In Cohn v. Goodday the defendants' testator and his grantor were, on principle, express oral trustees, and the former not having repudiated before his death the trust was enforceable against his estate. This is undoubtedly the most reasonable view. But whether this view or the view of the court that the defendants' testator and his grantor were "voluntary constructive trustees" is adopted, the actual decision is sound. W. F. H. [Would it not be possible in a situation of this sort to reach the same conclusion by applying the equitable doctrine, found in cases for specific performance, that part performance by the trustee would be sufficient to take the case out of the Statute of Frauds? The main purpose of the Statute of Frauds being the prevention of frauds and perjuries, the unequivocal parol evidence would be as reliable to establish an express trust as to establish a constructive trust. Perhaps the trustee could be charged with neglect in not reducing the trust to writing. In discussing the doctrine of part performance Pomeroy makes the following statement: "In this instance, also, the primary rights and duties created by equity are not only additional to, but in direct conflict with, those created by the law between the same parties under the same circumstances." M. C. L.] 1 Sanguinetti v. Rosson (1906) 12 Cal. App. 623, 629, 107 Pac. 560. Book Reviews EVIDENCE. By John Henry Wigmore. Little, Brown & Company, Boston, 1923. In five volumes. pp. lxxxvi, 1140; xxxvi, 1069; xxxiv, 1002; xxxd, 972; xxx, 1141. The first edition is so well known to the profession that a review of the second seems superfluous. In the combination of historical sources, philosophic analysis, and constructive "legal engineering,” to use Dean Pound's phrase, together with a mastery of the bewildering case law of each jurisdiction, it is the great Anglo-American legal treatise. A brief review of such a work is necessarily unsatisfactory. It is but the turning of a feeble flashlight on the surface, and reveals nothing of the structure as a whole or its contents. The unfamiliar arrangement and terminology of the author has not become popular and perhaps never will. To a certain extent that prevents a wider use of the book, but to anyone acquainted with the plan there is no text that gives a clear cut answer to so many specific questions. The chief objection to the book for practical work is that it is so well written and there is such a wealth of literary allusion and quotation that one keeps reading beyond the immediate purpose. In this second edition a partial list of the added material covers nearly fifty topics, including the rules of evidence in proceedings before the new administrative commissions. The book has never pretended to be exhaustive in its citation of precedents. Only an encyclopedia can be that, but an encyclopedia is usually the work of many hands and cases are either miscited or cited without analysis or discrimination. There might be a text-book for each jurisdiction, but it would not have a Wigmore for its author. The reviewer selected twenty-four leading or interesting California cases in the law of evidence since the publication of Dean Wigmore's last supplement. Twenty of these cases are cited in the second edition, many of them with critical comment. It is not probable that so many California cases can be found cited to the correct point in any other general text-book. In some fields Professor Wigmore has made the law of California. Estate of Hartman (1910) 157 Cal. 206, 107 Pac. 105, 36 L. R. A. (N. S.) 530, 21 Ann. Cas. 1302; People v. Mayen (1922) 188 Cal. 237, 205 Pac. 435. In many other branches his influence has been predominant, even when his text has not been cited. Estate of Friedman (1918) 178 Cal. 27, 172 Pac. 140; Estate of Paulsen (1918) 179 Cal. 528, 178 Pac. 143, Wallis v. Southern Pacific Co. (1921) 184 Cal. 662, 195 Pac. 408, 15 A. L. R. 117; Simons v. Inyo Cerro Gordo Mining & Power Co. (1920) 48 Cal. App. 524, 192 Pac. 144; Adkins v. Brett (1920) 184 Cal. 252, 193 Pac. 251; Patrick v. Tetzlaff (1920) 46 Cal. App. 243, 189 Pac. 115; People v. Gonzales (1922) 56 Cal. App. 330, 204 Pac. 1088; and the series of cases putting the opinion rule on a sound basis of which Northern California Power Co. v. Waller (1917) 174 Cal. 377, 163 Pac. 214, is the leading example. Much of the periodical literature of the last twenty years is included, although one notes the omission of any discussion of Professor Bohlen's article (68 University of Pennsylvania Law Review, 307) on the effect of presumptions in shifting the ultimate duty of establishing the case; also the ambiguities in declarations of intention pointed out by Seligman, have not been cleared up (26 Harvard Law Review, 146). Professor Morgan's article on "Admissions," 30 Yale Law Journal, 355, is made the basis of a revision of the author's theory, but the explanation given seems hardly adequate. Professor Morgan pointed out that admissions often constitute affirmative evidence that will sustain a verdict and therefore do not come in by way of impeachment. Admissions constitute, therefore, an exception to the hearsay rule. Professor Wigmore adopts this theory, reinforcing it by the argument that, as the chief purpose of the hearsay rule. is to preserve cross-examination, in the case of admissions by the party, there is no need of cross-examination, for the party is in court himself and can explain his admission. This analysis would seem, however, inadequate because the opportunity to cross examine the declarant has never been considered a sufficient ground for admitting a declaration made out of court. Furthermore, many admissions are not the admissions of the party himself, but are used against him by virtue of some relationship with a third party. The added chapters and the new cases show that a tremendous change has come over the law of evidence in the last twenty years, almost a revolution, for which the author is principally responsible. Points upon which one could secure a reversal in former years are not worth making in the trial courts today. It has been said that the Anglo-American system of evidence is the product of the jury system. That system is decaying. It was largely abolished in England during the War and has not yet been fully reinstated. In both England and America juries are called less and less in civil litigation, and even in criminal cases equity has encroached on the jury. Administrative tribunals take away whole subjects of litigation. The attempt to apply the rules as to the admission of other offenses in criminal cases is so difficult as to make one seriously question the utility of the rule. The hearsay rule is honeycombed with exceptions and both the rule and the exceptions are applied irrationally on account of the unsystematic historical development of the subject. It is little wonder that the rule has aroused the derision of impartial observers and that to the criticism cited by Professor Wigmore might well be added in another edition a quotation from that most exquisite satire on the English law W. S. Gilbert's "Iolanthe." Strephon :-"My Lord, I know no Court of Chancery. I go by Nature's Acts of Parliament. The trees, the breeze, the seas, the rocks, the brooks, the gales, the vales, the fountains, and the mountains cry, 'You love this maiden; take her, we command you!' 'Tis writ in heaven by the bright barbed dart that leaps forth into lurid light from each grim thunder cloud. The very rain pours forth her sad and sodden sympathy. When choroused nature bid me take my love, shall I reply, 'Nay, for a certain Chancellor forbids it?' Sir, you are England's Lord High Chancellor, but are you Chancellor of birds and trees, king of the winds and prince of thunder clouds?" Lord Chancellor:-"No. It's a nice point. I don't know that I ever met it before. But my difficulty is, that at present there's no evidence before the Court that choroused Nature has interested herself in the matter." Strephon:-"No evidence? You have my word for it. I tell you that she bade me take my love." Lord Chancellor:-"Ah; but my good sir, you mustn't tell us what she told you; it's not evidence. Now an affidavit from a thunderstorm, or a few words on oath from a heavy shower, would meet with all the attention they deserve." The appreciation of this work must be tinged with some regret that the genius of the author has been expended on one of the more ephemeral branches of the law. The writer of the treatise on evidence has done more than anyone else to undermine the system of which he writes. A word of gratitude should be expressed for the many devices employed to make the work easy of reference. There is a table of contents, a table of cases, and an index. In addition, each volume contains tables showing the latest sources examined for each state, section numbers changed in the second edition, cross references to the pocket code, and tabular analyses of topics. A. M. Kidd. THE AMERICAN CONSTITUTION AS IT PROTECTS PRIVATE RIGHTS. By Frederick Jesup Stimson. Charles Scribner's Sons, New York, 1923. pp. xiv, 239. This is an effort to write a book for the ordinary citizen on what the author calls the human side of the Constitution. It traces the pedigree of our bills of rights and gives us the major interpretations which the Supreme Court has put upon them. In so far as it confines itself to recital, it is fairly accurate and useful. Many of its more general observations, however, are confusing or misleading. In a sense it is true that "the Constitution is the permanent will of the people," but it is not true that the judicial declaration that a law is unconstitutional is merely the discovery that it trangresses the "permanent written orders" of a higher law. Those orders are for the most part meaningless until they are given a meaning by the Supreme Court. Whether they are violated or not depends upon a judgment which seldom finds guidance in the Constitution itself. It is surprising to learn that "no one can take the ordinary oath of office who is either a socialist or a communist" and perplexing to know why, if this is so, "yet the matter, as to citizens, is never pressed." It seems a broad generalization to say that "women are believers in direct action," and it will be distressing to all "he-men" to learn that Theodore Roosevelt's "temperament in this respect" was "singularly feminine." The Thirteenth Amendment seems a sufficient answer to the statement that while the "political side" of the Constitution may be freely amended, "its human side [may] not." History has a fact or two to put against the affirmation that "our ancestors were careful to put nothing that is even debatable within the body of our Constitution." The statement that "with us . . . there is no 'Administrative Law,' no peculiar corpus juris extending to the doings or relations of government and the officials thereof" is hard to reconcile with many decisions, one of which evokes from Mr. Stimson the condemnatory comment that "the 'administrative officer,' therefore, becomes a sort of superman over judges and juries!" Elsewhere it is declared that "it is in the vast recent growth of administrative law that we have most largely departed from the principles of our ancestors." Such interspersions mar a book that otherwise has something to commend it. The classification of the constitutional clauses according to their several functions is helpful, and the accompanying chart is a picturesque aid to the memory. Our Constitution, as Professor Burgess long ago pointed out, is two constitutions: a constitution of government, and a constitution of liberty. In this latter respect it is unique. Mr. Stimson is too guarded when he says that "no other country in the world has fully established this principle." The absence of imitation makes us question his judgment that "this system has been the envy and the marvel of the civilized world." Just at present its operation is rousing strident voices to call in question its beneficence. Movements to curb the Supreme Court find sponsors in the Halls of Congress. Mr. Stimson inveighs against them "as silly in principle and unnecessary." His book is evidently designed to impress the ordinary citizen with the supreme merits of judicial enforcement of constitutional limitations in favor of private rights. It must fail of its purpose because of its surprising lack of any adequate effort to consider concretely the conflict of forces behind competing conceptions of "liberty." Mr. Stimson has his gaze fixed on a conceptual "liberty" and a conceptual "equality" which he too seldom brings down from the clouds. He indulges too much in generalization and abstraction for any great enlightenment of the ordinary citizen for whom he writes. Thomas Reed Powell. CRIME, ABNORMAL MINDS AND THE LAW. By Ernest Bryant Hoag, A.M., M.D., and Edward Huntington Williams, M.D. The Bobbs-Merrill Company, Indianapolis. 1923, pp. xxxvii, 405. The unfortunate contrast existing between our criminal law, procedure, and prison system on the one hand, and present day knowledge of the causes of crime on the other is not generally appreciated. It is a simple fact that much of our criminal law, and much of the machinery provided for its enforcement, is hopelessly out of date. Its development was based on the entirely erroneous belief that most law-breakers are morally responsible for their conduct, and should be punished. As a matter of fact, most of them are victims |