of others there will be no merger. Sherlock v. Thompson, 167 Iowa, 1, 148 N. W. 1035. In the principal case no one had any standing to object if the trustee conveyed to herself. Partridge v. Clary, 228 Mass. 290, 117 N. E. 332. See A. W. Scott, "Control of Property by the Dead," 65 UNIV. OF PA. L. REV. 649-650. The sole reason for keeping the trust alive would be to give effect to the testator's ill-expressed intent that the enjoyment of the corpus of the trust be postponed. In England and in some of our jurisdictions a postponement of the enjoyment of the interest of a sole cestui que trust would be invalid aside from the question of merger. Saunders v. Vautier, 4 Beav. 66; Magrath v. Morehead, L. R. 12 Eq. 491; Huber v. Donoghue, 49 N. J. Eq. 125, 23 Atl. 495. Contra, Claflin v. Claflin, 149 Mass. 18, 20 N. E. 454. And, even in the jurisdiction which enunciated the doctrine of Claflin v. Claflin, such limitation will be disregarded if circumstances make postponement of enjoyment inexpedient. Sears v. Choate, 146 Mass. 395, 15 N. E. 786. The Massachusetts court has recently approved the language in Sears v. Choate and has expressed itself in accord with the principal case on similar facts. See Langley v. Conlan, 212 Mass. 135, 138, 98 N. E. 1064, 1066.

VOLUNTARY ASSOCIATIONS ACTIONS AGAINST. The plaintiff was expelled from membership in an unincorporated association, upon a vote of the members of the association, because of an alleged violation of a regulation of the society. He brought an action for damages against the society in its collective name without service on the individual members, and recovered judgment. Held, that judgment be reversed for want of jurisdiction. Simpson v. Grand International Brotherhood of Locomotive Engineers, 98 S. E. 580 (W. Va.). For a discussion of the principles involved in this case, see NOTES, supra, p. 298.

RIGHT TO TAKE

WATERS AND WATERCOURSES PROFITS À PRENDRE · FISH ON A NON-NAVIGABLE, NON-TIDAL STREAM. - The defendant was alleged to have converted mussels by taking them from the bed of a non-navigable, non-tidal river at a place where the plaintiff was owner of both banks of the stream. A statute declared that title to all game and fish was vested in the state (1909 Mo. REV. STAT., c. 49, § 6508). Held, that the plaintiff could not recover. Gratz v. McKee, 258 Fed. 335 (Circ. Ct. App., 8th Circ.).

Title to the beds of all navigable streams is vested in the sovereign in trust for the public. Forestier v. Johnson, 164 Cal. 24, 127 Pac. 156. See Commonwealth v. Alger, 7 Cush. (Mass.) 53, 90. Contra, Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273. By the English and early American common law the existence of a tidal ebb and flow determined navigability. Adams v. Pease, 2 Conn. 481; Hooker v. Cummings, 20 Johns. (N. Y.) 90. Geographical conditions have altered the test in many jurisdictions to navigability in fact. The Daniel Ball, 10 Wall. (U. S.) 557. See Kinkead v. Turgeon, 74 Neb. 573, 584, 109 N. W. 744, 746. But some jurisdictions have retained the earlier rule. Lattig v. Scott, 17 Idaho, 506, 107 Pac. 47; Washington Ice Co. v. Shortall, IOI Ill. 46. When the bed of a stream is owned by the sovereign, the right of fishing is public. In re Provincial Fisheries, 26 Can. Sup. Ct. 444. See Dunham v. Lamphere, 3 Gray (Mass.), 268, 271. By the great weight of authority the owner of both banks of a non-navigable river, who is thereby owner of the subaqueous soil, acquires the exclusive right of fishing. Beach v. Morgan, 67 N. H. 529; Queen v. Robertson, 6 Can. Sup. Ct. 52. But some courts hold that the right of fishing is incident to the general easement of passage over public waters. See Hartman v. Tresise, 36 Colo. 146, 162, 84 Pac. 685, 690. The right to fish upon the land of another is a profit à prendre and is incapable of creation except by grant or prescription. Fitzgerald v. Firbank, [1897] 2 Ch. 96. See Cobb v. Davenport, 33 N. J. L. 223, 225. An action will lie for violation thereof.

Griffith v. Holman, 23 Wash. 347, 63 Pac. 239. The principal case appears to accept the doctrine that fishing rights are dependent upon the public character of the waters, regardless of the ownership of the subaqueous soil, although it emphasizes the more narrow procedural ground that trover will not lie, as title to the mussels is vested in the state.

BOOK REVIEWS

JURIDICAL REFORM. A Critical Comparison of Pleading and Practice under the Common Law and Equity Systems of Practice, the English Judicature Acts and Codes of the Several States of this Country, with a View to Greater Efficiency and Economy. By John D. Works. New York: The Neale Publishing Company. 1919. pp. 199.

Fifty years at the bar and on the bench may serve to confirm a lawyer in the idea that the main lines of the procedure with which he has been familiar for half a century were ordained by nature and, beyond a few cautious changes in details, must not be questioned, or they may make him conscious of the magnitude of the task confronting the lawyer of to-day on whom rests the chief responsibility for making the legal administration of justice an effective instrument of social engineering. Mr. Works, a soldier in the Civil War, practitioner in Indiana and in California, author of two well-known legal texts, sometime Justice of the Supreme Court of California and United States Senator, writes from abundant and varied experience and with first-hand knowledge of the defects in American judicial organization and procedure of which he speaks. Hence his pronouncement that we have too many courts (p. 25) and that the intermediate appellate courts now so common in this country are a “blunder" (p. 26), his approval of committing regulation of procedure to rules of court. rather than to legislation (p. 43, also chap. 14), his argument for abolishing the demurrer (chap. 5), and his preference for an appointive bench (p. 128), add weight to opinions now general among thinking lawyers.

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But Mr. Works does more than approve of these things which have come to be commonplaces in programs of law reform. On occasion he shows himself a bold, independent thinker, as, for example, in his comments on the practical impossibility of the statement of facts constituting a cause of action or defense such as the codes of procedure contemplated (p. 45), something which the framers of the federal Equity Rules should have had before them when they penned rule 25, with its call for the "ultimate facts," - in his remarks as to the jury in civil cases (p. 50), his observations as to the attorney general and the federal courts (p. 123), and his views on the subject of appeals (pp. 86-87). The last two deserve notice. Sir John Hollams in 1906 - thinking, perhaps, of a situation in which the decision of a county judge was reviewable by a divisional court, which was reviewable by the Court of Appeal, which was reviewable by the House of Lords-wrote that, as he believed, "A majority of suitors would prefer a system without appeal" (Jottings of an Old Solicitor, 161). For many cases the elaborate series of appeals is now abridged in England. But three hearings are still possible and common. Mr. Works, familiar with a system where two appeals are permissible and common, is also willing to abolish appeals. Perhaps a better course would be to provide for but one appeal and greatly to simplify appellate procedure, treating an appeal as a motion for a rehearing or new trial, or for vacation or modification of the order or judgment complained of, before another tribunal. It is significant, however, that two experienced and orthodox common-law lawyers should come independently

to the conclusion that the law ought not to be settled for the benefit of the commonwealth by subjecting private litigants to a system of repeated and elaborate judicial reviews. As to the other point, Mr. Works argues convincingly the impropriety of subjecting federal courts and the conduct of business in those courts to the scrutiny and even control of one who practices as counsel for one of the chief litigants therein. In an address before the conference of the BarAssociation Delegates at Saratoga in 1917 I ventured to say: "It is doubtless enough for the Attorney General, who is the counsel of the state in its capacity of a juridical person, owning property, a creditor of some, a debtor to others, and sometimes a tortfeasor, to conduct the state's litigation and have charge of enforcement in the courts of the laws guarding public and social interests. For these purposes an advocate is required. Another type of lawyer should be minister of justice." Mr. Works reinforces this point by showing how the advocate for one of the litigants is able to influence the tribunal so that what would be legitimate in a Ministry of Justice runs counter to the traditions and policy of common-law judicial administration as our department of justice is actually constituted.

Long experience before elective courts in Indiana and in California has made Mr. Works an exceptionally competent witness. Hence what he says as to the abuses in impaneling juries in many states and the cause thereof (p. 50), of the causes of long and unprofitable cross-examinations (p. 54), of the relation between long trials and weak judges (p. 54), of the causes of the bad habits that have grown up in the trial of causes in so many state courts (p. 55), of lack of judicial courage as a cause of long holding of causes under advisement (p. 58), and of the relation between weak judges and the "state of the authorities" (p. 62), deserves to be read and pondered wherever the bench is elective. Even more are these things true where, as is now general, judges are chosen by a direct primary. Desire of sitting judges to "make a record" leads to the abuse of written opinions in the trial courts (pp. 67-68) and to unseemly displays for the edification of newspaper reporters. But, what is much worse, judges soon learn that the great point under such a system is not to offend any one, and this leads, for example, to laxity as to continuances (p. 47), and to toleration of many other time-consuming and expensive practices. Especially noteworthy are the remarks as to recent methods of canvassing for judicial office and judicial candidacy for political office (pp. 108-110).

Where so much that is good is put in such small compass, one hesitates to criticize. But it is to be regretted that Mr. Works did not give more effectiveness to his experience and reflection by looking into the modern literature of procedural reform more thoroughly. He says nothing about an administrative head of the judicial system, he does not notice the distinction between issuepleading and notice-pleading, and so does not see how and why code pleading fell between them, and for English practice he appears to rely on Foulkes's Action in the Supreme Court (3 ed., 1884) and so is not aware of the great improvements made after 1890. Also, although he makes a good point with reference to the separate teaching of common-law pleading and code pleading (p. 20), he is not aware that James Barr Ames long ago compiled a book for students on the very lines he recommends. Perhaps we should not complain that he conceives the distinction between law and equity to inhere in the nature of things and to be beyond legislative reach (p. 19). For such views, and those with respect to the logical character of common-law pleading (p. 11) and the fixed and unchanging character of the common law as compared with the civil law (pp. 13-14), serve to prove to us that we are reading the book of a thoroughgoing common-law lawyer, and not the pronouncements of a (presumably) heterodox and impractical professor.

"Juridical Reform" deserves wide circulation and careful reading in and out of the profession. ROSCOE POUND.

THE LEGAL OBLIGATIONS ARISING OUT OF TREATY RELATIONS BETWEEN CHINA AND OTHER STATES. By Min-Chien T. Z. Tyau. Shanghai: Commercial Press. 1917. pp. xxii, 304.

CHINA'S NEW CONSTITUTION AND INTERNATIONAL PROBLEMS. By Min-Chien T. Z. Tyau. Shanghai: Commercial Press. 1918. pp. xv, 286.

The reviewer is fortunate in being personally acquainted with the author of these two volumes and knows of the very important public service which Dr. Tyau is performing as the independently minded editor of the Peking daily Leader. The Chinese are attempting to develop in their country a true public opinion with regard to. matters political and thus to lay a basis upon which the substance as well as the form of republican rule can be realized. In this movement Dr. Tyau is playing an important part. That, however, which gives especial value to the two volumes which he has published is that they are an addition to the very scanty juristic literature of China. Since the time of Confucius, some twenty-five hundred years ago, China has not lacked thoughtful treatises dealing with the art of Government as a branch of ethics, but studies by Chinese scholars in the fields of constitutional and international law have been very few in number. When one has mentioned Dr. Koo's "The Status of Aliens in China" the list is almost exhausted.

Of the two volumes by Dr. Tyau, much the more important is the one first listed. The study was prepared as a thesis for the degree of Doctor of Laws in the University of London and gives evidence of genuine scholarship. After a brief historical survey of China's relations with foreign powers, the topical method of considering the treaties themselves is adopted: agreements and conventions of a political character being discussed in Part I; treaties of an economic character in Part II; and treaties of a general character in Part III. The subtitles in Part I are: rights of intercourse, rights of representation, consular jurisdiction and extraterritoriality, concessions and settlements, leased areas, and right of preference. The subtitles in Part II are: rights of trade and residence, right to uniform tariff, cabotage, rights of navigation and inland waters, rights of trade and travel in the interior, rights of landholding, of railroad construction, mining exploitation, and loans. The treaties of a general character are discussed under the chapter headings: right of protection, religious toleration, reciprocity, most favored nation treatment, and treaty interpretation.

Space will permit only a general characterization of Dr. Tyau's work. It has been, upon the whole, well done. The arrangement is logical, original sources have been resorted to, and the conclusions of law are accurately drawn. The final impression which is left upon the reader's mind, and, as the reviewer can testify from personal experience, the correct one, is that the legal situation in China is an extraordinary complicated one. President Lowell has spoken of the Austrian-Hungarian Empire-Kingdom as a laboratory of political experiments. The same may be said of China with reference to her dealings with foreigners and their governments. As the writer has had occasion to say in a contribution to the Far Eastern Review: "To the student of international law and diplomacy China is one of the most interesting countries in the world. When a country is not only nominally sovereign but wholly autonomous in the management of its own domestic affairs, its international rights and responsibilities are easily determined by reference to the well-established principles of public law. But when, as in the case of China, we have a state which has permitted, or has been compelled to grant, the exercise within its borders of all kinds of extraterritorial privileges, when there exists within its limits political areas denominated 'Concessions,' 'Settlements,' 'Legation Quarters,' Treaty Ports,' 'Leased Territories,' 'War Zones,' 'Foreign Police Boxes,' 'Military Occupations' under the terms of secret military conventions,

and 'Spheres of Influence,' not to speak of a multitude of special arrangements with foreign Powers regarding commercial and industrial rights, railways and mines, loans and currency - when this is the situation we have a condition of affairs which provides a superabundance of material for discussions by the students of international jurisprudence."

Dr. Tyau's later volume, as its title indicates, deals primarily with the constitutional situation in China. It is by no means as important a contribution to political science as is his earlier work. In the main it is devoted to an analysis of the draft of a permanent constitution which the Chinese parliament discussed in 1916 and 1917, but upon which it did not come to a final agreement before it was for the second time dissolved by imperial mandate. And, it may be remarked, this instrument still remains unfinished, and China continues to be governed, avowedly at least, under the "Provisional Constitution" hurriedly drawn up in the early days of 1912. The portion of the volume dealing with international questions furnishes additional discussion of points covered in the earlier volume. The problems of treaty revision are specifically considered, and some attention is given to ameliorations of the international restrictions upon China's freedom of action, which Dr. Tyau hoped might be secured at the Paris Peace Conference - hopes that were doomed to disappointment. One statement may with confidence be made. If a League of Nations is established and takes its duties seriously it will find in China alone an abundance of material upon which to busy itself.

JOHNS HOPKINS UNIVERSITY.

W. W. WILLOUGHBY.

THE LABOR LAW OF MARYLAND. By Malcolm H. Lauchheimer. Johns Hopkins University Studies in History and Political Science. Series XXXVII, No. 2. Baltimore: Johns Hopkins Press. pp. 163.

Mr. Lauchheimer's dissertation is a most timely and disinterested study in troubled waters. He has set out comprehensively and without the coloring of partisanship the labor law of a typical American State - typical, as he says, in the sense that it is neither among the most progressive nor the most backward. It is the law which governs the employment of the vast majority of American workers. It may, then, be reasonably supposed to set forth those principles of social justice for which we have heard our democracy eulogized in recent conferences, and to the support of which our voters have been earnestly summoned under the banner of "Americanism." The duty to examine it carefully is obvious.

Mr. Lauchheimer introduces his subject with a short review of the criminal statutes, from Edward III to Victoria, which sought to suppress or limit the workers' use of collective action. I think that he attaches too much importance to the fact of their repeal and the subsequent statutory legitimations of unionism. A legal attitude of five hundred years of fear and distrust of combination by labor is not eradicated by simple words of repeal. The repeal only changed the mode of its expression from formal criminal prosecutions to the use of the doctrine of implied malice in civil actions, and the consequent injunction and contempt proceedings. But from another point of view these statutes are important. They were the product of conditions and theories of the function of the state which the war has reproduced. The struggle to create governmental authority after the Wars of the Roses made all combinations within the state as jealously regarded as they were with us during the recent war, while our "mobilization of industry," like the Tudor experiment in state-directed production and trade, made combinations of labor seem peculiarly like preparations for rebellion. The Tudors, not being troubled with notions of laissez