it has jursidiction of cases arising out of injuries to the property of one state by the action of another, has been somewhat in doubt.29 The tendency, however, seems to be in favor of taking jurisdiction.30 It is believed that one should distinguish more carefully than has sometimes been done between questions involving the exercise of political power and "political questions," as we have defined the term. When a constitutional question is raised, the court will not refuse to take jurisdiction simply on the ground that there is involved the exercise of a political power. It is taking such jurisdiction every time it passes upon the constitutionality of legislation or of administrative acts. On the other hand, it will not take jurisdiction of a "political question" even though it is asserted and proof is offered that the acts in controversy are unconstitutional. The refusal of the Supreme Court to take jurisdiction of "political questions," as the term is explained above, constitutes an entirely self-imposed limitation. There is no provision of the Constitution which requires it. It seems to be merely a politic practice. Its wisdom is reasonably apparent when the question involved has to do with external relations. And it is probably wise, too, that the determination of the political branches of the federal government as to whether a state has a republican form of government and as to which of two governments in a state is to be recognized, should be held conclusive. But whether the Supreme Court, having consistently asserted its power to pass upon the constitutionality of federal legislation and administrative action, should refuse to exercise that power when a state asserts that the national government is infringing its sovereignty, is much more debatable. The states have given up the means of settling such disputes which belong to independent governments. Being refused a hearing by the federal judiciary, they are, as states, without protection against national usurpation. It should be noted, however, that the Supreme Court has intimated 33 Virginia, 206 U. S. 290 (1907). The latter case has been extremely troublesome for the court and may not yet be finally settled. For several years West Virginia refused to pay the judgment. It is understood that a few years ago, the legislature passed an act levying a tax for the gradual extinction of the debt. Smith, The American Supreme Court as an International Tribunal, pp. 99–104. 29The court by a divided vote held it had no jurisdiction to inquire into an alleged divergence of commerce by an embargo by one state against another, put on ostensibly as a public health measure, in Louisiana v. Texas, 176 U. S. 1 (1900). The decision seems to rest on a technicality and seems to be repudiated by the later cases. 30 Missouri v. Illinois, 180 U. S. 208 (1901); Kansas v. Colorado, 185 U. S. 125 (1902). 31The distinction is apparently ignored in Parker v. Powell, 133 Ind. 178, 184 (1892); McConaughy v. Secretary of State, 106 Minn. 392, 415 (1909); Bouvier Law Dictionary, p. 2626. The definition in 22 Har. L. Rev. 132 is typical: "[Political questions] are questions expressly reserved by the Constitution to either the executive or the legislature, and questions which are by the necessary implication of the Constitution so reserved." 32The various aspects of judicial review of administrative acts are clearly and comprehensively treated in an address delivered before the St. Louis Bar Association, by Judge Pound of the New York Court of Appeals, reprinted in 9 Am. Bar Assn. J. 409 (July, 1923). 33 Supra, n. 23. that it would take jurisdiction of questions under the same legislation if personal or property rights were substantially involved." A. E. Gold. Contracts: Gratuitous undertakings: Liability of promisor for nonfeasance. In a gratuitous undertaking, if the promisor has failed to do anything in respect to his promise, and damage results to the promisee, can the latter recover for the nonfeasance? This question is presented in an unusual combination in Siegel v. Spear & Co., 234 N. Y. 479 (1923). The plaintiff had purchased furniture of the defendant company, and given chattel mortgages thereon. He later desired to move from the city, and arranged with the defendant's creditman to store the furniture, free of charge. The creditman also promised, after the arrangement to store had been completed, to have the furniture insured, an act which the plaintiff himself had failed to do. The furniture was sent to the storehouse, and later was destroyed by fire, without any insurance having been placed upon it. The Court of Appeals affirmed a judgment for the plaintiff, holding the defendant liable for his omission to perform his promise. Was this injury caused by a misfeasance on the part of the defendant, or by a nonfeasance? If the former, then the action would well lie in tort; if the latter, it would have to be based on contract. To obtain the full significance of this, one must refer to the history of the action of assumpsit, as it touches gratuitous undertakings. After the passage of the Statute of Westminster the Second, which gave the clerks the power to issue new writs, a new action was allowed to give the plaintiff a remedy, in case he was injured by some act of the defendant, not amounting to a trespass. This was the action on the case, which, by the latter part of the fourteenth century, was granted as a remedy to the plaintiff, where the defendant had undertaken to do something, for the plaintiff, and caused damage by the manner in which he did it. The courts would allow a tort action for a malfeasance, or a misfeasance. This remedy was known as the action of case on assumpsit. The gist of this action was not the promise to do the act, but the fact that the defendant undertook to do something, and caused the plaintiff damage by the way in which he did it.3 But the courts at this period refused to extend the action to cases of mere omission to perform a promise. There were two cases at this time in which recovery on nonfeasances seems to have been allowed, but Professor Ames considers them ineffectual in changing the law. 4Georgia v. Stanton, supra, n. 6, at p. 77. Georgia did allege property rights as a basis for jurisdiction, but the court held that they were not substantial. 1Y. B. 22 Ass. 94, pl. 41 (1348); Y. B. 43 Edw. III. fo. 33, pl. 38 (1369); Y.B.46 Edw. III fo. 19, pl. 19 (1372); Y. B. 48 Edw. III fo. 6, pl. 11 (1374); III Select Essays in Anglo-American Legal History, 260. 2See III Holdsworth's History of English Law, 429. "Y. B. 43 Edw. III fo. 33, pl. 38 (1369). 4Y. B. 2 Hy. IV Mich. pl. 9 (1400); Y. B. 11 Hy. IV Mich. pl. 60; III Select Essays in Anglo-American Legal History, 271. Y. B. 3 Hy. VI Hil. fo. 18, pl. 33 (1424); Y. B. 14 Hy. VI fo. 18, pl. 58 (1435). III Select Essays in Anglo-American Legal History, 270, giving collection of authorities. In 1442, the growth of the law of contract became more defined. A case in that year," and other cases following, held, in general, that if money was paid, an action lay against the other party for his failure to perform. It is here noticeable that, when the action of assumpsit was extended to cover these nonfeasances, the payment of the money was one of the requirements to the action. As the theory of contracts grew during the following century, this idea of the payment of money was tempered, until at the end of the sixteenth century, it became recognized that those promises were actionable which had been given in return for some recompense received by the promisor, or some detriment suffered by the promisee. In other words, the doctrine of consideration was by this time clearly established. The conclusion of all this is that, in cases of gratuitous undertakings, where the act is begun and damage results, the plaintiff has an action, resting not in contract, but in tort. But if the damage results from a mere failure to observe a gratuitous promise, no action will lie, as consideration is necessary, in that case. In the principal case, the defendant promised to do two things: he promised to be a gratuitous bailee, and also to furnish gratuitous services. In case the defendant had merely promised to take charge of the goods, no action would lie, as no negligence could be shown. If he had merely promised to secure insurance for the plaintiff on the furniture, and failed to do so, causing loss when fire occurred, the injured party would have no remedy, according to the law laid down in Thorne v. Deas.10 In the Thorne11 case, the plaintiffs and the defendant were joint owners of a vessel. The defendant promised to get the vessel insured, but neglected to do so. It was lost at sea, and in the subsequent action, Chancellor Kent held that no recovery could be had on the nonfeasance. He traced the history of the distinction, and said, as the Court of Appeals in the principal case states, that it would be different in the case of a misfeasance. The Court in the instant case held that the promise to insure was a part of the whole transaction, that there was consideration in the plaintiff's giving up the furniture, and that therefore the defendant was bound. But the defendant did not make the promise with the view of inducing the plaintiff to send his furniture to the storehouse; that matter had already been arranged. It was subsequent to this that the defendant himself mentioned the matter of insurance, and upon learning that the plaintiff had none, agreed to procure it. It is true, as the Court says, that "when McGrath [the creditman] stated that he would insure the furniture it was still in the plaintiff's possession. It was after his statements and promises that the plaintiff sent the furniture to the storehouse." But the plaintiff had already determined to send the furniture there, before McGrath 'Y. B. 20 Hy. VI Trin. pl. 4 (1442). Y. B. 2 Hy. VII Hil. pl. 15; Y. B. 3 Hy. VII Mich. pl. 20; Keilw. 77, pl. 25. 'Jenks, Short History of English Law, 138; Ames, Lectures on Legal History, 142. made any statement as to insurance. The latter did not say: "You send the furniture, and I promise to insure it." The gist of his promise would seem to be: "As long as you are going to store your furniture in our storehouse, I will see that it is insured." So it appears that any attempt to find a consideration for this promise to insure fails. The bailment was complete in itself; the delivery of custody had nothing to do with the promise to insure. 13 In Hammond v. Hussey, cited by the court in this case, the statement is made, in quoting from Smith's Leading Cases: "The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it." Professor Williston states that this cannot be accepted as a true principle; he cites Wilkinson v. Coverdale's as going to the farthest extreme, and in that case, the defendant had undertaken gratuitously to get a renewal of a policy of insurance, and did so faultily; hence, this was a case of misfeasance. The cases cited by the court seem to be cases of misfeasance only. In Isham v. Post," the plaintiff had given the defendant money to loan for him gratuitously; the latter did so in a negligent manner, and injury resulted for the plaintiff. Recovery was allowed. But there, the transaction was clearly a trust undertaken, and done in a faulty manner. Glanzer v. Shepard, 18 also cited by the court, says: "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all," and cites Thorne v. Deas.20 It is interesting to note that the court questions the authority of the Thorne case to-day, a case which seems, to the writer, to be thoroughly upheld, by the cases on this question, both past and present.23 Although a fair result seems to have been reached by this decision, it does not appear to be in accord with common law precedent. The case illustrates the defect of remedy, caused by our common law theory of consideration, and might be a proper basis for an argument that the civil law rule should be adopted; namely, "It is open to every one to decline a commission of agency, but acceptance must be followed by execution, or by a prompt resignation, in order to enable the principal to carry out his purpose either personally or by the appointment of another agent." This Civil Law rule is followed in the majority of the modern Continental25 and South American26 Codes; the Roman mandatum (agency without remuneration) sur 1351 N. H. 40, 50 (1871). 15I Williston, Contracts, sec. 138. 21 Supra, n. 10. 23 Melbourne & Troy v. L. & N. R. v. Bast,29 Ky. 453 (1831); Rutgers v. 24Inst., Lib. III, 26; 11. 14 Vol. I, 218. 161 Esp. (Eng.) 75 (1793). 22 Supra, n. 4. R. Co., 88 Ala. 443, 449 (1889); McGee 25 French Civil Code, sec. 1986, 1991; German Civil Code, sec. 662-676; Italian Civil Code, sec. 1739; Spanish Civil Code, sec. 1711. 26 Argentinian Civil Code, Sec. 1905, 1938; Brazilian Civil Code, Art. 1290, 1300; Civil Code of Chili, sec. 2117; Porto Rican Civil Code, Sec. 1613, 1620. vives in practically all of these jurisdictions.27 Japan has adopted it also.28 The extensive adoption of this rule shows that there is wisdom in it; and the facts of the instant case point out the injustice that will result frequently, if the common law rule is adhered to. The court, in the principal case, has evaded its operation, but perhaps it would be wiser to abolish it entirely, by legislation. A. J. Monahan. Criminal Law: Evidence: Confessions: Declarations against interest: In the case of Hines v. Commonwealth, 117 S. E. (Va.) 843 (1923), the defendant, Walter R. Hines, was convicted below of the murder, in the second degree, of W. I. Curtis, a police officer in the city of Richmond. The conviction rested entirely on circumstantial evidence, which, however, seemed to point clearly to the defendant's guilt he was in hiding at the time of the murder, because (as he claimed) of a second offense against the prohibition laws; he had made threats against this particular officer; he owned a 38 caliber revolver, the size used in the killing; and a cap that was said to be the defendant's was found near-by. After the verdict it was found that one Curtis Jenkins, since deceased, had confessed to several that he shot Curtis. On the basis of this after-discovered evidence, the confession and other corroborating evidence closely connecting Jenkins with the crime, the defendant requested that the court set aside the verdict and award a new trial. This the court refused to do, and the case came to the Supreme Court of Appeals of Virginia on appeal from the lower court's ruling. The appeal was sustained, and the case sent back for a new trial. It would seem that there could be little question of the correctness of the Supreme Court's decision. Yet as far as weight of authority is concerned, the lower court was undoubtedly sustained in its refusal to award a new trial, because of the inadmissibility under the hearsay rule of the evidence offered.1 It had a very strong precedent in the case of Donnelly v. U. S.,2 in which the Supreme Court upheld the ruling that Donnelly could not introduce evidence of a confession by one Joe Dick, then deceased, that he killed the Indian Donnelly had been convicted of killing. In both of these cases, i. e., in the Donnelly case and in the lower court's ruling in the main case, the three reasons generally given as underlying the whole hearsay rule were given as the basis of the refusal (1) because it lacks the sanction of an oath; (2) because it can not be tested by cross-examination; and, (3) because it would facilitate the use of perjured testimony. "These are sound reasons, and the rule is one of great importance;" said the superior court in the principal case, "but one of the exceptions to this rule, universally recognized, is that relevant declarations against interest, where the declarant has since died or otherwise become unavailable as a witness, are receivable in evidence. The basis of this exception to the rule is 27II Sherman, Roman Law in the Modern World, 356, 357. 28 Japanese Civil Code, Art. 648. 13 Wig. Ev. (2d ed.), sec. 1476; 22 C. J. 235. 2228 U. S. 243 (1913). |