LAW AND THE FAMILY. By Robert Grant. New York: Scribners' Sons. 1919. Under the title of "Law and the Family" Judge Robert Grant of the Boston, Massachusetts, Probate Court has collected a series of essays or papers for laymen upon such subjects as Women and Property, the Relation of the Third Generation to Invested Property, generally when it comes out of trust, the Perils of Will-Making, the Future of Women under the Law, Domestic Relations, Feminine Independence, and Marriage and Divorce.

The position of Judge of Probate in an important county in a New England state may, under favorable circumstances, be a singularly interesting and broadening experience, and Judge Grant in his varying capacity as an author and a judge is excellent evidence of the possibilities of this office. Departing in this case from his more usual habit of writing fiction, he applies the insight of an author to the problems of an administrative judge. A good judge of probate never loses touch with the lay portions of the community. Every twenty years or so all the property in the community passes through his court and under his eye. A very substantial part of that property remains under his eye year after year as trust property. The interpretation of the law to laymen could not easily come from a better source. The man who is part judge, part parens patrii, and part administrator, must necessarily understand the institutions of property and inheritance as laymen experience them.

The variety of subjects dealt with by Judge Grant is too great for comment here. From the interesting suggestion that women will make good executors based upon the will of the late Secretary of State Richard Olney, through the discussion of whether it is better to have a conservative trustee or a brave one, Judge Grant passes on to the melodrama of adoption, the domestic relations, and divorce.

His book merits attention principally because of the skill and insight with which he presents the common sense of law as he administers it. His views should be interesting both to the laymen who do not understand law, and to the lawyers who cannot see the wood for the trees.

BOSTON.

RICHARD W. HALE.

CASES ON THE LAW OF EVIDENCE. By Edward W. Hinton. St. Paul: West Publishing Company. 1919. pp. xxiii, 1098.

This collection of cases is well adapted to its purpose: instruction in the law schools. The arrangement is especially good. In chapter I the editor treats of the respective functions of court and jury, including such topics as The Burden of Proof, Presumption, and Judicial Notice. Some difference of opinion exists among teachers as to the proper placing of these extraneous matters; Professor John H. Wigmore in both editions of his Cases on Evidence placed them near the end; and many teachers have followed this method in the arrangement of their courses; on the other hand, Professor Hinton follows Professor James Bradley Thayer in treating them at the beginning. The writer ventures the opinion that the latter is the better method, since these topics mainly involve certain matters of procedure which the student should know before he is called upon to examine cases dealing with the law of evidence proper. Moreover the topics are comparatively difficult and uninteresting; it is true that for this reason some instructors prefer to take them up last, but it is submitted that it is better for instructor and student to get this rather disagreeable task out of the way as soon as possible.

Chapter II deals with Witnesses. Certain instructors have preferred to treat this subject first, being largely influenced by the fact that it is the part of the course most attractive to the student. In Thayer's Cases the subject is treated

last. Professor Hinton justifies his intermediate arrangement by the assertion that the rules relating to witnesses throw light on the hearsay rule. On the other hand, it is obvious that a knowledge of the hearsay rule is valuable in dealing with privilege and impeachment, and therefore it seems that there would be good reason for retaining Mr. Thayer's arrangement.

The editor has seen fit to devote sixty-nine pages to the subject of privilege; it is submitted, however, that a larger treatment is desirable in view of the uncertainty and difficulty of the law and the frequent recurrence of decisions relating to this subject.

Chapter III treats of The Hearsay Rule. It is a notable feature that the editor discards the classification of res gesta, which is probably a wise change in view of the many perversions of the term. He also omits the usual classification of Declarations of Mental State, arranging cases of the type of Mutual Life Insurance Company v. Hillmon under the heading of "Spontaneous Statements." It is submitted that it is difficult to discover the spontaneity of such statements and that it would have been preferable to adhere to the former practice as exemplified by the collections of Professor Thayer and Professor Wigmore.

The arrangement of the remaining chapters, which deal with Opinion, Circumstantial Evidence (including Character), The Best Evidence Rule, and The Parol Evidence Rule, reflects the experiences of the able teacher.

In truth the book is replete with instances showing the editor's purpose to make it a book useful for teaching. Perhaps there has been a sacrifice of logical arrangement in some parts; but this result is fully justified by the fact that it meets the requirements of the natural order of presentation. The section dealing with Character is an illustration of the way in which the editor has kept his objective constantly in mind. In this section he deals, in the order named, with the character of the defendant in a criminal action, the character of the deceased in a prosecution for homicide, the character of the prosecutrix in a prosecution for rape, the moral character of a party to a civil action, and character for carefulness or negligence in a civil action. A further illustration is found in chapter IV, entitled Opinion and Conclusions, which deals successively with the lay witness, the expert witness, and the subject of handwriting.

Professor Hinton recognizes the impossibility of crowding the whole of this immense subject into the limits of a single case book, but it is remarkable how far he has gone toward achieving this result. He has accomplished this by a judicious selection and abridgment of cases and by the use of appropriate foot-notes. Facts are usually fully stated, or if condensed, carefully summarized; and no unduly long opinions are reproduced. The foot-notes are numerous, concise and apparently accurate. Certain matters have been unavoidably passed over, but it is believed that the matters which the lawyer meets most frequently in practice are given proper place in the book.

The immensity of the subject has given to the editor opportunity to select new cases; comparatively few of his cases are contained in previous collections; the book is original as to contents as well as to arrangement. Furthermore, the cases appear to have been wisely selected with respect to time; while all stages in the history of the law of evidence are represented, recent cases are properly given a large place.

Altogether the book is a valuable contribution to the subject, and reflects sane, careful, and scholarly preparation in a marked degree. MORTON C. CAMPBELL.

HARVARD

LAW REVIEW

VOL. XXXIII

APRIL, 1920

No. 6

A CONTEMPORARY STATE TRIAL - THE UNITED STATES VERSUS JACOB ABRAMS ET AL*

I

SHORTLY before eight o'clock, on the morning of August twenty

third, 1918,1 several men and boys were loitering at the corner of Houston and Crosby streets, in New York City, perched on sprinkler hydrants or standing about in talk, while they waited for

* This article will form part of a book on Freedom of Speech, to be published by Harcourt, Brace, and Howe, New York City.

1 The principal sources are the TRANSCRIPT OF RECORD, Supreme Court of the United States, October Term, 1919, No. 316, Jacob Abrams et al., Plaintiffs-in-Error, v. The United States; the two briefs, and the opinions of the court in 40 Sup. Ct. Rep. 17 (1919), also reprinted in "The Espionage Act Interpreted," 20 NEW REPUBLIC, 377 (Nov. 26, 1919). Transcript and briefs are in the library of the Law School of Harvard University, in the complete set of United States Supreme Court records presented to the school by Justices Gray and Holmes. (See CENTENNIAL HISTORY OF HARVARD LAW SCHOOL, 112.) It has not been thought necessary to give references to the RECORD except for significant passages. Some information about the trial not contained in the RECORD is taken from current issues of the New York Times and the New York Call, or from personal conversation and correspondence; the sources of such unofficial data are indicated in every instance.

For criticism of the trial, see the pamphlet, SENTENCED TO TWENTY YEARS PRISON, published by the Political Prisoners Defense and Relief Committee, New York, 1919, "Our Ferocious Sentences," 107 Nation, 504 (Nov. 2, 1918).

Comment in support of the majority opinion of the Supreme Court will be found in a note, "The Espionage Act and the Limits of Legal Toleration," 33 HARV. L. REV. 442 (January, 1920); and in an article "Justice Holmes's Dissent," I REVIEW, 636 (December 6, 1919). The minority opinion is supported by a note, "Free Speech in Time of Peace," in 29 YALE L. J. 337 (January, 1920); and articles, "The Call to Toleration," 20 NEW Republic, 360 (November 26, 1919); “What is Left of Free Speech," Gerard C. Henderson, 21 NEW REPUBLIC, 50 (December 10, 1919). See note 72.

The United States official document on Russian internal affairs is, BOLSHEVIK PROPAGANDA, HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON THE JUDI

the day's work to begin in the manufacturing building close by. One or two happened to look up and saw something being thrown from a window above and falling - the air was full of leaflets. Nothing of the kind had ever happened there before, and the workmen picked the papers up curiously from sidewalk and gutter. Some circulars in Yiddish they could not make head or tail of, but they read together others in English, which attacked the recent dispatch of troops to Russia.2

CIARY, United States Senate, Sixty-Fifth Congress, Third Session and thereafter, pursuant to Senate Resolutions 439 and 469; Washington, 1919.

A partial bibliography on the Espionage Act and freedom of speech generally is appended to "Freedom of Speech in War-Time," Zechariah Chafee, Jr., 32 HARV. L. REV. p. 932 (1919).

2 These circulars are as follows. The English circular is Government's Exhibit No. 1, RECORD, p. 245:

"THE HYPOCRISY

OF THE

UNITED STATES
AND HER ALLIES

"'Our' President Wilson, with his beautiful phraseology, has hypnotized the people of America to such an extent that they do not see his hypocrisy.

"Know, you people of America, that a frank enemy is always preferable to a concealed friend. When we say the people of America, we do not mean the few Kaisers of America, we mean the 'People of America.' You people of America were deceived by the wonderful speeches of the masked President Wilson. His shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity.

"The President was afraid to announce to the American people the intervention in Russia. He is too much of a coward to come out openly and say: 'We capitalistic nations cannot afford to have a proletarian republic in Russia.' Instead, he uttered beautiful phrases about Russia, which, as you see, he did not mean, and secretly, cowardly, sent troops to crush the Russian Revolution. Do you see how German militarism combined with allied capitalism to crush the russian revolution?

"This is not new. The tyrants of the world fight each other until they see a common enemy WORKING CLASS ENLIGHTENMENT as soon as they find a common enemy, they combine to crush it.

"In 1815 monarchic nations combined under the name of the 'Holy Alliance' to crush the French Revolution. Now militarism and capitalism combined, though not openly, to crush the russian Revolution.

"What have you to say about it?

"Will you allow the Russian Revolution to be crushed? You: Yes, we mean YOU the people of America!

"THE RUSSIAN REVOLUTION CALLS TO THE WORKERS OF THE WORLD FOR HELP. "The Russian Revolution cries: 'WORKERS OF THE WORLD! AWAKE! RISE! PUT

DOWN YOUR ENEMY AND MINE!'

The Military Intelligence Police arrested Rosansky, the Russian who threw out the circulars, and then with his aid entrapped six

"Yes friends, there is only one enemy of the workers of the world and that is CAPITALISM.

"It is a crime, that workers of America, workers of Germany, workers of Japan, etc., to fight THE WORKERS' REPUBLIC OF RUSSIA.

"AWAKE! AWAKE, YOU WORKERS OF THE WORLD! REVOLUTIONISTS

"P. S. It is absurd to call us pro-German. We hate and despise German militarism more than do your hypocritical tyrants. We have more reasons for denouncing German militarism than has the coward of the White House."

The Yiddish pamphlet, Government's Exhibit No 2 (RECORD, p. 247), has been translated. This translation was accepted as correct by the government and the defense. Abrams, however, suggested a few changes during his testimony. It would be interesting to know how much stronger the Yiddish equivalent for "murder" at the end of the fourth paragraph is than the word for "kill."

"The preparatory work for Russia's emancipation is brought to an end by his Majesty, Mr. Wilson, and the rest of the gang; dogs of all colors!

"America, together with the Allies, will march to Russia, not, 'God Forbid,' to interfere with the Russian affairs, but to help the Czecko-Slovaks in their struggle against the Bolsheviki.

"Oh, ugly hypocrites; this time they shall not succeed in fooling the Russian emigrants and the friends of Russia in America. Too visible is their audacious

move.

"Workers, Russian emigrants, you who had the least belief in the honesty of our government, must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war. With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.

"You who emigrated from Russia, you who are friends of Russia, will you carry on your conscience in cold blood the shame spot as a helper to choke the Workers Soviets? Will you give your consent to the inquisitionary expedition to Russia? Will you be calm spectators to the fleecing blood from the hearts of the best sons of Russia?

"America and her Allies have betrayed [the workers]. Their robberish aims are clear to all men. The destruction of the Russian Revolution, that is the politics of

the march to Russia.

"Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the government know that not only the Russian Worker fights for freedom, but also here in America lives the spirit of revolution.

"Do not let the government scare you with their wild punishment in prisons, hanging and shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight.

"Three hundred years had the Romanoff dynasty taught us how to fight. Let all