act en masse and veto the legislation, and since no other power existed to declare the particular act void, the duty rested upon the legislature to repeal the law (Meigs in 19 Am. Law Rev. 188.)

We believe that much of the criticism of the courts for declaring unconstitutional legislation demanded by the people is due to the failure of our legislatures themselves to assume, in the first instance, the responsibility, which they are too ready to pass on to the courts, of specifically and formally exercising their own judgment upon the constitutionality of any proposed legislation. They have not only a right to express such an opinion but it is their duty to do so. They should as readily by their own action declare a proposed act unconstitutional as they would expect a court to do; and their refusal so to express their convictions is not only a violation of their oath of office, but imposes on the courts a very disagreeable duty which the Constitution never intended to impose upon them except in very rare and extraordinary cases.

Some of the arguments made by Socialists and other radicals who have so unfairly attacked the courts proceed upon the premise that the nullification of any law because it is contrary to some constitutional provision is a legislative and not a judicial act. From this premise they argue that the action of the courts in holding a particular act unconstitutional is a usurpation of legislative authority. It is true that courts have no veto power over legislation. But courts do not and never have exercised such power. The fact that they are so often called upon to exercise a power which they do possess in passing judgment in a particular case which practically has the effect in many cases of nullifying legislation is due to the fact that the legislatures themselves have not exercised their own legislative function of deliberately passing upon the question of whether their action. in any case transgresses the limitations of legislative power imposed by the Constitu

tion. This idea was expressed by Justice Cooley when he said:

"The common impression undoubtedly is that in the case of any legislation where the bounds of constitutional authority are disregarded, the judiciary is perfectly competent to afford the adequate remedy; that the Act must indeed be void, and that any citizen as well as the judiciary itself, may treat it as void, and refuse obedience. This, however, is far from being the fact." (Journal of the Michigan Political Science Assn., Vol. 1, p. 47.)

Lawyers are acquainted, if the people are not, with the great hesitation properly shown by the courts in declaring an act unconstitutional. They are acquainted with the rule of law so well stated by the Supreme Court of Massachusetts that "every department of government invested with certain constitutional powers, must, in the first instance, but not exclusively, be the judge of its powers." Kendall v. Kingston, 5 Mass. 524.) If this be true, is it not the solemn duty of every legislature, acting within its powers, carefully to consider and pass specifically upon the question of the unconstitutionality of its own acts. And if it does not do so, is it not responsible, rather than the courts, for the confusion and public resentment created by the action of the courts in overturning legislation sometimes long after it has gone into effect?

This

Our purpose in this editorial is to emphasize the duty of Congress and the state legislatures to pass explicitly on the constitutionality of their own acts. We understand that it is often said that the passage of an act by the legislature in itself expresses the solemn judgment of the legislature that the act is constitutional. is true in theory, but it is "a condition and not a theory which confronts us." The evidence is clear that in many cases, as in the Act of Congress referred to by Mr. Shelton, legislators do not thus express their individual judgment on the constitutionality of their own laws. Many good lawyers in Congress and in our state legislatures often express profound doubts as

to the constitutionality of legislation and yet vote for it under the mistaken opinion that it is the duty of the courts and not of the legislature to pass on such questions. We are firmly of the belief that if our legislators, especially those who are lawyers, should vote their convictions upon the legality as well as upon the policy of a proposed bill, and act in this respect as they would act if they were sitting upon the bench, the courts would be relieved of much of the responsibility for declaring acts of the legislature to be void and for which they are too often unjustly criticised.

Finally, the tendency of the people as well as the legislature to put "up to the courts" the decision of those serious questions which every change in natural or state policy always raises is dangerous. To regard the courts as the great "bulwark of our sacred liberties" imposes too great a responsibility on the courts and relieves the other departments of the government as well as the people themselves of the responsibility necessarily shared by all to protect the great charter of our liberties from being frittered away. There has been much criticism expressed in letters to the editor of this Journal of the present liberal tendency of the Supreme Court of the United States in upholding Congressional legislation, which seem to many lawyers clearly to transcend the constitutional limits of Congressional powers. But we are inclined to believe the present disinclination of the Supreme Court to hold acts of Congress unconstitutional and especially the attitude of Justice Holmes in expressly "putting up" to the people and to Congress some of the responsibility of protecting their own constitutional liberties is a position wisely taken at this time, and will tend to throw into the political arena rather than into the judicial forum many questions which Congress and the people should decide for themselves. This thought was emphasized by no less a student of our legal institutions than James Bradley Thayer, in his Memoir of John Marshall (p. 103), when he said:

"Great and, indeed, inestimable as are the advantages in a popular government of this conservative influence-the power of the judiciary to disregard unconstitutional legislation-it should be remembered that the exercise of it, even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors. If the decision in Munn v. Illinois and the Granger Cases twenty-five years ago, and in the Legal Tender Cases, nearly thirty years ago, had been different; and the legislation there in question, thought by many to be unconstitutional and by many more to be ill-advised, had been set aside, we should have been saved much trouble and some harm. But I venture to think that the good which came to the country and its people from the vigorous thinking that had to be done in the political debates that followed, from the infiltration through every part of the population of sound ideas and sentiments, from the rousing into activity of opposite elements, the enlargement of ideas, the strengthening of moral fibre, and the growth of political experience that came out of it all-that all this far more than outweighed any evil which ever flowed from the refusal of the court to interfere with the work of the legislature."

NOTES OF IMPORTANT. DECISIONS.

IS CRIME OFTEN THE RESULT OF DREAMS?-Lawyers are familiar with the growth of the science of psychiatry and the application of psycho-analysis to determine the character of the mental disturbances which have produced an alleged criminal act. Books like Jacoby's Unsound Mind and the Law show how far this science has developed and the part it plays in the trial of persons accused of crime.

In England this same development is going on and the Solicitors' Journal (July 31, 1920) calls attention to two cases pending at nisi prius in which the Court adjourned the trial pending an examination by a psychiatrist to determine whether defendants who were charged

with larceny were controlled by dreams or other mental disturbances.

The term kleptomania is no longer used, but today the examiner seeks to find not a mental disease or mania but a disturbance of the subconscious personality. To detect this the examiner seeks to find out the character of the dreams of the accused and if possible what incident provoked such dreams. For the dreams represent the subconscious personality at liberty unrestrained by the conscious will.

One of the cases now pending in England was that of a child accused of stealing. There was no motive to account for the theft. The theory of the expert was that the child was. perfectly normal but possessed of a neurotic "complex" (or subconscious personality) which when it comes uppermost impels her to steal. In speaking of the work of the expert in this case the Solicitors' Journal remarks:

"The expert appears to have detected this 'complex' by the method of 'psychoanalysis' now practiced by 'psychiatrists,' a form of investigation invented twenty years ago by the distinguished Austrian psychologist and authority on the interpretation of dreams, Sigmund Freud. In other words, the existence of the complex was detected by means of obtaining from the child a daily record of its dreams the night before, and analyzing those dreams so as to select the significant element. In this case a visit to the kinematograph seems to have resulted in a shock to the child's neurotic system, analogous to shell-shock, and hence arose a morbid dream-the dream of a crime represented on the film. The dream then

repeats itself until it becomes automatic. If it attacks the child while awake, there is an irresistible impulse to steal. The expert, we may add, hopes to cure the child in the way practiced by psychiatrists, namely, by substituting for the anti-social tendency to steal some harmless tendency which satisfies the instinct without injuring society. How far this treatment and cure of crime by the substitution of a higher tendency on similar lines for the lower anti-social tendency-the 'sublimation' of an instinct, as the psychiatrists call it --is really possible we do not venture to guess. But certainly the investigation of the subjective element in crime, whether committed by children or women or men, is useful, and in time may have fruitful results."

science in recent years, has done so much to direct attention to the great mainsprings of human action. Probably the great majority of the acts of an individual are involuntary and the result of subconscious impulses. The character of these impulses which become stronger with years determine very accurately what a man will do under given circumstances. For this reason we are not in accord with the criticism of the New York Law Journal of the case of Southern Traction Co. v. Kirksey, 222 S. W. 702, in which the Court of Civil Appeals of Texas reversed a judgment of the lower court for refusing to admit evidence of habits of intoxication and careless driving to prove the negligence of an automobile driver on a partic ular occasion. The Court's position is stated in a few words. The Court said:

"Appellant offered to prove by several witnesses that the general reputation of the deceased was that he was in the habit of getting drunk and driving an automobile at a rapid and dangerous speed, in disregard of his own safety and the safety of others. This testimony the court refused to permit to be given to the jury, upon the ground that such testimony would not tend to establish the fact that the deceased was driving recklessly, and not in the exercise of ordinary care, at the time he was killed. It would have been permissible for appellant to prove, if it could, that the deceased was drunk at the time he drove his automobile against appellant's car, for the reason that this fact would tend to show negligence on the part of the deceased. It would tend to prove such fact, for the reason that intoxication tends to lessen and sometimes to destroy the powers of observation and the element of caution. As said by Scotland's bard:

Inspiring, bold John Barleycorn,

What dangers thou canst make us scorn! "The fact of intoxication being relative, any fact which would legitimately tend to establish such fact was also relative. We think the fact that a person was in the habit of getting drunk, and while in such condition driving recklessly upon public highways, roads and street crossings, would be a matter for the proper consideration of a jury as to whether or not he was intoxicated at the time of his injury, and we think that his habit in this regard could be proven by general reputation. We do not think it would be permissible to prove particular or isolated instances as to his reckless driving while drunk.

"We hold that for the reasons stated this cause should be reversed and remanded for a new trial in accordance with this opinion, and it is so ordered."

Our contemporary, the New York Law Journal, attacked the decision on the ground that the question at issue was not as to the general habits of the motorist, and certainly not as to his reputation, but the issue was as to his conduct on the specific occasion in question, and

that issue should not be decided by evidence of general reputation as to his habits.

No rule of evidence is more difficult to apply than the rule of relevancy. Every fact testified to at a trial must be relevant, that is, it must have some logical connection with the fact to be proven. It is hard to fix any definite limits to this rule. We are all more or less convinced by an accumulation of facts, any one of which, in themselves might be insufficient to prove the fact in issue, yet taken in conjunction with other facts lead to a certain belief which proves or disproves the point in issue. There is not a lawyer who if he were to imagine himself on a jury that was trying a case involving careless driving of an automobile who would not candidly admit that the reputation of a driver for careless driving while intoxicated as well as his habit of getting drunk and of driving his machine while in that condition, would have or at least might have much to do with his judgment in the particular case. Our courts spend altogether too much time in de bating questions of relevancy. Evidence should be regarded as relevant if it is conceded that any logical mind would connect the fact in issue with the fact to be proven. The connection may be weak and inconclusive or it may be strong and convincing but such distinctions affect only the weight of the testimony and not its relevancy.

Now, ordinarily, the manner in which the defendant acted in another case is res inter alios acta and proof thereof is not admissible, for, as a general rule, it would not be a fair inference that a person will always act in each specific case in the same manner. But while previous specific acts are inadmissible, as the court well says in the principal case, a man's habits or rather his reputation, which is all that can be proven, is admissible as this shows the motive of the person and the processes of his subconscious self over which he has little control and which usually react in the same way under similar circumstances. Courts in excluding evidence of this kind have not always been careful to make this distinction. Moreover, while it is true that the general character of the defendant, his standing in the community, is not a fact usually relevant in civil proceedings, evidence of a specific habit or motive which would tend to explain the conduct of a person is clearly admissible.

We are aware that there are some authorities that may be cited against the decision of the Texas court but we are convinced from a careful reading of many of these decisions that these courts have simply followed mechanically

a few earlier decisions without regard to the distinctions to be observed. These decisions have made the law ridiculous since they convey to the mind of a laymen that rules of relevancy are intended more to prevent the jury from getting at all the truth in the case, than to aid them in securing all the information possible which would tend to convince an ordinary man of the accuracy of his judgment.

THE RIGHT OF A RAILROAD TO RECOVER DAMAGES FROM THE UNITED STATES FOR INJURIES ACCRUING DURING THE PERIOD OF GOVERNMENTAL CONTROL.

The long-questioned authority of the Federal Government to exercise exclusive dominion over the common carriers of the country has been demonstrated; such regime has come; whether it has gone remains for further demonstration.

Under just what express constitutional declaration or grant Congress assumed the power to take physical control, dominion and operation of the railroads of the country-including the power to extend, improve, alter, change, modify, or abandon —has not yet been clearly pointed out, but we assume that any authority—legislative or otherwise-exercised or delegated by Congress, pertaining to the railroads of the country, is found in Clause 3, Section 8, Article 1 of the Constitution, vesting in such bodies "power to regulate commerce with the foreign nations, and among the several States and with the Indian tribes." It is not found in the vested power to "provide for the common defense and general welfare of the United States," because that constitutional expression seems now to be, by judicial interpretation, limited to the function of an adjective qualifying the purposes for which Congress may levy taxes.1

(1) United States V. Boyer, 85 Fed. 432; Story's Const., Secs. 907-908.

But the authority under the first-cited power, namely, "regulation of commerce, etc.," is undoubted, as the purview of legislative jurisdiction thus created seems to be as ubiquitous as commerce itself. Indeed, as our courts have determined, "commercial intercourse is an element of commerce which comes within the regulating power of Congress," and "commerce is traffic, but it is more. It embraces also transportation by land and water;" and, finally, "Congress has visitatorial power over State corporations in the exercise of its power to regulate interstate commerce" and "the transportation of persons and goods between the different States, and between the States and foreign countries, constitutes interstate and foreign com

This regulatory power Congress finally and fully exemplified by its Act of February 4, 1887,5 now so extensively known as the "Interstate Commerce Act." By this act, Congress placed its hand on the operation, control, practical utility and, probably, existence of the railroads. The act, as originally passed, has been extended as to power and purpose by numerous amendments, and as it appears to us, all looking to the ultimate improved service to the country, and longevity of the institutions brought under the sovereign protection and restraint has been imposed through regulatory legislation, which must constitute one of the strong elements of efficiency to the nation's endurance and strength in times of distress or jeopardy; and, as the necessity or propriety of such extended power upon the part of the Government, and the more important recognition of duty

(2)

Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U. S. 9, 24 L. ed. 708.

(3) Chicago, Etc., Ry. Co. v. Fuller, 17 Wallace 568; Addyston Pipe, Etc., Co. v. U. S., 175 U. S. 241.

(4) I. C. C. v. Goodrich Transit Co., 224 U. S. 194, 32 Sup. Ct. 436; Ried v. Colorado, 187 U. S. 146, 23 Sup. Ct. 92.

(5) Chap. 104, 4 Stat. L. 379.

upon the part of the carriers has been felt, Congress has invariably responded with the proper outline or designated limitations of such powers or duties; and, to this end, Congress, in 1906, grafted on to the bill the following amendment, § 6:

"That, in time of war, or threatened war, preference and precedence shall, upon the demand of the President of the United States, be given over all other traffic, to the transportation of troops and material of war, and carriers shall adopt every means within their control to facilitate and expedite the military traffic."

In the Naval Appropriation Act of August 29, 1916, this further duty was added by Congress:

"and in time of peace, shipments consigned to agents of the United States, for its use, shall be delivered by the carriers as promptly as possible, and without regard to any embargo that may have been declared, and no such embargo shall apply to shipments so consigned."

Under the Army Appropriation Act of the same date, the following additional power was lodged in the President:

"Transportation of Troops in Time of War-Taking Over Facilities-The Presi dent, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable."

At the time of the enactment of these several amendments, there were events transpiring which visualized and vitalized the efficacy of the provisions and their importance to the nation's welfare, and these provisions so far as regulatory potentialities are concerned-seemed almost unlimited in scope. But they did not go to the extent of vesting in the executive authorities of the nation the power to lay hands on the physical properties of the carriers,