Also, in the Eighteenth Amendment Professor Burgess sees dangerous increase in the centralization of power, and in the augmentation of governmental power at the expense of individual liberty. The Nineteenth Amendment he finds tending, though less obviously, in the same direction, since the ballot will lead women to attempt to accomplish their social programs by legislative fiat. The inclination of many American citizens to have this country join the League of Nations, will lead, we are told, if successful, to those international entanglements which the author thinks we, true to our traditions, should shun, and would inevitably tend further to augment the powers of the central government. The author sees us facing the menace of "the extinction of the constitutional immunities of the individual against governmental power, the obliteration of the constitutional distinction between Sovereignty and Government and the possible subordination of National sovereignty and independence to a world state."

One cannot deny that the earlier philosophy of individualism and of laissez faire in government has in recent decades given way to a philosophy of collectivism and of governmental regulation. One who shares the abhorrence of paternalism in government which Justice Brewer expressed in his dissent in Budd v. New York, 143 U. S. 517 (1892), will see no good in this newer development, and will deplore the judicial fostering of a growing police power. Yet much in modern social and economic conditions has called aloud for remedy, and the newer conception of the police power has but given scope for necessary experimentation in government. We can only hope that out of this experimentation we shall come to a state of just equilibrium, when the interests of the individual and of social groups will be fairly balanced. The increasing demand for greater regulation has gone hand in hand with a spirit of impatience of any gradual process of adjustment of laws to new needs. The desired change must be brought about at once. Where the need is conceived of as general, it is insisted that the remedy must be by general legislation. Congress is therefore constantly urged to make experiments in new applications of the existing constitutional grants of power. Many of these new departures in legislation a majority of the Supreme Court will not feel justified in holding to be clearly outside of the powers granted by the Constitution. So the constitutional provisions are stretched little by little to include new fields of regulation by the national government, with the inevitable result of centralization of power at Washington at the expense of the States. But this is not all. When the existing constitutional grants cannot by any means be made to justify the legislative action which is desired, new grants, in the form of constitutional amendments, are demanded, and some of them are adopted. And so the processes of centralization of power and of greater activity of the central government go on. Here is a tendency to change fundamentally the original relationship and relative importance of the state and national governments. There is here a legitimate basis for the development of states' rights sentiment which shall exert itself to preserve an effective control of all affairs which are properly local in character.

Professor Burgess feels strongly that these new tendencies in government are rapidly subverting our fundamental constitutional theory of a sovereign power outside of, and superior to, government, safeguarded by an independent judiciary. The justness of so sweeping a conclusion may be doubted. The courts have not abandoned their function of passing upon the constitutionality of legislation, and where they have countenanced new modes of exercising existing constitutional grants, this has been in response, often in reluctant response,—to a strong popular demand. The passage of constitutional amendments is the very exercise of the ultimate sovereign power, and no one of the last four amendments represents any vital surrender to the federal government of powers previously reserved to the people.

Conscription for foreign war, and restriction of freedom of speech by the terms of the Espionage Act of 1917 and 1918, are further proof to Professor Burgess' mind that our accepted constitutional theories of two decades ago are in great danger of being swept away. War is certainly far-reaching in its evil effects. It not only cuts down the flower of a generation, and bankrupts governments, but it fosters autocratic rule, for autocratic rule is most efficient for military purposes; and it stirs up such intolerance of all but the most orthodox views as inevitably leads to suppression and persecution.

Self-preservation is the ultimate instinct of states as well as of individuals; and constitutional immunities are not absolute but are interpreted in the light of the circumstances to which, in each instance, they apply. Therefore, in time of war certain restrictions of liberty may constitute due process, which would not be held to satisfy the constitutional requirement in time of peace. A war for self-protection may be fought on foreign as well as domestic soil, and it seems both necessary and reasonable to interpret the duty of the citizen as including the duty to give his services in support of the state whenever it is engaged in the final arbitrament of arms. Conscription was practiced on both sides in the Civil War. There would seem to be no new infringement of liberty in compelling military service abroad in a war constitutionally entered into; the loss of liberty which comes with conscription is but one of the unfortunate consequences of war.

In attacking that part of the Espionage Act, passed during the World War, which made it an offence to say anything "disloyal, profane, scurrilous or abusive" about the government or Constitution of the United States, or anything which would tend to bring the government or Constitution of the United States "into contempt, scorn, contumely or disrespect," Professor Burgess adds his voice to the condemnations visited by many thoughtful persons upon one of the most unfortunate attempts at the infringement of freedom of speech in our history. The provisions added to the Espionage Act in 1918 are similar to those contained in the unpopular Sedition Law of 1798, which aroused widespread opposition and is supposed to have been one of the effective causes of Jefferson's victory over the Federalists at the next presidential election. Both the act of 1798

and that of 1918 were, it is believed, in conflict with the guaranty of freedom of speech contained in the First Amendment of the Constitution of the United States,' insofar as they made punishable mere criticisms of the government or of provisions contained in the Constitution. But while this conflict becomes apparent to the dispassionate mind in time of peace, there is always danger that it will be ignored under the pressure of mob sentiment in time of war. Charles K. Burdick. Handbook of the Law of Evidence. By John Jay McKelvey. Third Edition. Hornbook Series: West Publishing Co., St. Paul, Minn. 1924. pp. xix, 588. Illustrative Cases on Evidence. By Archibald H. Throckmorton. Second Edition, revised by John Jay McKelvey. Hornbook Case Series. West Publishing Co., St. Paul, Minn. 558.

1924. pp. xiii,

At a time when the need of rational court procedure is so strongly felt, it is perhaps too easy to be over-critical of any text which treats of the rules under which evidence is admitted in our courts. Much has been said about our many antiquated rules. Absurdities which exist in our present law have been dwelt upon at great length, and the need of adjustment is generally admitted. Rationalization can come only through a study of the underlying philosophy of the rules of evidence; it can never come from a mere statement, however excellent, of the rules as they now exist. Past, present, and future must all be considered. Any discussion which omits any one of these must prove proportionately unsatisfactory.

The third edition of McKelvey is open to the charge that too much emphasis is laid upon the law as at present announced, and that too little attention is given to pointing the way to reform of many admittedly bad rules; for example, see the discussion of dying declarations (sec. 201, p. 386). Here the case of Thurston v. Fritz, 91 Kan. 468 (1914), is given a place only in the footnote, and is smothered amid references to "res gestae." No mention whatever is made of the more recent case of Vassar v. Swift & Co., 106 Kan. 836 (1920), and no reference to either case seems to have been made in the accompanying casebook. Similarly, there seems to be no satisfactory discussion of the definition of "interest," in the rule regarding "declarations against interest," in which this term is confined to pecuniary or proprietary interests, or of the refusal to extend it to matters which would entail criminal penalties. No aid is lent to a very satisfactory tendency to break down this rule, such as is shown by the recent Virginia case of Hines v. Commonwealth, 117 S. E. (Va.) 843 (1923). The discussion of book entries and of the elusive field covered by the term res gestae could be improved, and it would be much more satisfying if section 127 (p. 245) had contained a more forcible condemnation of our foolish rule, which limits proof of character to testimony about reputation, and excludes testimony based upon actual acquaintance. On page 274, Mr. McKelvey 1. See Burdick, The Law of the American Constitution, Chap. xiii.

differentiates "expert testimony as to facts" from "expert opinion. This discussion would, it seems, have been more profitable if the distinction between the two had been less sharp, and if more attention had been devoted to the question of why and when we will permit the witness to offer his conclusions to the jury, thus "invading its province." It is hard for even a teacher to be so pedantic as to be fully in accord with the statement at the top of page 275, which may be read to mean that true education is found only in the cloister and not at all in the school of actual experience. Obviously the intention is to suggest that under certain circumstances the witness may be permitted to summarize his observation into a conclusion which is to be given to the jury, and that in other cases his testimony may be "the substance of things hoped for, the evidence of things unseen." It is, however, unprofitable to cover the book in detail. One should not ask the impossible. Complete treatment is not to be hoped for in a compendious work. Certain penalties must be paid for brevity. This edition is a distinct improvement upon its predecessors. The Hornbook style will still find favor and it is reasonbly to be expected that the book will continue to be sought by students who have come to appreciate the convenience of the black-face headings. From a mechanical standpoint, the volume sustains the reputation of good printing which the publishers have thoroughly earned. The greatest single defect is the omission of a table of cases. It is as though the architect forgot to put a rear door in the residence; a convenient means of access is denied. The book is much less valuable as a result of this omission.

A feature, which detracts somewhat from the general value of the book, is likely to commend it to purchasers in the state of New York. The notes seem rather heavily loaded with New York citations. This has, in previous editions, proved to be a great convenience to lawyers and judges in this state.

There is nothing necessarily fatal in the foregoing suggestions. That this book has in the past apparently enjoyed a wide sale is very definite evidence that it was performing a desired service, to the satisfaction of a large number of persons. The third edition should enjoy no less popularity and certainly should be of equal practical value.

Any criticism of Throckmorton's Cases (second edition) should, in fairness, be made only in the light of the announced purpose which appears in the prefatory statements. "The object of these Casebooks is to illustrate the principles of law as set forth and discussed in the volumes of the Hornbook Series. The text-book sets forth in a clear and concise manner the principles of the subject; the Casebook shows how these principles have been adapted by the courts, and embodied in the case law. * * * Unlike case books prepared for the 'Case Method' of instruction, no attempt has been made to supply a comprehensive knowledge of the subject from the cases alone. It should be remembered that the basis of the instruction is the text-book (italics ours], and that the purpose of these casebooks is to illustrate the practical application of the principles of the law."

This statement explains why one looks in vain for many of the cases which have properly been considered the landmarks of the law of evidence. It can hardly explain the failure to give something of the background of the science and some of the antecedents of the rules, which these cases illustrate. The writer fails to see how it is possible to make a truly "practical application" of the rules of evidence without knowing something more than the present state of the law. This, it may be said, should be sought in the text which these cases accompany. As suggested above, that text is not entirely satisfactory in this regard.

Referring to the cases which have been selected, the editor says: "He has seen fit, in his selection of cases, to break away from the ancient and strive for the modern, preferring the life and interest attached to the cases of the times to the quaintness of practice and pronouncement contained in the early reports, where principles now full fledged had their beginnings." It should be sufficient, though somewhat trite, to say that neither age nor newness is a guaranty of quality. The reviser has lived up to his purpose. Out of approximately one hundred and sixty cases, less than twenty-five antedate the year 1885. The cases are recent but this result is attained only through the loss of a certain perspective quite necessary to an understanding of this body of law, which all thoughtful students hope is soon to be made more rational and less mechanical. The range of selection of cases leaves much to be desired. Aside from the omission of many familiar cases, there is a tendency to favor certain jurisdictions and to ignore others. A hasty check shows that about twenty-five cases have been drawn from the United States courts. Thirty-five have been taken from New York, fifteen from Massachusetts, and less than five from the British courts. This is obviously a rather heavy loading in favor of New York. In the allotted space many topics had to be ignored, and many others could only be suggested.

The mechanical composition of both books is characteristically careful and leaves little to be desired.

L. P. W.

The Art of Cross-Examination. By Francis L. Wellman. Third Edition. The Macmillan Co., New York City. 1923. pp. xvi, 371.

When the first edition of The Art of Cross-Examination appeared twenty years ago, it did not purport to do more than afford a bit of instruction to the younger members of the profession and entertainment to the public. It never pretended to be an exhaustive and uninteresting text book, and the third edition does not differ from the first in the policy of combining entertainment with instruction. The present edition is divided into two parts. The first contains the author's advice about cross-examination, the results of his long trial experience, illustrated by incidents from cases. Many new illustrations, especially from recent cases, have been added. Conse