HE American Bar Association should, and of course THE does, appreciate the honor of the acceptance of its invitation to be present at its next annual meeting in Montreal, by Viscount Haldane, Lord Chancellor of England. Aside from the honor thus conferred, the visit of the Lord Chancellor should have an educational value. For instance, a disclosure of the secret of the speedy determination of causes in English courts might prove of immense value to the American bench and bar. A glance through the late numbers of reports of cases in the House of Lords causes one to wonder why it is that cases should pass from one of the lowest courts of Canada through intermediate courts to a final determination in the House of Lords in less than three years, as in Winnipeg Electric R. Co. v. Winnipeg, (1912) A. C. 355, while it takes over nine years for a case to pass from a lower state court to a final decision in the Supreme Court of the United States, as in Bigelow v. Dominion Copper, etc., Co., 225 U. S. 111. These cases are selected at random as illustrations, and a comparison of the late House of Lords cases with those in the Supreme Court will show that the difference is about the same in a majority of the cases. Might it not be a good plan, in adopting new state constitutions, in addition to a clause adopting the common law of England as it existed at the time of the Revolution, to insert a clause adopting their present system of disposing of cases without the delay which is common to American practice?

Liberality of Supreme Court on Constitutional Questions.

CLO

LOSE observers of the decisions of the United States Supreme Court in the past few years must have noted the growing liberality of that court in sustaining legislation enacted under the police power. That-a-continuation of this policy is assured seems evident from the opinion of the court in Schmidinger v. Chicago, 33 Sup.. Ct. 182. Holding valid an ordinance of the city of. Chicago which fixes a standard weight for loaves of bread, Justice Day, speaking for a unanimous court, said: "We cannot say that the fixing of these standards in the exercise of the legislative discretion of the council is such an unreasonable and arbitrary exercise of the police power as to bring the case within the rare class in which this court may declare such legislation void because of the provisions of the 14th Amendment to the Constitution of the United States, securing due process of law from deprivation by state enactments." So that we may in the future rarely expect to see a decision holding invalid legislation enacted under the police power. In this connection we concur with the regret expressed by Mr. Charles Warren in the last issue of the American Law Review, that the courts have not generally followed what he denominates the "sensible doctrine" announced by Chief Justice Gibson of the Supreme Court of Pennsylvania in Chadwick v. Moore, 8 W. & S. 49, wherein that learned judge said: "Yet the case is by no means a clear one; and as the decision of it involves the validity of other acts of the same stamp, it is worthy of being brought before the Supreme Court of the nation. To put the case in train for that, it would be necessary for us to sustain the statute at all events; for the appellate jurisdiction of that court extends no further than to cases in which the judgment is in favor of the legislation or authority to which the Federal Constitution, or an Act of Congress, is supposed to be repugnant; in other words, it extends no further than is necessary to maintain the supremacy of federal legislation. As an erroneous judgment adverse to the authority of the state legislature would be irremediable, we have deemed it our duty, in cases of difficulty or doubt, to put the judgment in such a shape as would make it the subject of a writ of error. In this instance, however, the judgment falls in with the current of our opinion; and if it is erroneous, it will give us pleasure to have it corrected by the constitutional guardian of federal authority." Were this practice continued there is not much doubt but that some of the legislation held invalid by some state courts would be sustained by the Supreme Court as within the police power.

Interstate Traffic in Intoxicating Liquors.

THE Webb Act, designed to prevent the shipment of ΤΗ liquors into dry states, which was passed over the President's veto, raises a nice point in constitutional law which will undoubtedly soon be before the Supreme Court for decision. The veto of the President was based on the ground that he believed it to be "a violation of the interstate commerce clause of the Constitution, in that it is in substance and effect a delegation by Congress to the states of the power of regulating interstate commerce in liquors, which is vested exclusively in Congress." Whatever may be said with reference to the validity of the act must be

reasoned from the opinion of the Supreme Court in the case of In re Rahrer, 140 U. S. 545. From that case it must be taken as settled that Congress cannot delegate its power to regulate interstate commerce in liquors to the states, so, that the question narrows down to whether power is attempted to be delegated by the act. It was held in the case above cited that power was not delegated by the Act of Aug. 8, 1890 (3 Fed. St. Ann. 853) providing as follows: "That all fermented, distilled or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory, enacted in the exercise of its police power, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise." The precise ground of that decision is probably contained in the following excerpt from the opinion of Chief Justice Fuller: "No reason is perceived why, if Congress chooses to provide that certain designated subjects of interstate commerce shall be governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so." So that while a bare reading of the statute involved in that case, together with a bare statement that the act was held valid, might seem to afford a

conclusive argument that the Webb Act is valid, a full reading of the opinion discloses some ground for a distinction between that statute and the Webb Act. In the Webb Act of course the operation of the statute will vary, as for instance an importation of liquor from New Jersey into New York will be valid, while one from Missouri into Kansas will be invalid. In other words, the operation of the statute will be "affected by variations in state laws in dealing with such property," while one of the grounds of the decision in the Rahrer case was that "Congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the states, or to grant a power not possessed by the states, or to adopt state laws. It has taken its own course and made its own regulation, applying to these subjects of interstate commerce one common rule, whose uniformity is not affected by variations in state laws in dealing with such property." From this short quotation much force is added to the argument against the validity of the Webb. Act. One thing must be taken into account, however, and that is that the Supreme Court has, as observed elsewhere in these columns, shown an undeniable tendency in recent years toward a liberal constitutional interpretation.

Receiving Non-stolen Property.

MAY

AY a person be convicted of receiving stolen property where no person is guilty of the larceny of the property? This question would undoubtedly be answered in the negative by the average lawyer, and with good reasons we venture to say, and yet it has been answered in the affirmative in a recent case in New York. A change in the statutes of that state has placed offenses committed by children between the ages of seven and sixteen years outside of the pale of crimes, and provides that the offender shall be deemed a juvenile delinquent. Notwithstanding

this change it has been held that a person receiving goods stolen, or unlawfully appropriated to be more accurate, from such a child may be convicted of receiving stolen property. The English cases tend rather to a contrary conclusion. Thus in Reg. v. Kenny, 2 Q. B. D. 310, it was said: "Husband and wife are one person in law, and the wife cannot steal her husband's goods, whether she has committed adultery or not. . . Here the prisoner has not been convicted of stealing, and probably the facts would not have supported such a conviction. He has been convicted of receiving, and that conviction cannot be sustained without proof of a stealing by some other person." Of that case the New York court says:

"The English authority above cited held that a wife could not steal from her husband because he and she were united in person by fiction of law. For such an act she could not be proceeded against criminally or quasicriminally. Such is not the situation here. There was no unity of person between the true owner and the boys. who took away the property and from whom the defendant had received it criminally."

The question thus presented is one which can, of course, arise in but few jurisdictions. It is not at all clear, however, that the English cases can be so readily reasoned away as was attempted in this instance.

Raising Residence Requirement for Divorce.

the requirement of a residence by a plaintiff in an HE recent amendment to the Nevada statutes by which action for divorce is increased to one year, six months being the requirement heretofore, will undoubtedly do much to rid the courts of that state of undesirable divorce actions. This action of the legislature does not, however, remove in the slightest degree the necessity for uniform divorce laws. Any system of laws which offers an incentive, in the way of liberality, for persons to become domiciled in a jurisdiction for the purpose of bringing an action, is radically wrong. A touch here, and a touch there, do not take the place of uniformity. Of course some matters must be regulated in a different manner in one jurisdiction from that adopted in another, owing to the variation of local conditions, but this is not true in the case of divorce. Inasmuch as legislators have no personal interest in the matter, and no local sentiment is involved, it does not seem that it should be so difficult a matter to unify the divorce laws, and yet the proposition has been rather coldly received in spite of the strength of its supporters.

Pardon for Violation of Ordinance.

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OVERNOR BLEASE of South Carolina may encounter some quite formidable legal obstacles if he persists in his attempt to enforce a pardon granted by him remitting a fine paid by his chauffeur upon a conviction for violating a speed ordinance of the city of Columbia. In the first place the decision of the Supreme Court of Missouri, in State v. Renick, 157 Mo. 292, is quite well reasoned, and the court there concluded that "the governor of the state can pardon only those who are convicted of the violation of state laws," and cannot pardon for a violation of a municipal ordinance, the court saying that "we have been referred to no case as a precedent for authority in a governor to pardon one convicted of violat

ing a city ordinance, and in a search made by us we have found none." Another rather serious difficulty is the rule of law which denies the right to remit a fine after it has been paid. This rule was announced in Rucker v. Bosworth, 7 J. J. Marsh (Ky.) 645, and Cook v. Freeholders, 27 N. J. Law 637, and it is not clear that Judge Nesbit intended to lay down a broad contrary rule in In re Flournoy, 1 Kelly (Ga.) 606. "The fine, once paid, is like any other punishment inflicted, which was not intended to be repaid or recompensed," says the New Jersey Court of Errors and Appeals in Cook v. Freeholders, 27 N. J. Law 637. Anticipating the objection. that the courts should not have the power to declare the rights of the executive with respect to pardons, the opinion of the New Jersey court in the same case is instructive. Says the court: "As to the suggestions of counsel, that the executive power of pardoning is independent of the judiciary, and has an equal right to interpret the constitution for itself, and that having ordered the fine to be remitted long after it had been paid, the presumption is that its restoration was intended, it is sufficient to remark that the judiciary has not sought the occasion to interfere. The plaintiff found it necessary to invoke the aid of the courts, and thereby imposed upon them the duty of judicially determining whether the constitution and laws entitled him to it."

Recent Anti-trust Cases.

HE difficulty of obtaining a conviction of individuals under the criminal provisions of the Sherman Antitrust act seems at last to have been overcome. The imposition of jail sentences on twenty-nine officers and agents of the National Cash Register Company, followed by the conviction of officers of corporation members of the socalled Bathtub Trust, must indeed strike terror to the

hearts of others who have heretofore considered themselves safe from punishment for violations of the act, and must fill with thankfulness the hearts of the beef packers and others who have escaped punishment. The difficulty in securing convictions in this class of cases is of course but natural. The crimes are merely malum prohibitum, the defendants usually men of standing who have been public benefactors in the jurisdiction in which they are tried, and the crime itself does not, in the eyes of many a juryman, warrant imprisonment. However that may be, under the present system of dealing with monopolies the criminal side of the court seems the most effective in accomplishing the desired object-deterring others from engaging in unlawful restraints on trade.

High Cost of Living and Trust Investments.

PR ROFESSOR IRVING FISHER of Yale University has recently attacked the present rules and statutes restricting the investment of trust funds, influenced, it would seem, by a misconception of the fundamental basis on which such statutes and rules stand. "Our jurisprudence," he says, "and our business customs proceed on the theory that trustees for the funds of widows and orphans should, for the most part, avoid investing these funds in stocks because 'dividends are uncertain' and should invest them in bonds because 'interest is certain.' But interest is not certain when the dollar is uncertain. Interest insures a fixed number of dollars, but it

does not insure any fixed value in these dollars. Most widows and orphans whose funds have been invested in bonds during the last decade and a half have suffered from the high cost of living more than they could possibly have suffered from uncertainties in the dividends from ordinary standard investments in stocks."

This, it would seem, bases the restriction on certainty of income. The true basis, however, would seem to be the security of the fund itself, coupled with a prospect of a fair and secure income. This was stated by Woodruff, J., in King v. Talbot, 40 N. Y. 86, as follows: "It . does not follow that because prudent men may, and often do, conduct their own affairs with the hope of growing rich, and therein take the hazard of adventures which they deem hopeful, trustees may do the same; the preservation of the fund, and the procurement of a just income therefrom, are primary objects of the creation of the trust itself, and are to be primarily regarded." The fallacy of any other rule is well reasoned by the same judge in the following language: "It is not denied that the employment of the fund, as capital in trade, would be a clear departure from the duty of trustees. If it cannot be so employed under the management of a copartnership, I see no reason for saying that the incorporation of the partners tends, in any degree, to justify it. The moment the fund is invested in bank, or insurance, or railroad stock, it has left the control of the trustees; its safety and the hazard or risk of loss is no longer dependent upon their skill, care, or discretion, in its custody or management, and the terms of the investment do not contemplate that it ever will be returned to the trustees. If it be said, at any time, the trustees may sell the stock (which is but another name for their interest in the property and business of the corporation), and so repossess themselves of the original capital, I reply, that is necessarily contingent and uncertain; and so the fund has been voluntarily placed in a condition of uncertainty, dependent upon two contingencies: first, the practicability of making the business profitable; and, second, the judgment, skill, and fidelity of those who have the management of it for that purpose.' Professor Fisher's advocacy of the "standardization of the dollar" may be otherwise well founded, but it would seem that,

even aside from the reason for the existence of the strict rule with reference to the investment of trust funds, the rate of income derivable from trust investments reflects quite accurately the value of the dollar, that is, the interest varies according to the "hardness" of the times.

May a Trust Company Draw a Will?

THE HE question whether it is lawful for a trust company to advertise that it employs competent counsel to draw wills, which was queried in LAW NOTES for January, 1910, is becoming more and more a live one. The practice of large trust companies in furnishing counsel to draw wills, advertising that they do so, continues throughout the country, even in New York, where a statute (Laws 1909, c. 483) provides that "it shall be unlawful for any corporation . . to render or furnish legal service or advice, or to furnish attorneys or counsel . . . or to advertise that . . . it has . . . an office . . . for furnishing legal advice, services or counsel." The reason for denying to a corporation the right to practice law was well stated in Matter of Co-operative Law Co., 198 N. Y. 483, as follows:

"No one can practice law unless he has taken an oath of office and has become an officer of the court, subject to its discipline, liable to punishment for contempt in violating his duties as such, and to suspension or removal. It is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of the courts. As these conditions cannot be performed by a corporation, it follows that the practice of law is not a lawful business for a corporation to engage in. As it cannot practice law directly, it cannot indirectly by employing competent lawyers to practice for it, as that would be an evasion which the law will not tolerate. Quando aliquid prohibetur fieri ex directo, prohibetur et per obliquum. Co. Lit. 223." Notwithstanding the fact that the drawing of wills is not, in practice, confined to members of the bar, many specimens coming before the courts drawn, with somewhat indifferent success, by justices of the peace, pettifoggers, and even ministers, it would seem that the drawing of a will is, in a sense, a part of the practice of law. Even the most eminent lawyers have failed in attempts at drawing wills. Samuel J. Tilden, as is well known, made a failure in drawing his own will. Chief Justice Paxson of the Pennsylvania Supreme Court drew his own will, which met with a similar fate, and even Chief Justices of the United States Supreme Court have expressed in their wills doubts as to the validity of certain provisions therein. A layman is obviously unfitted for the determination of what restraints may be placed upon the alienation of an estate, the proper mode of putting a widow to an election, and various other complicated questions which arise in the drafting of wills. Furnishing counsel to draft a will would therefore seem to involve furnishing "legal service or advice."

White Slave Act.

THE HE decision of the United States Supreme Court holding constitutional the so-called White Slave Act seems to open the way for punishment of all persons engaged in white slaving, intra or inter-state. Whether the scope of the decision is such as to indicate a possibility of the further extension of the interstate commerce clause to other subjects such as marriage and divorce, as has been contended by some, is very doubtful, as the opinion of the court makes quite clear the reason for the decision, and by no possible stretch of the imagination would it seem

possible to consider it as announcing any startling principle, or giving range for any extension to other than subjects of interstate commerce now recognized. Said the

court:

"What the act condemns is transportation obtained or aided or transportation induced in interstate commerce for the immoral purposes mentioned. But an objection is made and urged with earnestness. It is said that it is the right and privilege of a person to move between states, and that, such being the right, another cannot be made guilty of the crime of inducing or assisting or aiding in the exercise of it, and that the motive or intention of the passenger, either before beginning the journey or during or after completing it, is not a matter of interstate

commerce.

"The contention confuses things important to be distinguished. It urges the right exercised in morality to sustain a right to be exercised in immorality. It is the same right which was excluded

as an element as affecting the constitutionality of the act for the supervising of lottery traffic in national and interstate commerce."

The court further said that interstate commerce includes interstate carriage of persons as well as property, which no one would venture to dispute, so that its holding should have been, and was to a great extent, anticipated.

Pardon of Physician as Restoring Right to Practice.

A NALOGOUS to the question of the pardon of an attorney as restoring his right to practice law, discussed in an article in the January, 1913, LAW NOTES, is a question recently presented in the courts as to the restoration to a physician of his right to practice medicine upon receiving a pardon for the offense because of which his right to practice was forfeited. The statement in Ex p. Garland, 4 Wall. 380, that "a pardon reaches both the punishment prescribed for the offense and the guilt of the offender, and when the pardon is full it releases the punishment and blots out the existence of the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense," was there qualified with the exception, generally recognized, that "it does not restore offices forfeited." This exception as to offices has been applied to a probate and county judge (State v. Carson, 27 Ark. 469), a justice of the peace (Com. v. Fugate, 2 Leigh 724) and extends to an attorney as shown by the article above referred to. Whether it would extend to a

physician is, of course, an entirely different matter, as a physician could hardly be considered an officer. The cases relating to attorneys show quite clearly that a pardon has no effect to blot out the offense in the sense that it destroys the evidence on which a license to practice medicine, was revoked, so that it would seem that notwithstanding the granting of a pardon evidence of innocence would probably be required to show that the right to practice should be restored. Looking at the question in another light, does not a pardon imply guilt? The most approved definition. of a pardon appears to be that of Chief Justice Marshall in U. S. v. Wilson, 7 Pet. 160, as follows: "A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed."

Dramatizing the Law.

WITH the Camorra trial and the Paris bandits' trial

in his mind's eye, the chief of police of Danville, Ky., evidently believes that the spectacular side of criminal trials in America is being sadly neglected, for we read that by his order a piano has been installed in the police court room of that city and it is planned to "have soft music played while the accused are testifying, and then a dirge when sentence is pronounced." A capital idea. How much more interesting for all concerned a criminal trial would be with indictment read to the tune of "Oh, dear! what can the matter be," the address of counsel to the jury accompanied with strains from "The Burning of Rome," the judge's charge to the jury with a chorus of "Somebody Lies," and the verdict of guilty accompanied with the strains of "We'll hang him to a sour apple tree"! Might it not be, however, that the accused could justly complain that he was thereby subjected to cruel and unusual punishment?

JUDICIAL REVIEW OF IMMIGRATION CASES.

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TH HE recent decisions in the case of Castro and Mylius, who were admitted into the United States by court order, contrary to the decisions of the immigration officials, emphasize the fact that there exists a power, or assumed power it would seem, in the courts for which there is no excuse. To illuminate the statement that this is an sumed power" the provisions of the acts of Congress and the decisions of the United States Supreme Court are helpful. The provisions of section 25 of the Act of Feb. 20, 1907 (34 Stat. L. 906; Fed. St. Ann. 1909 Supp., p. 173) vesting in the Secretary of Commerce and Labor the power formerly reposed in the Secretary of the Treasury are almost identical with those of the Act of Aug. 18, 1894, c. 301 (28 Stat. L. 390, 3 Fed. Stat. Ann. 313) which contained the following provision: "In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury." That Congress had power to remove from the sphere of judicial action all questions of the admission of aliens, cannot be doubted. With reference to the Act of 1894, it was said in Lem Moon Sing v. U. S., 158 U. S. 547: "The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications." And that the Act of Congress had the effect of doing what it thus had power to do would seem to be established, for in the same case the court said: "When Congress . . declared that in every case of an alien excluded by the decision of the appropriate immigration or customs officers 'from admission into the United States under any law or treaty,' such decision should be final, unless reversed by the Secretary of the Treasury, the authority of the courts to review the decision of the executive officers was taken away." And the Supreme Court has announced the same doctrine in a later case. Wong Wing v. U. S., 163 U. S. 228. That the action of the inferior federal courts in reversing the action of the immigration officials is an assumption of power, in view of the Act of Congress, would also seem apparent from the earlier cases in the Supreme Court. In Fong Yue Ting v. U. S., 149 U. S. 698, Justice Gray said: "The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by Act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene. In Nishimura Ekiu's case, it was adjudged that, although Congress might, if it saw fit, authorize the courts to investigate and ascertain the facts upon which the alien's right to land was made by the statutes to depend, yet Congress might intrust the final determination of those facts to an executive officer, and that, if it did so, his order was due process of law, and no other tribunal, unless expressly

authorized by law to do so, was at liberty to re-examine the evidence on which he acted, or to controvert its sufficiency. 142 U. S. 660." Another case along this line is U. S. v. Ju Toy, 198 U. S. 253. The tenor of these decisions has been carried out by some of the lower courts, as for instance in the case of In re Lea, 126 Fed. 231. But a majority of the courts appear to disregard the statute and the decisions and to find a technical reason for examining the acts of immigration officials. The Castro and Mylius cases are but examples. Others may be found in the reports. In re Monaco, 86 Fed. 117, and U. S. v. Williams, 173 Fed. 626, would seem to fall in this class.

Apart from the legal phase of the question it would seem that as a matter of public policy the decisions of the administrative officers should be final. The case of Castro affords much material for discussion along this line. Here was a man whose connection with friendly governments had been such that the State Department undoubtedly had good reasons, which it was unable for diplomatic reasons to disclose, for desiring his exclusion. Rather than disclose these reasons, which might not have been of a character requiring his legal exclusion, it was obliged to submit to his admission. That there are state secrets which should be exempt from disclosure is not only recognized by the layman, but it is recognized by the courts. One instance which may be mentioned is the privilege of officers from disclosing as witnesses secrets of state in military or international affairs, of which several instances are mentioned in Wigmore on Evidence, § 2375. If the Act of Congress now in force is not clear enough to deprive the courts of the jurisdiction in immigration matters which is now exercised by them, the act should be made clear in this respect, for Congress undoubtedly has the power to do so. G. M. L.

RIGHT OF STATE TO REVIEW DIVORCE DECREE.

Asahich has for some time occupied the attention of s an aftermath of the Guggenheim divorce scandal, both the New York and Illinois courts, the state's attorney in Illinois has decided to endeavor to have the decree set aside for fraud and collusion on a bill of review. Whether the state has such an interest as will permit it to have the decree reviewed is considered questionable by those who expect to undertake it. There can, of course, be no doubt that "only a party to an action should have leave to bring an action of review. He may be a party by record, or a party in interest, but he should be a party having the care or responsibility of the action." Johnson v. Johnson, 81 Me. 202. It has frequently been said, somewhat loosely, that the state is a party to every action for a divorce. Thus Chief Justice Andrews in Allen v. Allen, 73 Conn. 54, said: "When an attempt is made through the courts to undo a marriage, the state becomes in a sense a party to the proceedings, not necessarily to oppose, but to make sure that the attempt will not prevail without sufficient and lawful cause shown by the real facts of the case, nor unless these conditions are found to exist at the time the decree is made upon which the state permits a divorce to be granted. The state has an interest in the maintenance of the marriage tie which neither the collusion nor the negligence of the parties can impair. Dennis