be made before a subordinate official. There is room for considerable difference of opinion upon this point, and many feel that such suspects already are more often the victims of unfairness and ill-grounded suspicion than they ought to be.

Another is that on The Recognition of Habitual Criminals as a Class To Be Treated by Itself, recommending a police supervision for life, or at any rate for a sufficiently long term of years, and the general use of the Berrillon method of measurements. In another paper the author recommends that the state take part in the defense of suits brought to overthrow charitable bequests, on the ground that the object of every such legacy is to confer a public benefit. In another he urges earnestly and wisely the establishment of permanent courts of international arbitration. Other topics discussed are: The Centenary of Modern Government, The Burden of Incorporation, The Decadence of the Legal Fiction, Salaries for Members of the Legislature, etc. The successive papers illustrate wide learning and eminent ability in the mastery and presentation of legal problems and inferences therefrom, and the subjects considered are sufficiently popular and important to assure such a book a considerable constituency beyond the limits of strictly legal circles. [Little & Brown. $2.00].

N.Y. Bar Jnl. Nov. 26, 1898

### THE PRESIDENT'S POWER.

"Of the leading Powers of the world, two only, in our time, represent the principle of political absolutism and enforce it by one man's hand. They are Russia and the United States." This is the measured language of Prof. Simeon E. Baldwin of the Yale Law School, in an address given last year before the Georgia State Bar Association, and published in his recent volume, 'Modern Political Institutions' (Little, Brown & Co.). He traces the gradual strengthening of the American Executive since 1787. By decisions of the Supreme Court and by acts of Congress, the President has come to exercise without question powers which were at least doubtful a hundred years ago, and from which some of the leading framers of the Constitution would have recoiled in terror.

In domestic matters, the President's

power to dismiss his subordinates at will has been put beyond dispute; to call out the militia of a state on his own judgment; to surround civil officers of the United States, within a state, with armed guards, who can defend them, even to the death, without responsibility to the state. But it is chiefly in the matter of foreign relations and of war that the latent powers of the President, under the Constitution, have been coming to the light and are seen to be well-nigh absolute and supreme. By his sole right to initiate treaties and to receive foreign ministers, the President, through his agents, has practically exclusive control of foreign affairs. He is limited only by the provision that Congress declares war. But he can so shape things that a declaration of war by Congress is inevitable. "Let who will declare war," a reckless President might say. "provided I have the power to compel them to declare it."

President Hayes once said that the war powers of the President were a vast and vague deposit in the Constitution which might be indefinitely drawn upon. If confirmation of this view were lacking, we need look no further back than the events of this year. Jefferson and Jackson and Lincoln asserted the Presidential prerogative in startling and almost revolutionary ways, but none of them moved to their ends with so sheer an assumption of naked, arbitrary power as that displayed by Mr. McKinley in the present year of grace. Saying nothing now about the initiation and prosecution of the war, his action in dictating terms of peace has condensed into his own person the exercise of the whole national sovereignty in a way which would not have been possible in the case of any other ruler except the Czar. He has already demanded and received the cession of Porto Rico. The House was not consulted about this; the people never voted on it. He has also demanded and received one of the Ladrone Islands, proposes now to take one or more of the Caroline Islands, and has demanded the entire Philippine archipelago. He has done all this apparently on his own individual initiative. Of course he has had his advisers, official and unofficial, but he has consulted neither of the coordinate branches of the government. He has not inquired for the wishes of Congress, he has not taken the opinion of the Supreme Court. Surely, if Prof. Baldwin were to give his address over again, he could find many more proofs in President McKinley's course, during the past six months, that absolute power is an American institution, than he was able to draw from all the masterful Presidents who went before.

We are not saying that Mr. McKinley has gone beyond his Constitutional power. When he appeared, last March, to be doing his utmost to avert war, we maintained that foreign relations were put by the Constitution into his sole control, and we are bound to maintain that now. The Senate has an ultimate voice, but it is quite possible for a President to lay

19

Minneapolis Tribune Dec. 3, 1898

Minneapolis the Kingdom Dec 8, 1898

By Simeon E. Baldwin. Published by Little, Brown & Co., Boston.

The author of the present volume is too well known to the class of readers to whom his book will appeal to need any introduction. He is at present president of the American Social Science Association, and was formerly president of the American Bar Association, also of the New Haven Colony Historical Society. The essays contained in the volume will prove of inestimable value to students of constitutional history.

The volume is made up, with the exception of four essays, of public addresses made from time to time by Mr. Baldwin. These four exceptions are entitled "Freedom From Incorporation," "Salaries for Members of the Legislature," "Permanent Courts of International Arbitration" and "The Monroe Doctrine in 1898." The first of these is a lengthy treatise of more than 100 pages on one of the most important subjects of the present day. The author gives the place of honor, however, to a review of the "centenary Modern Government," a chapter which is largely taken from his annual address before the American Bar Association at its meeting in Chicago in 1889. Other chapters of importance are those upon "Decadence of the Legal Fiction" and the "Century's Changes in Our State Constitutions."

### Modern Political Institutions,
by Simeon E. Baldwin, LL.D.

—The distinguished jurist whose name appears on the title-page of this volume approaches his subject in a broad-minded manner with the remark that "unity of social policy, uniformity of statute laws and judicial procedure, solidarity of national beliefs—these are what the people of the United States must put before themselves as the ideals to be striven for."

Some of the chapters in the book are based upon addresses that have been delivered by Doctor Baldwin from time to time, while others are entirely new. In the treatise on the Exemption of the Accused from Examination in Criminal Proceedings, a strong plea is made in favor of requiring the prisoner to answer the charge against him, for, while the American system of criminal prosecutions is one which seldom convicts the innocent, it is one which often acquits the guilty, and, under our present system of criminal justice, the exemption of the accused in the matter of pleading is a great advantage.

Doctor Baldwin gives the place of honor in his collection of essays to a review of the Centenary of Modern Government, a chapter of more than one hundred pages, which deserves special consideration. He counts as the fruits of the century, religious liberty,

the widening of the suf-
frage, the functions of
journalism, and the develop-
ment of charity. The
chapters on The Defense by
the State of Suits attacking
Testamentary Charities, Salaries
for Members of the Legislature,
The Monroe Doctrine of 1898, and
American Jurisprudence is of
particular value to all who are
interested in the governmental
institutions of our country.
(Published by Little, Brown &
Company, Boston.)

By Simeon E. Baldwin, LL.D. Little, Brown & Co., Boston; N. McCarthy, Minneapolis. Cloth, 387 pages. $2.00.

As one turns the pages of this volume many interesting facts in the development of jurisprudence come to light, and in many ways the book is a valuable one. There is much food for thought in the chapter on "Freedom of Incorporation," throwing light, as it does, on the attitude of at least one lawyer toward the labor movement. Dr. Baldwin's instinct is plainly to conserve in every possible way the special privileges of the few. Though admitting in reference to corporations that "great undertakings are now almost the only successful undertakings; certainly the only ones which offer large profits to many people," he virtually denies that labor as well as capital may promote its interest by combining its forces. "Organized labor," writes the author, "is unfavorable to individuality. It merges a man in a class of men. He is no longer working out his own destiny."

The biased views of the author are clearly shown in the chapter entitled "The Recognition of Habitual Criminals as a Class to Be Treated by Itself," for there seems to be no recognition of the fact that the criminals who commit acts of violence are not the ones who most menace our Republic. Ignoring that class of people who rob by legislative enactment and endanger the State by their criminal proceedings, Dr. Baldwin turns his attention to the best method of punishing those whom he admits "are almost fated to it (crime) from their birth." "We may be forced to trench upon his (the criminal's) personal independence. The time may come, even, for us to make suspicion evidence, and assume guilt where we cannot prove it." Instead of hinting at the real causes of crime in order to handle the subject of prevention from a scientific standpoint, he merely offers increased police supervision of those who have been released from prison, as a remedy for that which he considers society's chief enemy.

If such sentences as the following were meant to apply to the large and successful criminals as well as to the petty robbers, there would be less cause to take exception to his position in regard to crime: "But to circumscribe and reduce the class of habitual criminals is an end which, if attained, justifies any outlay of money. Every member of that class is a perpetual drain on the community, by day and night. He must be put at a disadvantage, and kept there at whatever cost, and whatever inconvenience to society or himself." One might naturally wonder how a bad man, placed at a disadvantage, would ever reform. But the treatment of this important subject ignores entirely the positive side of the question. Dr. Baldwin sounds a more encouraging note while dealing with the subject of "International Arbitration."

An index makes the book useful as a reference for the facts in the modern history of our political institutions, even though the author's opinions may not be of equal value.

The political book of the
season from this house is Prof. Simeon E.
Baldwin's 'Modern Political Institutions,'
which takes up from a lawyer's point of
view the important features of our political
development.

Boston Evening Transcript Dec. 14, 1898

MODERN POLITICAL INSTITUTIONS: Simeon E. Baldwin.

These thirteen essays discuss civic, legal and
political matters in language free from techni-
cality, and intelligible to a layman, although
the subjects of many are of high importance to
Jurists. The chapters on "Freedom of Incor-
poration," "The Decadence of the Legal Fie-
tion" and "Recognition of Habitual Criminals
as a Class to be Studied by Itself" are most
important. The book is equally good reading
for a young citizen or for an old lawyer.

Reviews of Books.

**Modern Political Institutions.** By SIMEON E. BALDWIN, LL.D. Boston :
LITTLE, BROWN & Co., 1898.

PROFESSOR or JUDGE BALDWIN—for he has right to both titles—is known
widely on the other side of the Atlantic, and to many on this side of it, as
one of the distinguished ornaments of Yale University and of the Law
Courts of his country. He is an accomplished lawyer and something more.
His position and the bent of his mind are well shown by some of the offices
which he has held. As President of the American Bar Association, of the
American Social Science Association, and of the New Haven Colony His-
torical Society, we recognise him as a leading lawyer of cultured tastes, with
an instinct for improvement of the law. In his different capacities he has
delivered many addresses and written many essays. Some of these, through
which a common thread of interest runs, have been revised and collected in
this volume.

The articles mainly concern the history and philosophy of the political
institutions of the United States. While I do not say that upon every
point it is possible for an observer from the outside to be in entire concur-
rence with Professor Baldwin, no one can fail to be struck by the vivid
interest and the thoughtful and suggestive nature of the papers. His account
of the changes in the Government of the United States during the first
hundred years of its existence is full of information, and is written in an
impartial judicial spirit, reminding one of Mr. Bryce. The absolute power
which he describes as wielded by the President, as well as by the Governors
of the individual States, though familiar to those who know America,
will strike most readers as being unparalleled. Were a European sovereign
to do as the Governor of New York State did in 1897, and to veto over five
hundred statutes passed by the legislature, there would be a revolution, and
the minister who advised the proceeding might be thankful if he escaped
impeachment. And one has difficulty in fully understanding a system
under which Congress will, upon a crisis arising, place in the hands of the
President, for a particular purpose, a sum like £10,000,000 " to be expended

REVIEWS OF BOOKS.

The establishment of a complete system of public prosecution for crimes and offences;

The abolition of the criminal law of libel;

The giving to juries in criminal cases a certain power of control over the sentence;

The establishment of a complete and compulsory system of registration for titles to land;

The abolition of the law of primogeniture in land, in the case of in-
testacy;

The placing of both sexes upon a footing of equality in regard to the
right to divorce; and

The allowance of divorce upon grounds other than those upon which it
is allowed in England.

I have omitted from the preceding enumeration some reforms specified
by Professor Baldwin which seem to me to be matters rather of politics
than of law, and I have not given the few instances of changes which have,
as I think, been deteriorations. In what I have given I give the substance
of his claim for America rather than his precise words. That it is a good
and valid claim which Professor Baldwin makes there can be no doubt,
though in some of the cases of anticipation the period was short. He does
not claim absolute originality for America in regard to all the reforms.
Some he attributes to the influence of continental examples. For example:
"There is nothing," he says, "distinctly American in codification; it is
simply un-English." The extent to which the reforms in both of the classes
have existed for long in Scotland has—not unnaturally—escaped his
observation. It is, however, noteworthy that some of the reforms in the
first class, and most of those in the second class, are only parts of our old
and well established Scottish system.

J. DOVE WILSON.

MODERN POLITICAL INSTITUTIONS. By the
Hon. Simeon E. Baldwin. (Little, Brown
& Co., Boston.)

Most of these papers were prepared, in the
first place, as addresses to various associations,
such as that of the American Bar and the Social
Science Association, but they have evidently
been thoroughly worked over. The most general
of them is that entitled "The Centenary of Mod-
ern Government;" the most timely is that on
the Monroe Doctrine. Perhaps we should say
that the essay called "Absolute Power, An
American Invention," wherein the vast power
exercised by the President of the United States
is impressively illustrated, is the most important
of all. Lawyers, we incline to think, will prize
most highly the papers in which the laborious
scholarship of the author is displayed in the
treatment of particular legal subjects. Such
are the essays on the exemption of the accused
from examination in criminal proceedings, free-
dom of incorporation, and the decadence of the
legal fiction. Altogether the volume is one
which not only lawyers but all citizens inter-
ested in the development of our political institu-
tions will find replete with valuable information,
and abundantly suggestive, whether they adopt
all the learned author's conclusions or reject
some of them as inconsequent.—

MODERN POLITICAL INSTITUTIONS. By
Simeon E. Baldwin, LL. D., President of
the American Social Science Association.
Boston: Little, Brown & Co.—The fact that
Mr. Baldwin was formerly president of the
American Bar Association sufficiently indi-
cates his legal standing and the demand
which he has a right to make on our most
serious attention. He is always at his best,
in this volume, where his subject is narrow-
est and most concrete. His first and most
ambitious paper, "The Centenary of Mod-
ern Government," does not impress us as
being well articulated; while it is too man-
ifestly dominated by an inclination to "claim
everything" for the United States. That on
"The First Century, and Changes in our
State Constitutions," is much better; and it
may well be read in conjunction with Mr.
Thorpe's chapters on the same subject in his
recent "Constitutional History of the United
States." "Absolute Power, an American
Institution," is mainly an exhibition of the
development of executive power. The con-
clusion is that, the greater the responsibility,
the greater the caution: the more gigantic
the power, the less likely the President to
use it like a giant,—an optimistic doctrine,
if not quite a convincing one. It is pretty
certain, however, that, if President McKin-
ley had been obliged to "take the responsi-
bility" of war with Spain, there would have
been no war. Other important subjects are
"The Examination of Accused Persons in
Criminal Processes," "Freedom of Incor-
poration," "The Recognition of Habitual
Criminals as a Class to be treated by them-
selves." Last of all, we have an article on
"The Monroe Doctrine." ardent in its de-
fence and for its extension, but within a
few weeks too soon to be tested by the
grim humor of the situation, when the Mo-
roe Doctrine, which was vaunted so piously
a few years ago, is now treated with absolute
contempt, the taking of the Philippines
being, of course, a subversion of its funda-
mental principle. If Europe must keep out
of our back yard, we are bound to keep out
of hers.

"MODERN POLITICAL INSTITUTIONS."

Springfield Union Jan. 8, 1899

It is of the institutions of our own
time, institutions that have become
such by the recognition and approval
of our own century, or are contending
for that of the twentieth that Simeon
E. Baldwin treats in "Modern Politi-
cal Institutions."

The chief among them, he says, must
be largely a matter of individual opin-
ion. His own arrangement and their
order of importance is, "The founda-
tion of all government on the consent
of a majority of the people, religious
liberty, the written constitution as the
supreme law, the protection by law of
the individual against the state, the
protection by law of the individual
against himself, the combination of po-
litical absolutism with democracy, the
secret ballot, simpler and easier meth-
ods of legal procedure, freedom of in-
corporation under general laws, mi-
nority of representation in office,
the regulation of succession to the dead in
the interest of the state, international
arbitration and for the United States
the Monroe Doctrine."

# Report of the Committee on Civil Service Reform.

Read before the Massachusetts State Federation of Women's Clubs, at Amherst, October 18, 1900.

Your Committee on Civil Service Reform has to report very satisfactory results from the work of the past eight months.

Your representative is in correspondence with the Presidents and heads of Committees of the greater number of Federations, also with Clubs and individuals in the different States. We have secured the hearty sympathy and cooperation of men and women who are working in different branches of Social Science. We are indebted for suggestion and help to officers of the National and State Civil Service Reform Associations, of the National Municipal League, of Civic Clubs, Merchants' Association; members of Social Science and Charities and Corrections Conferences, Principals of High Schools, as well as to private individuals in all parts of the country.

At the Autumn meeting of eight Federations, the subject of Civil Service Reform is to be brought before the assembled Clubs, either by the Presidents in address, or by special Papers, and official literature such as we have here, is to be distributed. At the last meeting in several of the States, the movement was endorsed and cooperation promised. There is also preparation for the bringing forward of the subject at the next meeting. And in still other Federations, the Presidents are deeply interested, are circulating literature, and are full of intelligent suggestion as to the work.

Sixty Public Libraries in the country, have received complete sets of the pamphlet from the Reports of the U. S. Civil Service Commission, to lie on their Reading-room tables all summer, to be given away this Autumn. Libra-

rians in Michigan, Wisconsin, Minnesota, Massachusetts,
Connecticut &c, have shown themselves interested.

The Paper prepared by your representative, has been
circulated and printed in Newspapers and Weekly Journals
in every State in the Union. And your Committee thinks
this work, which seems well under way and only needs to
be kept in wise and orderly channels, will be of steadily
increasing value to our national life.

We suggest that no public action be taken by individual
Clubs or by the Federation, except by the advice and cö-
operation of the State or National Civil Service Reform
Associations, which as organizations of years' standing,
have a knowledge of what has been done in the past, and
what may be planned for the future.

We have received requests from Clubs for speakers on
the Merit System. Arrangements are not yet completed
to fill these calls.

The Clubs might appoint certain days, when the best
literature on the subject could be read and discussed.

The Bibliography published by the Women's Auxiliary
of New York, gives titles of articles in the different Re-
views and Magazines, which are better than anything which
can be prepared specially for you.

There are also books treating of allied subjects, or
giving the fundamental instruction we all need.

Among these books we may mention—
*The State*. By PROF. WOODRON WILSON. (Last edition.)
*History of the Constitution*. BANCROFT.
*Unforseen Tendencies of Democracy*. GODKIN.
*Modern Political Institutions*. JUDGE SIMON E. BALDWIN.
*Colonial Civil Service*. A. LAWRENCE LOWELL.
*The Genesis of the Social Conscience*. PROF. NASH.

A winter may be devoted wisely to a thorough study
of the theories and principles upon which this Government
is founded, and also to close observation of the methods
by which it is administered. We must have knowledge of
the manner in which the central power through patronage
comes into a normal relation with State politics. We must
know how the abuse of the power to appoint, has created

Women who are outside the rougher contact and special temptations of political life are coming to understand more and more clearly the defects of our administrative system. They find the method of securing public service, opposed to all their own experience has taught them as wise. They do not need to be convinced of the value of the Merit System, they wish to understand more exactly its methods and to learn how it may be made the law of applied politics. They see that neither man nor woman has motive to do their best, if subject to loss of position through the passing from power of a political party. They know that faithful, trained service does its work well and economically, because intelligently, and that there is left vitality and noble leisure with which to labour for the finer purposes of the home and of the community.

An investigation of the subject of Civil Service Reform is a natural and simple method of political education, directed as it is by no party nor sectional bias. We are led almost insensibly to the study of constitutional government, to the analysis of the way in which our laws are made, of the methods by which candidates are nominated, until we come face to face with the great idea upon which our American civilization was founded, the Democratic idea projected into the form of government called a Republic.

A Democracy is not primarily a perfect government, but rather, a long and slow educational process, whose aim is the training of each unit into the conviction of personal responsibility for the well being of all.

The Idea is to express itself in action, in forms of the most noble unselfishness. The perception of our departure from this high standard would discourage us, did we not hear the rising tide of protest and endeavour.

Our country is considering her new responsibilities in a way that throws light on our internal methods, and there is much searching of heart.

We all feel the need of some living centre to which to bring these problems of social life and work, and from which to educate public opinion in a temperate and self-

controled manner. Our Clubs and Federations should fill
this position; should be groups to be consulted, whose
opinion should enter as a serious factor into plans made
for the good of the community.

It is a great step forward, when our State Federations
appoint Civil Service Reform Committees, a movement, we
trust to be taken up, finally, in all our States, that we may
have affiliated Committees, gathering and distributing in-
formation. We hope to have interstate meetings, National
Conferences, Social Science Conventions, with men and
women to address us on these great subjects, the Com-
mittees in return to report to their State Federations.

Here we shall have no new organization, nothing arti-
ficial, but the natural moving forward of the thing which
already exists; which diverts no interest already existing;
which interferes with no work already planned, but simply
directs into a fine, national, patriotic activity, energy which
longs to express itself in some adequate way.

Here we have an interest which rises above local or
Party considerations into National importance; a common
interest for all our Clubs in all our States, binding us to-
gether in a perfect sympathy which nothing can destroy.
Teaching us to understand problems, other than our
own. Teaching us to know our whole land, making us
"citizens of no mean" country. Calling us away from
the local and conditioned into the larger life of the whole
civilization, with its manifold needs and its one necessity—
the raising the standard of public life and political adminis-
tration.
L. S. W. Pelley

CONCORD, MASSACHUSETTS.

23

It was one and indivisible, imprescrip-
table and inalienable. One generation
could not bind succeeding generations to
its laws.

Municipal autonomy having been swept
out of existence in the dark ages, this cen-
tury has restored it. It has broadened
from the walled town to the village, the
school district, the county, colony, prov-
ince and State. Home rule has become the
watchword of free government. "One-
quarter of our population is now centered
in our cities. A hundred years ago there
was no city in the Union which numbered
40,000 inhabitants. How many States are
now without one? And how, except in
this way, could such great gatherings of
freemen be kept in order? The combination
of local home rule, with a central authority
to direct inter-communication between the
several communities, and determine all
questions of foreign relations, is the best
form that modern constitutions assume."

This, again, has opened the way for an-
other innovation of transcendant import-
ance—the generalization of all laws, to all
men and interests in similar positions. To
this, society is impelled by its rule of
equality. "The world was not much given
to legislation before the days of the French
Revolution. All the statutes of Rome, in
the days of her greatness, were not more
in numbers than one of our larger States is
now accustomed to enact in every decade.
There is but one remedy to be applied—
the universal prohibition of special legisla-
ture where a general law will secure the
end. And this is possible only by granting
extended powers of local administration to
local governments."

The support it derives from journalism
is another characteristic of modern govern-
ment. "It may be fairly said that it
could not exist, and could not have existed
without it, less from the direct influence
which it exerts than from the publicity and
close scrutiny of official action which it se-
cures."

"Until a hundred years ago Legislatures,
the world over, sat practically with closed
doors. Journalism during this century has
demanded that they be thrown open, and
has thus put the people bodily into the leg-
islative assembly. Secrecy has been lost
and safety gained—safety, for no law is so
bad as the ill-considered law, and no law
can be well considered that has not been
fully discussed in public by the men whose
interests it concerns." Herein, Judge Bald-
win declares, is the great work of the news-
paper in politics.

"Modern government," he further says,
"is becoming more and more a govern-
ment by party. But parties represent less
than they once did. As class lines fade out,
and class interests no longer exist to be pro-
tected; as public education lifts the mass of
the community to a more intelligent and,
therefore, more candid view of political
questions; as the general tone of morals is
strengthened, as strengthened it is by all
these influences—parties come to have no
policy but to get into power, or to keep in
it, for the sake of place and patronage.
Practical politics is thus becoming the art
of managing and supporting nominations;
and our American system of primary nomi-
nating assemblies, by which the voter has
two opportunities of power, one at the cau-
cus and one at the polls, seems likely to
spread wherever popular election is found,
and to find equal protection from law."

It will thus be seen that a healthful opti-
mism is characteristic of Judge Baldwin's
views of modern governmental institutions;
and he has done no small service by settling
forth in a manner so interesting that his
eulogiations have the force of novelties,
truths that receive our intuitive assent or
that have become established, but that
many have failed to see in their proper re-
lations. Most people, we think, will dissent
from his claim in the last paragraph we
have quoted, that class lines are fading out
and that class interests no longer exist to
be protected. The former statement is true
as to society in certain parts of Europe; but
the latter is not justified by the facts, either
there or here. Our danger, just now—one
from which we shall become extricated, no
doubt—is in the rapid growth of class inter-
ests, and the manifest differentations that
result from legislative discrimination in
favor of wealth.

No one who would possess broad and
wholesome views of the development of re-
publican government in America can afford
to leave unread this admirable volume. In
noticing it we have allowed the author to
speak for himself in copious extracts from
one of his chapters, only. It is with regret
that we turn away from the book without
being able, conditioned as we are by space,
to let the reader form some notion of the
ability, candor and interest with which the
author treats of such topics as "The First
Century's Changes in Our State Constitu-
tions," "Absolute Power an American In-
stitution," "The Exemption of the Accused
from Examination in Criminal Proceed-
ings," "Freedom of Incorporation," "Amer-
ican Jurisprudence," "The Decadence of
the Legal Fiction," "The Recognition of
Habitual Criminals as a Class to Be
Treated by Itself," "The Defense of the
State of Suits. Attacking Testamentary
Charities," "Salaries for Members of the
Legislature," "Permanent Courts of Inter-
national Arbitration," "The Monroe Doc-
trine in 1898," etc.

N.Y. Ev. Post, Jan. 26, 1899

*Modern Political Institutions.* By Simeon E.
Baldwin. Boston: Little, Brown & Co.
1898.

Although this book is made up largely of
addresses delivered before various associa-
tions, it has a sufficient unity of purpose.
According to the author's use of the term,
modern political institutions are those
"which became such by the recognition and
approval of our own century, or are contend-
ing for that of the twentieth." Chief among
these he reckons the foundation of all gov-
ernment on the consent of a majority of the
people, religious liberty, the written consti-
tution as the supreme law, the combination
of political absolutism with democracy, the
regulation of succession to the dead in the
interest of the state, international arbitra-
tion, and the Monroe Doctrine. To these are
added some institutions of a legal rather than
political character, and certain general pro-
positions which have a rather remote con-
nection with institutions of any kind. It is
at least doubtful if the Monroe Doctrine can
be properly described as a political institu-
tion; it might now, perhaps, be properly con-
sidered in the essay on "The Decadence of
the Legal Fiction." Nor is it apparent why
the assertion by the Government of a claim
to share in the property of decedents should

be regarded as anything modern; and the
combination of political absolutism with de-
mocracy was familiar to Aristotle.

We must confess that we find a certain
inconsistency in proclaiming this political
absolutism and in calling the written con-
stitution the supreme law. It is unnecessary
to say that the framers of our Constitution
intended to limit the power of the Executive.
Many of them dreaded this power extremely,
and they took great pains to hedge it about
with constitutional restrictions. Neverthe-
less, this author describes, almost in terms of
exultation, the vast extent of the powers now
exercised by the President, which he puts
on the same level as those of the Czar of
Russia. "The President, during half the year,
is the United States more truly than ever
Louis XIV. was France." We will not stop
to discuss the correctness of this view; but
we cannot read without amazement that
there is no danger to the liberties of a peo-
ple in the rule of a despot. "The most im-
petuous man is held back if a hasty word
or act of his might put the peace or welfare
of a nation in peril. It is his very absolut-
tism that has made the President, in respect
to all matters of foreign policy—and there
he is most powerful—the great conservative
force in our constitutional system." We are
tempted to recall the episode of Venezuela;
but that episode, we find, the author regards
with much complacency.

In his examination of some departments of
legal procedure, the author's scholarship is
well employed. The paper on "Freedom of
Incorporation" contains a careful account of
the achievements of the Roman lawyers in
the creation and development of corporations
of all kinds, the renewal of the process in
Europe after the Middle Ages, its course in
England, and the main lines which it has
followed in the United States. This is the
most elaborate essay in the book; but there
are others, such as that on legal fictions, and
the exemption of the accused from examina-
tion in criminal proceedings, which are of
special interest to lawyers.

Modern Political Institutions. The
Hon. Simeon E. Baldwin. The papers
composing this volume have been de-
livered as addresses to legal and scien-
tific associations, and will be prized by
the legal profession for their clear state-
ment and accurate learning. The gen-
eral reader cannot fail to be interested
and instructed by such papers as those
upon the "Monroe Doctrine," "The Cen-
tenary of Modern Government" and
"Absolute Power a Modern Invention."
The volume will challenge criticism, but
its themes are instructive and calculated
to produce healthful discussion. Little
Brown and Co.

The Churchman Jan. 29, 1909
MODERN POLITICAL INSTITUTIONS. By Sim-
son E. Baldwin, L.L.D. $2. (Boston: Little,
Brown & Co.)

Under a title that is hardly suggestive
of its contents the veteran president of
the American Social Science Association
has collected a number of papers partly
legal and partly of a distinctively politi-
cal nature. Unquestionably, the most
significant chapter in his book is the

Book Review March, 1899

The Book Buyer June, 1899

fourth, entitled "Absolute Power, an American Institution." In this we find a striking presentation of one of the most unique features of the Constitution. As the author himself asserts, "there are only two civilized countries that believe in a strong personal government—Russia and the United States. And Dr. Baldwin has very little trouble in establishing his contention. Recent works on constitutional law have made plain the extent of authority conferred by the American system on the chief Executive by the war power. Its elasticity virtually enabled President Lincoln to assume the role of a dictator at a time when no other kind of authority could have solved the political and constitutional problems produced by the Civil War. But apart from this abnormal period it is easy to trace the enormous influence of the Executive in the policy of the government. Jefferson, added, by the stroke of his pen, an immense area to the territory of the original colonies. Jackson, by an act equally personal, put an end to the United States Bank. In this way, while in all the rest of the civilized world personal rule has been on the decline, in the Great Republic of the West the people have accepted without question the extension of individual authority and they have accepted it because they feel that the President is directly responsible to them and to no other. "The ultimate despot," as the author picturesquely says, "is the people of the United States."

Hardly less distinctive of the American system than the personal rule of the President, is the attitude of the civil authority to the religious beliefs and organizations of the citizens of the commonwealth. When the Constitution of the United States prohibited all religious tests for office or public trust, religious establishments were already existing in almost half of the original states. Eighteenth century liberalism, which influenced the views of the American leaders in its least noxious shape coupled with the impossibility of finding a common basis for the Congregationalist of New England and the Churchman of Virginia, made it impossible for the Union to adopt any other common policy. As time went on the precedent of the general government was followed everywhere, and the connection of the State and Church was seen to be irrational, even in those places where tradition and custom seemed to make it most legitimate.

But the progress toward the goal of full religious liberty was slow. "Five states exclude atheists from public office, and it was not until 1877 that New Hampshire admitted any but Protestants to her legislature. It matters little now, except as a subject of historical interest, what motives induced the framers of the Constitution to take so radical a step. They freed the State but they did still more to free religion. A State form of religion viewed simply in the abstract would seem to unite two elements of human life that are only incongruous, and mutually destructive when shackled together by a legal bond. Apart they can only be each the better for their respective influence on one another. The enormous vitality of American religious life is, one cannot doubt, due to the antagonism of the political system to any kind of religious establishment. Secularism tries the souls of men, but it is infinitely better than religious unity promoted by the policeman and the taxgatherer.

*Modern Political Institutions.* By Simeon E. Baldwin. Boston, Little, Brown & Co.

Although this book is made up largely of addresses delivered before various associations, it has a sufficient unity of purpose. According to the author's use of the term, modern political institutions are those "which became such by the recognition and approval of our own century, or are contending for that of the twentieth." Chief among these he reckons the foundation of all government on the consent of a majority of the people, religious liberty, the written constitution as the supreme law, the combination of political absolutism with democracy, the regulation of succession to the dead in the interest of the state, international arbitration, and the Monroe Doctrine. To these are added some institutions of a legal rather than political character, and certain general propositions which have a rather remote connection with institutions of any kind. It is at least doubtful if the Monroe doctrine can be properly described as a political institution; it might now, perhaps, be properly considered in the essay on "The Decadence of the Legal Fiction." Nor is it apparent why the assertion by the Government of a claim to share in the property of decedents should be regarded as anything modern; and the combination of political absolutism with democracy was familiar to Aristotle. —*Nation*.

JUDGE BALDWIN'S ADDRESSES.

*Inland News*, 1899, April 19.

UNDER the title of *Modern Political Institutions* (Little, Brown and Co.), Judge Simeon E. Baldwin has gathered together a number of addresses delivered at various times before legal and other associations. He defines the political institutions of our day as "institutions which became such by the recognition and approval of our own century, or are contending for that of the twentieth." He admits that the decision as to what are the chief of these must be largely a matter of individual opinion. Among the most important Judge Baldwin names the following: the foundation of all government on the consent of the majority of the people, religious liberty, the written constitution as the supreme law, the protection by law of the individual against himself, the secret ballot, the regulation of succession to the dead in the interest of the state, and international arbitration. To those who are laymen in matters of law and legal procedure the work will present many interesting features. Too often, however, the author fails to maintain the character of an impartial judge and the special plea is very noticeable in some of his arguments. Some conclusions and statements are open to criticism. For instance, at the end of the chapter on freedom of incorporation, by a very deft construction of the sentence, Judge Baldwin in effect says that the great operations of modern business are not conducted by capitalists for their own benefit, and that the corporation and trust is a management by the many and for the many. This is not true, and no one knows it better than Judge Baldwin himself.

BALDWIN'S "POLITICAL INSTITUTIONS"

JUDGE BALDWIN, in his *Modern Political Institutions*, has admirably performed the task which he set for himself when he collected and revised the essays and addresses which make up the bulk of the volume before us. As he puts his object: "Unity of social policy, uniformity of statute law and judicial procedure, solidarity of national beliefs—these are what the people of the United States must put before themselves as the ideals to be striven for" (page 5). To attain these ends it is before all things necessary that the whole people—first the teachers, then the pupils—should realize the value of such ideals in the develop-

*MODERN POLITICAL INSTITUTIONS.* By Simeon E. Baldwin, L.L.D., etc. Little, Brown & Co., $2.00 net.

ment of our national life and character. Without national aspirations, or without the national unity of purpose to make them effective, we must speedily die of corruption of blood, and neither our numbers, our wealth or our prowess in the battlefield can save us from the fate which has overtaken the Romans, the Spanish and the Poles at different periods of the history of the Caucasian races. We have entered into the enjoyment of our political estate with a full share of our heritage in the hitherto unsurpassed sound political instincts of the Anglo-Saxon branch of the Teutonic stock; we have had freedom in growth and material wealth to try daring experiments such as no other nation has ever had; we have consolidated our national spirit by internal and external wars which have left no enduring national or class hatreds; and, in short, we have enjoyed our youth and our minority accumulations, as only youth can, impatient of restraint, careless of the future, and heedless of the past. Our instincts and our sound constitution have hitherto saved us from the worst results of our follies, but what about the future? Judge Baldwin does not answer this question directly, though we are left in no doubt, from the tone of healty optimism, based upon adequate research and accurate knowledge which pervades this volume, that he feels sure that the spirit of the Declaration of Independence still guides the destinies of this nation.

Of the many delightful chapters in this work—dealing, as they one and all do, with living political institutions, and abounding in apt illustrations drawn from a mind richly stored with the theories and

25

practices of government in ancient, medieval and modern European states—we have been most struck by the masterly analysis of the powers of the President of the United States, given in Chapter IV, and by the notable history of corporations, from the days of the Roman Republic to the present, narrated in Chapter VI. Judge Baldwin is the first writer, so far as we know, who has not only pointed out the constant and apparently irreversible expansion of Presidential autocracy, until it has become the most powerful single legal institution in our body politic, but who has also given the successive decisions of the Supreme Court which have placed the exercise of this power above attack, except by amending the Constitution or by impeachment. The chapter on corporations is, in substance and in authority of deliverance, up to the level of Maine's tracing out of the institution of contracts, though it lacks the superlative literary skill of the author of "Ancient Law."

On minor topics, such as the treatment of habitual criminals and the rights of untried prisoners, Judge Baldwin assumes the attitude of a radical reformer. Though we cannot quarrel with his plan of placing all habitual criminals under police supervision, we strongly object to his proposal to adopt the French method, even though softened and curtailed, of cross-questioning untried prisoners by an American *juge d'instruction*. At the same time, as the author rightly observes, the practice of allowing appeals from verdicts in criminal cases is at present carried to absurd lengths.

We do not like to conclude a notice of a volume which has afforded us so much pleasure and instruction with a note of disapprobation, but we are in duty bound to say that Judge Baldwin seems to us to be palpably wanting in sympathetic insight when he discusses English institutions, and almost to go out of his way to depreciate the influence of great pre-Revolutionary Englishmen in laying the foundations upon which the splendid structure of the United States has been erected. For example, in his chapter on

American Jurisprudence he leaves the reader to suppose (page 264) that Montesquieu's *Esprit des Lois* was a summary of Continental thought, instead of its being English wine in French bottles, which it really was. We do not find

Blackstone's name in the index, and yet the noble prose of that great writer had an influence in forming the diction (to say the least) of Abraham Lincoln, as well as that of nearly all the great statesmen and lawyers who preceded him. E. H. M.

Brookman, Judge, Sept. 10, 1899

"Modern Political Institutions" is the title Judge Simeon E. Baldwin of the Supreme Court of Errors of the State of Connecticut gives to a volume of papers on political and sociological subjects which he has published through Little, Brown & Co. Judge Baldwin's reputation as a jurist and as a thinker on broad lines extends beyond the boundaries of his state. As president of the American Social Science Association and former president of the American Bar Association, he has held positions that have called widespread attention to his public deliverances and have secured him audiences of exceptional intelligence and learning when he has had anything to say. The volume before us, a crown 8vo of nearly 400 pages, is made up of separate articles, a number of them based on addresses he has delivered before various public bodies, while others are here presented for the first time. Over a quarter of the book is devoted to a paper on "Freedom of Incorporation," considering the subject from a historical and an institutional standpoint. While in several instances the papers are based on public addresses, it should be understood that they are not mere reprints. They really constitute fresh presentations of the subjects under consideration. There is a certain unity running through all of them, for each presents certain phases of the development of modern political institutions, and has a historical as well as a philosophical side. In his note of introduction, Judge Baldwin points out that modern political institutions are of late growth as compared with modern politics, which began to assume a definite and settled form toward the middle of the eighteenth century. Nowhere, he says, is the work of natural selection so remorseless or so unremitting as in the development of the processes of government. Some of the theories of the Puritans and of the philosophers of the eighteenth century in matters of government are accomplished facts today. Others have been scattered to the winds. We are constantly testing, absorbing or rejecting. "Political Institutions rest on popular assent. They must have been tested by long use, and not found wanting. They must seem part of the natural order of things to those whom they affect, and nothing seems natural to any man into which, as part of his earliest surroundings, he was not born and bred. * * * It is of institutions of our own time, institutions which became such by the recognition and approval of our own century, or are contending for that of the twentieth, that this volume is designed to speak."

In his enumeration of what from his point of view he regards as the chief among modern political institutions, Judge Baldwin gives precedence to the following:

* The foundation of all government on the consent of a majority of the people.

* Religious liberty.

* The written constitution as the supreme law. The protection by law of the individual against the state.

* The combination of political absolutism with democracy.

* The secret ballot.

* Simpler and surer methods of legal procedure.

* Freedom of incorporation under general laws.

* Minority representation in office.

* The regulation of succession to the dead in the interest of the state.

* International arbitration.

To these, for the United States, he adds the Monroe doctrine. It is safe to say that no one on this side of the sea would object to his addition to the above list. The topics of the twelve papers which make up the volume are: "The Centenary of Modern Government"; "The First Century's Changes in Our State Constitutions"; "Absolute Power," an American Institution"; "The Exemption of the Acquised From Examination in Criminal Proceedings"; "Freedom of Incorporation"; "American Jurisprudence"; "The Decadene of the Legal Fiction"; The Recognition of Habitual Criminals as a Class to Be Treated by Itself"; "The Defence of the State of Suits Attacking Testamentary Charities"; "Salaries for Members of the Legislature"; "Permanent Courts of International Arbitration"; "The Monroe Doctrine in 1898."

It will be noted that the text for each paper may be found in the summary of "Modern Political Institutions," which the author lists as of paramount importance.

In the "Centenary of Modern Government," a paper based on the annual address delivered before the American Bar Association in Chicago in 1889, the author looks upon universal suffrage as the one great outcome of modern political development. He is a thorough believer in the political soundness of the institutions—even to the extension of the ballot to the freedmen after the Civil War. "The negro," says Judge Baldwin, "has often used the suffrage ignorantly, selfishly, unwisely. Many another has done the same. But when he received the gift and passed into the great circle of American citizenship, the last class less than citizens was abolished, I hope forever, from American statute books." Naturally, our author's opinions on female suffrage are of interest, but he is very cautious about committing himself on this point, or, perhaps, it would be more accurate to say that he does not deem it necessary in this connection to make an affirmative declaration on this point. He says: "The grant of suffrage to women is now becoming common in municipal elections. It has been tried in those of a more public character. If I were to forecast the future, I should say that whether modern government in Europe is to tend toward republicanism or toward monarchy will depend in no small degree upon its treatment of this question.

"Goethe has declared that women love order rather than freedom. If the number of voters is doubled by their admission to it, the stability of settled dynasties and the glitter of courts may find a new support against any movement toward the rough changes of republican administration." The threefold division of the powers of government—legislative, executive and judicial—insisted on by Montesquieu, it is pointed out, is expressed in most modern constitutions. This chapter also discloses the extended powers which, under the development of the American system, have accrued to the executive. The growth of the home rule sentiment is cited as another example of the wonderful development of the modern institutions of government. The enormous growth of urban populations has made this principle of home rule necessary to the preservation of good government, but our author finds a conserving force

MODERN POLITICAL INSTITUTIONS. By Simeon E. Baldwin. Boston: Little, Brown & Co. 1899.

This consists of a collection of the most valuable essays of that well-known jurist. "The Exemption of the Accused from Examination in Criminal Proceedings" is a careful presentation of the persecution thrown by the law around the prisoner, contrasted with the practical way this protection has been undermined and frittered away by the modern institutions of detective bureaus and newspaper interviewers and contains some well considered suggestions. Prominent among the subjects discussed are "Absolute Power" as an American Institution, "Freedom of Incorporation," "Decadence of Legal Fiction," "Habitual Criminals," "State Defence of Testamentary Charities," and "Monroe Doctrine in 1898."

MODERN POLITICAL INSTITUTIONS. By the Hon. Simeon E. Baldwin. (Little, Brown & Co., Boston.) Replete with information, and abundantly suggestive as a study of the development and meaning of our political institutions.

IN THE VOLUME entitled "Modern Political Institutions,"† Judge Baldwin has collected a number of essays and occasional addresses dealing with questions in American public and private law. Although the book is divided into chapters, there is little internal unity, the subjects being dictated by the interest of passing events rather than by any fixed plan. Probably the most interesting of the essays dealing with questions of public law is that on "Absolute Power, An American Institution."

In this chapter the author develops the idea that the President of the United States represents the principle of political absolutism in

* Paris: Armand Colin et Cie, 1899, pp. xvi, 391.

† Boston: Little, Brown & Co., 1898. Pp. 387. Price, $2.00

(106)

much the same way as the Czar of Russia, the only important difference being that the authority of the President is controlled by the reserve power of popular will, expressed at the polls. The first step in the development of this form of political absolutism was the recognition by Congress of the power of the President to dismiss his immediate subordinates. This was followed by the extension of executive authority in the exercise of the military power which reached its climax during the Civil War. The strengthening of executive authority was well expressed by Lincoln in 1864 when he wrote "that measures otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the nation." It is evident that executive power thus interpreted is without limits, a possibility which became a reality during the Reconstruction period, when the President dealt with the rebellious states as if they were provinces under his immediate control.

A third instance in which the powers of the President have been greatly extended is to be found in the conduct of the foreign relations of the United States. As Judge Baldwin well says, "if he (the President) cannot declare war he can create one." His power of receiving ministers involves the power to recognize the sovereignty and independence of other states and the exercise of this power involves, in many cases, the maintenance of peaceful relations with other countries.

The final step in the development of despotic power, in the view of Judge Baldwin, has been the passage of the thirteenth and fourteenth amendments, the effect of which was to extend the protection of the national government to the individual as against the hostile action of the states. Curiously enough, the author regards this as the development of a form of collectivism and a departure from the Anglo-Saxon traditions of individualism. It is probable that very few students of our constitutional history will agree with Judge Baldwin in this estimate of the amendments passed as a result of the slavery conflict. It is true that their effect has been to increase the power of the central government but it has been an increase of power designed to protect individual rights rather than to add to the positive functions of government. The last three amendments to the constitution are as clear an expression of the desire to protect civil and political rights as the first ten.

With the exception of this estimate of our constitutional changes the author's statement of the powers of the executive is clear and convincing. He would probably have added to the definiteness of his conclusions if the powers of the executive, as such, had been clearly separated from that of the other branches of the central government.

Two Centuries' Growth of American Law, 1701-1901. By Members of the Faculty of the Yale Law School. New York: Charles Scribner's Sons. London: Edward Arnold.

This volume is the contribution of the Law Department of Yale to the series published in connection with the bicentennial anniversary of the foundation of the university, or of the collegiate school out of which it has been evolved. It admirably effects its purpose, which is to show what the American people have accomplished in the field of jurisprudence. The two papers that appeal to us most are those on Constitutional Law, by Mr. Simeon E. Baldwin, and Criminal Law and Procedure, by Mr. James H. Webb. The whole work, however, is excellent, and well sets forth the growth of law in the New World.

***In Judge Simeon E. Baldwin's Essay on Private Corporations, published in "Two Centuries of American Law," by Members of the Faculty of the Yale Law School (1901), the history of the doctrine of ultra vires is briefly and lucidly stated:

"The earlier American decisions inclined to the position that such a contract was void. Whatever a corporation was not authorized to do, it was in effect forbidden to do. If, therefore, it made a contract beyond its proper powers, no right of action could be founded upon it, whatever damage might result to the other party. The hardship frequently resulting from the application of this doctrine brought some of our Courts to take the ground that the corporation might be estopped from setting up a want of power to contract, where such a defense would work practical injustice. The corporation was viewed as in this respect identical with its shareholders. It was the custodian of their funds for certain purposes which they had specified. If they chose for their own profit to enlarge the terms of the trust by authorizing or acquiescing in a contract which went beyond it, they ought not to object. If the transaction turned out to be a losing one, that it was unwarranted by their charter. As it was put by the Courts of New York: "The plea of ultra vires should not prevail where it would not advance justice, but on the contrary would accomplish legal wrong." The Supreme Court of the United States at one time favored this view, but has finally reverted to the original position that a charter is an enabling act. and contracts beyond its proper scope wholly void." After citing and quoting valuable matter from Leslie v. Lorillard. 110 N. Y. 519, the author summarizes as follows: "While the doctrine of the Courts of the United States on this point is not binding on those of the States, it carries great weight, and its certainty, simplicity, and consistency argue strongly in favor of its general adoption. Already it has been formally approved by the highest Courts in several States, and it is in accordance with views previously declared by those in others."

Judge Baldwin always writes interestingly and lucidly, and we refer the reader to the book itself.

## TWO CENTURIES' GROWTH OF AMERICAN LAW: 1701-1901.
By Members of the Faculty of the Yale Law School. New York: Charles Scribner's Sons. London: Edward Arnold. 1901. pp. xviii, 538.

This book is one of a series issued under the auspices of Yale University in celebration of her bicentennial. The faculty of the Law School has chosen to make its contribution in the shape of historical sketches of the growth of the more important branches of American law. In no way, from a lawyer's point of view, could the difference between the world in which Yale began and that of to-day have been more strikingly illustrated.

The purpose of the book is thus stated by Judge Baldwin in his introduction: "This volume is an attempt to sketch the progress of American Law; public and private, in the two hundred years from

or is ex post facto, it is not our province to enquire. Certain it is they have kept faith with their prospectus. The first count of the reviewer must, therefore, be dismissed; their pretensions do not overtop their achievement. One cannot avoid feeling, however, that "out-line sketches" are not the most enduring form in which to embody their learning. It would have been a better plan, perhaps, to have published an exhaustive study of one subject, and thus to have made an addition to, rather than a mere summary of our legal knowledge. But, be that as it may, the authors have written a very interesting book, which has real value in that it lays emphasis on the too often forgotten fact that our law is not a body of lifeless and unchanging rules but an organism of almost unlimited adaptability and capacity for growth.

The contributors and their subjects are: Constitutional Law, Private Corporations, and Pleadings in Civil Actions, by Judge Simeon E. Baldwin; Patents, Copy-rights, Trade-marks and Unfair Trade, and Admiralty, by Judge William K. Townsend; Real Property, by George E. Beers; Contract, by William F. Foster; Torts, by George D. Watrous; Equity, by Edwin B. Gager; Wills, by Leonard M. Doggett; Municipal Corporations, by Henry Wade Rogers; Evidence, by David Torrance; Criminal Law and Procedure, by James H. Webb, and International Law, by Theodore S. Woolsey.

### CHRONIQUE ET BIBLIOGRAPHIE.

233

du code de Justinien ne sut prévaloir contre celle des Year-books. On continua de parler le jargon ancien; mais l'Angleterre, en ce point encore, fit l'économie d'une révolution et garda intact un système de jurisprudence qui avait ses racines jusque dans le plus lontain passé de son histoire. Cette intéressante conférence est suivie de notes très substantielles qui ajoutent l'utilité à l'agréement (English law and the Renaissance. Cambridge, at the University press, 1901, 98 p. in-12.

Prix: 2 sh. 6 d.).

PUBLISHED
WEEKLY

THE NATIONAL CORPORATION REPORTER

28

628

Two Centuries Growth of American
Members of the Faculty of the Yale
Charles Scribner's Sons. London:
This volume is the contribution of the
to the series published in connect-
anniversary of the foundation of the
collegiate school out of which it has be-
effects its purpose, which is to show
have accomplished in the field of
papers that appeal to us most are those
by Mr. Simeon E. Baldwin, and Cri-
by Mr. James H. Webb. The whole v
and well sets forth the growth of law

628

THE

"The earlier American decisions inclined to the position that such a contract was void. Whatever a corporation was not authorized to do, it was in effect forbidden to do. If, therefore, it made a contract beyond its proper powers, no right of action could be founded upon it, whatever damage might result to the other party. The hardship frequently resulting from the application of this doctrine brought some of our Courts to take the ground that the corporation might be stopped from setting up a want of power to contract, where such a defense would work practical injustice. The corporation was viewed as in this respect identical with its shareholders. It was the custodian of their funds for certain purposes which they had specified. If they chose for their own profit to enlarge the terms of the trust by authorizing or acquiescing in a contract which went beyond it, they ought not to object. If the transaction turned out to be a losing one, that it was unwarranted by their charter. As it was put by the Courts of New York: 'The plea of ultra vires should not prevail where it would not advance justice, but on the contrary would accomplish legal wrong.' The Supreme Court of the United States at one time favored this view, but has finally referred to the original position that a charter is an enabling act, and contracts beyond its proper scope wholly void." After citing and quoting valuable matter from Leslie v. Lorillard. 110 N. Y. 519, the author summarizes as follows: "While the doctrine of the Courts of the United States on this point is not binding on those of the States, it carries great weight, and its certainty, simplicity, and consistency argue strongly in favor of its general adoption. Already it has been formally approved by the highest Courts in several States, and it is in accordance with views previously declared by those in others."

## Two Centuries' GROWTH OF AMERICAN LAW: 1701-1901.
By Members of the Faculty of the Yale Law School. New York: Charles Scribner's Sons. London: Edward Arnold. 1901. pp. xviii, 538.

234

CHRONIQUE ET BIBLIOGRAPHIE.

— La librairie Sampson, Low et Cieª a complété par un tome VI son important *English Catalogue of books*; il comprend les trois dernières années du xixe siècle (prix : 30 sh.). A la même librairie a paru le tome VI et avant- dernier de *The royal Navy from the earliest time to the present*, publié sous la direction de M. CLOWES, et dont nous avons déjà parlé (cf. *Rev. hist.*, LXXVI, 392); il se rapporte aux guerres de l'époque napéoléonienne. Le président actuel des États-Unis, M. Roosevelt, est l'auteur du chapitre sur la guerre entre l'Angleterre et les États-Unis de 1812 à 1815.

LIVRES NOUVEAUX. — J. W. Clark. The care of books; an essay on the development of libraries and their fittings, from the earliest times to the XVIIIth. cent. Cambridge, University press. Prix : 18 sh. — W. H. Frere. The Use of Sarum; vol. II: the ordinal and tonal. Ibid. Prix : 12 sh. — Maitland, Gwilliam, Poole, Heitland, Cunningham, Tanner, Woodevard, Marten, Ashley. Essays on the teaching of history. Ibid. Prix : 2 sh. 6 d. — F. W. Cornish. Chivalry. Swan Sonnenschein. Prix : 4 sh. 6 d. — B. Meakin. The Moors. A comprehensive description, social, religious and ethnographical. Ibid. Prix : 15 sh. — Lord R. S. Gower. The tower of London, vol. I. Bell. Prix : 21 sh. — O. M. Edwards. Wales. Fisher Unwin (Story of the Nations). Prix : 5 sh. — H. Belloc. Robespierre. Nisbet. Prix : 16 sh. — A. Fea. King Monmouth; being a history of the career of James Scott, the protestant duke, 1649-1685. J. Lane. Prix : 21 sh. — S. Cowan. Mary, Queen of Scots, and who wrote the Casket letters. 2 vol. Prix : 28 sh. Sampson Low. — W. Fr. Lord. England and France in the Mediterranean, 1660-1830. Ibid. Prix : 8 sh. 6 d. — R. S. Rait. The Scottish parliament before the union of the crowns. Blackie. Prix : 5 sh. — S. H. Maclehose. The last days of the french monarchy. Maclehose. Prix : 6 sh.

## États-Unis. — A l'occasion du bi-centenaire de Yale University (d'abord Yale College), les professeurs de « Yale law school » publient une série d'études sur l'évolution de la législation américaine pendant ces deux siècles (Two centuries' growth of American law 1701-1901. New York, Scribner; Londres, Arnold, 1901, in-8°, xviii-538 p.). Dans une magistrale introduction, M. Simeon E. BALDWIN résume cette évolution en montrant ce que la loi américaine doit au droit anglais, ce qu'elle doit au développement autonome des tendances nationales. Il est inutile de souligner l'importance historique du chapitre suivant, où il traite de l'évolution du droit constitutionnel depuis le temps des chartes coloniales jusqu'à nos jours; il insiste sur le rôle joué dans cette évolution par l'évolution même de la Cour suprême (à l'origine simple tribunal des prises), qui a fortement agi pour transformer les États-Unis de conféderation en nation. Ses collaborateurs et lui-même étudiant ensuite le développement de la propriété, du droit municipal, des corporations, de la procédure, du droit commercial et maritime, etc., enfin la formation d'un droit international américain. Ce dernier chapitre, dû à M. Th. S. WOOLSEY, nous plonge de nouveau en plein dans l'histoire. Il insiste sur l'influence que les tendances propres nationales

128

COLUMBIA LAW REVIEW.

1701 to 1901 during which Yale College has been growing into Yale University. It is but an out-line sketch. It deals only with a few main heads of a great subject. It is not intended to be technical in its treatment of any of them. If it serves to give the general reader any clearer impressions of what the American people have accomplished through these two centuries in the field of Jurisprudence it will have accomplished all for which its authors hope."

Whether this represents the original plan of the learned authors or is *ex post facto*, it is not our province to enquire. Certain it is they have kept faith with their prospectus. The first count of the reviewer must, therefore, be dismissed; their pretensions do not overtop their achievement. One cannot avoid feeling, however, that "out-line sketches" are not the most enduring form in which to embody their learning. It would have been a better plan, perhaps, to have published an exhaustive study of one subject, and thus to have made an addition to, rather than a mere summary of our legal knowledge. But, be that as it may, the authors have written a very interesting book, which has real value in that it lays emphasis on the too often forgotten fact that our law is not a body of lifeless and unchanging rules but an organism of almost unlimited adaptability and capacity for growth.

The contributors and their subjects are: Constitutional Law, Private Corporations, and Pleadings in Civil Actions, by Judge Simeon E. Baldwin; Patents, Copy-rights, Trade-marks and Unfair Trade, and Admiralty, by Judge William K. Townsend; Real Property, by George F. Beers; Contract, by William F. Foster; Torts, by George D. Watrous; Equity, by Edwin B. Gager; Wills, by Leonard M. Doggett; Municipal Corporations, by Henry Wade Rogers; Evidence, by David Torrance; Criminal Law and Procedure, by James H. Webb, and International Law, by Theodore S. Woolsey.

LAW NOTES.

[DECEMBER, 1901.]

result of that com-
mittee is no actionable
ment of persons, by
purpose of such
of the law. From these
as shown in the
ent charged was
ultimate means,
ending it is also
as to drive the
that this line
ents which have
not, however,
not the case of State
repudiated. It
sarily involved
well as criminal
pen by Mr. Jus-
tice be added. It
has have a right
to their individual
ity of the organi-
sations, a wrong is
ing such pur-
not be action-
tract to him-
tract of such other
of wholly or in-
jury to such
individual, it
port, only where
om it." These
plaint.

Book Reviews.

TWO CENTURIES OF AMERICAN LAW.

Two Centuries' Growth of American Law: 1701-1901. By Members of the Faculty of the Yale Law School. New York: Charles Scribner's Sons. London: Edward Arnold. 1901.

This is the first of the "Yale Bicentennial Publications," a series of volumes prepared by a number of the professors and instructors of that university, "to be issued in connection with the Bicentennial Anniversary as a partial indication of the character of the studies in which the university teachers are engaged." It is a handsome octavo volume, beautifully printed and bound, and is dedicated to the graduates of the university.

"Those by whose collaboration it has been prepared," says Judge Baldwin in the Introduction, "are all engaged in the work of instruction in the Law School, and each writes on topics which are or have been included in the courses of study under his special charge." "It is simply a statement by American lawyers of the development thus far of American law." If the volumes to follow this maintain, each in its respective sphere, the same high standard of interest and of scholarship, the series will be a worthy and memorable contribution to scientific literature and a crown of glory to an ancient and revered seat of learning. If such volumes can be produced, like the flower of the century-plant, only in centennial years, it is a pity that centuries pass so slowly.

Lord Bacon has said, paraphrasing Lucretius, that "no pleasure is comparable to standing upon the vantage ground of truth (a hill not to be commanded and where the air is always clear and serene), and to see the errors and wanderings and mists and tempests in the vale below." It cannot but be a pleasure to the lawyer whose life has been chiefly spent among these mists and tempests, to whom the law has been more a bread-winning business than a philosophical and

ethical system to be studied, and to whom the latest decision is
chiefly valuable as a help in winning his next case—it cannot but be
a pleasure to such a one to stand upon the vantage ground of such a
volume as this and see that through the apparently "lawless science
of the law, that codeless myriad of precedent," there runs a reason
and a philosophy altogether worthy of admiration and of his best en-
devors. It is painfully true that the law is a hard taskmaster; and
after a day in his service, ofttimes a day not limited to the legal hours
of labor, little time or inclination is left for reading about the law.
But for such hard-worked men this book can be most heartily rec-
ommended. It cannot but be inspiriting and refreshing and broad-
ening in its effects. An objection often urged against the law as a
profession is its narrowing tendency. If true, the fact is peculiarly
unfortunate, for no man so needs breadth as the lawyer. There is
nothing that he should not know, no knowledge that may not be
useful, even indispensable to him, and at some unexpected moment.

The volume contains, besides the Introduction, seventeen essays upon as many topics of the law. Of these Judge Simeon E. Baldwin has contributed three—Constitutional Law, Private Corporations, and Pleadings in Civil Actions; Judge Wm. K. Townsend, four—Patents, Copyrights, Trade-marks and Unfair Trade, and Admiration; two are from the pen of Judge Edwin B. Gager, namely, Equity, and Mortgages of Real Property. The other essays and their authors are: Real Property, by Geo. E. Beers; Contract, by Wm. Frederic Foster; Torts, by Geo. D. Watrous; Wills, by Leonard M. Daggett; Municipal Corporations, by Henry Wade Rogers; Evidence, by Chief Justice David Torrance; and International Law, by Theodore S. Woolsey. The longest article, fifty-eight pages, is that upon Municipal Corporations; the shortest, six pages, is that upon Pleadings in Civil Actions.

It is extremely difficult to convey in the brief space allowed us any
conception of the real contents of this work. When one reflects
that the history of the development of two centuries of law has
already been compressed into one volume—that the marvelous
growth, say, of the law of private corporations is displayed in some
fifty pages, any further condensation of statement must inevitably
convey an inadequate impression of what has been accomplished.
The lawyer will, of course, find much that is familiar to him, but,
unless he is an unusually well-read lawyer, he will also find much
that is new. The articles on Constitutional Law, on Municipal and
Private Corporations, and on Criminal Law and Procedure, contain
a large amount of colonial and United States history, while several
other articles contain more or less of historical matter, all of great in-
terest, not only to the lawyer who would understand the law of the
present, but to the student of sociology, of history, or of govern-
ment.

The historical point of view assumed by the writers is one of the
chief merits and chief charms of the work. It is difficult or impos-
sible in reading cases, as the lawyer generally reads them, to trace
the growth and evolution of legal principles; yet it is as impossible
to know the law from reading cases selected fortuitously, or even for
a special but practical purpose, as it would be to know history from
reading only biographies. Law is a growth, an evolution; and the
last product of the growth or the last stage of the evolution is but
meagrely known unless known in connection with its antecedent
stages.

These essays, brief as they are, attempt to give one a view of the
law as a living germ, unfolding, assimilating, incorporating materials,
expanding, flowering, fruiting, and occasionally shedding dead and
useless branches. Leading and possibly familiar cases are cited
abundantly, but rather as the birthplace of a principle, or as a mile-
post in a journey, or as the forge whence issued some comprehensive
working rule, or as the battle-ground of civil liberty.

While the book treats of only two centuries' growth of the law,
this period, compared with the life of the law in some departments,
is quite long. Thus, constitutional law is perforce no older than
the Constitution, and patents and copyrights as known in American
law owe little to the patents and royal grants of England. Even the

The General Press Cutting Association, Inc.

DECEMBER, 1901.]

LAW NOTES.

175

law of evidence, as we know it to-day, says Chief Justice Torrance, had substantially no existence at the beginning of the eighteenth century, "although at this time the principles underlying most of its rules as they afterwards came into being, and some of the rules themselves, were recognized more or less clearly and acted upon." So that the limitations set by their youth bring within our view the birth, growth, life, and present condition of several branches of the law.

In this particular essay upon Evidence the author is able to put all he has to say into twenty-five pages. He is enabled to do this partly by adopting Professor Thayer's ideas as to what properly belongs to a discussion of evidence. He says that the classification adopted by him "excludes from the law of evidence many rules usually treated as forming a part of it." The principal rules thus shut out are the following: those relating to the power and duty of the tribunal to know without proof many things necessary to be known in order rightly to decide the controversy, usually considered under the head of "Judicial Notice;" those for determining upon which of the parties litigant the "burden of proof" rests at any given stage of the trial; those relating to "presumptions" and their operation and effect upon the trial; those relating to the scope, operation, and effect of the so-called "parol evidence rule;" and the most of those relating to "alterations" in writings, and to admissions. The rules relating to these matters, wherever else in the law they may belong, form no part of the law of evidence, as has been clearly shown by Professor Thayer in his "Preliminary Treatise on Evidence."

Without questioning for a moment the entire correctness of Professor Thayer's theories, which seem to sink into the mind of the reader with the force of axioms, it may be questioned whether discussions of the law of evidence may omit to treat of presumptions or of the burden of proof or of the parol evidence rule, etc. The attempt to exclude these important topics from the realm of evidence and to relegate them to that of "legal reasoning," or of "pleading," or of "legal definition of words," or of "interpretation of conduct," or of "the regulation of trials," while possibly justified by the nature of the things and by scientific principles of classification, will have, we imagine, to overcome a vast amount of inertia and prejudice among lawyers and publishers. It is a difficult and expensive thing to cast aside old classifications and to adopt new; and the certain opposition of the profession, by some of whom at least Professor Thayer's cogent reasoning will remain unknown or unfelt, will make authors and publishers somewhat chary of innovations, however desirable from a scientific point of view. As an instance of the inconvenience and mental disturbance thus occasioned, the reader of this essay upon Evidence will sorely miss these old familiar topics from their accustomed places, nor will he find them anywhere else in this book. They should, it would seem, be retained in their old-time seats until some author has provided a new local habitation and a new name for them. Who will be bold enough to tear from the title of Evidence everything relating to these discredited interlopers? And who will give us the first work upon "Legal Reasoning; Once a Part of the Law of Evidence"?

While such cases of omission seem to be rare, there is, we think, one fact in the development of contract law which deserved mention, even in so brief a view as that of Professor Foster. This is the change which has taken place in the doctrine of privity. It was once stoutly maintained that, in an action upon a contract, privity between parties to the action was no less indispensable than was consideration or any other element, necessary in the formation of the contract. While that is still said to be the rule, it is weighted down with so many and so great exceptions that the life is almost crushed out of it. If, after the severe strains to which it has been subjected, any form or meaning remains to the word, it would seem to be true that privity of contract is losing some of its importance. There seems to have been substituted for it something akin to the discredited idea of moral consideration. There seems to be growing in nearly all our American courts the idea that, in some instances, duty is above privity,—the idea that a party to a contract, having taken upon him-

self an obligation, may be compelled to performance by any one whose interest in performance can be shown. The great prevalence of the idea has won for it the title of the American Rule. There are many States in which the principle is expressed broadly. In others it is hedged about with limitations and qualifications, and in several it has received the seal of legislative enactment. If privity be "the relation which exists between the immediate parties to a contract," it is self-evident that it does not exist between one of the parties and a stranger, even though it be made for the benefit of the stranger. That one of the parties was under an obligation to the stranger may explain why performance in his behalf was contracted for, but it cannot create privity between him and the promisor. The efforts of the courts to justify their adoption of the doctrine, the shifts resorted to to explain away the radical character of the innovation, and the very wide extension given to the word "privity" to make it cover the new theory and disguise its newness, all serve but to emphasize the greatness of the departure. We believe that no doctrine of modern law has wrought greater changes in the matter of rights and remedies than has the wide extension and, in some jurisdictions, the almost universal application of the new doctrine that one for whose benefit a contract is made may maintain an action upon it in his own name. To allow an infant to avoid a contract or a married woman to make one is no greater change in the law of contract than to allow one to sue upon an agreement of whose very existence he was ignorant until long after the contract, or it may be the covenant, was made between the parties who were, possibly, at the time wholly unknown to him.

It must not be inferred from anything we have said that the book is wanting in utility to the practicing lawyer. Nor do we mean only the utility which would flow as a consequence from greater depth and breadth of view. We mean that in numberless instances the lawyer may well begin the investigation of a case in hand by first learning from these pages the exact condition of the law of the case, or the present status of the mooted questions involved. Let us take an instance at haphazard. Suppose the action is upon an executed corporate contract claimed to be *ultra vires*. What is the accepted theory as to an *ultra vires* contract? Is it void *in toto* and for all purposes, no matter how great damage would result from so holding? Or may the plea be limited to cases where its allowance would work no injustice?

Turning to Judge Baldwin's essay upon Private Corporations, page 285, we find the history of the doctrines briefly and lucidly summed up as follows: "The earlier American decisions inclined to the position that such a contract was void. Whatever a corporation was not authorized to do, it was in effect forbidden to do. If, therefore, it made a contract beyond its proper powers, no right of action could be founded upon it, whatever damage might result to the other party. The hardship frequently resulting from the application of this doctrine brought some of our courts to take the ground that the corporation might be estopped from setting up a want of power to contract, where such a defense would work practical injustice. The corporation was viewed as in this respect identical with its shareholders. It was the custodian of their funds for certain purposes which they had specified. If they chose for their own profit to enlarge the terms of the trust by authorizing or acquiescing in a contract which went beyond it, they ought not to object, if the transaction turned out to be a losing one, that it was unwarranted by their charter. As it was put by the courts of New York: 'The plea of *ultra vires* should not prevail where it would not advance justice, but on the contrary would accomplish legal wrong.' The Supreme Court of the United States at one time favored this view, but has finally reverted to the original position that a charter is an enabling act, and contracts beyond its proper scope wholly void. After citing and quoting valuable matter from Leslie v. Lorillard, 110 N. Y. 519, the author summarizes as follows: "While the doCTRINE of the courts of the United States on this point is not binding on those of the States, it carries great weight, and its certainty, simplicity, and consistency argue strongly in favor of its general adop-

176

LAW

tion. Already it has been formally approved by the highest courts in several States, and it is in accordance with views previously declared by those in others." No matter which side he may wish to maintain, the lawyer can find his cue in the very brief discussion of Judge Baldwin and the point of departure for his argument. The union of historical review, argument, quotation, citation, comparison, and relative valuation, well illustrates the method, not only of Judge Baldwin, but of all the contributors to this work. The method is not new or peculiar, of course, but it is admirable and altogether satisfactory in its results.

One of the most interesting essays is that upon Patents by Judge Townsend. After having sketched the history of English and colonial monopolies, of state patents and the earlier patent acts, the writer enters into such a discussion of the elements of patentability-invention, novelty, aggregation, combination, prior state of the art, double use, infringement, contributory infringement, primary and secondary patents, improvements, caveats, and injunctions-that, technical as it all may sound, the ordinary every-day lawyer feels almost sure that after reading it he could go into court and try any patent cause in the world. Out of cogwheels and corset-stays, windmills and baby jumpers, vulcanized rubber and vile chemical compounds, the learned judge shapes him Pegasean wings and soars aloft into the empreynan, carrying his reader with him. He says: "The historian of the American Patent Law justly extols the creative genius of the great inventors, the marvelous ingenuity of their conceptions, and the incalculable benefits derived from their creations, which have made our nation the peaceful conqueror of the universe. Thus Whitney gave to cotton its imperial position among the staples; thus Morse each day inspires the nations with common knowledge and thought; thus through Bell we live and move and have our being within the sound of distant voices echoed in office and home; and thus Edison says, 'Let there be light, and there was light.' He may contrast the original thought which flashed upon Howe of a new stitch with the needle's eye near its point; the simplicity of the change from the diamond-shaped prong to the coiled wire of the barbed fence; the reduction in size of carbon filament which distinguishes the Edison lamp; the simple turning of an adjusting screw which differentiated the Bell telephone from Reis, with the unwearying researches and experiments of Fulton, or Franklin, or Goodyear. But he must not forget George Washington, who, in his first address to Congress, in 1790, recommended the passage of a law for the protection of inventors; nor William Thornton, who, in 1814, threw himself in front of the cannon which the British had trained on the Patent Office, saying: 'This is the Patent Office, the depository of the inventive genius of America, in which the whole civilized world is concerned. Would you destroy it? If so, fire away, and let the charge pass through my body.'"

H. W. B.

THE WORLD'S BEST ESSAYS.

The fourth and fifth volumes of *The World's Best Essays*, edited by Justice David J. Brewer, and published by Fred. P. Kaiser, St. Louis, lie before us. These volumes give alphabetically the chief essayists from Dante to Sir Matthew Hale, and include, among other eminent names, those of Darwin, Defoe, De Quincey, Descartes, D'Israeli, Dryden, Earle, Edwards, Eliot, Emerson, Epictetus, Erasmus, Fénelon, Fielding, Flammarion, Foster, Franklin, Froude, Fuller, Gellius, Goethe, Goldsmith, and Grotius. The mechanical execution of the volumes maintains the high standard set by the earlier issues of the series, and their broad white pages with open type are a delight to the eye. The scope of selection in the volumes of this series seems to us not justified in one particular. It should a series labeled "The World's Best Essays" include elegant extracts" from Dante's New Life, Darwin's Origin of Species, De Quincey's Opium Eater, Descartes' Meditations, Green's History of England, and such books? These extracts hardly under the ordinary idea of essays, and were they omitted

The General Press Cutting Association Ltd.

THE TIMES, WEDNESDAY, DECEMBER

TWO CENTURIES' GROWTH OF AMERICAN LAW
(Arnold).

This book, which is much needed, does honour to the law faculty at Yale, by the members of which it has been prepared. It is all very well to speak of American law as similar to English law. Contrasted with Continental jurisprudence American law is much nearer ours. But there exist great diversities, and these tend to multiply and become more pronounced. The authors of this interesting volume are not disposed to overrate these diversities. They dwell upon the fact that not a little of the old foundations still stands firm. They mention with approval the fact that American Judges and lawyers were not deterred, when national feeling rose highest, from availing themselves of English legal wisdom. But they recognize that in the long period of which they trace the history certain marked peculiarities have been developed. Mr. Simeon Baldwin—whose contributions, by the way, are among the best in the volume—sums up the tendencies revealed in the development of American law by saying that "they have enlarged the rights both of the State against the individual and of each individual against every other, thus widening the domain both of public and of private law"—a description scarcely accurate as to some of the older States, though justified by the legislation of the Middle and Western States. The interesting essay on "Constitutional Law" is so much up to date that it cites the decisions of the Supreme Court in "the insular cases." In the paper on "Torts" it is pointed out that the American Courts have taken no clear line with respect to the question involved in "Allen v. Flood." "It is hopeless to attempt to reconcile the cases." In regard to conspiracy, the American decisions are in as great a state of confusion as our own. A new departure, foreign on the whole to the current of English authorities, is the free and increasing use of injunctions to restrain torts carried out by means of combinations. English lawyers will find much to interest them in the chapters on municipal and private corporations, as to which American lawyers have struck out lines of their own. One significant fact is brought out by Dr. Rogers with respect to municipal corporations in the United States. According to the census of 1900 there were no fewer than 10,602 incorporated cities, towns, and villages; the number of incorporated cities and towns in England and Wales was under 300. Mr. Baldwin, the writer of the paper on private corporations, lets fall a pregnant observation containing the germ of a principle which not improbably one day will bear fruits:—"While this view of the separate personality of the corporations, with its attendant rights, is generally maintained, it has become during the last half-century more and more common for Courts to look through this artificial conception of their nature to the individuals who in fact compose them." There are a few weak parts of the book. For example, the chapter on international law deals only with public international law; little is said of private international law; there is no information as to the remarkable development of the latter—a development, in the main, on the lines of English law, but with striking divergences as to the law of marriage, for example. At the same time, Mr. Woolsey's article will tell the English lawyer much which it behoves him to know as to the remarkable extension of Admiralty jurisdiction and departure from English precedents. The entire volume, though the work of several authors, is marked by the best qualities of legal authorship; and we predict for it popularity in this country, at all events.

BOOK REVIEWS.

BRITTON: AN ENGLISH TRANSLATION AND NOTES. By Francis Morgan Nichols. With an Introduction by Simeon E. Baldwin, LL. D. Washington: John Byrne & Co. 1901. pp. xxvii, 649.

It was a happy thought to publish in convenient and inexpensive form the authoritative hand-books of our early law. Glanville, in Beames' excellent translation, has already been given to the profession, and Littleton and The Mirrour are to follow at proper intervals. It is to be hoped that the most important and influential of them all, Bracton's great work, will also find a place in the list.

The only new thing about the volume under consideration being the introduction by Judge Baldwin, the task of the reviewer is a simple one. The merits of Nichols' translation, first published in 1865, are too well known to require extended comment. The fruit of an elaborate and scholarly rescension of the text, it is not only a faithful and accurate "Englishing" of the original treatise, but is singularly free from those infelicities of expression and awkward turns of phrase to which the Norman-French of the 13th century too easily tempts the unwary translator. In all of these respects, as well as in the scholarship displayed in the reading of the original, it is vastly superior to the only other English translation, that of Robert Kelham, a small portion of which only was published about a century earlier. The present edition is a faithful reprint of the translation of 1865, even to Nichols' notes and the elaborate and careful index. For the purposes of the present issue the publisher was probably justified in omitting the French text, as well as the elaborate critical apparatus with which it was accompanied in the original edition, but it was surely an error of judgment to omit all the notes referring to Britton's sources of information, and showing in minute detail the derivation of the work. These notes, derived from the labors of Kelham, and from the learned commentary attributed to Britton's contemporary, John de Longueville, as well as from the researches of the editor himself, should be particularly useful to the law student, for whom this work is primarily intended.

For the introduction of Judge Baldwin, little need be said, excepting that it is adequate to its modest purpose—well-informed, gracefully written and sufficiently learned. It is, however, a matter of regret that it did not fall within the plan of the publisher to reprint the more elaborate and learned introduction of Mr. Nichols—by reason of its fulness, its reasonableness and nicely balanced judgment, a most satisfactory piece of work. It would be interesting to get Judge Baldwin's grounds for his dissent from Mr. Nichols' conclusion that "Britton" is a legal fiction—one of the many variant spellings of the great name which we have corrupted into Bracton (known to his contemporaries as Bratton, Bretton, Bretoun or Britton), and that the treatise was the work of an obscure clerk who

SEPTEMBER 5, 1902.]

SCIENCE.

of government offices.

*The Change of Position, during the Nineteenth Century, of the Business Corporation:* JUDGE SIMEON E. BALDWIN, Supreme Court of Connecticut, New Haven. The close of the nineteenth century found the business of the world in the hands of private business corporations. It was not so in 1800 nor at any previous time in the history of the world. How came it?

The existence of such artificial persons was first freely permitted by Rome under the republic; but they grew so powerful that this could not be tolerated under the empire. The only form of Roman corporation (*universitas*) which survived to reappear in the beginnings of modern society was the university of scholars. Private in-

corporation at will under general laws, for business purposes, remained unknown for nearly 1,800 years. The few corporations of this kind that did exist existed under a special franchise. They were monopolies. They often grew inconceivably great. They fostered speculation, and were generally distrusted by the people. Great commercial partnerships were resorted to for large undertakings. Prior to 1800 there were only 225 business corporations in the United States, and of these two thirds were to promote quasi-public objects like canals, etc. The first American general incorporation law was for canals, in 1795. New York followed in 1811 with one for certain kinds of manufacturing enterprises, and in the course of the next seventy years freedom of incorporation on equal terms to all became the rule in almost all civilized countries. The freer and the richer a country is, the freer will be its general incorporation laws, and the more numerous the corporations formed under them. This and the enormous increase of the world's wealth since 1800 are the two factors which have put into the hands of the modern corporation the business of the world.

Sentimental considerations largely influenced this course of events. Popular distrust and jealousy kept men from investing in corporations or from wishing them well, so long as their character was monopolistic. The modern corporation is individualistic. It asks nothing from the State but to be let alone. The 'trust' at first was an abandonment of the corporate idea for that of partnership. Now it is reverting to the corporate type. The mobility of most business corporations is as great as is that of a natural person. It is greater, for they can choose their birthplace, and incorporate where they find incorporation offered on the easiest terms. They can also reincorporate subsequently in some other State, and so, Phœnix-like, die and revive again.

Date

"American Railroad Law," by Simeon E. Baldwin, L.L.D. Published by Little, Brown & Co., Boston, Mass. Price $6 net.

No name is better known among jurists than that of Judge Simeon E. Baldwin of the Supreme Court of Connecticut. No reputation for thorough and comprehensive legal knowledge stands higher, and this work is exactly the treatise which is to be expected from a writer of his profound attainments. It is the outcome of a long experience in railroad cases, the author before his election to the bench having been general counsel for several railroad companies, his practice in this line extending into the states of New York, Massachusetts, Rhode Island, as well as Connecticut. He has also taught the subject of railroad law in the Yale Law School for some twenty years.

He observes in his preface "it is the aim of this volume to state what is distinctive in American railroad law and to put it in systematic order." That this has been accomplished there can be no doubt in the mind of any reader who has given the work careful examination. The plan and system pursued reveals the thorough grasp of his subject which Judge Bald-

win possesses, while his citations bring the work thoroughly up to date.

It is an added element of value that the cases are cited both in the official and in the West Publishing Company's system of reports, although the criticism may be made that instead of writing at length the words "northeastern," "northeastern," etc., it would have been better had the usual "N. E." and "N. W." been given. However, this is a minor point. It may give some idea of the number of cases which this volume contains when we say that the mere list covers fifty-three double column small type pages.

The order of arrangement is as follows: Part first, constitution, franchises and organization; part second, location, construction and equipment; part three, finances; part four, operation; part five, transfers and liens; part sixth, actions; while the appendix gives illustrative forms, documents and tables. This appendix is contained in 238 pages and embraces all forms for incorporation (including articles of associations, engineer's report, agreement of consolidation, etc.), location and crossings—e. g., vote making a location of part of railroad, vote changing location of an unreconstructed road, vote locating a freight spur, directors' vote locating a branch, etc. Construction and equipment (contract to construct railroad for cash, general form of clause as to injuries done by contractor to third parties, form of provision for acquiring necessary lands, form of general damage indemnity clause, spur track contract and conveyance, conditional sale of rolling stock by the manufacturer to railroad company, conveyances, (Deeds, leases, mortgages, licenses.) Car trusis, contracts (traffic arrangement, pooling contract, contract for coal supplies, circles car contract, etc.) and tables (distances in feet traversed per minute and per second by railroad cars moving at different rates of speed, distances run after putting on brakes by a fifty-car through freight train at twenty miles an hour when the brakes were applied.)

Opening the book at random to section 14, of chapter 42, treating of the carriage of passengers, we quote the following for the purpose of giving an illustration of Judge Baldwin's method of treatment.

### Failure to Adhere to Time Tables.

Time tables which have been published for general information enter into the contract for transportation and become a part of it. Changes of the hours for starting trains, therefore, to the prejudice of one who has bought a ticket in reliance on such publications, gives him a right of action for any resulting damage, provided the change was not seasonably published in like manner, or otherwise brought to his knowledge. To avoid such liabilities it has become customary and it is sufficient to insert in such publications a notice that the time table is subject to change without notice.

### Taking on Passengers, as a Private Carrier.

A railroad company is a common carrier, but it is not necessarily such as respects all its passengers. It may accept passengers, under special circumstances, as a private carrier. This is so as to all persons whom it is not at common law bound to receive as common carriers and with whom it contracts on the footing of a private carrier.

Such contracts are common with owners of cars of a peculiar kind, who desire transportation for them and their contents. Persons on board such a car are not necessarily received as common carriers. If it is one designed especially for the prosecution of a particular business, the company, as to persons put on board of it in the ordinary course of that business, in order to accomplish its objects, may, by contract, be put in the position of a private carrier and so may, under such a contract, come under less obligations to them than if it accepted them as passengers in the capacity of a common carrier. Among persons occupying such a relation may be mentioned the porter of a Pullman car, an express messenger,

and servants of a circus proprietor in a circus car.

A superintendent or trainmaster may, under some circumstances, have implied authority to order the transportation of persons not employees of the company on a hand car. In such case, the company is not, as to them, a common carrier, but owes them reasonable care.

### Free Passes.

With one to whom transportation is given, as a favor, without charge, a company may also so contract as not to be subject to the obligation of a common carrier. He is free to accept or reject the favor. If he takes it he must take it as it is offered. In the absence of any such special contract, however, one riding on a free pass is a passenger to all incidents and purposes, and can hold the company as a common carrier. An employee who receives a free pass as part of his compensation has the rights of any passenger, and a condition in the pass that he assumes all risk of accident would be void. That a free pass was given in violation of the interstate commerce act makes no difference as to risks assumed by the holder.

### Duty of Company as to Providing Proper Roadbed and Appliances.

As to the degree of care to be exercised in conducting any business depends upon the hazards and dangers which are incident to it and the consequences likely to result from any negligence, and as railroad business is always a hazardous one, the courts hold that the common law requires every railroad company to do for passengers whom it receives as a common carrier, in providing safe cars, running machinery, apparatus, tracks and roadway, all that human care, vigilance and forethought can reasonably do, consistently with the mode of conveyance and the practical operation of the road. It is not required, for the sake of making travel absolutely free from peril to incur a degree of expense which would render the operation of the road impracticable. Every road need not be constructed with a double track. All railroads need not and only the more important ones could with advantage manufacture their own rolling stock and so have the opportunity to test its character in the course of manufacture.

It is not enough to buy rolling stock or machinery from a reputable manufacturer. The company purchasing must inspect them itself to ascertain their safety. It does not, however, warrant that its cars are roadworthy and has a right to rely on the standing and reputation of the manufacturer to some extent as a justification for not applying all possible tests.

Cars must not only be equipped with whatever is reasonably necessary, but all that goes to constitute that equipment must be put in a proper place. Thus a fuse on a car propelled by electricity, to protect the electric apparatus from injury through a current of excessive force is a proper part of the equipment, but it would be negligent to set the fuse box under a seat, where if the fuse burned out, it would endanger the safety of the passengers.

It has been often said that the utmost care or the highest degree of care is required in providing a safe roadbed and safe appliances; but this is not meant all the care and diligence that the human mind can conceive of nor such as would drive the carrier from his business. The duty of the company, stated with precision, is to use extraordinary care rather than the highest possible care. It is not necessarily discharged by equipping its road with such cars and appliances as are in known general use. It should provide such as have been proved by experience to be the most efficacious in known use on railroads of a similar character, but it is not bound to procure and use every possible preventive against risk of accident which the highest scientific skill might suggest.

is a certain kind of insurance, but Miss Anderson's precise propositions from some of the statements are not ordinary care, but, as is well known, is on the whole sufficiently just to improve the condition of the company.

bird's-eye view of the subject. Appointment, tenure of office and compensation of judges are discussed in the final chapter devoted to exact information. This is followed by three divisions of the text of varying merit. The first, entitled "The Character of the Bar and Its Relations to the Bench," should be printed as a pamphlet for distribution to candidates for the bar and young lawyers. Some older attorneys may profitably read it. Law's Delays is of unusual interest in view of the wide-spread complaint that, although of the court grind but fairly just. Although the chapter to the value, it is not wholly commendable. The final chapter of the work is entitled "The Attitude of the People Toward the Judiciary." It is our belief that this scrappy chapter is a lamentably poor ending to a worthy treatment, in brief, of the general subject. The author not only furnishes little material of value, but seems to have slight grasp of the opinion of the bulk of the people concerning the judiciary.

NATION - New York

Date: DEC 7 1905

Territories and Dependencies of the United States: Their Government and Administration. By William Franklin Willoughby. The Century Co. 1905.

The American Judiciary. By Simeon E. Baldwin. The Century Co. 1905.

These two additions to the American State Series are very fair specimens of a species of book which seems to be coming classified as politico-descriptive, and appear to be designed rather for the general public than for either students or specialists. Mr. W. F. Willoughby is treasurer of Porto Rico, and has, from his connection with the insular Government, a special knowledge of his subject. His book covers a vast field—that of the whole expansion of the United States beyond their original limits. Nearly two-thirds of it are devoted to Porto Rico and the Philippines; but Hawaii, Alaska, Samoa, and Guam are not neglected in a survey which embraces the Northwest Territory, the Louisiana Purchase (developed into integral States of the original system), and the expressly created political organism carved out of the United States as a site for the national capital. Mr. Willoughby's volume * will repay careful study, and will force upon the reader the conviction that the United States has now confronting it, for better or worse, "problems" arising out of its expansion which compare favorably in magnitude and

intricacy with those of any empire or monarchy of the Old World.

Mr. Willoughby devotes a great deal of space to the treatment of local government and internal administration. He reminds his readers of the fact, generally overlooked, that while the usual practice is to consider dependencies as if the only question involved were the political machinery of their central government, and the determination of the relations between hat and the Government of the mother country, in point of fact the deep and sometimes overwhelming difficulty lies in working out a proper system of local government and administration of law, police, sanitation, and education. It is at these points that the annexation enters into, alters, and affects beneficially or otherwise the daily life of the colonist. Another point brought out clearly is that colonial questions must be handed over to experts if they are to be solved intelligently; they do not, as a rule, even present themselves to the minds of legislators or public at home. The author's conclusion is that a Colonial Bureau at Washington is needed. We very much doubt, however, whether a general colonial bureau would not speedily become a refuge for broken-down politicians, who would make a mess of the whole business by attempting some uniform system productive of more confusion than even now exists. The present permanent bureau of the War Department which has charge of the Philippines has less "politics" in it than a new one is likely to cause. Samoa is governed by a naval officer, and the Samoan code and local administration are left, as we understand it, to the Samoans. This simple system works well,

although the Samoans are lower in civilization than the Filipinos. In the long run we shall probably find, as other nations have found, that simplicity of management on the part of the home Government and laissez-faire within the colony, so far as possible, is the true rule. Imperialists, unless highly educated, like neither.

Judge Baldwin's book deals with an old subject. So far as description goes, it is here and there loosely written—e. g., he says (p. 55) that a decision on a point of law by the highest court in a State "does not, however, bind its lower courts as absolutely as would a statute," and adds that an inferior court may disregard it if fully satisfied that "the action taken" was "ill-considered and erroneous." Of course Judge Baldwin knows perfectly well that courts of last resort settle the law for inferior courts—this is the chief object and function of appeals. In the same way he allows himself to say (p. 59) that the thing which is "probably the most powerful" to establish a precedent is "general recognition by approved writers." If the author, as associate justice of the Supreme Court of Errors of Connecticut, had been told by a lawyer practising before him that a judgment of his court was not an established precedent, because it had not received the general recognition of approved writers, he would hardly have failed to be surprised; yet this is what the reader would gather as the result of his remarks. In discussing the present condition of bench and bar, the author seems carried away by his optimism, for he shows clearly enough that the facts of the case warrant the be-

Hief that the elective system and its accommodation of political (and, frequently, purchased) nominations have lowered the character of the bench and, through it, of the bar. Speaking of Judge Barnard's remark that he had always succeeded in life by helping his friends, the author quotes a French critic of the elective judiciary as saying that his unpardonable crime was that "he proclaimed too frankly the doctrine of the elective judiciary": *il trahisait le secret professionnel.*

## New Books.

"The American Judiciary." By Simeon E. Baldwin, LL. D. $1.25 net.

In this volume of the American State Series, Judge Baldwin traces the history and development of the American Judiciary, giving its origin, its place in the constitutional government, its relation to other departments, and its powers and limitations. He further states the organization of the

various courts existing in this country, their methods of procedure, the methods by which the judges are appointed, the relation of the bar, to the bench, and the attitude of the people to the Judiciary. The citation of cases is full, and the volume as a whole is an entertaining statement of facts which every student of American institutions will be glad to read.

Dipl. Code of New York." By

ST. LOUIS, MO. - GLOBE DEMOCRAT.

Date: JUN 17 1905

## In the American State Series.

"The American Judiciary," by Simeon E. Baldwin. (The Century company, New York.)

The Century company has added to its valuable American state series an universe from work on "The American Judiciary." The particular phases of law included in the subject named are treated in a somewhat more detailed manner, the opening section of the book being devoted to the opening section of cases, several hundred in number, which are touched on in the subsequent pages. Not only those who are specially interested in legal matters, but the lay reader as well, will find helpful and broadening information in the considerations of such subjects as the English origin and early development of the American judiciary; the separation of the judicial power from the legislative and executive in American constitutions; the departments of government; the force of judicial precedents; the judicial power of developing unwritten law and the judicial power of interpreting and developing written law; the judicial power of deciding what has the form of law not to the states, etc. The subjects mentioned are only a few of those which are considered by the author in a manner that will recommend the work to all thoughtful readers.

N. Y. SUN.

Date: JUN 17 1905

Mr. Justice Simeon E. Baldwin of the Connecticut Supreme Court of Errors has written a clear and entertaining account of "The American Judiciary" for the "American State" series published by the Century Company. In the first part he shows the nature of the judicial power and its relations to the legislative and executive, with the general lines on which it has developed; in the second he describes the State and Federal courts, those of special jurisdiction, methods of trial, procedure and so on. It is a well constructed summary which an intelligent layman can understand and which should remove many misconceptions about American matters from such formers as may read it.

CASE AND COMMENT

35

life antedated somewhat

Joth of the law and the facts.”

Altogether, Judge Baldwin has made a
poteworthy and successful effort to ex-
plain in moderate compass the judicial
system under which we live. His work
maintains the high standard set by the
other published volumes of the American
State Series, which is being written by
acknowledged authorities, under the edit-
orship of Prof. Willoughby of Johns Hop-
kins. As Professor of Constitutional Law
at Yale and Justice of the Supreme Court
of Errors of Connecticut, the present au-
thor's claim to speak with authority will
hardly be disputed.
R. L. S.

OUTLOOK, - NEW YORK

Saturday, 2 September, 1905

BOOK REVIEWS.

THE AMERICAN JUDICIARY. By Simeon E. Baldwin. New York: The Century Co. 1905. pp. xiii, 403.

In the popular series of volumes to which this book belongs, describing "the manner in which the governmental agencies of the American State are organized and administered," the volume on "The Judiciary" is probably the one most difficult of preparation. It is fortunate that the task of writing it was committed to an eminent jurist whose style is as clear as his knowledge is wide and accurate. The result is a work of great value for popular information, presenting in language free from technicalities the principles of judicial administration, and abounding in interesting details gathered from a wide experience of the practical working of the courts.

The first part, occupying about one-third of the book, explains "the nature and scope of the judicial power in the United States." The second and larger part describes "the organization and practical working of American courts."

The author traces historically the early development of the American judiciary from its English origin, the separation of the judicial power from the executive and legislative powers, and the relations of the judiciary to the political departments of the government. He then explains clearly the important work of the judiciary in developing law, including the determining of what is not the law, though clothed in the forms of law; that is, of declaring a "law" unconstitutional.

The actual exercise of this power to set aside a legislative act is traced historically, and instructive figures are given. Thus it appears that twenty-one important acts of Congress, and over two hundred State statutes have been declared unconstitutional by the United States Supreme Court; while in individual States, thousands of legislative acts have been set aside by State courts as contravening the respective State constitutions. How peculiar this is to our system of government is strikingly shown in Judge Baldwin's statement that "this right of a court to set itself up against a legislature, and of a court of one sovereign to set itself up against the legislature of another sovereign, is something which no other country in the world would tolerate."

The present trend away from jury trials may be a surprise to many readers. Judge Baldwin says, "the number of civil causes tried to the jury, taking the country as a whole, is declining. . . . In several of the States a majority of the civil causes which might be tried to the jury are not: in Louisiana very few are. The tendency in England is also toward dispensing with the jury in ordinary civil trials. Over a million cases are brought every year in the English county courts, and in not one in a thousand of them is there a jury trial, although if the matter in demand is over £5 in value, either party may claim it."

BOOK
REVIEWS.

Constitutional History and Law

AMERICAN JUDICIARY. By Simeon E. Baldwin, LL.D. Pp. 403, $1.25 net. New York: The Century Co.

ES AND DEPENDENCIES OF THE STATES. Their Government Administration. By William Willoughby, Treasurer of Iaho. Pp. 334, $1.25 net. New York: The Century Co.

ING OF PARLIAMENT. England 150 to 1660. By L. Cecil Jane. $1.25. New York: G. P. Put- tons.

IONAL LAW IN THE UNITED
By Emlin McLain, LL.D.,
of the Supreme Court of Iowa.
$2. New York: Longmans,
Co.

SERVICE AND THE PATRONAGE.
Russell Fish, Ph.D. Pp. 280.
Co: Longmans, Green & Co.

test volumes of the American
which the Century Company
ag are characterized by the
es which the earlier volumes
are of preparation, brevity of
and singleness of purpose
y in all of them. Mr. Bald-
her small space in which to
manner of growth, the func-
the sphere of jurisdiction of
branches of the American ju-
he has accomplished his dif-
derably. The principal dif-
work of this kind is to com-
cal and technical accuracy
h popularity to insure the
the author attempts to make
stood by the reader who is
id in the subject as a special-
aldwin has done this not so
rificing accuracy as by con-
d, as far as possible, by sim-
stement.

oughby is dealing with a sub-
are general popular interest
aldrin and his task is corres-
dier. On the other hand, he
under the handicap of dis-
ters which have not yet es-
the realm of controversy. He
 difficulty boldly by announ-
owing up his announcement
tration, that the practice of
a government from the be-
ants the attitude which we
ward the Philippines. He
every case where the neces-
en we have given congress
governing dependent terri-
g outside the limits of the
Of course, it can be replied
the practice of the past does
an invariable guide for the
ture when changed condi-
met, but so far the honors

IC OPINION

appear to be with the school that Mr.
Willoughby represents. At any rate, his-
tory is on his side and that is a strong
support, although it may not always be
positive confirmation of one's arguments.

OUTLOOK - NEW YORK

Date... JUL 1 1905

**American Judiciary (The).** By Simeon E. Baldwin, LL.D. (The American State Series.) The Century Co., New York. 5x7¾ in. $1.25, net.

Each succeeding volume in the "American State Series" only serves to emphasize its value and the fact that it comes to fill a real need. Justice Baldwin's book, which, like all its predecessors, is characterized by thoroughness, accuracy, and readableness, falls into two parts. The first includes an account of the origins and evolution of the judiciary system of the United States and an examination of the relations existing between the judiciary and the political departments of the government, and of the part played by the judiciary in developing and interpreting both written and unwritten law. The second is concerned with the organization and operation of the American courts, both Federal and State, and includes in its scope such topics as "Trial by Jury," "Formalities in Judicial Procedure," "Criminal Procedure," "The Exercise of Judicial Functions Out of Court," "The Enforcement of Judgments and Punishment of Contempt of Court," "Judicial Proceedings in Territories Subject to Martial Law," "Appointment, Tenure of Office, and Compensation of Judges," "The Character of the Bar and its Relations to the Bench," "The Law's Delays." Exhauutive discussion of such varied themes is, of course, out of the question in a volume of the space limitations imposed by the plan of the "Series," and Justice Baldwin contents himself with a concise and compact presentation of the points necessary to a proper understanding, pausing whenever needful, however, to make his statements clear by well-chosen case citations, and to develop objections and suggestions whenever he finds reason to criticise the system now in operation. Among the recommendations proffered to remedy existing defects we note: modifications of the rules of evidence to insure greater ease in arriving at the truth; elimination of purely technical errors as a ground for granting retrials, "unless the court of review can see that substantial injustice may on that account have been done;" and life tenure and executive nomination of judges, with some suitable provision for securing retirement at a certain age. A pleasing feature of the work is constant recognition of the debt the bench owes to the bar in the development of the law of the land. Laymen and jurists alike will find this book interesting and helpful.

Saturday, 2 September, 1905

BOOK
REVIEWS

**THE AMERICAN JUDICIARY.** By Simeon E. Baldwin, LL.D. Pp. 403, $1.25 net. New York: The Century Co.

**TERRITORIES AND DEPENDENCIES OF THE UNITED STATES.** Their Government and Administration. By William Franklin Willoughby, Treasurer of Porto Rico. Pp. 334, $1.25 net. New York: The Century Co.

**THE COMING OF PARLIAMENT.** England from 1350 to 1660. By L. Cecil Jane. Pp. 406, $1.25. New York: G. P. Putnam's Sons.

**CONSTITUTIONAL LAW IN THE UNITED STATES.** By Emlin McLain, LL.D., Justice of the Supreme Court of Iowa. Pp. 438, $2. New York: Longmans, Green & Co.

**THE CIVIL SERVICE AND THE PATRONAGE.** By Carl Russell Fish, Ph.D. Pp. 280. New York: Longmans, Green & Co.

THE two latest volumes of the American State series which the Century Company is publishing are characterized by the same virtues which the earlier volumes possess. Care of preparation, brevity of statement, and singleness of purpose show plainly in all of them. Mr. Baldwin has rather small space in which to outline the manner of growth, the functions, and the sphere of jurisdiction of the various branches of the American judiciary, but he has accomplished his difficult task admirably. The principal difficulty in a work of this kind is to combine historical and technical accuracy with enough popularity to insure the points which the author attempts to make being understood by the reader who is not interested in the subject as a specialist. Mr. Baldwin has done this not so much by sacrificing accuracy as by condensation and, as far as possible, by simplicity of statement.

Mr. Willoughby is dealing with a subject of more general popular interest than Mr. Baldwin and his task is correspondingly easier. On the other hand, he has to labor under the handicap of discussing matters which have not yet escaped from the realm of controversy. He meets this difficulty boldly by announcing, and following up his announcement with demonstration, that the practice of the American government from the beginning warrants the attitude which we have taken toward the Philippines. He says that in every case where the necessity has arisen we have given congress the power of governing dependent territory as being outside the limits of the constitution. Of course, it can be replied to this that the practice of the past does not constitute an invariable guide for the present or future when changed conditions must be met, but so far the honors

PUBLIC OPINION

appear to be with the school that Mr. Willoughby represents. At any rate, history is on his side and that is a strong support, although it may not always be positive confirmation of one's arguments.

LAW NOTES.

155

NOVEMBER, 1905.]

of a French faction in the bosom of our country and exposed
the French system among us from the quintumvirate of Paris
to the vice-president and minority of Congress as apostles of
atheism and anarchy, bloodshed and plunder." Such expres-
sions from the bench sound amazing in this day when "perni-
cious political activity" is ground for the discharge of a letter-
carrier, and a judge who passively accepts campaign contribu-
tions is in danger of the council. The jury kept up with the
pace set by the judge, their utterances reading much like the
modern party platform. In South Carolina scathing remarks
were made on protective tariffs and legislative interference with
private contracts between debtor and creditor. Missouri's plaint
was as to the action of Congress with regard to slavery. And
in Tennessee, as late as 1827, a grand jury filed a protest
against usurpations of power by John Quincy Adams, stating
that "being decidedly opposed to the present administration,
we have for ourselves resolved to oppose all those we have just
reason to suspect to be friendly thereto, and recommend the
same course to all our fellow-citizens of Blount county."

While Judge Baldwin does not so state, it would seem from
the tenor of the protests of the Southern juries, that they were
intended as expressions of that hostility to the centralization
of power in the Federal government which culminated in the
civil war.

The second part of the volume treats of the constitution and
working of the State and Federal courts, and the relation which
they bear to each other. Mention is made of a judge in one
of the Southern States where it is a statutory right to demand
instructions that the jury are the judges of the law, who, after
giving such instructions, would rise in all his commanding
presence and conclude by saying, "But, gentlemen, you must
recollect that I have told you what the law that governs this
case is, and to this I am the only witness who has appeared
or could appear."

The chapters on judicial development of written and un-
written law touch on topics of which it would be satisfactory to
have a more extended treatment. On the latter question, the
author sums up a forceful and logical presentation of his views
with the following statement: "Courts enter on a dangerous
ground when, to justify their action, they rely on any rule of
public policy not stated in constitution or statute and unknown
to the common law. If such was once the habit of the English
courts, it was because of social conditions with which they had
to deal which no longer exist either in their country or in ours.
It is for the judge to adapt old principles rather than adopt
new ones. What one man thinks is public policy, another,
equally clear-headed and well-informed, may not. The safe
course for the judiciary is to rely on the legislature to declare
it, so far as the common law does not."

On the whole, the volume is interesting reading, and would
serve admirably for use as parallel reading in connection with
the regular course of legal instruction.

Book Reviews.

THE AMERICAN JUDICIARY.

The American Judiciary. The American State Series. By
Simeon E. Baldwin, LL.D. The Century Co., New York.
1905.

THIS is one of a series, edited by Dr. Willoughby, of Johns
Hopkins University, dealing with the organization and adminis-
tration of the several governmental agencies, State and Federal,
including the constitutional, legislative, executive, judicial, and
local systems and also party organization in the United States.

This volume, by Judge Baldwin, contains a treatment of the
nature and scope of the judicial power and of the organization
and practical workings of our courts. As it contains less than
400 pages, the author is necessarily forced to confine himself,
in the main, to giving the bare outlines of the several divisions
of his subject.

Judge Baldwin's experience and ability as lecturer and writer
have enabled him to present his subject in a manner informing
and attractive, and sufficiently free from technicality to render
the book useful to the general reader, though the mode of treat-
ment preven's it from being of practical use in professional
work. Its place is properly in the lawyer's home library rather
than on his office shelves.

In the opening chapter on the development of the judiciary
he mentions the fact that the southern New England colonies,
notably Massachusetts and Connecticut, early repudiated the
common law; the latter, by special enactment, deciding that the
general reference in her law to the Word of God was sufficient
rule for the administration of justice, and adhering to this view
until the days of the Stamp Act, "when," to quote the author,
"it became the interest of her people to claim the benefit of
the principles of the English Constitution and of the common
law on which it was built up." Rather an ingenuous confession
for one Connecticut-born to make as to the workings of the
early New England conscience.

Mention is also made in this chapter of the custom, adopted
from the English Commons by the early legislatures of several
of the States and by the lower branch of Congress, of wearing
hats in the legislative chamber as an outward and visible sign
of the independence of the legislative department. That this
custom and its significance have disappeared is shown by the
fact that our fellow-citizen, Mr. Sullivan, a congressman from
New York, found nothing so worthy of comment, on a recent
visit to Parliament, as the wearing of hats by the members, and
the quality of the hats worn.

The interesting chapter treating of the relation of the judi-
ciar y to the political department recalls the peculiar concep-
tions held by judges and grand juries towards the close of the
eighteenth century and in the opening years of the nineteenth
with regard to the proper functions of the juries and the scope
of the judge's charge. The charge often assumed the character
of a political address, extremely partisan in tone, while the jury
seemed to resolve itself into a committee on the welfare of the
nation.

An illustration of the length to which the judges would go
is found in the language used by a South Carolina judge with
regard to the opponents of the ratification of the Constitution,
wherein he remarks that "it is observable that throughout the
whole of the United States a majority of the leaders of the
opposition to our newly-adopted government are not natives of
our soil; hence this pernicious quality of the mind displays
itself more widely."

Even more intemperate language is attributed to Dana, the
Massachusetts chief justice, who is reported by a newspaper of
the period as having "in a forcible manner proved the existence

DOS PASSOS on

Two Volumes of about 1600 pages

Price $12.00 Net

Stock and Stock Exchanges

THE AUTHORS' CLIPPING BUREAU,
P. O. Box 2616, Boston, Mass.

The Law Applicable to Stock Brokers and Stock Exchanges
DOS PASSOS, of the New York Bar

Clipping from

United States. No other treatise on this important subject has appeared in
first edition of Mr. Dos Passos' work was published in 1882.

IS A SUMMARY OF ITS PRINCIPAL FEATURES

The origin and his-

The NINTH AND TENTH CHAPTERS give the history of the London Stock Exchange, and analyzes transactions thereon very fully, all English decisions and statutes being carefully noted.

roted to a discus-
changes, and to a
which are evolved
ects (the most
the length of the
id. Three addi-

The ELEVENTH CHAPTER relates to the Paris Bourse and to the transactions thereon.

and usages of the

The latest editions of the rules of the New York and London Stock Exchanges, and of the Paris Bourse, as well as a collection of forms, have been added.

considered in the
nacted in many
biting 'option'
tutes of all the
ereon set forth.

Stock Exchange
and the trans-

The first edition of this work was favorably received by the pro-
fession, from many members of which the author received highly
eulogistic letters, and by the legal and other publications of the day.
It is cited in many important cases, including the leading cases of
Clews v. Jameson, 182 U. S. 487. and Skiff v. Stoddard, 63 Conn. 198;
21 L. R. A. 120.
It is also quoted as an authority in the text books
dealing with kindred subjects. The original text has never been over-
ruled. Much labor has been spent in the preparation of the second
edition. Nearly five thousand decisions of the courts have been
annotated or cited.

concerned with

The work contains all the cases relating to Cotton and Produce
Brokers and Cotton and Produce Exchanges, as well as those con-
cerning Stock Exchanges and Stock Brokers.

ing Company

21 Murray Street, New York

In the United States it is declared, that a marriage
validly entered into according to the law of the place where
it was performed, is valid everywhere; accordingly, neither
the national nor the domiciliary law is referred to. An
"agere in fraudem legis domesticae" is not taken account of.
(The draft of the American Bar Association, however, con-
tains a provision invalidating marriages entered into abroad
in order to avoid the domestic law (4 Columbia Law Review,
pp. 243, 246, Trans).

Kent ("Commentaries on American Law," 12th ed., by Holmes, vol. ii, p. 92), says:

"As the law of marriage is a part of the jus gentium, the general rule undoubtedly is that a marriage, valid or void by the law of the place where it is celebrated, is valid or void everywhere."

At p. 93.—

"The principle is, that in respect to marriage, the lex loci contractus prevails over the lex domicili, as being the safe rule, and one dictated by just and enlightened views of international jurisprudence."

And further:—

"It was held that the marriage must be deemed valid, if it be valid according to the laws of the place where it was contracted, notwithstanding the parties went into the other state with an intention to evade the laws of their own. It was admitted that the doctrine was repugnant to the general principles of law relating to other contracts; but it was adopted in the case of marriage on grounds of policy, with a view to prevent the public mischief and the disastrous consequences which would result from holding such marriages void."

4. A similar doctrine is contained in the Argentine sta-
tute relating to civil marriages. Art. 2 provides:

The validity of a marriage to which there are no impediments as provided sections 1-6 of Art. 9 shall be judged within in the territory of the Republic by the law of the country where it was performed, even though the parties left their domicile in order to escape the conditions as to form provided by its laws.

III. Some exceptional systems.

1. The system of law prevailing in Russia contains an
extreme doctrine of national law. Marriages of orthodox

Russian subjects, even when performed abroad, must comply
with all the requisites of the orthodox Greek Church. In
order to meet this provision, the Hague treaty upon mar-
riage was so drawn as to permit the rule to remain in force
or Russian territory. This concession did not suffice, how-
ever, as Russia demands that unless it is in compliance with
its laws, the marriage shall be regarded everywhere as in-
valid. It therefore has not joined the convention (see Art.
5, Appendix I).

2. Art. 31 of the Swiss Fed. Stat. upon Civil Relations
provides as follows:

"If the bridegroom be a foreigner, publication of the bans may only take place upon presentment of a certificate by the competent foreign official recognizing the marriage with all its results.

"The cantonal governments are empowered to dispense with this provision, and to replace this certification, if lacking, by some other appropriate regulation."

The effect of this is that an alien male cannot be married in Switzerland unless his native country issues a certificate satisfying the statute. Cantonal dispensation is seldom granted. Most of the countries of Europe grant certificates satisfying the statute, but England and the United States do not, as there are no officials competent to do so.

IV. Legislative reflections.

To make the question of the capacity to marry dependent
solely upon the law of the place where the parties happen
to be, or to which they momentarily go for the purpose of
marrying, certainly, has the advantage of simplicity. Its
advisability is doubtful, however, especially in view of the
precedent of Gretna Green, or Scotch marriages.

"The American Judiciary," by Simeon E. Baldwin, LL. D., Associate Justice of the Supreme Court of Errors of Connecticut and Professor of Constitutional Law in Yale University. Published by the Century Company, New York City. Price $1.25 net.

This is one of the eight volumes constituting "The Ameri-
can State Series," which describes the manner in which the

legislative and executive机关
Constitutions; the relations of the ju-
diciary to the political departments of
government; the force of judicial pre-
cedents; the power of developing un-
written law; the power of declaring
what has the form of law not to be
law. Also the organization of the
courts of the States, their relation to
the United States courts and that of
the United States judiciary to the
States, juries and the formal procedure
in the various courts, etc.

diary in his valuable volume in the Amer-
ican State series is such that, if widely
read, the work will make for a much clear-
er popular understanding of the functions
and limitations of the bench. He sets forth
In plain terms the precise relations between
the courts and the people, showing in the
first part the nature and scope of the ju-
dicial power in the United States, and in

not been sufficiently expanded in late years
to cope with the grist that is brought to it

["BROOKLYN", "Date", "AMERICAN S\nTHE TWO", "Judge Simeon\non Our Ju\nand its C", "A WORK OF", "William F. Willou\nistration and G\nTerritorial", "Two new volumes hit\nthe series on \"\"\nwhich is one of the\nCentury Company's\nThese are \"The A\nSimeon E. Baldwin,\nments of the Supre\nnecticut, and profess\nin Yale University.\nDependencies of the\nam Franklin Willou\nRico. For the bene-\ncent this series\nmay be stated that t\nclude eight volumes,\npublished, and three\nThe volumes already\nAmerican\nfessor, W. W. Willou\nprofessor of political\nkins University, and\neditor of the series\nthe United States,\"\nnow, who holds the\nlaw in Columbia Uni-\nzation and Machen\nMey, who occupi-\ntional history and po-\nt College, and the tw\ntioned as having just\nmain yet to be issue\ngramme, \"The Amer\nejecutive Methods,\"\nby the College of\n\"American\nMethods by Profes\nsor of the University\nof Government in the\ncopted,\" by Profes\nMichigan University", "While primarily t\numes is educational\nfor schools and co\npartments of civi\nfor the general read\nshall help to a mo\nof the American sys\neral, state and lo\ndescriptive of ac\ncademic and lo\nthat exist are as\nessential condition\ntlement are indicat\nthe series encyclo-\nand while each vol\nit holds its proper\na word, when comp\nable in the volu\ncomplete descripti\ntions of American\nshall be authori-\ntative\nwork of experts, and will deal with actual\nconditions as they exist to-day. Necessarily\nthe broad and comprehensive treatment of\nthe various subjects involves the narratio\nof a good deal of history, so the books pre-\nsent not only conditions as they exist to-\nday, but describe the successive stages in\nthe development which has marked their\ngrowth from the early days of the republic\nto the present day. For instance, in his\nvolume on \"The American Judicial,\" Judge", "governmental agencies of the American State are organized and administered. Edited by Prof. W. W. Willoughby of the Johns Hopkins University, they constitute a comprehensive and clear-cut survey of the chosen field. Together with the present volume there are \"The American Constitutional System\" (an introduction to the series by the editor); \"City Government in the United States,\" by F. J. Goodnow, Professor of Administrative Law, Columbia University; \"Party fessor of Administrative Law, Columbia University; \"\"Parry fessor of Administrative Law

— 3 —

verdadera significación de este principio, quieren restringir su alcance á las relaciones de las partes con terceros, y pretenden regular las relaciones del autor y del destinatario por la aplicación de los principios generales de la propiedad. En los unos, como en los otros, el principio es sentado como un axioma de moral, que no tiene necesidad de ser demostrado, que se basta á sí mismo, y cuyo fundamento jurídico nadie ha intentado buscar.

Después de la bibliografía y la introducción, trata M. Jardel, en tres partes, de la teoría general de la correspondencia, del derecho de producción de la correspondencia en justicia y de las condiciones de su ejercicio.

Aunque dedicado el estudio á la legislación y jurisprudencia francesas, ha de prestar buenos servicios á los abogados y funcionarios judiciales que hayan de intervenir en otros países en el asunto que examina.

5. *Baldwin (Simeon E.)*.—The American Judiciary.—New York, 1905. Un tomo de 403 páginas (Die American State Series).

6. *El mismo*.—The history of the Common Law considered with some reference to its relations to politics, economics, language, literature, art and religion.—Boston, 1906. Un folleto de 19 páginas.

7. *El mismo*.—The new «Association internationale des Avocats».—Yale Law Journal, February, 1906, páginas 163 á 171.

Forma parte la primera publicación de una biblioteca que consta de ocho volúmenes, en los que se describe el modo cómo los centros gubernamentales americanos están organizados y administrados. Hay tomos dedicados al sistema constitucional americano, al gobierno de la ciudad, á la organización de los partidos, al Poder ejecutivo y al método ejecutivo, á las Asambleas americanas y el método legislativo, á la justicia americana, á los territorios y columnias y al Gobierno local de los Estados Unidos, exceptuadas las ciudades.

El ilustre Profesor de la Universidad de Yale examina las instituciones judiciales de la Unión Norteamericana. Estudia en tres partes la naturaleza y objeto del poder judicial en los Estados Unidos, la organización y la práctica de los Tribunales americanos, el origen inglés y desenvolvimiento de la América judicial, la separación del poder judicial del legislativo y ejecutivo en las Constituciones americanas, las relaciones de la Justicia con el departamento político de gobierno, la fuerza de los precedentes judiciales, el poder judicial de desenvolver el derecho no escrito y de interpretar y

— 4 —

desenvolver el derecho escrito, el poder judicial de declarar lo que tiene la forma de ley y no lo es, la organización de los Tribunales de los Estados y de los Estados Unidos, relaciones entre la justicia del Estado y la de los Estados Unidos y viceversa, relaciones entre los Tribunales de diferentes Estados, juicio por jurados, formalidades del procedimiento judicial, Tribunales especiales, procedimiento criminal, el ejercicio de las funciones judiciales, Tribunales de apelación, etc.

Todos los que deseen conocer las instituciones judiciales americanas, encontrarán un precioso guía en el libro de M. Baldwin.

Considera éste en el segundo estudio el derecho común, de un modo bastante amplio, y no limitándose sólo á su país. Fué presentado al Congreso de Artes y Ciencia, celebrado en San Luis, en Septiembre de 1904.

El derecho común de un pueblo se desenvuelve en dos líneas, en su relación con el Estado y en su relación con otro. La historia de la libertad civil, es la primera y la mejor parte de la historia del derecho común. Inglaterra y América reconocen al derecho internacional público como una parte de su derecho común.

En el último estudio, considera M. Baldwin la «Asociación internacional de los Abogados», iniciada en Bélgica en 1885, la cual reunió una Asamblea en Bruselas en 1897, con representantes del foro de todas las naciones. Uno de sus temas fué la posibilidad de crear una organización internacional permanente entre los foros de las diferente comarcas como cuerpos organizados ó entre los miembros de éstos individualmente. Esta organización podría tener varios propósitos: dar informes sobre la legislación extranjera en relación con el procedimiento judicial; la selección de Abogados en las comarcas extranjeras para servicios particulares; la reunión de Congresos de Abogados; hospitalidad mutua; la publicación de un anuario internacional relativo á la profesión, y la organización de un sistema de asistencia judicial para los que deseen entablar reclamaciones en comarcas extranjeras.

8. Knut D'Olivecrona.—Notice biographique.—Paris, 1905.
Un folleto de 12 páginas.

La reputada publicación francesa *Nouvelle Revue historique de Droit français et étranger* (1), ha insertado en sus columnas un estu-

(1) Número de Julio-Agosto 1905.

No. 1

October, 1904

N. Y. SUN.

Date... JUN. 19 1904

THE
LATEST LAW BOOKS

LITTLE, BROWN, & CO., Publishers

254 Washington Street, Boston

COMPLETE LAW CATALOGUE MAILED FREE TO ANY ADDRESS

Baldwin on Railroads

A TREATISE ON AMERICAN RAILROAD LAW, INCLUDING STREET RAILROADS. By SIMEON E. BALDWIN, of the Supreme Court of Connecticut. 8vo. Law Sheep $6.00 net

In this entirely new work is to be found a compact statement of railroad law as established in this country. It is the outcome of a long experience in railroad cases, the author, before his elevation to the bench of the Supreme Court, having been General Counsel of several important railroad companies.

He has avoided repeating as part of railroad law what belongs to the general law of torts, contracts, corporations, or carriers, but has fully covered all questions arising under the general heads of Constitution, Franchises, and Organization; Location; Construction and Equipment; Finances; Operation; Transfers; and Liens and Actions, while in the very valuable Appendix is to be found a notable collection of Illustrative Documents and Forms, which have stood the test of litigation, and which cover Incorporation; Location and Crossings; Construction and Equipment; Conveyances; Car Trusts; and Contracts.

It is shown in this volume that the development, in late years, of the street railroad into the inter-urban railroad, and the growing use of electric power on parts of steam railroads, have made it now possible to treat American railroad law with less regard than was formerly thought necessary to differences between one kind of railroad and another. All are governed in the main by the same principles, the differences being differences of application only.

All the leading authorities which bear closely on matters peculiar to the law of railroads are cited.

JUDGE JOHN F. DILLON says of this treatise: "The learned author's active professional connection as a lawyer with important railway litigation, his distinction as a teacher in the Yale Law School, and his judicial experience on the Supreme bench of Connecticut, have given him qualifications for this work which few possess. The leading and valuable feature of his book is that within the compass of a single volume he presents the leading and distinctive features of the law of railways as they exist in this country, brought down to the present year. It is a work of great ability, learning, and value."

The New York Sun says: "Judge Baldwin's statement of the law as it exists, in all its ramifications, is not only authoritative, but clear. It is delightful to find a thoroughly lucid law text-book."

Railroad Law.

The Hon. Simeon Eben Baldwin, LL.D., a judge of the Connecticut Supreme Court of Errors, and a former president of the American Bar Association, was, before his elevation to the Bench, a lecturer in the Yale Law School. In that capacity he delivered for some years a course of lectures on railroad law, and the substance of those lectures, begun twenty-five years ago and enriched by the knowledge and experience since acquired, is published as "American Railroad Law" by Little, Brown & Co. Judge Baldwin's statement of the law as it exists, in all its ramifications, is not only authoritative, but clear. He sticks to the railroads. Wherever the countless branches of the law come into play he points out specifically where they apply to the railroads, and limits himself to that. He accepts the action of the general Government in relation to railroad matters as settling the law, and wherever it is possible falls back on decisions of the United States Supreme Court as deciding, or likely to decide, the law in railroad matters for the States and the country. It is delightful to find a thoroughly lucid law text-book.

EVENING POST
NEW YORK
NOVEMBER 9, 1904

Daily life in China.

Prof. Ernst Freund's 'Police Power' (Chicago: Callaghan & Co.) is a valuable addition to recent law-books on this subject. Developed within the last fifty years, the "police power" as it stands to-day is one of the most interesting fields of controversy between the State and the individual. Under written constitutions it represents what is left to the State of its once universal arbitrary power in view of the modern constitutional guarantees of private right and liberty. Under it, for instance, the right of the State to regulate rates of fare and freight has been established, notwithstanding the constitutional principle that a charter is a contract. Under it health boards are vested with their great powers, license or local-option laws are upheld, nuisances are abated, and hours of labor are regulated. Mr. Freund's book is especially valuable because it discusses intelligently the great limitations placed upon the police power by modern adjudication—without which we should live under a tyranny fatal to industrial and individual freedom—namely, that of reasonableness. This reasonableness is often solely a question of degree. A degree of regulation which promotes the public good and is in the interest of justice is reasonable; a degree which confiscates property or destroys liberty is unreasonable. Mr. Freund points out that the "earlier attitude of the courts" (Munn vs. Illinois, 94 U. S., 113) was that if a condition existed for legislative action, the Legislature was the sole and exclusive judge to what degree its power should be exercised. The present doctrine of the Supreme Court is that a statute is frequently valid, or the reverse, "according as the fact may be whether it is a reasonable or an unreasonable exercise of legislative power over the subject-matter involved, and in many cases questions of degree are the controlling ones by which to determine the validity, or the reverse, of legislative action" (Wisconsin M. and P. R. R. Co. vs. Jacobson, 179 U. S., 287). The difference represents the result of a great struggle for liberty and common right against legislative tyranny, none the less important to us because it was fought by corporations against a legislative movement urged on by popular clamor.

This subject is more cursorily treated in Simeon E. Baldwin's 'American Railroad Law' (Boston: Little, Brown & Co.), a volume which aims at stating what is "distinctive" in our railroad law, and putting it in systematic order. The author has had much experience with his subject, both in teaching and in practice. The Fourteenth Amendment and the Interstate Commerce Act come in for a good deal of discussion. The author's method, which is a simple one, results in condensing railroad law into a volume of moderate compass. Where we

have had occasion to examine it, it serves
very well as an outline or guide to the sub-
ject. From the same publishers we have
received a manual of the Bankruptcy Act
of 1898. by John M. Gould and Arthur W.

as to fit all jurisdictions and conform to the great variety of statutory
requirements in the several States. The same circumstance militates
greatly against the success of the attempt to make generalizations as
to modes of incorporation and kindred topics. In fact, the author
merely blazes the trail in the roughest fashion, and his chief service is
in pointing out to the lawyer what he should look for in the digests
and statutes of his own State. As such an analytical chart the volume
is of very considerable value. It is to the careful railroad attorney
what a "First Aid to the Injured Compound" is to the young ambu-
lance surgeon, and is to be used in a similar manner.

Within the narrower limits set for himself by the author, however,
the publication is a distinct addition to the literature of the subject,
and speaks with convincing authority. Begun some twenty years
ago, every page bears the evidence of sound theoretical consideration
leavened with mature practical experience. The citation of authorities
has been made with unusual discrimination, and is characterized by
a very apparent aim to invoke only leading decisions strictly
relevant to the point under consideration, rather than to marshal an
array of cases more or less in support of the principle sought to be
established.

Although the volume has been so long in preparation, it appears
to have been thoroughly revised and brought down to date. Thus
the influence of the Sherman Act upon combinations and consolidations
is discussed, and the effect of the decision in the Northern
Securities case in the United States Supreme Court last March is considered.
Again, in commenting upon the right to change and abandon
stations, the interesting case of State v. Northern Pacific Railway
Company, decided in Minnesota a little earlier, is cited.

518 COLUMBIA LAW REVIEW.

The work is a manual for the busy lawyer, and so considered, as
it should be, deserves high commendation. It is not, and does not
pretend to be a text-book, nor does it attempt to give any history of
the statutory law of New York relating to the subjects of descent and
distribution, or any exposition of the reasons which have led to the
adoption of the statutes now in force; but, taking those statutes as
interpreted by the courts as a basis, and adopting the admirable plan
"of naming particular relations, and then stating their rights to take
or share in the property of deceased persons," it gives the result of a
laborious and painstaking analysis of the existing statutes, and does
accurately and concisely make clear, as it purports to do, the rights
of the living to the property of deceased relatives in cases of intestacy,
and gives citations to authorities upholding the statements of the
text.

The accuracy of prior editions has been recognized by the courts,
and the present edition is not less accurate, although, having been
published in January, 1904, it contains the statement which is not now
the law, viz.: "Grandparents are incapable of inheriting real estate"
(p. 54, § 5). By Chapter 106 of the Laws of 1904, which went into
effect March 22nd, 1904, subdivision 5 was added to § 288 of the
Real Property Law, and confers upon grandparents the right to inherit
in the cases therein specified.

A book of this character is not calculated to bring fame to its
author, but it renders an important service to his professional brethren,
and makes them his debtors.

AMERICAN RAILROAD LAW. By Simeon E. Baldwin. Boston :
Little, Brown & Company, 1904. pp. lxvi. 770.

Much matter has been excluded from this treatise which one
might properly expect to find under such a title. This has been in-
tentional and the purpose is avowed in the preface. All that great
body of law concerning the obligation of railroads to their passengers
and shippers of freight and the public in general has been treated in
the most elementary fashion, and its consideration practically limited
to one of the six parts into which the book is divided. On this par-
ticular phase of railroad law, therefore, the student or practitioner
will not receive such practical help as he would derive from some of
the older texts on carriers, such as Hutchinson, for example.

The scope of the discussion in four of the remaining five parts is
restricted to what may be termed the administrative side of railroading
in its legal bearing; such as the organization and reorganization of
the corporation; the location, construction and equipment of the
line; the financing of such an enterprise, and the various methods of
transferring and encumbering the property. The discussion of the
nature of the franchise is one which commends itself as the best single
chapter in the book. It is lucid, incisive, and no better elementary
treatment of the subject is to be found.

The sixth part treats of Actions, and this is followed by an appendix of illustrative forms. These forms are evidently the result of many years of practical experience, but it is not likely that many railroad counsel will substitute them for the forms in their own files. This is because such models cannot well be made of such general application

88

dando le sue affermazioni con importanti cognizioni e osservazioni, acquisite alla scienza.

Con profonde argomentazioni, al proposito, dimostra la necessità di rimedi preventivi e repressivi, che enumera.

Discute poi i principali progetti di legge a pro dell'infanzia, approvati o da approvarsi, a cominciare da quello di Nicotera, Conte, De Marinis a quello del Faraggiana, del Ferriani e altri.

In ultimo, riferisce molti voti di Congressi nazionali e internazionali, nei quali, uomini di scienza e di cuore, mossi dai più nobili sentimenti di filantropia, ha richiamato l'attenzione della Società su la triste sorte del l'uomo dell'avvenire, al quale, con savia e opportuna legislazione protettiva è doveroso aprire, in tempo utile, le porte gloriose e benedette del lavoro e dell'onestà.

Prof. Gennaro Gallo.

Simeon E. Baldwin, Professor in Yale University. — The International Congresses and Conferences of the Last Century, as Forces working toward the Solidarity of the World. — Reprinted from the American Journal of International Law, July, 1907.

L'autore di questo breve ma importantissimo scritto è uno de' più valrosi cultori del diritto internazionale che vanti l'America del Nord. La sua propaganda in favore della solidarietà internazionale contribuirà non poco a quella fusione di propositi e d'interessi, che solo potrà attenuare e poi eliminare i conflitti fra i popoli.

In questo lavoro egli esamina nel suo spirito e nelle sue più salienti manifestazioni il continuo avvicendarsi di congressi e conferenze internazionali rilevandone l'importanza. È una specie di sguardo retrospettivo del lungo e faticoso cammino percorso da tutti coloro che ravvisano i vari popoli come diramazioni di una medesima famiglia, e che considerandoli come tali si affaticano a rendere sempre più saldi i rapporti di solidarietà e di frattellanza umana.

Chiude il lavoro un elenco abbastanza completo di tutti i congressi e di tutte le conferenze che ebbero luogo nel passato secolo.

Dott. Giuseppe Lombroso. — La garantia nella vendita e nella vendita.

214

mente rispettati, richiede che la sua minoranza che governa, non solo pu-
nisca con prontezza e severità chi li viola, ma cessi dal far certe leggi e
prender certi prevvedimenti che sono (come scrive il Bonomi) *veri e propri
germi socialisti destinati a svilupparsi fino alla loro completa maturazione,*
e che autorizzano il suddetto competentissimo autore a conchiuder che la
legislazione socialista è già in atto e matura entro il grembo della società
capitalistica».

Simeon E. Baldwin, Professor in Yale University — *The Exchange of Notes in 1909 between Japan and the United States.* — Cambridge, Sonderabdruck aus Zeitschrift für Völkerrecht und Bundesstaatsrecht, 1909.

Il noto conflitto fra il Giappone e gli Stati Uniti d' America, o pin pr-
cisamente la California, è stato accuratamente studiato dal dotto professo-
dell' Università di Yale attraverso le note diplomatiche che vennero scam-
biate fra i due governi.

Dai termini politici del conflitto il Baldwin toglie occasione per esaminare
i poteri costituzionali del presidente della repubblica di fronte al senato,
e quelli del governo centrale nei suoi rapporti coi singoli stati componenti
l'Unione nord-americana.

200

LA ESPAÑA MODERNA

*The law of the air-ship, by Simeon E. Baldwin.*

Con la navegación aérea tienen que cambiar muchísimo las relaciones entre los hombres, las relaciones sociales é históricas, y, por consiguiente, las leyes y Códigos que las regulan, ó sea lo que se suele llamar derecho positivo y escrito. Cuando la navegación aérea llegue á ser un hecho corriente, la mayor parte del derecho legislado, si no todo él (civil, mercantil, penal, administrativo, acaso también el político), y hasta alguna porción del derecho no legislado ó semilegislado (me refiero al internacional), tendrán que sufrir profundas transformaciones.

Ya lo están previendo los juristas, y por eso han comenzado á ver la luz, en los últimos tiempos, bastantes trabajos que se ocupan del asunto. Al número de ellos pertenece este del Dr. Baldwin, profesor de derecho constitucional y de derecho internacional privado en la Universidad de Yale, y director del Bureau de derecho comparado de la *American Bar Association*. Es un breve folleto, tirada aparte de un artículo publicado en el número de Enero de 1910 de *The American Journal of international law*. Contiene, en medio de su brevedad, muchas indicaciones sugestivas sobre lo que pudiéramos decir aspecto legal (no quiero emplear el término «jurídico», por lo equívoco que es) de la navegación aérea.

122

THE CONGREGATIONALIST AND CHRISTIAN WORLD

22 January 1910

# Theodore T. Munger, Preacher, Author and Man

## Appreciations from Intimate Friends

At the close of a beautiful winter day, last week, seated in his chair in his room facing the west, quietly and without warning Rev. Theodore Thornton Munger, D. D., pastor *emitus* of United Church, New Haven, leaned back and closed his eyes, not to open them again on the scenes of earth. Thus peacefully did a life of almost eighty-one years, a life of large value to his times, come to its end. We have asked several of the men who were privileged to know him well to write out of their hearts the impressions which he made upon them and their estimate of his contributions to Christian thought and life. Their words of affection and esteem appear herewith.—EDITORS.

## As a Parishioner Saw Him

BY HON. SIMEON E. BALDWIN
Chief Justice Connecticut Supreme Court of Errors

I am asked to speak of Dr. Munger from the standpoint of a parishioner.

He was called to the United Church in New Haven when fifty-five years old. It was a good illustration of the fact that a clergyman who has strength, sense and tact reaches no dead line at fifty. His best work, both as a preacher and writer, was done at New Haven.

He came at a time of theological stress. The church had been recently constituted by uniting the North Church and the Third Church. Each had been under the charge of a pastor belonging to the old school of Congregationalism. Those who had read much of what had then come from Dr. Munger's pen knew that he was of the new school. Many in both congregations had become restless under the yoke of the old theology; but fewer, it was generally thought, in the Third than in the North Church.

The committee which recommended the call were doubtful if their report would be favorably received. The fateful meeting was held. It was largely attended, and one of the deacons of the North Church, himself a doctor of divinity, led the opposition. Everything depended on the attitude of those who came from the Third Church. Towards the close of the evening, one whom they rightly regarded as among their chief pillars rose—an old man of nearly eighty. “Brethren,” he said, “I have listened attentively to these discussions. have looked into Dr. Munger's books. I don't think he can be considered an old-fashioned Calvinist. If” (and here the hearts of the committee began to sink), “If he were, we should not want him.” This speech carried the day, but there was a considerable minority, a few of whom soon left the church. The rest were soon won over by the wise and tactful reserve with which Dr. Munger, when in the pulpit, always treated subjects of theological disputation or historical criticism, no less than by the height and depth of his thought and the mastery of style, which always gave a peculiar charm to his pulpit address.

He had been distinguished as a student at Yale for excellence in English composition, and as a preacher he was distinguished in the same way. He was clear in his scheme of treatment, attractive and forcible in his mode of expression. He always read his sermons and always naturally effectively. His voice was an agreeable well-modulated one, his manner earnest

yet something of the man of affairs. In North Adams, from which he came to New Haven, he had, I believe, been a director in a local bank. As a Fellow of Yale University his practical sagacity was put to good use for many years.

His “Freedom of Faith” and “Appeal to Life” are largely composed of what he had said in the pulpit of the United Church, and much of his “Life of Horace Bushnell” and “Essays for the Day” had been the subject

raneous addresses he was less happy in expression. His thoughts did not rush upon him and carry him away. Such as he preferred to bring before a public audience came slowly, and it was after long brooding that they assumed a form that could fully satisfy him.

As years went on, he moved farther and farther from the theology of old New England, and had less and less to say of the miraculous element in Christian history.

But this came more in private conversation than in public utterances. He was always solicitous not to offend the weak brother—or sister—always slow to say anything that might unsettle another's faith and introduce doubts in place of accepted beliefs.

The fundamental character of his thought, whether as preacher or author, has been happily expressed since his death by one of his brethren among the New Haven clergy (Rev. Stuart Means, D. D., of the Protestant Episcopal church) in these words:

> “To him, as to the strongest and deepest natures, the eternal things were the real things, and he thought the solution of the great problems of life was to be found not in theories or schemes, not in theologies or philosophies, but in God. ... His consciousness of the Divine Reality became at times so intense that the sea of change, the movement of things seemed to him but shadows against the ever-increasing light of God. The solemn mystery of man's spiritual history filled him with awe and in the silence and solitude of his own soul he listened for that Voice which the world's noises seemed to drown. The intensity of his own faith gave a sharpness and reality to his own personality and deepened his sense of his own responsibility even to the very fringe of conduct. Hence he joined no parties, he subscribed to no platforms, he put faith in no organizations which dealt only with the superficial phenomena of life.”

This is the impress of the man left upon his people. To his heart God was All in All.

## A Lover of Freedom and Truth

BY REV. WILLIAM J. TUCKER, D. D.
Ex-President of Dartmouth College

From the Filley Studio, New Haven

REV. THEODORE THORNTON MUNGER, D. D.

The perfection of Christ's revelation is found in his last words uttered on the cross, "Father, into thy hands I commend my spirit." Marvelous words! What else shall the Son say when he goes to the Father? What more does he need to say? How majestic in their simplicity and how childlike in their naturalness! We imagine a thousand things about the future life—its place, its joys—but here there is nothing; no rewards or punishments, no crowns of gold, no seats of glory, but only the repose of the perfect Son in the eternal Father.—Rev. Theodore T. Munger, D. D., writing in The Congregationalist, April 2, 1904.

Dr. Munger was born in Bainbridge, N. Y., March 5, 1830; graduated from Yale College, 1851, Yale Seminary, 1855; granted a Doctorate in Divinity by Illinois College in 1883. His pastors have been over Congregational churches in Dorchester, Haverhill, Lawrence and North Adams, Mass., San José, Cal., and since 1885 over United Church, New Haven, Ct. He was the author of half a dozen volumes, including a life of Horace Bushnell, and was a frequent contributor to literary and theological publications. He died Jan. 11.

of addresses by him before its Men's Club.

He gave of his best to every church with which he was connected. He kept its ideals high and its tone pure. To listen to his sermons week after week was to take lessons in the philosophy of spiritual things. It was to take lessons, too, in the art of rhetorical

in the best words—always, that is, wrote in his study. In extempo-

The spiritual birthright of Dr. Munger was freedom. I never knew a soul more worthy of the endowment. He had the courage to use it manfully, the wisdom to use it to sufficient ends, and withal a nobility of soul which kept him from infringing upon the intellectual rights of others. It was perhaps to his advantage that his earlier life antedated somewhat the

14

REVISTA DE LEGISLACIÓN

convenientes.—Historia de la conversión, su importancia y
su papel económico.—Naturaleza jurídica de la conversión al
portador. Si es un acto de administración ó de enajenación.
Su naturaleza intrínseca, teorías sobre este punto.—Capacidad
para convertir, determinación de los incapaces relativamente
á su estado civil.—Títulos inconvertibles en razón á los dere-
chos reales que los gravan.—Inconvertibilidad de los títulos
según la posición que ocupan en algunos patrimonios.—Efec-
tos de la conversión al portador.—Ritología y justificaciones
necesarias para la conversión.—Responsabilidad de las con-
versiones indebidas. Su fundamento, teorías sobre este punto.
Características generales de los centros emisores de los títulos
convertibles.—Parte complementaria (legislación extranjera).
Apéndice (Sociedades comerciales extranjeras en el Brasil y
brasileñas en el extranjero).

12. *Annual Bulletin. Comparative Law Bureau of the American Bar Association.* July 1, 1909. Philadelphia. Un volumen de 170 páginas.—American Bar Association. *Annual Address of the Director of the Bureau of Comparative Law Delivered at Chattanooga.* August, 29, 1910, by Simeón E. Baldwin, Reprinted from the Report of the meeting of the Association for 1910. Baltimore, 1910. Un folleto de 16 páginas.—Inaugural Message of the Excenellay Simeón E. Baldwin, Gobernor of Connecticut to the general Assembly Januari Session, 1911. Hartford, 1911. Un folleto de 41 páginas.

Desde que, hacia 1869, se organizó la Sociedad de Legislación comparada de París, ha tomado esta ciencia, en mucha parte debido á ella, un gran desenvolvimiento. El incremento del metodo positivo, aplicado á los estudios jurídicos, ha contribuido por modo extraordinario á los progresos de un estudio, considerado por algunos como la ciencia del Derecho del porvenir.

De aquí que en los países más adelantados se han establecido desde hace años varios organismos análogos á la Sociedad

Baldwin, Simeon E.

RELATIONS OF EDUCATION TO CITIZENSHIP

By SIMEON E. BALDWIN, Ex-Governor of Connecticut.
(DODGE LECTURES.)

"A thoughtful and well-balanced study of the duties and opportunities of the educated American."—The Athenaeum.

"Just such rational sensible views as one would expect of Connecticut's able and patriotic governor are found in this ninth volume of Dodge Lectures delivered at Yale University. He touches no subject except to illuminate it. There are no dull pages. The lectures are so compact that they are impossible of review. There are no waste words. Every paragraph has a distinctive meaning."—Boston Transcript.

12mo. Cloth binding. Gilt top. 178 pages. Index. Price $1.15 net.

Bartlett, Henrietta, and Alfred W.
Pollard

A CENSUS OF SHAKESPEARE QUARTOS. PREPARED BY HENRIETTA BARTLETT AND ALFRED W. POLLARD, M.A., of the British Museum, WITH AN INTRODUCTION BY MR. POLLARD. PUBLISHED BY THE ELIZABETHAN CLUB OF YALE UNIVERSITY IN MEMORY OF THOMAS RAYNESFORD LOUNSBURY.

This census includes all known copies of the separate editions of Shakespeare's plays issued in quarto before 1709. It contains a collation of each edition, with an account of the provenance, condition and binding of each copy extant, as well as a complete list of present and former owners. The volume will be completed as a fitting tribute to Shakespeare's Tercentenary in April next.

(In preparation.)

THE BEGINNINGS OF GOSPEL STORY. A HISTORICO-CRITICAL INQUIRY INTO THE SOURCES AND STRUCTURE OF THE GOSPEL ACCORDING TO ST. MARK. BY BENJAMIN WISNER BACON, D.D., LL.D.

"A study of the second Gospel, remarkable for its freshness and incisiveness. . . . The book is one of great learning and of thorough study, and is to be recommended to those who wish to see the text of Mark under the newest lights."—*Review of Theology and Philosophy*, edited by PROFESSOR ALLAN MENZIES, D.D.

"Stimulating and educative in the best sense of the term. . . . It is a very welcome and timely contribution to the higher criticism of the Gospels in English."—*The Hibbert Journal*.

12mo. Cloth binding. 238 pages. Price $2.25 net.

Bacon, Leonard

THE SONG OF ROLAND. TRANSLATED INTO METRICAL VERSE BY LEONARD BACON, Instructor in English, University of California.

"Leonard Bacon has cleverly turned the 'Song of Roland' into the metre of Lord Macaulay's 'Virginia.' The rendering is both spirited and faithful. . . . The reader who takes up this volume in order to get some notion of the poem, in the patriotic spirit of which France is doubtless finding inspiration today, as she has found it in the past, will not, we venture to say, turn away disappointed."—*The Nation*.

"For eight centuries this early romance epic, written in mediaeval French, has stood as a psychic illustration and literary consecration of ideals of feudalism. Many versions in prose and blank verse have been made, but none so complete in narrative and so surcharged with heroic spirit as is this latest rendering."—*The Philadelphia North American*.

8vo. Board binding. 164 pages. Price $1.50 net.

THE
AUTHORS CLIPPING BUREAU

ROBERT LUCE, President
P. O. Box 2616, Boston, Mass.

Clipping from

The Mirrour Mo.
St. Louis
Dec. 12

## Educational Books

By Elizabeth Waddell

"We get no good
By being ungenerous, even to a book.

"Tis rather when
We gloriously forget ourselves, and plunge
Soul-forward, headlong into a book's profound,
Impassioned for its beauty and salt of truth—
'Tis then we get the right good from a book."

Of course, this is always supposing that a
book has such a thing as a "profound."
And a series of lectures delivered at Yale
University by the Governor of Connecticut must
have it. ("The Relation of Education to Citizen-
ship," by Hon. Simeon E. Baldwin, Yale University

Press). It may be "ungenerous" to say that it
seems as if so much learning as is here displayed,
ought to support a better theory of learning and its
uses. According to Governor Baldwin, the uni-
versity and its graduates should be the chief strong-
hold of conservatism. The great word enthusiasm—
in God, or God within—has for him but the one
meaning of fanaticism. Whereas, nearly every one
of the authorities so frequently quoted in these ad-
dresses was a mighty enthusiast, as was everyone
who has greatly moved the world or impressed him-
self upon it, "since the first man stood, God-con-
quered, with his face to the heaven upturned."

It may be, too, the ungenerous attitude that makes
it seem as if these lectures were originally pre-
pared more after the go-easy, popular fashion of a
political speech, than as an afterthought—"Go to,
these are to be University lectures! Let now the
encyclopedias and reference books that are under
the heaven be gathered together, and let the dry
learning appear." And a classical allusion is stuck
in here, a Greek quotation there, a citation from
Spinoza or Rousseau or Kant or Schopenhauer in
another place, very much as nuts or candies are
sometimes stuck on the top of a cake just before
the icing is dry. See Poe's recipe for writing a
*Blackwood* article—that is the way the thing seems
as if it might have been done; but perhaps the
seeming is merely the figment of a slightly biased
imagination. Their "beauty and salt of truth" these
addresses really have, but almost nullified—surely
weakened—by the dreary fugue of conservatism and
caution that runs through all. Governor Baldwin
insists that institutions that are "fairly good" should
be left undisturbed, nor supplanted by things un-
tried. As a matter of fact this is always done. A
certain document with which one is sure Governor
Baldwin is familiar, declares that mankind are dis-
posed to suffer while evils are sufferable, govern-
ments are *not* changed for light and transient causes.
However unexalted an ideal the fairly-good may be
for those blessed with access to the higher learn-
ing, an institution is much worse than fairly good
before the masses demand a change.

Governor Baldwin asserts that "there is no ground
for the existence of such a thing as 'class-conscious-
ness' in the United States, and can be none, because
there is no social class into which or out of which
men cannot pass at will, *unimpeded by law*." This
is nothing short of a quibble. One wonders if he
means to be taken quite seriously. All will be well,
he thinks, or at least *fairly* well, if only the Con-
stitution, the balance of power between the States
and the Federal government, and the authority of
the judiciary be upheld.

The Governor's conception of a mind possessed
of the higher learning is something cool, calm,
critical, dispassionate, unbiased—except always in
favor of things-as-they-are—something "arid, aloof,
"incurious," something "icily regular, splendidly null,"
an effectual wet blanket to all enthusiasm. But if
the "educated man" is to be of any use as a balance-
wheel, he must *be* one—a reconciler, a real pacifica-
tor, not a mere crier of "Peace, peace!" when there
is no peace. More weight thrown upon the side of
extreme conservatism but makes for more radical-
ism to antagonize it.

Governor Baldwin's fetch is the State. Men are
for the State, not the State for men. Politics is, to
him, not merely the supreme, but practically the
only science. Economics does not exist. The "class
struggle" does not exist. Classes do not exist—for
has he not said that we have no orders of nobility?
Law is: governments are. All else is delusion, or at
least "not proven." When he comes to discuss
Christian citizenship, as he must—these lectures on
the Dodge foundation call for it; he cannot dodge
it—he speaks, one imagines, a little perfunctorily.
The man of great learning may or may not conclude
that religion is a good thing for himself; but he will
see that it is a necessary thing for the common peo-
ple. "He will recognize the importance of religious
institutions as the greatest single police force of
civil government." The Governor, like the man,
whom he characterizes as sciolist-reformers, is, after
all, a man of one idea—politics. Our social ills, if
they exist, are slight, and the indicated remedy
savors somewhat of the Christian Science thera-
peutics—confidence in things as they are.

So it goes. Everybody, from the demagogue and
sciolist to the statesman with the calm, judicial mind
which is of university training the product—every-
body has his own especial sovereign remedy,
"And John P.
Robinson, he
Thinks the world will go right if he hollers ou
"Gee!"

HOMEIKE" NEW YORK

The First Established and Most Complete
Newspaper Citing Bureau in the World

REGISTER

From
Address
BOSTON, MASS.

MAY 15 1913

Date

SOME OTHER DOORS OF EDUCATION TO CITIZENS
BY Simeon E. Baldwin. New Haven,
Conn.: Yale University Press. $1.15 net. —
Mr. Baldwin says that the word "sanity"
is one of the great words of modern time, and
that the man of the higher education may
reasonably be expected to bring this element
to his politics and citizenship. Sanity is
just the word with which we should char-
acterize this volume: it leans towards no
extremes, and yet is not, in the least, devoid
of enthusiasm. For instance, it bids us
mark the difference between communism
and socialism, between socialism and syn-
odalism, which is its travesty. Mr. Baldwin
believes in belonging to some political party,
—that party "whose principles, on the whole,
must commend themselves to our judg-
ment."

This is only reasonable, as one can
hardly do any effective service outside of
organization. But a man "is to be never
the servant of a party. His party is his ser-
vant." Nor yet does he believe in that kind
of independence which is fairly represented
by the child "who was asked how much
seven times six made. 'Oh, dear,' was the
reply, 'I worked over that a week last win-
ter. I made up my mind it must be either
40 or 42. I've forgotten which, and now,
I don't care, for our class has got through
multiplication.'" This writer's ideas on the
kind of education one should receive are
generally admirable. He does not despise
college athletics, though they may have
been carried to a crazy excess; for the athlete
has "learned to be attentive, observable,
accurate, obedient. Athletic 'training' is
another name for self-renunciation and self-
restraint." A university education ought to
help us to "a steady balance of judgment."
Only the educated man can render to the
public the best service. Only he who knows
the causes of things can speak without fear
and without favor. "Naturally, Mr. Bald-
win does not believe in 'soft snap' courses,
and quotes Martineau, who said that the
college study which had done him the great-
est good was the higher mathematics, and
that he chose it because he hated it." By
the way, Dean Swift is credited with the bon
mot concerning Oxford, which we have so
often heard applied to our own Harvard or
Yale: "It is a seat of great learning. Every-
body who entered it brought some learning
with him; for, unless he did, he could not gain
admittance. No one, when he left the uni-
versity, ever took any learning away. There-
fore, it steadily accumulated there." Seri-
ously, the higher education of to-day ought
to bring to the scholar's citizenship a great
deal more than belongs to that of the aver-
age man. "His training has been for the
purpose of helping him to make the most of
himself, the most of life. It is doing that,
to exercise a wholesome and intelligent in-
fluence on the politics of the day." "The vote
of each educated man counts for more than
that cast by any other person. In Belgium
they recognize this by giving three votes to
those having a diploma from an institution
of higher learning." This may seem start-
ling to the free-born American citizen, but
it is not without a grain of sense.

WAKE FOREST COLLEGE
THE OFFICE OF THE PRESIDENT

WAKE FOREST, NORTH CAROLINA.

November 20, 1914.

His Excellency
Governor Simeon E. Baldwin,
Hartford, Conn.

Dear Sir:

I beg that you will accept my hearty thanks for a copy
of your paper on "Justice Between Nations".

Allow me to say that I have distributed your Wake Forest
Commencement address pretty widely amongst the leading people in
North Carolina. That address has done a notable service to the
State in providing a new list of priorities, to supplement if
not to displace the traditional list, -- "First at Bethel, farthest
at Gettysburg" etc.

P/E

Room F, 15 St. Paul Building,

New York City, January 7, 1913.

His Excellency
Hon. Simeon E. Baldwin,
44 Wall Street,
New Haven,
Conn.

Dear Governor Baldwin:-

I enjoyed my recent visit at your house.

You may be interested to hear what Judge Dickinson said concerning your book on Citizenship, as it was not said for publication or repetition to you. He asked me if I had read it, saying that it was the best treatment on the duties of a citizen that he had ever read and that it deserved to be not only read, but studied, which he was now proceeding to do. On being asked whether it was not just a trifle conservative, he protested that it was very liberal; but that may be because you both belong to the old school.

The Love's Of The Task.

IT is a commonplace but it is true
that a man who is in love with
a profession, his business or his
job—the man who does with his
craft
slam the things it is his lot to do
can invariably talk interesting about
it. Not infrequently he can talk
charmingly about it, that is, charm-
ingly to those who are not familiar
with the tasks required. The man
who fails to hold his audience is the
man whose heart is elsewhere, who
either dislikes his job or fears with
it as best he may.

Simeon E. Baldwin of this city, a man who has occupied the most responsible positions within the gift of the people and the governor thereof, and whose intelligence has been utilized by various organizations in and out of the state, belongs to the class of man who loves his work, who takes pride in its achievements and who lovingly commends it to the consideration of young men. In a book just issued by The Macmillan company, Judge Baldwin, under the title "The Young Man and The Law," proves every statement we have thus far made. We do not want to seem irrevquent but somehow the book makes the impression upon our mind of this distinguished ophthalmologist gathering around him before a coxy wood fire a miscellaneous group of young men and talking to them "heart to heart." about the attractions of the legal profession, the objections to choosing it as a career, the qualities of mind and heart that are required to succeed in it and the educational steps needed to achieve success. It is in the chapter on "The Ideals of the Profession" that the reader comes full tilt upon the almost unsuspected warmth and idealism of the man.

If we have any criticism to offer,
it is to the title of the book. It is
true that the contents, showing a
wide familiarity with the literature,
direct and indirect, of the subject,
are presented avowedly to the young
men who contemplate entering the
profession of law but it is also true
that it has its marked charm for
older lawyers and laymen in general.
The latter will read it with ease and
interest. If the layman wishes that
the book could be placed in the
hands of every lawyer, old and
young, and be made the cardinal
faith of them all, it is because he
appreciates the enormous service as
yet unreached by all, which lies
within the profession to give.

Public Opinion And Prohibition

THE evidence is multiplying that

## Bacon, Leonard

THE SONG OF ROLAND. TRANSLATED INTO METRICAL VERSE BY LEONARD BACON, *Instructor in English*, *University of California*.

"For eight centuries this early romance epic, written in mediæval French, has stood as a psychic illustration and literary consecration of ideals of feudalism. Many versions in prose and blank verse have been made, but none so complete in narrative and so surcharged with heroic spirit as is this latest rendering."—*The Philadelphia North American*.

The New York Nation

20 Vesey Street

From the Issue of

Abell V 19

EX-GOVERNOR Simeon E. Baldwin of Connecticut has written and privately printed a memoir of his grandfather, under the title "Life and Letters of Simeon Baldwin," for the purpose partly of introducing an ancestor to his remote descendants and partly of picturing the life and manners of a former generation. The work is interesting, and has considerable historical value in throwing light on the customs of Connecticut from the time of the Revolution to 1850, the more important period being that before 1800. Simeon Baldwin graduated from Yale in 1781, and was a life-long resident of New Haven, except for two years as a tutor in Albany and two years as a congressman in Washington. For twelve years he was a member of the highest court in his state and for fifty years a practicing lawyer. He was a son-in-law of Roger Sherman, and a father and grandfather of Governors of Connecticut. He never became, as his grandson says, a great scholar, a great lawyer, a great statesman, or a great judge; but he did or distance mediocrity, though never attaining in any direction highest rank. This biography of him is chiefly valuable, the documents that it contains—letters, diaries, and here printed sometimes in the form of extracts— sometimes in full.

N. Y. Genealog. & Biographical Record

1929

LIFE AND LETTERS OF SIMEON BALDWIN, by Simeon E. Baldwin, LL.D. 8vo, cloth, pp. 503, including index, illustrated. Price, $3.50, postpaid. Address: Edwin A. Smith, New Haven, Conn.

A biography of standard merit setting forth in detail the salient incidents of the life of one of Connecticut's strong men; it is rendered interesting also in its general view of the life and manners of a former generation. A congressman, judge and practicing lawyer, Simeon Baldwin added lustre to the galaxy of Connecticut's historic characters of whom he was by no means the least. Recommended to historical and genealogical libraries.

[April]

BOOK REVIEWS

431

say 5% would amount to the principal sum at the end of twenty years. This
instead of being $2,500 would be something nearer $1,000.

The Commission's finding as to the Value of Land is stated by the author to
be "a conscious attempt to apply *dicta* expressed by Justice Hughes in the
Minnesota Rate Cases" (p. 53). In criticism he says, "If there is one thing
that opinion did *not* do, it was to reach any decision explicitly about land. It
condemned what had been done; but it proposed no substitute program . . ."
(p. 53). "The truth would seem to be that Justice Hughes (following the
example of Justice Harlan in *Smyth v. Ames*) discussed phases of the problem,
and decided nothing except in terms of disapproval" (p. 68).

The author argues at some length for "Cost" as the proper measure of
Railroad Land, although he admits that the so-called "unearned increment" in
railroad lands is "comparable to the 'unearned increment' accruing in the rent
of sites devoted to other than railroad purposes" (p. 71). The argument is of
little convincing force and the logic seems to be faulty, unless the author is
willing to accept in full the theory held by some that land is a natural element
which should be used solely for the benefit of the community and never for
private gain.

In his chapter on "Cost," the author brings out clearly that "Investment in the Property" is made just as surely when money which might legitimately be distributed in dividends is put back into the property, as when it is furnished from other sources.

In the chapter on "Final Value," the author points out that lowering the rates will not *necessarily* reduce earnings. In the Kansas City Southern Case, present rates are assumed to be correct and value is based on capitalizing the earnings, present and prospective, based on those rates, and the author condemns the reasoning which he calls arguing in "the vicious circle."

The author's argument throughout this whole chapter, like that in the chapter
on land, is for "Cost" as the proper measure of Railroad Value, ignoring the
fact that the data necessary to find "Cost" does not exist, because many records
are missing and those which do exist were not kept in a way to divulge the cost
to date or the so-called "investment." From this predicament the author offers
no avenue of escape, but contents himself with a general condemnation of the
attempt which the Commission has made to find a figure of Value in accordance
with the mandate of law, implied at least in the Valuation Act, and required in
the Transportation Act.

The principal value of the book will be found perhaps in its citations of the
reports of hearings and of briefs filed with the Commission and the quotations
made from them. These citations are very full and, as an index, are very helpful
to the student of Valuation.

EDWARD G. BUCKLAND

New Haven, Connecticut.

*The Young Man and the Law.* By Simeon E. Baldwin. New York, The Macmillan Co., 1920. pp. 153.

It is not the object of the book, as the author states in his Foreword, either
to induce any man to take up the law as his life calling, or to dissuade him from
it. It is its object to state fully and plainly both the advantages and disad-
vantages of the legal profession in the United States, the opportunities which
it offers and the risks which it involves, the conditions of success, and the chances
of failure. The object of the book, as thus defined, has been successfully
and admirably accomplished. The book is instructive and interesting. It is a
book which was needed, and well worth the writing. That it has at last been
written, and written by a man so well fitted to the task, is something we may
congratulate ourselves upon. Its author, it is hardly necessary to say, is pecu-

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432

YALE LAW JOURNAL

liarly well qualified for the task he undertook. For many years he was a Pro-
fessor of Law in the Law School of Yale University, and he has served as Chief
Justice and Governor of Connecticut, and President of the American Bar Asso-
ciation, of the International Law Association, of the American Historical
Association, and of the American Political Science Association. While he is a
scholar of diversified learning his chief devotion has been to the law. And this
book is written by a man grown old in the law to the young man who has not
determined whether it is wise or not to adopt the law as his life work. It
sets forth the attractions which the legal profession offers to those who are
fitted to enter it. At the same time it states the objections which exist to choos-
ing the law as a profession. It is evident that the writer has attempted to state
both sides fairly and without bias. That he should devote twice as many pages
to the attractions as he found it necessary to give to the objections is only what
one would expect. Then follow chapters on The Personal Qualities Requisite
for Success in the Legal Profession, The Education Requisite for Success in the
Legal Profession, and one on The Ideals of the Profession.

Judge Baldwin writes that "no one can rise to the highest ranks of the legal profession who is not honest at heart." He adds, "One of Carlyle's wise sayings in *Past and Present* is this: 'How can a man, without clear vision in his heart first of all, have any clear vision in the head. It is impossible.'" Carlyle and Baldwin are quite right. A lawyer, at the head of the Bar of his State, told the reviewer that he once asked a Justice of the Supreme Court of the United States, with whom he was walking down the street in Washington, whether a certain man was a great lawyer. The reply was: "How can he be? He is without any moral sense."

In discussing the personal qualities requisite for success in the profession of the law the author begins by saying that in no profession will success be probable to one who is not of fair ability and industrious habits. In addition to these qualities the practicing lawyer should have steadiness of purpose, good sense, good judgment, and good knowledge of the workings of the human mind. A good character is a man's best capital in all callings. It is the indispensable capital for a successful lawyer. The author says:

"Self-confidence is another possession of particular value for a lawyer. It may, of course, be nothing but ill-disguised self-conceit; but, if it be not thus misnamed, it is a desirable quality for every man who would win success in any profession, and to a lawyer, where founded on a just appreciation of one's powers, will be a great help in assuming on occasion a burden which is to be suddenly taken up or rejected.

"A young lawyer should not shun responsibility. If an important or doubtful case is put in his hands, he should not ask his client, when it is coming on for trial, to retain older counsel to assist him. To make such a request is a confession either of incompetency or of want of knowledge of his own powers."

The charge that Legal Procedure is antiquated and unfair is commented upon at some length. The law is bound up with the modes and forms of judicial procedure. It cannot be otherwise. Courts exist to do justice, but always by following certain prescribed rules and methods. The author says:

"Courts of justice may become in rare cases, and for the purposes of a particu-
lar judgment, courts of injustice. This is a part of the necessary order of things,
under a system of permanent rules of procedure and decision. The parties
would not be justly dealt with, unless the court applied the rules as they exist,
notwithstanding it may support the maxim, *Summum jus, summa injuria*. Here
is one of the things that Kings are good for. Relief must be sought for the
past in the pardoning or dispensing power, if such there be; and for the future
in a change of legislation.

"Legal procedure takes its color from the nature of the law, the proper effect of which it is designed to secure. The law to be studied and invoked by American lawyers is in the main the Anglo-American common law. If it were to be found in the shape of a code framed, like that of France, a century or more ago, its mode of expression would be necessarily somewhat antiquated; and some