Unilateral Contracts. Another kind of contracts which do not exist (I plead the book) is unilateral contracts (sec. 24). A unilateral contract is as unthinkable as a unilateral elephant, or anything else which necessarily has two sides. Nobody would call a monologue a unilateral conversation, or a soprano solo a unilateral duet, or a lecture a unilateral debate. Then why call a promise, a unilateral contract? The two things, promise and contract, have this in common, that in both the presence of two parties is necessary; but in a promise there is but one actor, while in contract there are always two actors. In other words, a promise is always unilateral, and a contract is always bilateral at least. The book tells us that in simple contracts there is an "act for a promise," a "promise for an act," or a "promise for a promise" - always two actors. How then can there be a unilateral contract?

One way, we are told, is by a "contract under seal," when one party makes a promise without receiving any consideration for it (sec. 23). But that is to call a promise a unilateral contract - which would be as sensible as calling a lonely run a unilateral foot race, or a single baby unilateral twins.

Another sort of unilateral contract, the book tells us, is a promissory note (sec. 24, note). But a promissory note is a promise, and is not in the least like a contract. Observe this: In consideration of the transfer of a horse, A agrees to hand to B, within three days, a promissory note for $200 endorsed by, etc. That is a contract. There are two actors. The promissory note, when given, is not another contract; it is a promise. When the book indicates that a contract may consist of a "promise for a promise," one would not expect that a promise would itself be said to be a contract, whether unilateral or other. If I were to call two reciprocal promises a bilateral promise, instead of a contract, you would tell me that I was making a mess of my vocables. Ought I to be less frank when you call a single promise a unilateral contract, instead of what it is?

Agency from Necessity. In section 444 the book tells us: "Circumstances operating upon the conduct of the parties may create in certain cases agency from necessity. . . . A husband is bound to maintain his wife: if therefore he wrongfully leave her without means of subsistence she becomes 'an agent of necessity to supply her wants upon his credit.' . . . In all these cases the legal relations between principal and agent do not arise from agreement; they are imposed by law on the parties without their consent in order to promote general welfare."

I presume that the "necessity" is that of ascertaining some legal basis upon which to found liability: No man can be made liable for what neither he nor his agent orders; the deserted wife was not an agent; therefore - What? therefore the fact must be changed, and the wife must have been an agent. Can anything be more absurd? Why did not the writers question the validity of the major premise? Do not tell me that one hundred and seven years ago a judge spoke of "an agent of necessity." I know that. But the judge is dead, and the evil which he did ought to have been buried with his bones.

Why did the writers overlook such a glorious opportunity for the introduction of the "quasi" idea? Why not say that the wife was an "as-if" agent? That looks like burlesque; but quasi-agent is quite as respectable a conception as quasi-contract. Or why did not the writers declare that the wife was a "unilateral" agent? That would be, no doubt, to posit an agent without a principal. But unilateral bilateralia must always be somewhat anomalous (Pistol practice as a unilateral duel is a good example). And the conception is not a whit more objectionable than that of a unilateral contract. That two people can draw together (con together, + trahere, draw contract) by one of them drawing by himself, is a notion that even Lord Dundreary's poor wit would have rejected. For, commenting on "Birds of a feather flock together," he said: "Of course they do. One of them could not go into a corner and flock

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all alone." Might we say that the one in the corner was doing a unilateral flock?

Plainly the trouble lies in uncritical acceptance of the major premise above referred to. It is not true that a man cannot become liable except by action of hfmself or his agent. When, for example, by statute I am made liable to pay certain municipal taxes, and when the taxes are declared to be a lien upon my property, accompanied by a power of sale in case I fail to pay, nobody has ever based liability of me and my property upon a fictitious agency "from necessity" (What a mess!) of the municipality. It has been deemed sufficient to say that the law had declared that, without any act of mine or on my behalf, either by a voluntary or an imposed agent, I am liable to pay. Why, then, might not we say that under certain other circumstances I may be made liable for groceries purchased without my authority? That in the former case the law was embodied in a statute is, of course, immaterial. Our judge-made law has the same compelling force; and it, too, may some day go into a statutory code.

Agency by estoppel. In 1900, in my book on Estoppel, I distinguished among the cases in which an unauthorized act bound the person on whose behalf it was done, as follows:

1. If an agent acts within what appears to be his authority, the principal is bound.

2. If an agent appears to be acting within his authority, the principal is bound (p. 501).

Some years ago the distinction was carried (without acknowledgment of source) into Halsbury's Laws of England. Anson and his editor are aware of the first of the propositions, but do not appear to have heard of the second. And yet, without it, scientific distribution of the cases cannot be made.

Again, in section 453 the book tells us: "It should be observed - indeed it follows from what has been said that X cannot by private communications with A, limit the power which he has allowed A to assume." This is followed, as illustration, by a case in which it is said that "Jones, however, forbade Russell to draw and accept bills." Jones could not do it, but actually did it. What the writers meant to say was that although Jones could, and did, limit Russell's authority, yet he (Jones) was liable.

Ratification. The book entirely ignores the fundamental difficulty about ratification (sec. 445). The usual "rules" are sufficiently stated, but the writers appear to be unaware of the objection to the whole doctrine. If A agrees to sell, and X, on behalf but without the authority of Y, agrees to purchase a horse for $200, no contract has been created. A is not bound to sell, and Y is not bound to purchase. Nevertheless the book speaks of such a futility as "a contract made without authority" — which, like unilateral contracts, is a mere contradiction in terms. Commence with that, and you easily slip still farther into such language as this, for example: "a contract of insurance made by an agent without his principal's authority" (p. 514); whereas, under such circumstances there is no agent, and no principal, and no contract.

The question which the book fails to notice is: If when the document above suggested was signed it was nothing at all (except a misrepresentation by X), how can it become a contract by the act of somebody who was not a party to it? If we call it a contract made by an unauthorized agent, we may drift into ratification. But if it was nothing, can Y treat it as an option in his favor, which he may exercise or not as he pleases? A did not intend to give an option. The doctrine of ratification declares that that is precisely what he did.

Burden of Proof. — In discussing the burden of proof (sec. 369), why is Professor Thayer's illuminating distinction between the burden of proof and the burden of going forward ignored?

Waiver. Nowhere in the book is there a wider departure from sanity than in the sections relating to waiver (secs. 151, 365, 366, 412–414, 430). Criticism

here subsides into silent, suffering condemnation. The writers have seen my book on "Waiver distributed among the departments Election, Estoppel, Contract, and Release," but it has not been of the slightest service to either of them.

And so, to the frequently repeated assertion that Anson on Contracts is the best book on the subject, I am still constrained to say, "Possibly, but what a distressingly humiliating confession!"

OTTAWA, CANADA.

JOHN S. EWART.

CELEBRATION LEGAL ESSAYS. By Various Authors. To Mark the Twentyfifth Year of Service of John H. Wigmore as Professor of Law in Northwestern University. Chicago: Northwestern University Press. 1919. pp. 602.

This collection of articles, first fittingly published in the Illinois Law Review, is now issued in a single volume, with a useful index. While Festschriften have not been common in this country - that presented by his colleagues to Professor Langdell being among the first this occasion is well justified by Professor Wigmore's distinguished career.

His first professional appointment, in a Japanese university, naturally turned Wigmore's attention to the general principles, rather than the details, of the common law; and immediately upon his return to this country and his appointment to the Northwestern University he began to give us the results of his speculative thought. His legal masters were, like those of most of us in that day, Thayer and Ames; and it is significant that Wigmore's most fruitful work has been in their fields, Evidence and Torts. From Ames he acquired the power of legal generalization which he has so nobly used in his analysis of the law of Torts; from Thayer the historic method and the point of view which he has worked out in his monumental book on Evidence. But while he has individually and originally developed these suggestions of his masters, Wigmore's great achievement as a legal scholar, his chief claim to fame, above his marked originality of analysis and his incisive individuality in construction, is his patient, energetic massing of his materials, his thorough and lawyerlike presentation and consideration of his evidence, his open-minded dealing with theories and arguments. His "Evidence" is the last word on the subject, because it covers everything that can profitably be said about it; his remarkable collection of materials for the study of Torts gets its chief value from the fact that one need not step outside its covers to find what material one requires. A classmate delights to lay at Wigmore's feet this slight word of appreciation for the individuality, the originality, and the scholarship of his friend.

Are the articles worthy of their occasion? That could hardly be expected of all of them. Inter arma leges at least minime dicunt. Out of thirty-three articles it is a pleasure to find at least eight of adequate quality. If one were to be selected for special commendation, the reviewer would name the remarkable study on Liberty of Testation by Professor McMurray. The other twentyfive are for the most part slight, but none profitless. As a collection it is worthy of serious study.

JOSEPH H. BEALE.

THE GROTIUS SOCIETY: PROBLEMS OF THE WAR. Volume II. London: Sweet and Maxwell. 1917. pp. xxv, 178.

This is a collection of the papers read before the Grotius Society in 1916. The rules of that body say that "it shall be a British Society." As many of the opinions on international law expressed in the present war by citizens of belli

gerent countries have been so partisan as to cast discredit both upon the authors and upon the science in which they have been supposed to be experts, the reader inevitably opens this volume with suspicion. Yet these papers are scientific and fair. This is extraordinary in view of the topics covered: "The Treatment of Enemy Aliens;" "The Appam;" "The Principles Underlying the Doctrine of Contraband and Blockade;" "War Crimes;" "The Nationality and Domicil of Trading Corporations;" "Neutrals and Belligerents in Territorial Waters;" "The Treatment of Civilians in Occupied Territories;" "War Treason;" etc.

For an American there are at least two papers of peculiar interest. The one entitled "The Appam" serves as a valuable commentary on the case eventually decided March 6, 1917, and reported in 243 U. S: 124, under the title "The Steamship Appam." The paper on "The Principles Underlying Contraband and Blockade" frankly objects to the American historic attitude regarding the rights of neutrals, and raises the suspicion that the author does not recognize the abnormalness of war and actually believes, after the fashion of militarists, in a duty of neutrals to give up their commerce or at least to modify their commerce in the interest of belligerents; but it is noticeable, and creditable, that the success of the author's contention would have been detrimental to the British, as the author well knew, for he said (p. 28) that “it is beside the mark to dwell on the fact that in the present desperate struggle Great Britain and the Cause of Right are vastly benefiting, in view of the British control of the sea."

An unfortunate mark left upon the papers by war is the evidence of haste, for the writers worked rapidly in view of special emergencies, and there was not time for thorough research. Thus in the paper on "The Treatment of Enemy Aliens," instead of beginning, as a man with leisure might begin, with the fortyfirst article of the Magna Charta of 1215, "the writer does not propose to go back to the times before the birth of International Law, but limits himself to the provisions of such treaties bearing on the position of enemy aliens on the outbreak of war as are accessible at the moment" (p. 2); and the result is that he begins with 1659, a date quite early enough for practical purposes. Indeed, perhaps it is wrong to suggest a regret that there are marks of haste, for the cause of those marks is also the cause of a certain sprightliness and shrewdness not always found in the work done by men of leisure. However that may be, it is certain that as yet there has appeared no more scholarly or comprehensive volume dealing with the international law problems of the World War, and also that the circumstances in which the papers were produced must cause them to be of permanent interest.

E. W.

By Elliott Judd

A PRELIMINARY TREATISE ON THE LAW OF REAL PROPERTY. Northrup. Boston: Little, Brown and Company. pp. 414. The author states in his preface that the book is intended to serve as a text for a short course on real property law, each chapter to serve as a lesson. In dealing with students beginning the study of law, there are some parts of the law of real property which it is better to cover, in the main, by mere exposition. These include rules which can be stated with a certainty approximating mathematical certainty, and which are part of the historical background of the modern law of real property. Professor Northrup's work contains an exposition of such matters as the feudal system and tenure, estates, forms of concurrent ownership, seisin and disseisin, reversionary interests, vested and contingent remainders, the rule in Shelley's case, descent, curtesy, dower, and methods of conveyancing at the common law and under the Statute of Uses. The exposition is careful, compact, and clear.

There are other portions of the work which are less satisfactory. Such topics

as fixtures, easements, natural rights, waste, covenants running with the land, and covenants for title readily lend themselves to, and require for their understanding, a study of specific cases. An exposition of general principles is not only inadequate but is dangerous, because it leads students to believe that they have a sufficient understanding of the topics when they have not. Further, there are some topics mentioned in the work which are so difficult that they plainly should not be dealt with by brief summaries; for example, it is submitted that it is a mistake to present to a student, beginning the study of law, an exposition in sixteen pages of restraints on alienation and rules against

remoteness.

The work covers familiar ground; but the author has an intellectual conscience, and he has made no attempt to attract attention by inventing a new vocabulary, and elaborating the familiar in the terms of such vocabulary. The author modestly states that the book is intended only for the use of students, but any teacher of an introductory course on the law of real property will find that a careful reading of the work is repaid by the suggestions which are im plicit in the author's arrangement and distribution of emphasis.

E. H. W.

GOVERNMENT ORGANIZATION IN WAR TIME AND AFTER. By William Franklin Willoughby, Director of the Institute for Government Research. With an Introduction by Frederick W. Keppel, Third Assistant Secretary of War. New York and London: D. Appleton & Company. 1919. pp. xix, 370.

BRITISH WAR ADMINISTRATION. By John A. Fairlie. New York: Oxford University Press. 1919. pp. x, 302.

The administrative methods by which the two great English-speaking democracies mobilized for war and carried on the operations of war were at once so similar and so characteristically dissimilar that upon the appearance of two books on the subject, one dealing with America and one with England, the inevitable preliminary suggestion is that they be read together.

The necessities of modern warfare in all its complexity in one respect affected both countries in the same way. Single administrative authority in America and unified administrative authority in England for the mass of hitherto unclassified war measures became accomplished facts almost without interference by the legislative bodies and with the aid of enabling legislation of a most sweeping character. In America the war was administered by the President as Commander-in-Chief of the Army and Navy, with added powers liberally conferred upon him by Congress. In England, with centuries of administrative experience to draw from, the war was administered by a Cabinet in its various forms, acting through Orders in Council by virtue of the royal prerogative, supplemented by many enabling acts passed by a willing Parliament, and by at procedure which reverted to the form of the Elizabethan Privy Council, but which operated through administrative agencies such as were forecast by the Parliamentary Government in the time of Pitt. The British War Cabinet eventually became a committee not of Parliament but of the Privy Council, and the heads of important ministries often were not members of Parliament at all.

As to the measures adopted by the ultimate administrative authorities in the respective countries, a comparison of substantive characteristics would lead too far afield even for casual reference. Once a substantive measure was determined upon, the administrative methods by which it was to be accomplished often differed materially in the two countries. In America public opinion was